A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC. VOL 10, NO.1, WINTER 1994/95 ~.ISSN 1076-769X

"Corrections-Industrial Complex" Expands in u.s.

ed Goins, a securities analyst at Branch, TCabell & Co. in Richmond, Va. spent a weekend last spring reading through every detail of the federal Crime Bill and watching the debate on C-Span. He then came up with a list of "theme stocks of· the 90s." Goins' highest recommenda­ tion went to the Nashville-based Corrections Corporation of Features: America (CCA)-the nation's • Stab protection - to 81.1 most successful operator of pri­ ~~~~~~~~'t~~e :~~ ~;li. fomia Correctional Standard. vate prisons-whose stock had • Slash protection f.chjeved with space-age titanium. recently hit an all-time high. • Blunttrauma protection­ yOU'll barely feel the blows. CCA's chief financial officer was • Aama protection with fir~~ retardant Nomett' covenng. quoted as saying that the Crime The S.T.A.R. vest gives you a maximum range Bill was "very favorable to us."! of motion for close confrontaUons. I-_~"I Don't Get Stuck With Anything Less. CCA's success is but one example _.-.=0-

1ft",. '85",,00 A.. NY 11101 of the profits to be made by a rapidly grow­ r@J"Int BODYARMORBlank (800)64S4443"lnNY.(516)842.3900Ami""" ing constituency of architects, private prison operators, vendors, labor unions, develop­ ers, financiers, and other entrepreneurs. complex," cautions against the spread of a Most recently, defense contractors, who system of crime control in which ethical ons added at least 105,219 beds, an have been hyrt by cuts in military spending, questions are suppressed and efficient man­ increase of 13% from the 1992-93 totals have been searching for opportunities in the agement supplants justice. 2 of 92,028 beds. corrections industry. Will the economic motives of business Some of the biggest names in finance The combination of these lucrative busi­ conflict with the objectives of providing ness opportunities, political posturing, the decent conditions of confinement? Will war on drugs, and deep social divisions prison businesses maintain high occupancy within the United States have created a rapid rates even in the absence of demonstrated expansion of the "crime control industry." need? And, as Malcolm Feeley asks, to The buyers and sellers of prison goods and what extent does privatization expand and space are lining up to cash in. transform the state's capacity to punish?3 Critics warn, however, that the econOlnic That the United States is moving full steam interests of industry will always be on the ahead to expand this system is unquestion­ side of oversupply of prison space rather able. In 1980 the total state and federal than undersupply, establishing an extraordi­ sentenced inmate population was 329,821. narily strong force for expansion. At midyear 1994 that total had risen to Renowned Norwegian criminologist Nils 1,012,851.4 The 1994 federal Crime Bill Christie, one of the most outspoken critics provides nearly $9 billion for state prison of the emerging "corrections industrial construction. During FY 1993-94 state pris- have become involved: Goldman Sachs & • Santana (plastic toilet compartments): proof, environmentally clean, attractive, Co., Prudential Insurance Co. of America, "Igot 10years, but Santana is in here safe industry.,,6 Smith Barney Shearson Inc. and Merrill for life!" Financially strapped communities are now Lynch & Co. Many of the companies work • AT&T: Strike Three! 3-way call detect begging for prisons to be built in their back to underwrite prison construction with system stops your inmatesfrom getting yards. Town leaders in Coleman, Florida, private, tax-exempt bonds which require out. And it'sproven 93% effective. " the former "Cabbage Capital of the world," no voter approval. • Point Blank Body Armor: "Some population 854, lobbied aggressively for a inmates would love to stab, slash, new Bureau of Prisons site. The new prison A Shoppers' Guide pound, punch and burn you. But they,. is now partially completed. Private companies are now available won't getpastyour S. TA.R. (Special . In Texas, some communities have offered to provide consulting, personnel manage­ TacticalAnti-Riot Vest). free memberships in local country clubs to ment, architecture and building design, The lobbying power of these companies; top officials of any prison that comes to vocational assessment, medical services, especially defense contractors with lobbyists town. Dick Lewis., spokesman for the drug detection, transportation, food service in Washington and long-term relationships state jail divisioQ Of the Department of and management to state prison systems. on Capitol Hill, distorts the dialogue that Corrections, said, "Fifteen years ago, ifyou Other businesses have been formed to sell should be taking place about the effective­ wanted to place a prison in a locale, you specialized products such as body armor, ness of incarceration as a policy and drowns would have major opposition. Now the turn­ closed circuit television systems, mechanical more reasonable voices. around is 180 degrees. They are seeking and electronic locks, perimeter security and "We're not going to be able to lock up these prison units. The local media calls it motion detection systems, tamper-proof everyone," said Bobbie 1. Huskey, president the prison derby."l furniture, fencing, flame-retardant bedding, of the ACA. "The absence of a noticeable Braham, Minnesota is trying to purchase heavy duty furniture, shatter proof plastic reduction in adult crime rates as incar­ about 300 acres to donate the land to the panels, plastic bunks, tamper-proof fast­ ceration rates have climbed raises serious state for an $80 million, 800-bed, close eners, and clog proof waste-disposal sys­ questions about the efficacy of America's custody prison. (The BOP requires that land tems. One company sells high-security fire sentencing policies."5 for a prison be donated by the state.) sprinklers designed so that inmates cannot James Bruton, the state's deputy commis­ hang themselves. Yes, In My Back Yard sioner for institutions, said he could Aquick look through the advertisements For many years prison officials faced the understand why small towns like Braham in any issue of Corrections Today, the ACA's "NIMBY" problem: when communities seek the prison for economic salvation. glossy magazine, reveals a certain talent for heard about plans for a new prison, the But he worries about the long run. "We can- wordplay: outcry was "Not In My Back Yard!" Times • Coastal Correctional Healthcare, Inc.: have changed. Put a Lock on Healthcare Problems. Are "Communities started looking for any correctional healthcareproblems on kind of economic growth," says Bill Patrick the loose in yourfacility? Let us put the of the Federal Bureau of Prisons. "They cuffi on them. " started realizing we were a recession-

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

The National Prison Proiect is a tax-exempt foundation­ funded project of the AClU Foundotion which seeks to strengthen ond protect the rights of odult ond juvenile offenders; to improve overall conditions in correctional facilities by using existing administrative, legislative and judicial channels; and to develop alternatives to incarceration. The reprinting of JOURNAL moteriol is encouroged with the stipulation that the Notional Prison Proiect JOURNAL be credited with the reprint, ond that a copy of the reprint be sent to the editor. The JOURNAL is scheduled for publicotion quorterly by the National Prison Proiect. Materials and suggestions are welcome.

The NPP JOURNAL is available on 16mm microfilm, 35mm microfilm and 105mm microfiche from University Microfilms International, 300 North Zeeb Rd., Ann "Remember, we're notjust making money. We're buildingprisons. " Arbor, MI 48106-1346.

2 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL - not build ourselves out of the crime prob­ Six states have a corrections operating about $20 billion over the next 32 years lem," says Bruton. "Every state that's tried it budget of over one billion dollars. to construct new facilities. has failed miserably. You'll never see a California's tops the list with a budget of reduction in the crime rate by building over $3.6 billion. Here are some examples Connections more prisons. What you're going to find out of what that has meant for Californians: Corrections has traditionally operated is that you can't afford to operate what • In the last ten years the DOC's share of without political advantage, but can now you've built." the State's General Fund rose from 3.9%." benefit from the lobbying skills of many to 8.2% while higher education's share" private providers. Privatization declined from 14.4% to 9.3%. "An urge for expansion is built into Cornell Cox, a private firm in Houston, • The multi-billion dollar prison and so­ industrial thinking," says Dr. Christie. entered the California market by bUying the called crime control expansion wiQ force But the prison industry is one with particu­ state's largest private prison firm, Eclectic cuts in education, job training, youth lar advantage because it provides "weapons Communications, Inc. Cornell Cox is counseling and other social services, the for what is o~n seen as a permanent war backed by Wall Street investment houses very programs that address the root against crime,'The crime control industry Dillon, Reed & Co. and Charterhouse. Since causes of crime; is like rabbits in Australia or wild mink 1988, Eclectic has received contracts worth • The Los Angeles District Attorney's Office in Norway-there are so few natural rI" I! more than $50 million. The former owner, says that three out of four offenders who enemies around." II Arthur McDonald, sold the company for get life sentences under Proposition 184 With the boom have come lobbyists who II more than $10 million, according to the Los ("Three Strikes You're Out") will be have an economic interest in keeping sen­ II Angeles Times. "Crime pays. I hate saying non-violent offenders, at a cost of $48 tences harsh and long, so that prison popu­ i that, but it really does," said McDonald from billion over 20 years for Los Angeles' lations continue to soar.J1 Thus, we see a retirement in South Dakota.8 prisoners alone. system developing where the deprivation of The two largest companies in the field are • Based on information provided by the liberty is powered in large part by the profit Corrections Corporation of America (CCA) DOC, increases in California's prison pop­ motive. Christie warns, "You get private lob­ and Wackenhut Corrections Corporation. ulation will result in additional state oper­ bying for prisons and you get private capital CCA recently entered the inmate transporta­ ating costs of about $200 million in 1995­ interested in building more prisons, in tion business by purchasing TransCor 96, and will grow by several hundred mil­ expanding that system ...The industry has no America. "One of TransCor's biggest expens­ lion each year until the full impact is real­ interest in its own abolition." • es is overnight housing of prisoners on ized in about 32 years. By the year 2003, transcontinental routes," said Doctor the additional costs will reach about $3 Jan Elvin is the editor ofthe NPP Journal. Crants, CCA chairman and chief executive billion, and will grow to about $6 billion officer. "CCA's network of facilities will annually by the year 2026. The DOC pre­ Continued on nextpage give TransCor ready access to quality, dicts that it will incur one-time costs of secure beds, while CCA will gain incremen­ tal occupancy." Tennessee's $60 million contract with CCA is currently under review by the state legislature. CCA has come under fire from govern­ ment audits in Texas of two of their privately run prisons. The 1990 report disclosed that "inexperienced" prison employees had used excessive force on inmates. Additionally, inmates were not getting the services which were requlred under the state contracts and intended to help inmates return to society.9 Another U!]favorable report was issued by the Prison Officers' Association in the United Kingdom in 1987, alleging cruelty to inmates at the CCA facility at Silverdale and abhorrent conditions. 10 As of now, fewer than 2% of the nation's prisoners are incarcerated in private facili­ ties, but the new Republican crime bill present­ ly before Congress will add $10 billion for prison construction, some of which will go to private prisons.

State spending According to a survey of 47 states for Fiscal Year 1994-95, the average DOC budget is around $507 million per system, up from an average of $447 million per system in :IT 93-94.

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1995 3 from page 3

1Paulette Thomas, "Making Crime Pay," The Wall Streetjournal, May 12, 1994, p. AI. "Crime pays. I hate 2 Nils Christie, Crime ControlAs Industry: -Arthur McDonald Towards Gulags, Western Style, London and after selling the c New York: Routledge, 1993. 3 Malcolm M. Feeley, The Privatization of "There's no bigg Prisons in Historical Perspective, Criminal than the correction Justice Research Bulletin. Sam Houston State -State Senator; University 1991, vo1.6 No.2 pp.l-lO. "Prison constructi 4 Bureau ofJustice Statistics, U.S. Department -Jim Hawthorne, ofJustice. "Americans' fear of 5Criminaljustice Newsletter, Vo1.26, No.1, complex, an infrastruc Jan.3, 1995, p.5. state and local dollars." 6Meddis and Sharp, "Prison Business is a -The Wall Street; Blockbuster," USA Today, Dec. 13,1994, p. lOA "The [prison indu 7Edward Walsh, "Strapped Small Towns Try to industrial complex' Lock Up Prisons," The Washington Post, war, there is luc . December 24, 1994, pA3. of Wall Street un 8 Dan Morain, "Privately Operated Prisons a and developers." Potential Growth Industry," LosAngeles Times, -PeterPringle October 19, 1994, p. A15. "I already se 9Mike Ward, "Private prisons faulted on ser­ state like Texas w vices, discipline," TheAustinAmerican­ -RodRyan, rep Statesman, Wednesday, May 16,1990. . "We try to keep 10 "The State and Use of Prisons in England and Wales," Written Evidence to the Inquiry of -Melissa Crane the Home Affairs Select Committee of the House financing team. of Commons, February 1987. "Corrections has 11 "Politicians who support prison construc­ consultants, lobbyi tion receive money from one of the biggest ben­ industry. Like any spe eficiaries-the California Correctional Peace its empire growing." Officers Association," from the Los Angeles -Texas Comptro Times, Oct. 16, 1994. The union gave more prison system as (( than $900,000 to Governor Pete Wilson's 1990 ''What can I say, i run for governor. -Larry Solomo ersfood topriso

(including senior UN officials) are con­ PRJ Members Confer on UN vinced that a new set of rules would get nowhere today. Indeed, UN member states Prison Standards would not agree to new SMRs laying down even the 1955 standards. (As one partici­ pant pointed out, about half the member countries of the UN today use torture.) ,'This is not, in fact, a very popular imprisonment, set against tight budget con­ During three days' hard committee work, theme." With classic Dutch under­ straints. Above all, of the proven ineffective­ three points in particular became clear. statement Winnie Sorgdrager, the ness of treating prisoners badly as a way of First, despite vast differences in wealth and Netherlands Minister ofJustice, introduced reducing crime. "Today's convict is tomor­ culture, basic prison standards should be the major conference on prison standards row's ex-convict," Professor Monika Platek universal. Participants from the developing held in The Hague last November by Penal of Warsaw University summed up. "The bet­ world did not want adjustments down­ Reform International (PR!), and funded by ter we treat prisoners, the safer is society." wards, they wanted firm principles as a her government. Hence the main task of the conference: to lever in the struggle to raise standards. PRl members from five continents prepare a manual that would update the Second, prisons are a reflection of how described a world where standards for pris­ 1955 United Nations Standard Minimum much the world is shrinking. Participants oners, and penal reform in general, are Rules (SMRs) for the Treatment of from western countries stress the growing indeed very low on the public agenda. We Prisoners. The rules are in many respects proportion of their prison population who heard a dispiriting picture of rising crime, badly out of date-drawn up before equal are foreign nationals. Immigration outstripped only by rising fear of crime, of opportunities, or drugs or AIDS. detainees-asylum seekers in particular- public and political pressure towards more Nevertheless, international penal reformers Continued on page 16

4 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL

.... ~~'1iII6£-'lIIlII!r~-lIIIlll'-_.lIlIE' 11 Status Report: State Prisons and Pending Litigation 11 jurisdictions: California, Colorado, The Courts January 1, 1995 Connecticut, Georgia, Montana, Nebraska, New York, North Carolina, Ohio, Utah, Vermont. SUMMARY /-' Entire Prison System Under Court Special Masters/Monitors/Mediators Thirty-nine states plus the District of Order or Consent Decree .\!' Appointed (present and past) Columbia, Puerto Rico, and the Virgin 9 jurisdictions: Alaska, Delaware, 24 jurisdictions: Alabama, Alaska, Islands are under court order or consent Mississippi, New Mexico, Rhode Island, . Arizona, Arkansas, California, Florida, decree to limit population and/or improve South Carolina, Texas, Puerto Rico, V)tgin Georgia, Hawaii, Idaho, Illinois, Kansas, conditions in either the entire state system Islands. Louisiana, Mi~higan, Nevada, New Mexico, or its major facilities. Thirty-three jurisdic­ New York, Ohio, Pennsylvania, Rhode tions are under court order for overcrowd­ Major Institution(s) in the State/ Island, Tennessee, Texas, Washington, I ing or conditions in at least one of their Jurisdiction Currently Under Court District of Columbia, Puerto Rico. , major prison facilities, while nine jurisdic­ Order or Consent Decree tions are under court order covering their 33 jurisdictions: Arizona, California, Prison Systems or Major Facilities entire system. Only three states have never Colorado, Connecticut, Florida, Hawaii, Under Court Order and Cited for been involved in major litigation challenging Idaho, Illinois, Indiana, Iowa, Kansas, Contempt (present and past) overcrowding or conditions in their prisons. Kentucky, Louisiana, Maine, Maryland, 8 jurisdictions: Alabama, Michigan, I The following list gives the current status of Massachusetts, Michigan, Missouri, Nevada, Mississippi, Rhode Island, Texas, Virginia, I each state. New Hampshire, New York, North Carolina, District of Columbia, Puerto Rico. Note: There is some overlap between the Ohio, Oklahoma, Oregon, Pennsylvania, second and fourth categories because, in Not Involved (to date) in Overcrowding South Dakota, Utah, Virginia, Washington, some states, one or more facilities are or Conditions Litigation under court order while other facilities in West Virginia, Wisconsin, District of 3 jurisdictions: Minnesota, New Jersey, that state are presently being challenged Columbia. North Dakota. (e.g., Illinois). Also, Oklahoma is listed in both the second and third categories Formerly Under Court Order or Consent The full Status Report, with details on ' because the McAlester facility is still under Decree or Currently Released from Active the litigation in each state, will be sent the court order entered in Battle v. Supervision ofthe Court to Journal subscribers under separate Anderson but is no longer under active 7jurisdictions: Alabama, Arkansas, Georgia, cover. For non-subscribers thefull Status court supervision. Oklahoma, Oregon, Tennessee, Wyoming. Report is available for $5prepaidfrom the NPp, 1875 ConnecticutAvenue, Suite 410, Washington, DC 20009.

'."-,:< .~: .. ,. ,-.~ ..... '~- ... ---

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1995 5 1

A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC. VOL 10, NO.1, WINTER 1994/95 • ISSN;J076-769X

exhaustion of state remedies. 411 U.S. at 494. The plaintiff sought damages, but not release, based on follOwing year, in Wolffv. McDonnell, 418 U.S. allegations that the defendants (county prosecu­ 539 (1974), a §1983 suit alleging that prison dis­ tors and a state police investigator) had engaged Highlights ofMost ciplinary proceedings denied due process, the in an "unreasonable" and "arbitrary" investiga­ Court held, "Preiser expressly contemplated that tion, destroyed exculpatory evidence, and used an Important Cases claims properly brought under §1983 could go unlawful voice identification procedure at trial. forward while actual restoration of good time The court of appeals had held that the claim was Habeas Corpus/Exhaustion credits is sought in state proceedings," and that barred by Preiser.·It had gone on to hold that the of Remedies the plaintiffs could also obtain a federal court case should be dismissed, rather than stayed, During the 1993-94 term, the Supreme Court declaratory judgment addressing the adequacy of pending the exhaustion of state judicial remedies. finally addressed along-standing ambiguity in the the procedures used and an injunction prospec­ The appeals courts were in conflict on this point, relationship between 42 U.S.C. §1983 and the fed­ tively enjoining invalid regulations. 418 U.S. at which is important because a dismissed claim can eral habeas corpus statutes in cases where prison­ 554-55. The Court added, "One would anticipate become time-barred during the state exhaustion ers seek relief related to the fact or duration of that normal principles of resjudicata would process. See, e.g., Young v. Kenny, 907 F.2d at their imprisonment. In Heck v. Humphrey, 114 apply in such circumstances." Id. at n. 12. 878 (9th Cir. 1990); Prather v. Norman, 901 S.Ct. 2364 (1994), the Court definitively clarified Itis this distinction among remedies that sets F.2d 915,919 (11th Cir. 1990). the matter for prisoners who allege that their up the "Preiser puzzle." IfWolffand Preiser The Court did not directly resolve this proce­ criminal convictions or sentences are defective. mean what they say, then alitigant can get a ruling dural issue. Rather, it held that Mr. Heck had no However, the waters remain murky for prisoners on the merits of an action that affects his or her claim cognizable under §1983. Because §1983 challenging disciplinary, parole, or other adminis­ release date, along with damages, a prospective creates a "species of tort liability," the Court trative decisions affecting the time they must serve. injunction, or a declaratory judgment. The litigant looked to the law of malicious prosecution. The Heck addressed what one commentator has can then go back into state court armed with the Court deemed this the common-law tort most called "the Preiser puzzle." Schwartz, "The federal court judgment and demand the restora­ nearly analogous to the plaintiffs claims because· Preiser Puzzle: Continued Frustrating Conflict tion oflost good time, rescinded parole date, etc., it "permits damages for confinement imposed Between the Civil Rights and Habeas Corpus clainling resjudicata or collateral estoppel or pursuant to legal process." The Court noted that Remedies for State Prisoners," 37 DePaulL.Rev. both. Insofar as Preiser was about federalism, an element of that tort is termination of the prior 85 (1988). In Preiser v. Rodriguez, 411 U.S. 475 this procedure-which would reduce the state criminal proceeding in favor of the accused. 114 (1973), the plaintiffs brought suit under §1983 to courts to a "me too" role-does not seem to S.Ct. at 2371. Adopting this tort rule, it held that get back "good time" (time off for good behavior) serve its concerns. Even if the federal judgment the plaintiff would not have a cognizable claim that had been taken from them in prison discipli­ is not preclusive in state court, the potential unless and until he got his conviction reversed, nary proceedings. The Court ruled that when a result is highly unsatisfactory: contradictory which can only be done through exhaustion of state prisoner challenges "the very fact or duration judgments in different courts concerning the state judicial remedies with subsequent resort to of his physical imp}jsonment, and the relief he same subject matter. federal habeas corpus ifnecessary. seeks is a determination that he is entitled to In cases involving criminal convictions or sen­ This holding does away with the "Preiser puz­ immediate release or a speedier release from that tences, federal courts have consistently refused to zle" for claims involving convictions and sen­ imprisonment, his sole remedy is a writ of habeas hear suru claims, regardless of the relief sought, tences. It also makes the stay versus dismissal corpus." 411 U.S. at 500. The Court reasoned that unless the litigant has previously exhausted state question a non-issue: if the claim does not accrue challenges to custody represent the "core of judicial remedies. See, e.g.,Johnson v. State of until the conviction is reversed, the statute of limi­ habeas corpus," 411 U.S. at 487, and that allow­ Texas, 878 F.2d 904, 906 (5th Cir. 1989) (dam­ tations cannot run during the exhaustion process. ing such challenges under §1983 would let pris­ age claim for speedy trial violation and the use of 114 S.Ct. at 2373-74. Heck also resolved any oners evade the statutory mandate of exhaustion perjured testimony in a criminal proceeding may doubt-not that any existed-about prisoners' of state judicial remedies. See 28 U.S.C. not be pursued without exhaustion of state reme­ inability to get around the exhaustion requirement §2254(b). dies); Hadley v. Werner, 753 F.2d 514,516 (6th by seeking other forms of relief against their crim­ The scope of the Preiser holding has been a Cir. 1985) (a federal court should not make a rul­ inal convictions or sentences. source of persistent controversy. Preiser explicitly ing on a §1983 damage claim which might imply The Preiser rule, however, is not limited to stated that a prisoner seeking damages "is attack­ that a state conviction was illegal). In cases involv­ criminal judgments; it also applies to administra­ ing something other than tlle fact or length of his ing administrative decisions-discipline, parole, tive actions such as prison disciplinary proceed­ confinement, and he is seeking something other release date calculation-there has been a spec­ ings, parole decisions, and the calculation of than immediate or more speedy release;" accord­ trum of approaches, discussed below. release dates. For prison litigators, the important ingly, damage actions do not require prior Heck arose from a criminal conviction. The question is what application the malicious prose-

6 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL .cution analogy may have for such administrative by due process in deciding the case against 114 S.Ct. at 2370. matters-especially disciplinary proceedings. the prisoner. This passage continues to obscure the question The answer should be "none." The tort of mali­ Nothing in Heck is to the contrary. Heck's dis­ whether Preiser's application turns on the remedy cious prosecution was traditionally limited to judi­ cussion of malicious prosecution focuses explicitly sought or the claim presented. The distinction cial proceedings, which prison disciplinary hear­ on criminal convictions and sentences, with no between "damages for the deprivation of civil ings are not. Some states maintain this "courts­ suggestion that it is intended to govern disciplinary rights" and "damages for the deprivation of good­ only" rule. See Greer v. DeRobertis, 568 F.Supp. proceedings or other administrative matters-/;' time credits" is largely specious as a practical mat­ 1370, 1376 (N.D.I1L 1983) (holding that prison which were, after all, not before the Court. . ter, as is the distinction between "a §1983 claim disciplinary proceedings cannot support a mali­ Although Heck makes Preiser and Wolffirr¢le­ for using the wrong procedures" and one "for cious prosecution suit under 1llinois law); vant to cases challenging criminal judgments, the reaching the wrong result (i.e., denying good-time Kerpelman v. Bricker, 329 A.2d 423,427-28 Court did revisit these decisions in passing. credits)." Damages are awarded for the actual (Md.Ct. Special Appeals 1974). Other states per­ Unforttmately, its comments, which are almost loss to the plaintiff, monetary or otherwise, and mit some malicious prosecution claims based on certainly dicta, do little to clarify Preiser's appli­ not for the abstfact value of constitutional rights. administrative proceedings. Even these states have cation to administrative actions. Memphis Community School District v. generally done so in instances, such as profession­ Before Heck, some courts held, or simply Stachura, 477 U.S. 299, 310 (I986).In proce­ allicensing and discipline proceedings, that were assumed, that Wolffpermitted them to grant any dural due process cases, the plaintiffs loss cannot much more like judicial proceedings than is a relief not directly affecting a prisoner's release or be assessed without determining whether the same prison disciplinary hearing. See, e.g., Toft v. parole date. l Others held that no relief could be penalty, or any penalty, would have been assessed Ketchum, 113 A.2d 671,673-74 (N.]. 1955) granted under §1983 ifit would require a ruling after a procedurally correct hearing. See Carey v. (ethics and grievance committee proceeding on whether good time was properly taken, parole Piphus, 435 U.S. 247, 261-67 (I978).1f "reach­ against attorney); Kauffman v. A.H Robins Co., was properly revoked or denied, etc.2 One varia­ ing the wrong result" is excluded from the dam­ 448 S.W.2d 400, 403 (Tenn. 1969) (license revo­ tion of the latter approach permits prisoners to ages calculation, the damage remedy is trivialized; cation proceeding before state board of pharmacy obtain rulings under §1983 requiring officials to ifit is not, it is difficult to know what the above with to subpoena witnesses and administer oaths). follow proper procedures in connection with quoted passage from Heck could mean. Research reveals only one decision addressing future proceedings concerning their good time, Heck's statement that "there is [no] indication directly and in any detail whether a malicious parole, etc., because such rulings do not directly in the [Wo{ff] opinion, or any reason to believe, prosecution claim can arise from a prison disci­ entitle the prisoner to earlier release.3 Amore that using the wrong procedures necessarily vitiat­ plinary hearing. In Treacy v. State, 131 Misc.2d restrictive view of this substance/procedure dis­ ed the denial of good-time credits" simultaneously 849,501 N.Y.S.2d 1005 (N.Y.Ct.C!. 1986), ajj'd tinction holds that no relief can be granted under raises and begs the same question: whether the ­ on othergrounds sub nom. Arteaga v. State, 72 §1983 based on a challenge to an individual pris­ Preiser rule is invoked by the legal claim asserted N.Y.2d 212,532 N.Y.S.2d 57,527 N.E.2d 1194 oner's hearing affecting her release date; only or by the remedy sought. Under Carey and its (N.Y. 1988), the court held that New York's rule "broad-based attacks on general rules and proce­ progeny, the district court is obliged to find as a allowing claims for malicious prosecution in dures" can be heard without exhaustion of state fact whether using the wrong procedures caused administrative proceedings applied only to pro­ remedies, and even a "broad-based attack" may the improper imposition of a penalty. Itis precise­ ceedings "which provide for a 'hearing and trial of be barred ifit would resolve issues that would ly this kind of determination that is barred by the issues on evidence and testimony under oath, automatically entitle the prisoner to release.4 existing case law in some federal circuits. Heck's with the right of cross examination' ...."Aprison Another appeals court similarly held that §1983 subsequent reference to "call[ing] into question disciplinary hearing "is not a full-scale adversarial may not be used to decide an "underlying issue," the lawfulness of the plaintiffs continuing confine­ hearing" because it is governed only by the mini­ even one of a general nature, that would indirectly ment" also clarifies nothing. There are several lev­ mal requirements of Wolffv. McDonnell, without entitle the prisoner to immediate or earlier els of specificity at which the lawfulness of a penal­ a right to confrontation or the assistance of coun­ release.s ty such as good time deprivation can be sel and with only a qualified right to call witnesses. Heck does little to narrow this diversity of views. assessed-a ruling that good time was improperly 501 N.Y.S.2d at 1006. Therefore Treacy held no The Court wrote: taken, that it was taken in a defective proceeding, malicious prosecution claim could lie. ...Petitioner contends that [the plaintiffi or that it was taken in a system that follows defec­ More fundamentally, a malicious prosecution in Wolff were authorized] to recover damages tive rules or procedures. These distinctions corre­ claim is completely different in concept and struc­ measured by the actual loss ofgood time. We spond to the varying interpretations ofPreiser in ture from a dis.ciplinary due process claim. think not. In light ofthe earlier language the lower courts. Malicious prosecution claims are brought against characterizing the claim as one of"damages Not surprisingly, the lower courts have the complainant in the case, not the court or other for the deprivation ofcivil rights, "rather already begun to disagree about Preiser as inter­ tribunal that hears it. They are based on the lack than damagesfor the deprivation ofgood­ preted by Heck, along the same lines as their of probable cause for making the charges, not on time credits, we think that thispassage rec­ pre-Heck conflict. violations of procedural rights. W. Page Keeton et ognized a §1983 claimfor using the wrong In Whitman v. Ventetuolo, 25 F.3d 1037 al., Prosser and Keeton on The Law ofTorts §119 procedures, notfor reaching the wrong result (Table), 1994 WL 246063 (1st Cir.,]une 7, 1994) (5th ed. 1984). By contrast, a claim that the com­ (i.e., denying good-time credits). Nor is there (per curiam), a prisoner alleged that he had been plainant falsely or baselessly filed disciplinary any indication in the opinion, or any reason improperly excluded from a blood donor program charges is exactly what federal courts will not hear to believe, that using the wrongprocedures that would have yielded good time credits. The in connection with prison discipline. See, e.g., necessarily vitiated the denial ofgood-time court held that all his claims for relief, and not just Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir. credits. Thus, the claim at issue in Wolff did those bearing directly on his release date, were 1989); Freeman v. Rideout, 808 F.2d 949,951­ not call into question the lawfulness ofthe barred because adjudicating them "would invari­ 53 (2d Cir. 1986), cert. denied, 485 U.S. 982 plaintiffs continuing confinement... ably require a federal court to address the ques­ (1988). Viable disciplinary due process claims Thus, the question posed by §1983 damage tion of the constitutionality of state procedures uti­ are brought against the disciplinary hearing officer claims that do call into question the lawful­ lized to determine eligibility for the blood donor or committee members, and they allege that these ness ofconviction or confinement remains program." This holding is consistent with the officials failed to follow the procedures required open.... views of Preiser expressed in Serio v. Members of

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1995 7 Louisiana State Board ofPardons and Offett v. Solem, cited in notes 4 and 5. The plaintiffs in Best v. Kelley, _ F.3d_, Dear Prison Project... 1994 WI. 558377 (D.C.Cir., Oct. 14, 1994), chal­ lenged the tennination of a drug treatment pro­ Dear Prison Project: gram through which they had expected to earn I am currently out on parole, and the good time credits. The appeals court upheld the parole boat'd has recently informed me dismissal of their claim for denial of good time, that I have violated the conditions of my but it held that the Preiser/Heck rationale did not parole atld that the board will take support the dismissal of the other claims, such as "appropliate action." Do I have any pro" the claim for deprivation of the drug treatment tection against the board revoking my itself-even though adjudication of these claims parole? would require afederal court to address the con­ Parole Pending stitutionality of the program's tennination, the question which also underlies the good time Dear Parole Pending: claim. This holding is consistent with the view of Revocation of parole requires two hear­ Preiser expressed in Thomas v. George State ings: (1) a preliminary heating to deter­ Board ofPardons andParoles, cited in note 3. mine whether there is probable cause or Thus, the Preiser puzzle has now become the reasonable grounds to believe that the Preiser/Heck puzzle. The most pressing question parolee has violated the terms of parole; for prisoner advocates will be whether disciplinary and (2) a final hearing to decide any con­ proceedings involving loss of good time in addi­ tested facts and to determine whether tion to other sanctions are subject to the Preiser revocation is warranted. Morrissey v. rule. The circuits are presently in disagreement on Bl'ewer, 408 U.S. 471, 480-82, 92 S.Ct. this point, compare Sisk v. CSO Branch, 974 F.2d 2593 (1971) 116, 118 (9th Cir. 1992) and Viens v. Daniels, The preliminary hearing is held before 871 F.2d 1328, 1333-34 (7th Cir. 1989) with a detached and neutral body at or near Bressman v. Farrier, 900 F.2d 1305, 1306-07 the place of the alleged violation. At the (8th Cir. 1990), cert. denied, 111 S.Ct. 1090 preliminary hearing, you are minimally (1991), and Heck does not resolve their conflict. entitled to (1) awritten notice of the alleged violations; (2) disclosure of the Suicide PreventionlDeliberate evidence against you; (3) an opportunity Indifference to be heard by the board in person; and, In Farmer v. Brennan, 114 S.Ct. 1970 (1994), (4) a written decision containing the facts a case about protection from inmate-inmate and reasoning for a finding of probable assault, the Supreme Court significantly clarified cause. You have the right to confront and its prior rulings concerning the Eighth question those who have presented infor­ Amendment deliberate indifference standard. mation against you unless the hearing Randall C. Berg of the FloridaJustice Institute in officer decides that the witness would be Miami has pointed out that Farmer appears to subject to a risk of harm ifhis identity is overrule a major prop of existing law concerning revealed. jail and prison suicides. At the final hearing, you are also guar­ Most federal courts have adopted some version anteed (1) the right to present witnesses of the rule that "a finding of deliberate indiffer­ ence requires that officials have notice of the suici­ dal tendency of the individual whose rights are at The question under the Eighth Amendment 2480-81 (1993), there is no apparent reason why issue in order to be-held liable for the suicide of is whetherprison officials, acting with delib­ suicide lisks should be treated any differently from that individual." Tittle v.jifferson County erate indifference, eJ

8 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL for good time was subject to habeas exhaustion require­ The plaintiff's claim of denial of due process in sequent complaints of pain, difficulty eating, and ment, but damage claim about same disciplinary pro­ disciplinary proceedings should not have been bleeding gums. ceeding could go forward under §1983); Viens v. dismissed. His claim that he was repeatedly sub­ These allegations raised a disputed issue of Daniels, 871 F.2d 1328, 1333-34 (7th Cir. 1989) (if jected to false and unjustified disciplinary charges material fact. The plaintiff conceded that removing "significant sanctions" other than loss of good time are amounts to the claim that they were unsupported the wrong tooth did not violate the Constitution, imposed, the prisoner may resort to §1983 without by "some evidence." . but the allegation that the dentist refused repeated exhaustion). The plaintiff's allegations of false disciplinary"; requests for treatment for two and a half weeks 2 See, e.g., Sheppard v. State o/la. Board a/Parole, charges stated a substantive due process claim. At and then refused to see the plaintiff again after 873 F.2d 761,762 (5th Cir. 1989) (Preiser rule 1402: "Issuing false and unjustified disciplinari" learning he had filed a malpractice action. barred prisoner whose parole was revoked from chal­ charges can amount to a violation of substantive lenging the constitutionality of a parole revocation statute due process ifthe charges were in retaliation for Law Libraries and Law Books even though he sought only damages and a declaratory the exercise of a constitutional right." At 1402 n. Clayton v. Tansy, 26 F.3d 980 (lOth Cir. judgment). 11: The court explicitly rejects the view that such 1993). The plaiiitiff, convicted in Oklahoma and 30ffett v. Solem, 823 F.2d 1256, 1258-60 (8th Cir. allegations do not state a constitutional claim if transferred to Ne\v Mexico pursuant to the 1987) (barring §1983 challenge to good time statute); Wolffis complied with and there is some evi­ Interstate Corrections Compact, sued New Mexico accord, Bressman v. Farrier, 900 F.2d 1305, 1306-07 dence. "The fact that Black alleges retaliation for officials for denying him Oklahoma legal materi­ (8th Cir. 1990) (holding that O.ffett rule bars all federal the exercise of a constitutional right ...is a decisive als. At 982: "In the context of denial of access court challenges to disciplinary proceedings in which distinction" from prior authority. claims, the general rule imposes upon the sending good time was taken, regardless of the relief sought) , state authorities the responsibility for ensuring cert. denied, 111 S. Ct. 1090 (I991). Procedural Due Process-Disciplinary their prisoners incarcerated in sister state facilities 4Serio v. Members a/Louisiana State Board 0/ Proceedings are afforded access to state courts." The court Pardons, 821 F.2d 1112, 1118-19 (5th Cir. 1987). Walker v. Bates, 23 F.3d 652 (2d Cir. 1994). A rejects dicta from another circuit indicating that 50.ffettV. Solem, 823 F.2d 1256, 1258-60 (8th Cir. prisoner whose disciplinary conviction was the receiving jurisdiction shares the responsibility, 1987) (barring §1983 challenge to good time statute); administratively reversed after he had served two since in that case the prisoner was transferred to a accord, Bressman v. Farrier, 900 F.2d 1305, 1306-07 months of punitive segregation was not barred federal prison. The district court properly denied (8th Cir. 1990) (holding that O.ffett rule bars all federal from pursuing a claim for denial of due process. permission to amend, since the only defendant court challenges to disciplinary proceedings in which At 658-59: who could have saved his case is an Oklahoma good time was taken, regardless of the relief sought), The rule is that onceprison officials official not subject to service of process in New cert. denied, 111 S.Ct. 1090 (1991). deprive an inmate ofhis constitutionalpro­ Mexico. The plaintiff must pursue his case against cedural rights at a disciplinary hearing and the proper defendant in the proper venue. theprisoner commences to serve apunitive Other Cases sentence imposedat the conclusion ofthe Pre-Trial Detainees/AIDSlPrivacy hearing, theprison official responsiblefor A.LA. v. West Valley City, 26 F.3d 989 (lOth Worth Noting the due process deprivation must respond in Cir. 1994). The plaintiff was arrested for passing a u.s. COURT OF APPEALS damages, absent the successful interposition bad check; the arresting officer found apiece of ofa qualified immunity defense. paper in his wallet indicating (erroneously) that Suicide Prevention he was mv positive, and told his sister, his house­ Hare v. City ofCorinth, Miss" 22 F.3d 612 (5th Procedural Due Process-Disciplinary mates, and at least one other witness about it. The Cir. 1994). The defendants were not entitled to Proceedings officer had no basis to believe that the plaintiff summary judgment on qualified immunity grounds Mays v. Mahoney, 23 F.3d 660 (2d Cir. 1994). engaged in sexual activity or N drug use with these in a jail suicide case in which the record was The administrative reversal of the plaintiff's disci­ people. He also told the jailer, though there was "replete with evidence that the custodial officers plinary conviction did not cure any due process no basis to believe the plaintiff had done anything knew or should have known of Tina Hare's vulner­ violations at his hearing. to put anyone else at risk. As a result, his friends ability to suicide" (615) yet they placed her in a and family shunned him and refused to visit him; cell in which she could not be seen or reached by Access to Courts he suffered harassment and discriminatory treat­ the trustee or dispatcher on duty and then left her Holloway v. Hornsby, 23 F.3d 944 (5th Cir. ment in jail; he was treated for depression as a hanging for an ipdeterminate time. 1994). At 946: result of these events. It is very important to our treasured sys­ At 990: Classification-RacelProcedurai Due tem ofjustice that our courts be open to any­ There is no dispute that confidential med­ Process-Disciplinary Proceedings one with a case or controversy presenting a ical information is entitled to constitutional B!t«;k v. Lane, 22 F.3d 1395 (7th Cir. 1994). justiciable claim. Ready access to our court privacyprotection.... We believe...that the The plaintiff filed a complaint of racial discrimina­ system, including access by those who are actual validity ofthe HIV test results discov­ tion. He had previously filed an administrative incarcerated, is recognized as a valuable ered in Plaintiffs wallet is entirely irrelevant complaint with the Office of Civil Rights constitutional right, one to be carefully to whether he has a reasonable expectation Compliance of the Department ofJustice, which guarded Complaints about the validity of ofprivacy in the results, or whether he suf sustained his complaint and led to a resolution incarceration or the treatment accorded fered an "injury infact" as a result ofthe agreement concerning job discrimination. After six inmates are entitled to timely and meaning­ unlawful disclosures. [Citations omitted] years of proceedings, including a trip to the ful consideration. appeals court, the defendants defaulted in answer­ Pre-Trial Detainees/Use ofForce ing the amended complaint, and the court denied Dental Care Brothers v. Klevenhagen, 28 F.3d 452 (5th Cir. their motion to vacate the default four months later. Kinney v. Kalfus, 25 F.3d 633 (8th Cir. 1994). 1994). The Due Process Clause, rather than the The magistrate judge held ahearing on damages The plaintiff alleged that he complained of various Fourth Amendment, governs a claim based on a and awarded $50 after dismissing substantial parts dental problems, and the dentist first extracted the police shooting of aperson escaping from custody of the complaint for failing to state a claim. wrong tooth and then refused to deal with his sub- dUring transportation from one holding cell to

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1995 9 another. At 457: "Once an individual has been dum was a convict subject to the Eighth istrative segregation for 117 days after arrested and is placed into police custody, and Amendment and not a pre-trial detainee. the reason for [the] original confinement surely after the arresting officer has transferred the Allegations that the plaintiff was beaten while there expired." (1094) individual to a jail cell, the individual becomes a restrained and then beaten again while in a pretrial detainee, protected against excessive force padded cell raised a triable factual issue despite Appeal by the Due Process Clause." Otherwise escapees the fact that he had been convicted in a jury trial of Oliverv. Commissioner ofMass. Dept. of would receive more protection than detainees who destroying government property based on his Corrections, 30 F.3d 270 (1st Cir. 1994). The peacefully remained in their cells. (The dissent destruction of the inside of the patrol car, and plaintiff's notice of appeal was late. He alleged that argues that this view is inconsistent with the injuries limited to rib contusions. The defendants .. ' he left it in his cell door for prison officials to extended duration of Fourth Amendment protec­ were not entitled to qualified immunity based on, mail, although he was aware that only certified, tions acknowledged in Albright v. Oliver, 114 S.Ct. these allegations. registered, insured, COD or express mail was offi­ 807 (1994).) cially recorded. At 272: "By failing to take advan­ Under the due process standard-which in the Psychotropic tage of the prison mMlog system, Oliver under­ Fifth Circuit is identical to the Eighth Amendment Medications/Administrative Segregation mined the 'bright-lin~ rule' rationale on which the standard-the shooting was not unlawful. Walkerv. Shansky, 28 F.3d 666 (7th Cir. Supreme Court inHouston relied and made it 1994). The defendants were entitled to qualified more difficult for this court to 'avoid uncertainty Non-English LanguageslPublications immunity from the plaintiff's due process claims of and chicanery.' ..." (Citation omitted) The court Kikumura v. Turner, 28 F.3d 592 (7th Cir. involuntary administration of Haldol because these does not hold that the plaintiff is not entitled to the 1994). Federal prison officials denied the plaintiff claims were not suffiCiently well defined before benefit of the Houston rule, but concludes that the incoming books, magazines, newspapers and Washington v. Harper. They were not entitled to district court's finding that he failed to submit a letters on the ground that they "could be detri­ qualified immunity from the Eighth Amendment timely notice of appeal was not clearly erroneous. mental to the security, good order and discipline claim, since the deliberate indifference standard of the institution" because they were "printed applicable to medical care cases was well estab­ Use ofForce in Japanese and, therefore, can not [sic] be lished. However, the use of Haldol did not violate Mclaurin v. Prater, 30 F.3d 982 (8th Cir. monitored or reviewed by institution staff." the Eighth Amendment in light of the plaintiff's vio­ 1994). The plaintiff was hit in the face by an offi­ The relevant regulations mentioned publications lent and uncooperative behavior and the defendant cer who was accusing him of stealing another written in code but not those written in non­ doctor's behavior. Ifhe had presented evidence inmate's cigarettes. The district court correctly English languages. Prison officials made no from a medical profeSSional disputing the diagno­ found an Eighth Amendment violation; no force attempt to try to find a translator or otherwise sis, or ifhe had disputed the facts on which the was needed since the officer was not acting to pro­ screen the material until the plaintiff sued; then defendant doctor based his medical opinion, there tect himself or others or to serve any legitimate they found an employee in another prison who might have been a factual issue sufficient to with­ penological interest, and the officer acted solely was profiCient in Japanese. stand summary judgment. and purposely to harm the plaintiff. The plaintiff The defendants were entitled to qualified immu­ Prolonged administrative segregation may vio­ "suffered pain, which is a sufficient injury to allow nity. There is only one case in point (Ramos v. late the Eighth Amendment. "Whether such con­ for recovery for an Eighth Amendment violation." Lamm) ,it is from another circuit, and the finement does in fact violate the Eighth (984) Supreme Court has relaxed the relevant legal stan­ Amendment depends on the duration and nature Plaintiff's counsel orally moved to include state dard anyway. of the segregation and the existence of feasible law claims of assault, battery and outrage on the In general, voluntary cessation of allegedly alternatives." The plaintiff's claim of ten plus "sev­ day of trial, and the district court declined after the illegal conduct does not moot a case. The burden eral" months, combined with allegations that he trial to entertain them because they were not of proving mootness, which is on the defendant, was denied exercise, that sometimes he had no raised by amended complaint. This reason does is a heavy one. When the defendants are public water for a week, and he was physically abused not fall within the four bases for declining supple­ officials, ''we place greater stock in their acts of raised a triable issue of fact. mental jurisdiction in 28 U.S.C. § 1367, and the self-correction, as long as they appear genuine." court had discretion to permit an amendment to (597, internal quotes and citation omitted). Procedural Due Process­ conform to the evidence; the case is remanded for Here, where the defendants' policies "have appar­ Classification/Administrative a ruling on that request. ently ebbed and flowed throughout the course of Segregation the litigation," the g.overnment failed to meet its Mackey v. Dyke, 29 F.3d 1086 (6th Cir. 1994). Women burden of proof. The plaintiff remained in administrative segrega­ ]eldness v. Pearce, 30 F.3d 1220 (9th Cir. The court frames the question ''whether the tion for 117 days after a recommendation that he 1994). Title IX of the Education Amendments of prison's alleged de facto policy of summarily be released to general population, in part because 1972, which prohibits gender discrimination in rejecting foreign language publications without oflack of bed space. educational programs receiving federal funding, making any effort to translate or screen such Michigan regulations create a liberty interest in applies to prisons. So do the regulations of the material is constitutionally permissible." (597, being released from segregation when the justifi­ Department of Health and Human Services imple­ footnote omitted) The court notes that cation has expired, either because the inmate is menting the statute. Thornburgh v. Abbott emphasized the individual­ "cleared" of the original reason, or because the The language of the statute suggests that the ized nature of the determination in upholding fed­ prisoner's behavior and attitude has changed. standard is one of "equality" and not "parity." eral censorship practices, and there were no par­ Lack of bed space would constitute a defense; if However, it does not require gender-integrated ticularized findings in these cases. there was sufficient bed space, the court must classes in prisons. At 1229: determine whether the failure to release the plain­ Strict one{or-one identity ofclasses may Federal Officials and Prisons/Use tiff was the result of ''willful and wanton behavior." not be required by the regulations. But there ofForce (1092) The defendants are not entitled to quali­ must be reasonable opportunitiesfor similar Munzv. Michael, 28 F.3d 795 (8th Cir. 1994). fied immunity because Hewitt v. Helms and Sixth studies at the women'sprison and women Astate prisoner released to federal marshals pur­ Circuit precedent clearly established the "particu­ must have an equal opportunity to partici­ suant to a writ of habeas corpus ad testifican- larized" right "not to be arbitrarily kept in admin- pate in educationalprograms....

10 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL It may not be necessary to offer as many The plaintiff was charged with possession of an court), and not just law libraries, because they classes in a small women's prison as in the excessive amount of money and canteen items and do not have male inmates' "history of 'self-help' larger men's prisons. But the number of .asked to call witnesses including his cellmate, who in the law." classes offeredshouldat least be proportion­ allegedly would have testified that some of these The court holds the defendants in contempt and ate, notjust to the total number ofinmates, items were his. He said he asked his assigned grants apreliminary injunction requiring the con­ but to the number ofinmates desiring to assistant (an inmate) to procure the witnesses, but tinuation of services consistently with prior orders. take educationalprograms. And the inmates he failed to do so, and when he asked at the hear";­ The court holds that women inmates are consti­ must be made aware ofthe opportunityfor ing, the hearing officer said such requests must be. tutionally entitled to continuation of the relevant participation in variousprograms before in writing-a requirement both he and the assis~ legal services; the Knop decision did not address their interests can be assessed. In order to tant said they had not been informed about. the equal protection violation previously found for give women "equal opportunity, " there may At 458: women inmates. At 596: "Equal protection is not need to be a higher number ofcourses ... [T]his courtfinds that it is clear that the same as identical treatment, for identical treat­ offered so that women have comparable vari­ once aprisoner is placed in administrative ment may indeed'result in very unequal protec­ ety in course selection. segregation, he is then incapable ofinter­ tion." (Citation onlitted) The court then proceeds "Penological necessity" is not a defense to Title viewing or obtaining statementsfrom poten­ to find that BOlfnds requires assistance of attor­ IX; it is "just one concern to be considered in how tial witnesses. Thus, this court concludes that neys for women inmates because of the structure the equality principles of Title IX are to be applied at the time ofplaintiffs hearing there was a of the probate, juvenile and circuit courts and the in prison." (1230) Efficiency and cost effective­ clearly established constitutional right to suf informal procedures required to get a hearing in ness are not valid security concerns; they are cost ficiently competent representation when a them as well as the prisoners' lack of access to the and management concerns. prisoner in administrative segregation isfac­ telephone. The court also concludes under the Paying men but not women for vocational ing a disciplinary hearing. Matthews v. Eldridge test that due process training participation violated Title IX. The requires legal assistance in parental rights matters. absence of a discriminatory motive did not make Use ofForce/Searches-Person­ At 600: "The structure of the various courts as well this a non-discriminatory policy; it amounted to Arrestees/Pre-Trial DetaineeslHygiene as the regulations of the Department constitute a disparate treatment, not a neutral policy with Huffman v. Fiola, 850 F.Supp. 833 (N.D.Cal. barrier to the plaintiff class' exercise of afunda­ disparate impact. 1994). The plaintiff's complaint of sexual assault mental right." in a booking cell in the guise of a search stated a Procedural, Jurisdictional and constitutional claim under the Fourth Amendment. Religion Litigation Questions Jail personnel who watched and refused to stop Rust v. Clarke, 851 F.Supp. 377 (D.Neb. Caldwell v. Amend, 30 F.3d 1199 (9th Cir. the alleged assault could be held liable under the 1994). The plaintiffs are devotees of "Asatru," 1994). The plaintiff's motion for judgment deliberate indifference standard. which they say is an "Icelandic word/term for the notwithstanding the verdict was subject to the At 837: "Under ordinary circumstances denial ancient religion of the Teutonic people of Houston "prison mailbox" rule that it was timely of a shower for three days would not be action­ Northern Europe ...also known as 'Odinism' or filed ifdelivered to prison authorities for mailing able. However, due to the nature of the Plaintiff's 'Troth.'" They claimed unequal treatment with within the relevant time limit. The prisoner's allegations and Defendants alleged knowledge of respect to other religious groups. sworn declaration that he did so, while not neces­ the sexual assault, the denial reaches the level of a The Religious Freedom Restoration Act "was sarily sufficient to prove the date of filing, shifts the cognizable claim in this case." specifically intended to apply to state prisons (and burden to the opposing party to produce evidence Allegations that the plaintiff was hog-tied, her other institutions of state and federal government) to the contrary such as a legal mailbox log or a head was bashed against awell, and an officer and in the prison context was designed to overrule date-stamped envelope. The fact that the plaintiff stomped on her bare feet stated use of force the Supreme Court's decision in O'Lone v. Estate did not use the more expensive certified mail pro­ claims. The court previously stated that this case ofShabazz..." (380) Since the defendants' sum­ cedure did not matter, since he utilized the pris­ was being decided under the Due Process Clause. mary judgment motion is addressed primalily to on's legal mail procedure. At 838: "Even where one has no entitlement to the O'Lone standard rather than the RFRA, the a benefit, one cannot be deprived of it in retalia­ court denies the motion without actually address­ DISTRICT COURTS tion for the exercise of constitutional rights. " ing the merits. Allegations that the plaintiff was denied a shower The RFRA "does not appear to have waived the Pre-Trial De.taineeslfelephones because she reported the assault and had her bare [Eleventh Amendment] immUnity of the states, George v. Carusone, 849 F.Supp. 159 feet stomped on because she said she was going to either.... While Congress could abrogate the (D.Conn. 1994). At a police station, nearly all file suit stated constitutional claims. immunity of the states, it must express itself with­ incoming and outgoing calls were taped. An out equivocation, and it has not done so here." arrestee's claim under the Omnibus Crime Control WomenILegal Assistance Programs (This is completely wrong. The statute says that and Safe Streets Act of 1968 was not barred by Glover v.johnson, 850 F.Supp. 592 (E.D.Mich. plaintiffs can sue "Governments" including "a express or implied consent because there was no 1994). Prison officials unilaterally reduced fund­ State, or a subdivision of a state." How unequivo­ evidence that he knew of the recording. The con­ ing to Prison Legal Services of Michigan, which cal can you get?) versations were "intercepted" for purposes of the provides legal assistance to women inmates pur­ The individual defendants are entitled to quali­ statute when they were taped, not when or ifthey suant to a prior court order, and excluded fied immunity. were listened to. The exception for recording by a parental rights matters from PLS' services contrary At 378 n. 1: "Defendants do question whether law enforcement agent "in the ordinary course of to that order, after the Sixth Circuit Knop decision certain practices are necessarily apart of the his duties" does not apply where the recording is holding that the right of court access did not Asatru religion. In the future, Plaintiffs would be done surreptitiously. extend to parental rights matters in a case involv­ well advised to document why Plaintiffs believe a ing male inmates. This court had previously deter­ particular practice is part of the Asatru religion, Procedural Due Process-Disciplinary mined that women inmates, because of their back­ such as by referring to published theology texts or Proceedings grounds, were entitled to the assistance of attor­ similar objective sources." This is blatantly wrong. Nix v. Evatt, 850 F.Supp. 455 (D.S.C. 1994). neys (though not necessarily representation in See Thomas v. Review Board, 450 U.S. 707, 715-

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1995 11 16, 101 S.Ct. 1425 (1981) (religious freedom "is expense ofa constitutional right. bodily waste is one such "minimal civilized not limited to beliefs which are shared by all of the Furthermore, the decision whether tofund measure oflife'S necessities. "... members of a religious sect"); Thacker v. Dixon, suchprograms is a questionfor the legisla­ The plaintiffs havepresentedevidence that 784 F.Supp. 286, 295 (E.D.N.C. 1991) ("Except in ture, notfor the court. some inmates have been barredfrom the the most extreme cases, a court must confine itself The right of court access extends to the purSuit shanty-the oneplace at the entireprison to a determination of whether the practice in ques­ or defense of actions to adjust family relationships, which hasflush toilets available to inmates. tion has a basis in religious beliefas the individ­ including initial papers opposing the termination /,. These inmates, when they are out oftheir ual sees if') (emphasis supplied), affd, 953 F.2d of parental rights, including a request for the cells, are left with noplace to deposit their 639 (4th Cir. 1992). appointment of counsel, and preparing petitions :. bodily waste. The Constitution does notper­ for divorce or the initial response to divorce pe~­ mitprison offiCials toforce inmates to Attorneys' Fees tion. It does not extend to enforcement or con­ undergo such indignities. Kersh v. Board ofCounty Commissioners of tempt or modification proceedings in divorce The plaintiffs have thus shown a likelihood of Natrona County, 851 F.Supp. 1541 (D.Wyo. cases. Assistance in adopting a prisoner's spouse's success on the question of whether they have 1994). plaintiffs' counsel's efforts in connection children is not required. met the objective 'requirement of an Eighth with a successful contempt motion "constituted Workers' compensation claims are included in Amendment claim. However, there is not reasonable post-judgment work that was necessary the right of court access. Although the tribunal is presently enough evidence to support afinding to secure the improvements anticipated by the administrative, "such proceedings are judicial in of deliberate indifference, in the absence of a 1990 ConsentDecree." (1543) In addition, they nature and provide the only means by which an showing that the defendants had actual knowl­ were prevailing parties in the contempt motion. eligible inmate may obtain worker's compensation edge of the violations. At 29: Plaintiffs' attorney is awarded fees at the rate in benefits." (1523) The representations made in affidavits and his community (Denver) rather than the site of the otherwise in connection with thepresent litigation (Casper, Wyoming), since there is no Religion/Standing motion are sufficient, however, to putthe indication that any Wyoming attorney has ever filed Scarpino v. Grosshiem, 852 F.Supp. 798 (S.D. defendants on notice that Superintendent a "totality of conditions" case or would consider Iowa 1994). The Iowa Civil Liberties Union has Bissonette's order toprovidefull access to the doing so. In addition, expertise in the field of litiga­ taxpayer standing to challenge the prison system's shanty is not being diligently carried out. The tion was necessary, and it was reasonable for this "The Other Way" program, a twelve-step rehabili­ court will take into consideration, in any attorney to handle the contempt motion given that tation program alleged to violate the Establishment future motionfor injunctive reliefregarding he had obtained the underlying consent decree. Clause. access to the shanty, that the defendants have The claim of aprisoner who had been released had such notice. Access to CourtslLegai from the institution and then reincarcerated is not Assistance Programs moot because given the twelve to sixteen-week Grievances and Complaints Carperv. Deland, 851 F.Supp. 1506 (D. Utah duration of the program, it is "capable of repeti­ About Prison 1994). Utah provides legal assistance to prisoners tion yet evading review." The claim of aprisoner Hines v. Gomez, 853 F.Supp. 329 (N.D.Cal. by contract with local attorneys; there are no law on parole is moot. 1994). At 331: "... [F]iling an inmate appeal [Le., libraries and inmates are not allowed assistance The court distinguishes earlier authority hold­ grievance] falls within the plaintiff's first amend­ from "writ writers." The contract was changed to ing that an M-type program was not religious on ment right to petition the government for redress eliminate general legal assistance in civil matters the ground that this program not only refers to of grievances." and to restrict the services to writs ofhabeas cor­ God and a higher power, but also because it pus and challenges to conditions of confinement. involves group prayer, individual pressure to Searches-Person-Convicts The court previously granted a preliminary injunc­ accept religion as the solution to addiction, and Castillo v. Gardner, 854 F.Supp. 724 (E.D. tion to the named plaintiffs and to several addi­ the use of religious video tapes. Wash. 1994). Conducting digital rectal probes tional prisoners. Aclass was certified of "all cur­ Establishment Clause claims are not governed without "cause predicate" is not reasonably relat­ rent and future inmates in the Utah prison system by the Turner reasonableness standard because ed to legitimate penological goals and is unconsti­ who seek to exercise certain legal rights." (1510­ they involve the insistence that public money can­ tutional under Turner. However, the defendants 11) The court here grants summary judgment to not be spent to support religion rather than an are entitled to qualified immunity on this claim. the plaintiffs and issues an injunction. assertion of inmates' rights to do something. At 1517-18: Under Lemon v. Kurtzman, prison officials could Religion-PracticeslInjunctive ...Ifdefendants are correct that increased have believed that this program did not violate the Relief-Preliminary Establishment Clause, and they are entitled to legal services will result in a decrease in edu­ Campos v. Coughlin, 854 F.Supp. 194 (S.D.N.Y. qualified immunity from damages. cationaland otherprograms, that is unfortu­ 1994). State prison officials are preliminarily nate. However, the court is unpersuaded by HygienelNegHgence, Deliberate enjoined from prohibiting plaintiffs from wearing defendants' argument that budgetary consid­ Indifference and Intent their Santeria beads under their clothing or placing erationsjustify limiting the scope oftheir Masonoffv. DuBois, 853 F.Supp. 26 (D.Mass. beads on their non-publicly displayed shrines. duty to the levelprovided under the current 1994). The plaintiffs complained that they did not Apreliminary injunction is appropriate. At 204: contract. have access to toilets in their cells; when they did "Ordinarily, violations of First Amendment rights are While it is true that economicfactors may not have access to a bathroom area, they had to recognized as constituting an irreparable injury." be considered in determining the method use portable chemical toilets and a pitcher of The balance of hardships favors plaintiffs, since they used toprovide meaningfulaccess to the water. Official policy was that the bathroom area have no other way of practicing their religious courts, the cost ofprotecting the right of . was supposed to be opened at any time on beliefs, but the defendants have other ways of pro­ access cannot be used tojustify its denial... request, but there was evidence that these orders tecting security besides burdening the plaintiffs' reli­ [citations omitted] were not followed by all officers with respect to gious practice. .. Althoughproviding suchprograms is a all inmates. The Religious Freedom Restoration Act applies legitimatepenological objective, defendants At 29: to prisoners and displaces the O'Lone/furner rea­ may not choose to provide them at the Having a sanitaryplace to dispose ofone's sonable relationship standard for prisoners' reli-

12 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL' gious claims in favor of a compelling interesVieast police officers without any justification while dence regarding minimal standards ofpriva­ restrictive means standard. Security is a com­ handcuffed in a police car stated a claim for 0' and decen0'for a woman inmate. The pelling interest. At 207: "However, defendants excessive force under the Fourth Amendment. courtfinds this statement to befantastic .... cannot merely brandish the words 'security' and Summary judgment could not be granted based on The courtfinds that minimal standards of 'safety' and expect that their actions will automati­ the lack of injury where the plaintiff had not had privaq and decen0' include the right not to cally be deemed constitutionally permissible con­ the opportunity to take discovery. The question is be subject to sexual advances, to use the toi­ duct." The court defers to defendants' assessment for the jury ifthe plaintiff can establish "that force let without being observed by members ofthe of the prison gang situation and the role of beads was used and some injury was sustained." opposite sex, and to shower without being as gang identifiers, but notes that this argument viewed by members ofthe opposite sex. fails to address why the beads cannot be worn Pre-Trial DetaineeslFederal Officials There is sufficient evidence that the defen­ under clothing. At 208: "I am troubled by defen­ and PrisonslProcedural Due Process­ dants knew or should have known ofthe dants' complete rejection of plaintiffs' proposal Disciplinary Proceedings potential risks inherent in placing afemale based on what defendants speculatively describe Collazo-Leon v. u.s. Bureau ofPrisons, 855 inmate in ait\all male maximum security as an 'enforcement problem.''' These enforcement F.Supp. 530 (D.P.R. 1994). The petitioner was prison wing:'.: (292). problems are the same for Santeria beads as for convicted at a disciplinary hearing of attempted (This opini.on antedates Farmer v. Brennan, crosses and crucifixes, which are allowed. The escape and offering a bribe to an officer; he was which held that "should have known" doesn't cut defendants also failed to show that gangs have sentenced to a total of 90 days and loss of visiting it under the Eighth Amendment.) actually used Santeria beads or that gang beads and telephone privileges for six months. resemble Santeria beads. The fact that Santeria Wolfish forbids the punishment of detainees. Federal Officials and Prisons beads might be used in this fashion sometime in The Bureau of Prisons disciplinary regulations by Lloyd v. Corrections Corporation ofAmerica, the future is "pure speculation," which cannot jus­ their terms are intended to punish. In addition, 855 F.Supp. 221 (W.D.Tenn. 1994). Aprivate tify burdening the plaintiffs' constitutional rights. "the severity of the sanction itself upon a pretrial prison housing federal prisoners acted under "I am not required, on a motion for preliminary detainee charged with misconduct, as to whom no color of federal law and not state law, and the injunction, to indulge DOCS' whims and anxieties attempt is made to deal with his disciplinary prob­ plaintiffs complaint therefore must be construed about prospective hypothetical situations." (209) lem by means of less drastic actions, compel the as aBivens action and not a § 1983 claim. The court reaches the same conclusions under conclusion that the purpose in segregating is to the O'LonelI'urner test. There is no rational rela­ punish." (533) The court rejects the view that the Communication with Media/Injunctive tionship between prohibiting wearing beads petitioner's pUnishment is necessary to provide for Relief-Preliminary underneath clothing and the purpose of minimiz.­ an orderly environment, since upon his release he Pratt v. Rowland, 856 F.Supp. 565 (N.D.Cal._ ing gang affiliation and violence. The plaintiffs will present the same security hazard as when he 1994) .The plaintiff, a former Black Panther have no alternative to exercise this particular tenet was placed in segregation. leader, was transferred after agreeing to be inter­ of their religion. The impact of permitting wearing The court grants the writ of habeas corpus and viewed by a television station and double celled beads under clothing will be "constitutionally orders his discharge from segregation and restora­ immediately after the interview was aired. Medical insignificant," and this practice is an "obvious, tion of his visiting and telephone privileges. evidence showed that various physical and psycho­ easy alternative." logical afflictions he had were aggravated when he WomenlPrivacy was double celled, and prison officials had gener­ Use ofForce Galvan v. Carothers, 855 F.Supp. 285 ally acknowledged these. Messina v. Mazzeo, 854 F.Supp. n6 (E.D.N.Y. (D.Alaska 1994). The female plaintiff alleged that The court concludes that the plaintiff was sub­ 1994). An allegation that all of the named police she was placed in an all-male wing and that she jected to retaliation for being interviewed, based officers participated in excessive force was suffi­ was subjected to sexual harassment. The court on evidence that suggests an extremely incompe­ cient to state a claim. Discovery should determine previously granted her a preliminary injunction tent cover-up, and grants a preliminary injunction the exact role of each officer, and a motion for requiring officials to find her alternative housing. requiring him to be single-celled. summary judgment can be made based on lack of The plaintiffs claim meets the objective prong Continued on page 17 personal involvement. of Eighth Amendment analysis. At 291: An allegation that the plaintiff was slapped by Defendants contend that there is no evi-

Court~Decides Landmark Class Action Case The suit originated in 1991 after the U.S. District Court received more than 300 peti­ in Favor ofPelican Bay Prisoners tions from Pelican Bay prisoners alleging civil rights violations during the first two that "dry words on paper cannot adequately years of the facility's existence. Apanel of capture the senseless suffering and some­ federal judges referred the matter to the Pro nJanuary 11, ChiefJudge Thelton times wretched misery" caused by the Bono Committee of the San Francisco Bar Henderson of the U.S. District defendants. "In this landmark decision, Association which asked Wilson Sonsini OCourt, Northern District of California Judge Henderson found that the California Goodrich & Rosati to investigate the case. A ruled substantially in favor of prisoners at Department of Corrections is operating in lawsuit originally filed on behalf of one Pelican Bay State Prison in their class flagrant disregard of the U.S. Constitution," inmate eventually became a class action and action lawsuit against state prison officials said David Steurer, a partner in Wilson trial took place from September 17 through (Madrid v. Gomez). The suit claimed that Sonsini Goodrich & Rosati who tried the December 15, 1993. conditions at the facility, the state's first case together with fellow partner Susan Ainong the constitutional violations found "supermax" prison, violate prisoners' Creighton and attorneys Donald Specter by Judge Henderson were a pattern of constitutional rights. 1 and Steve Fama of the Prison Law Office excessive guard brutality, a failure to provide The judge, in his 345 page decision, wrote in San Quentin. Continued on nextpage

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1995 13 from page 13 minimal medical and mental health care, and confinement in conditions that are For the Record likely to cause or increase psychosis in • The American Correctional Association (ACA) believes the federal crime h' many of the inmates in the prison's super­ signed into law by President Clinton last September deserves a "mixed review" ace max facility. Pelican Bay's caging and hog­ ing to a statement to ACA members released in October. The ACA opposes mandato tying of prisoners, its routine resort to minimum sentencing, including "three-strikes-you're-out' because it believes that' 'i lethal force, and its pattern of staff assaults not reasonable or cost-effective to keep such persons in prison until they die" andi on inmates caused Judge Henderson to concerned about the "inevitable ptison crowding" the measure will cause. Overall conclude that the evidence "painted a pic­ ture of a prison that all too often uses believe the crime bill "places too much emphasis on incarceration as a solution to force, not only in good faith efforts to crime". They also opposed the ending of Pell grants for prisoners. restore and maintain order, but also for the The ACA supported the Family Unity Demonstration Project which authorizes g very purpose of i1¥licting punishment and for the establishment of community-based residential correctional facilities in whi pain." In concluding that the defendants offenders can live with their young children. ACA President Bobbie Huskeysaid , had failed to proVide minimal medical or are encouraged to see in the final bill a greater emphasis placed on children youth mental health services, Judge Henderson families, because ACA believes that we will need to intervene early in the lives of the observed that "some of defendants' com­ families if we are ever going to reduce future crime". Unfortunately, it is these veryp ments, actions, and policies show such dis­ visions that the crime bills introduced into the new session of Congress by the regard for inmates' pain and suffering that Republican majority sets out to dismantle. they shock the conscience." With regard to • Prison journalist and editor of the Angolite, Wilbert Rideau has become aspe conditions in the Security Housing Unit correspondent for the critically acclaimed "Fresh Air" series hosted by Terry Gro (SHU) section of the prison, Judge NationalPublic Radio. Rideau and Angola Warden John Whitley view it as an educa. Henderson wrote that "many, if not most alprogram toletthe public know what ptison life is really like. The first segmellt£ inmates in the SHU experience some es .on literacy and self-education behind bars. The payment which "Fresh Air" typic degree of psychological trauma in reaction to their extreme social isolation," and that makes to its freelance contributors will, at Rideau's suggestion, be made to the defendants "cross the constitutional line Spaceman Foundation, a non-profit foundation. Rideau's. childhood dream wasto when they force certain subgroups of the spaceman and he has dedicated the Foundation to the proposition "that allchilprison cell~" supervision of a court-appointed Special • Journalist Gary E.Goldhammer left his newspaper job. in California and set() Master, to negotiate a plan to make Pelican across the United States to explore the facts, .emotions and politics surrounding sap Bay meet constitutional standards. punishment. Heinterviewed the people most affected by the death penalty - priS() "The court's decision is absolutely cor­ on Death Row, their families, victim's families,. jailers· and advocates. He has publi~ rect," said Donald Specter of the Prison these interviews and described his experiences in Dead End, a personal and comp Law Office. "Without an injunction tl1ere is discovery of the costs-human, social and financial-of our continued use of thi~ no doubt that the brutality and lack of prop­ bariepunishment. Dead End can be obtained from Biddle. Publishing Company, PQ er treatment would continue indefinitely." 1305,#103, Brunswick, ME 04011, for $10.95 plus $2.00 shipping. Judge Henderson could find "no serious or genuine commitment" by the defendants to • Prison Information Service, Inc.. of Sioux Falls have distributed all theircopi "remedying the constitutional violations the Aboriginal Handbooks and the Bibliography ofSelected Prison· Cases andc found herein." • fulfill anymore requests forthese books at the moment. They hope in time to rais~ IFor more details about the Pelican Bay ficient funds to reprintand send copies to everyone who is on their waiting list. Fq State Prison, see NPPJournalVol. 7, No.4, more information, contact Roger Flittie at Prison Information Service, Inc., POHo:x: Fall 1992, "Isolation, Excessive Force Under Attack 616,SiouxFaYs, SD 57101 at California's Supermax" and "The Marionization of American Prisons"; and Vol. 8, No.2, Spring 1993, "Pelican Bay-The Effects ofIsolation." pIe of this country that all people, even the Bill Seeks to Strip Courts of least deserving, are protected by the Constitution. The bill sets a dangerous Power in Prison Cases precedent for stripping civil rights from those in public disfavor. Ifthis bill is suc­ cessful in placing adult and juvenile prison­ mong the package of new federal virtually without notice to the public. Asim­ ers beyond the full protection of the laws, crime bills passed by the House of ilar bill has been introduced into the Senate the path will be clear to target other groups, ARepresentatives is the Stop Turning as S. 400. The proponents of STOP are try­ such as ethnic minorities, the mentally ill, Out Prisoners Act ("STOP"), Title III of HR ing to rush the bill through Congress with­ and gay people, for similar treatment. 667. STOP is not part of the. "Contract With out debate because the "facts" upon which The bill is a dangerous assault on federal America," yet it was pushed through the it is based are bogus and the "solutions" it court power to remedy civil rights violations, Judiciary Committee and onto the floor of offers are fraudulent. and thereby runs afoul of the separation of the House without hearing or testimony and The STOP bill violates the guiding princi- powers doctrine, which the "Framers of our

14 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL Constitution viewed ... as the central guaran­ role in protecting the health and safety of Forfurther information contactjoan tee of a just government," Freytag v. prisoners and staff. Moreover, by preventing Dolby, jan Elvin orjenni Gainsborough at Commission, 111 S. Ct. 2631, 2634 (1991), settlements, this provision forces parties to the National Prison Project ofthe ACLU at and "a bulwark against tyranny," United costly trials in all cases. Forbidding a state (202) 234-4830, Fax (202) 234-4890. Statesv. Brown, 381 U.S. 437, 443 (1965). from entering into a settlement agreement This bill works a gaping hole in that bulwark. encroaches on state autonomy and raises The lack of deliberation given to the bill serious federalism concerns. Furthermore(' Text ofH.R. 667, Title III, "Stop accounts for the serious practical and consti­ by requiring a lengthy trial in every case,' Turning Out Prisoners Act" tutional problems with the legislation, which this section increases the burden on the Sec. 301. APPROPRIATE REMEDIES FOR are discussed in more detail below. federal judiciary. PRISON CONDITIONS. Section (b)(l), Termination of Section (a) (1), Limitations on (a) In General.-Section 3626 of title 18, Prospective ReliefAfter 2-Year Period: This Prospective Relief This section limits the United States Code, is amended to read as section calls for judgments to terminate two power of the federal courts to grant relief in follows: '\ years after issuance or two years after pas­ prison conditions cases. To the extent that "Sec. 3626. Appropriate remedies with sage of STOp, whichever is later, even when this provision prevents a court from issuing respect to prison conditions constitutional violations remain. For exam­ emergency interim relief, such as a tempo­ "(a) Requirements for Relief.- ple, a court could not continue to enforce a rary restraining order, it violates due "(1) Limitations on prospective judgment even in the face of a continuing process. Cf Phillips v. Commissioner, 283 relief.-Prospective relief in a civil threat to staff and prisoners. In institutional U.S. 589, 596-97 (1931). If, for example, action with respect to prison conditions reform cases, it typically takes years of effort a prison is in imminent danger of a tubercu­ shall extend no further than necessary by state officials and supervision by the losis outbreak, a court must retain the dis­ to remove the conditions that are caus­ court to fix the major problems that are the cretion to issue an emergency order prior ing the deprivation of the Federal rights subject of such litigation. Since the law to a hearing. of individual plaintiffs in that civil already requires termination when constitu­ Section (c)(2), Automatic Stay When action. The court shall not grant or ap­ tional requirements are met, Board ofEduc. Motion Pending: This section calls for an prove any prospective relief unless the v. Dowell, 111 S. Ct. 630, 637 (1991), the automatic stay of decrees and judgments court finds that such relief is narrowly perverse effect of this section would be to after a defendant files a motion to modify or drawn and the least intrusive means to require termination when constitutional vio­ terminate, regardless of whether a constitu­ remedy the violation of the Federal lations persist. tional violation is ongoing. In effect, this right. In determining the intrusiveness­ This provision also violates the separation provision gives a defendant the temporary of the relief, the court shall give sub­ of powers doctrine. The Framers criticized power to overrule a federal court. An auto­ stantial weight to any adverse impact on legislative efforts to vacate judicial proceed­ matic stay also deprives a court of its tradi­ public safety or the operation of a crim­ ings, suspend judicial actions, and annul or tional power to balance the equities involved inal justice system caused by the relief. modify judgments, see M.].C. Vile, in a stay application. "(2) Prison population reduction Constitutionalism and the Separation of Section (e), Special Masters: This provi­ relief.-In any civil action with respect Powers 153 (1967), and the Constitutional sion requires courts to use Magistrates in to prison conditions, the court shall not Convention rejected several proposals to place of special masters. This usurps the grant or approve any relief whose pur­ allow legislative revision of judgments. 1 M. power of the judiciary in two ways. First, it pose or effect is to reduce or limit the Jensen, The Documentary History of the abrogates Fed. R. Civ. Proc. 53, which prison population, unless the plaintiff Ratification of the Constitution 246-47 authorizes courts to appoint special mas­ proves that crowding is the primary (1976). In light of this historical back­ ters. The Supreme Court, rather than cause of the deprivation of the Federal ground, the Supreme Court has struck Congress, is empowered to modify the right and no other relief will remedy down statutes that revise or suspend judg­ Federal Rules. 28 U.S.C. § 2072. Second, that deprivation. ments. Hayburn's Case, 2 U.S. (2 Dall.) over and above the authority granted by "(b) Termination of Relief.- 409 (1792); Chicago &Southern Air Lines, Rule 53, "there has always existed in the "(1) Automatic termination of Inc. v. Waterman Steamship Corp., 333 federal courts an inherent authority to prospective relief after 2-year period.­ U.S. 103, 11~ (1948). appoint masters." Kaufman, Masters in the In any civil action with respect to prison Section (b)(2), Immediate Termination Federal Courts: Rule 53, 58 Colum. L.R. conditions, any prospective relief shall ofProspective Relief. This section requires 452,462 (1958). automatically terminate 2years after the the termination of all settlement agreements Section (j), Attorney's Fees: This provi­ later of- ("Consent Decrees") that were approved sion modifies 42 U.S.C. § 1988 by chang­ "(A) the date the court found the without a finding of a constitutional or statu­ ing the standard for an attorney fee award violation of a Federal right that was tory violation. This would render almost all in prison conditions cases. The passage the basis for the relief; or existing Decrees void because, by their of sections 1983 and 1988 was motivated "(B) the date of the enactment of the nature, they are approved without such find­ by a commitment to the civil rights of all Stop Turning Out Prisoners Act. ings. Prison officials usually seek to operate citizens. Singling out one group for lesser "(2) Immediate termination of their prisons in a safe and professional protection sets a dangerous precedent prospective relief.-In any civil action manner because they do not want to put for other groups that fall into disfavor. with respect to prison conditions, a their staff at risk of the riots that can result The bill also prevents a state from entering defendant or intervenor shall be from intolerable conditions. Acourt order is into a settlement that includes a fee award, entitled to the immediate termination often necessary to get the resources that forcing states to risk a far greater fee award of any prospective relief, ifthat relief they need to do this. after trial. In the name of states' rights, was approved or granted in the absence By legislative fiat, this bill would indis­ the bill actually limits the freedom of a of a finding by the court that prison criminately undo decrees that playa vital state to determine its own best interests. • Continued on nextpage

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1995 15 jrompage15 "(d) Standing.---Any Federal, State, or shall have no other function. The parties conditions violated a Federal right. local official or unit of government--- may not by consent extend the function of "(c) Procedure for Motions Affecting "(1) whose jurisdiction or function a special master beyond that permitted ProspectiveRelieE--- includes the prosecution or custody under this subsection. "(1) Generally.---The court shall of persons in a prison subject to; or "(f) Attorney's Fees.---No attorney's fee promptly rule on any motion to "(2) who otherwise is or may be under section 722 of the Revised Statutes modify or terminate prospective affected by; of the United States (42 U.S.C. 1988) may relief in a civil action with respect any relief whose purpose or effect is to be granted to a plaintiff in a civil action to prison conditions. reduce or limit the prison population shall with respect to prison conditions except to "(2) Automatic stay.---Any prospec­ have standing to oppose the imposition or the extent such fee is--- tive relief subject to a pending motion continuation in effect of that relief and "(1) directly and reasonably incurred shall be automatically stayed during may intervene in any proceeding relating in proving an actual violation of the the period--- to that relief. Standing shall be liberally plaintiff's Fedeil;ll rights; and "(A) beginning on the 30th day after conferred under this subsection so as "(2) proportionally related to the such motion is filed, in the case of a to effectuate the remedial purposes of extent the plaintiff obtains court motion made under subsection (b); this section. ordered relief for that violation." and "(e) Special Masters.---In any civil action "(g) Definition.---As used in this section--­ "(B) beginning on the 180th day in a Federal court with respect to prison "(1) the term 'prison' means any after such motion is filed, in the conditions, any special master or monitor Federal, State, or local facility that case of a motion made under any shall be a United States magistrate and shall incarcerates or detains juveniles or other law; make proposed findings on the record on adults accused of, convicted of, sen­ and ending on the date the court enters complicated factual issues submitted to that tenced for, or adjudicated delinquent a final order ruling on that motion. special master or monitor by the court, but for, violations of criminal law; "(2) the term 'relief' means all relief in any form which may be granted or approved by the court, and includes consent decrees and settlements agree­ ments; and "(3) the term 'prospective relief' means all relief other than compen­ satory monetary damages." (b) Application of Amendment.---Section 3626 of title 18, U.S. Code, as amended by this section, shall apply with respect to all relief (as defined in such section) whether such relief was originally granted or approved before, on, or after the date of the date of the enactment of this Act. (c) Clerical Amendment.---The table of sections at the beginning of the subchapter Cof chapter 229 of title 18, United States Code, is amended by striking "crowding" and inserting "conditions." • Ayesha Khan is a staffattorney with The National Prison Project. jrompage4 try's civic health. Human rights guarantees in the new Russian were singled out as a group lacking any At the last PRI general meeting three years constitution (1993) are not, in reality, appropriate protection. Third, the over­ ago, a former dissident, Valery Abramkin, implemented. The PRI members from whelming threat to decent prison standards described a situation of appalling hardship. Moscow said they repeatedly received is overcrowding. But he felt the underlying trend was towards letters from prisoners describing beatings The revised rules now go back to the UN improvement. At The Hague last November, to extract confessions dUring the pretrial for consideration. What was particularly fas­ however, he and other gave details that show investigation period. Contact with the cinating at the meeting was the opportunity this trend in reversal. outside world, including with lawyers, (in the gaps between the committee work) Public anger and fear of crime in Russia is higWy restricted. to learn how two traditional leaders in the have contributed to delaying both the new Overcrowding is again rocketing. world incarceration competition--- Russia penal code and the new code of criminal Official figures put the prison population at and South Africa---are reacting to the uni­ procedure. Long and undifferentiated sen­ 886,000---proportionately 530 per 100,000 versal penal dilemma. Their divergent paths tences remain in force for many everyday population. (Unofficial estimates are far demonstrate vividly how prisons are both offenses, and prisoners have no effective higher.) No one who has visited the main the product and the barometer of a coun- protection or redress against abuses. urban prisons for pretrial detainees leaves

16 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL any doubt that ghastly conditions have got be abolished. Reforms had already started can forge the necessary linkage even more ghastly (See the NPPJournal, before last year's elections: no executions between the acts or omissions of Vol. 8, No.2, Spring 1993). Abramkin said had been carried out since 1989; solitary supervisory personnel and the miscon­ that dormitories which had been over­ confinement, corporal pUnishment and duct oftheir subordinates.... crowded in Stalin's days with 80 occupants reduction of diet had all been banned. A causal link may also beforged if now held 140. He had seen prisoners with Aseparate penal approach for juveniles has there exists a known history ofwide­ skin ulcers "like an apple." In the distant now been drafted. But full racial integration spread abuse sufficient to alert a colonies for convicts, food was in short sup­ of a justice system designed and run by . supervisor to ongoing violations. WlJen ply. TB was increasing again. whites is causing great tensions. the supervisor is on notice andfails to But the Russian prison authorities- From the United States, there were neither take corrective action, say, by better who allow westerners access to their politicians nor prison administrators. .. training or closer oversight, liability prisons-readily admit they have problems. As Alvin Bronstein, Executive Director of the may attach. One official was an active participant at National Prison Project, pointed out: "U.S. ':.~ the conference. officials don't come to this sort ofmeeting." Pleading .... The status of the participants who came Bronstein's description of "hot-racking" Tompkins v. Vickers, 26 E3d 603 (5th Cir. from South Africa is an indicator of the to be introduced in Mississippi to accom­ 1994). The court declines to adopt the D.C. political priority given by this country to modate more prisoners, and the state's Circuit's variation of the heightened pleading" penal reform. The Minister of Correctional ban on all possessions that might make that requires a plaintiff whose claim depends Services, Mr. Sipo MZimela, was there; prison tolerable, confirmed fellow PRI on the state of mind of a defendant to plead also the Commissioner, the chief administra­ members' feeling that the U.S. is not the direct, rather than circumstantial, evidence of tor of correctional services, General].]. model to follow. As Bronstein summed that state of mind. Bruyn, who as a young prison guard had up: "The U.S. is marching firmly into the worked on Robbin Island. He told me, 19th century." Municipalities "President Mandela is a man who always Penal Reform International celebrated its Chew v. Gates, 27 E3d 1432 (9th Cir. commanded respect." fifth birthday in The Hague. It now has over 1994). Aclaim against the mUnicipality based South Africa is facing the worldwide penal 300 members in 75 countries. It is helping on an allegedly unconstitutional policy does crisis in acute form. The public-black as local non-governmental organizations set not tum on the lawfulness of the conduct of well as white-demands a stop to a plague up programs in East Europe and sub­ the mUnicipal employee involved. of crime. But prisoners are deeply disillu­ Saharan Africa and-funding allowing­ At 1445: sioned that a flat six-months' amnesty did has plans in Asia and Latin America. It is A city cannot escape liabilityfor the not bring them all immediate release. The most of all an astonishing worldwide net­ consequences ofestablished and ongo­ prison population remains high ­ work of individuals who share a commit­ ing departmentalpolicy regarding the proportionally third after the Russian ment to fairer and more humane penal jus­ use offorce simply by permitting such Federation and the US with a rate of about tice. Without PRI, many individuals would basicpolicy decisions to be made by 350 per 100,000. Immense changes are be operating in total isolation. • lower level officials who are not ordi­ nevertheless underway. narily consideredpolicymakers.... In February 1995 the constitution comes Jennifer Monahan is a Britishfree­ [IJfthe city in fact permitted depart­ up for debate and, according to a senior lancejournalist and member ofPenal mentalpolicy regarding the use of South African academic at the conference, Reform International. canineforce to be designed and imple­ the expectation is that the death penalty will mentedat lower levels ofthe depart­ ment, ajury could, iind should, never­ thelessfind that thepolicy constituted an established municipal "custom or frompage 13 ofsuch conduct ifhe would have usage" regarding the use ofpolice dogs NON-PRISON CASES known ofit butfor his deliberate for which the city is responsible. indifference or willful blindness, and ... [MJunicipalliability could Personal Iqvolvement and Supervisory ifhe had thepower and authority to [alsoJ befound under the "deliberate Liability alleviate it.... indifference"formulation ofMonell Maldonado-Denis v. Castillo-Rodriguez, To succeed on a supervisory liability liability. ... WlJere the city equips its 23 E3d 576 (Ist Cir. 1994). At 581-82: claim, aplaintiffnot only must show police officers with potentially danger­ Although a superior officer cannot deliberate indifference or its equiva­ ous animals, and evidence is adduced be held vicariously liable under 42 lent, but also must affirmatively con­ that those animals inflict injury in u.S.C. §1983 on a respondeat superior nect the supervisor's conduct to the a significantpercentage ofthe cases theory, ... he may befound liable subordinate's violative act or omis­ in which they are used, afailure to under §1983 on the basis ofhis own sion....This causation requirement adopt a departmentalpolicy governing acts or admissions.... can be satisfied even ifthe supervisor their use, or to implement rules or One way in which a supervisor's did notparticipate directly in the con­ regulations regarding the constitu­ behavior may come within this rule duct that violated a citizen's rights;jor tionallimits ofthat use, evidences a is byformulating apolicy, or engaging example, a sufficient causal nexus "deliberate indifference" to constitu­ in a custom, that leads to the chal­ may befound ifthe supervisor knew tional rights. • lenged occurrence....Thus, even if oj, overtly or tacitly approved oj, or a supervisor lacks actual knowledge purposely disregarded the conduct.... John Boston is the director ofthe ofcensurable conduct, he may be Consequently, deliberate indifference Prisoners' Rights Project, LegalAid liablefor theforeseeable consequences to violations ofconstitutional rights Society ofNew York.

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1995 17 te

being instructed she would have Segregation in to wear the same whenever she left Mill. Her daily life included Alabama few activities beyond watching television, crocheting or knit­ ting. Reflecting on these days E.C. remembers, "I felt like an animal placed in a cage and just Alabama Revisited: Separate left there." But Equal? Her second incarceration in n 1988 the National Prison Project, 1992 brought some changes, along with the Southern Center for though. B.C. took college cours- I Human Rights and local private lawyers, es from an inmate tutor and brought a class action suit, Harris v. attended some programs sepa­ Thigpen, (now Onishea v. Herring) which rate from general population. challenged the Alabama Department of Since returning in 1994 B.C. has Corrections' policy of mandatory testing and participated in the Substance segregation of HIV-positive prisoners. Since Abuse Program taught by an then the Eleventh Circuit Court of Appeals inmate tutor. By comparison, affirmed the DistrictCourt's ruling to uphold general population pnsoners both policies, but remanded issues of pro­ have access to a residential sub­ Thanksgiving Dinner in the HIV Isolation Unit, 1990 gramming and legal access. While awaiting stance abuse program coordinated the latest decision we explore the experi­ by a certified counselor. In commenting ences of three women housed in the on the need for drug treatment programs Transforming the Anger Medical Isolation Unit (MIU) at]ulia B.C. explains, "Drugs is the reason I came Alester Moore is serving his second Thtwiler Prison for Women and one resident back to the Unit. Instead of talking about prison stint, one he hoped would provide of Limestone Correctional Facility's MIU. my problems I turned to drugs. Being in a rehabilitation. Aformer bridge builder once substance abuse program helps me to talk employed by a large construction firm, Mr. Small Changes about it." Moore hoped to continue learning building In 1986 M.W. became the first HlV-posi­ Carrie White has experienced two very trades at Limestone Correctional Facility. He tive prisoner isolated at Julia Thtwiler Prison different periods at Julia Thtwiler Prison soon learned that being HIV-positive was for Women. HlV-positive prisoners during for Women. During her first incarceration enough to be excluded from vocational and this period were housed on death row with in the mid-Seventies Ms. White participated other programming including the Interstate a quarantine sticker, required to disinfect in a variety of programs from completing Commerce Compact, which he inquired telephone receivers after use and given her GED and numerous college courses, about in order to be transferred closer to meals served on paper plates. M.W. recalls to commercial sewing and bookkeeping. his family. Although a segregated drafting waking up covered with maggots because In addition to these accomplishments she class has recently been offered, other voca­ correctional staff refused to empty her participated in furlough programs and was tional programs continue to be denied. garbage. After 13"months M.W. was trans­ employed in a "downtown job" with the Moore has channeled his dissatisfaction ferred to administrative segregation with a Department of Corrections. She remembers into being a lay minister and serving as small group of newly diagnosed women. that the current site of the Medical Isolation coordinator of education for Citizens On During the next two years M.W. received Unit once housed prisoners who worked in Prevention and Education (COPE), a pris­ access to segregated Adult Basic Education the healthcare unit. oner run HlV/AIDS program. Founded by (ABE)/General Equivalency Diploma (GED) Upon returning to prison in 1993 Ms. Unit prisoner Matthew Coleman, COPE preparation and college courses. When she White was placed in Mill after testing HlV­ members provide a 12 week training pro­ returned in 1993 she found limited pro­ positive, a status she now shares with two gram in HlV/AIDS education, conduct gramming. GED preparation classes were sons incarcerated at Limestone Correctional monthly seminars on HlV/AIDS issues, cor­ sporadic, while college courses were nonex­ Facility's Mill. Today Ms. White's daily rou­ respond with the families of prisoners and istent. In commenting on the policy's tine primarily consists of crocheting and visit sick prisoners in the infirmary. Mr. impact, M.W. says, "We do more time just cleaning up the MIU area. Her inquiries Moore says, "Being segregated and denied because we're positive and can't receive the regarding college courses all return to an equal programming takes the sentencing same programs as general population." exclusion based on her HlV-positive status. judge's decision to another level. We're just B.C. entered Mill in 1987 and has For future Mill prisoners Ms. White has only asking DOC to open up the door. Ifthey observed changes through three periods of one desire, "I hope other women won't have don't open the door to programs it will just incarceration. She recalls the medical staff to go through what I'm going through. cause more problems." • greeted her wearing masks and gloves and Sitting back here and deteriorating."

18 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL ublications

Bibliography of Material on 1990 AIDS in Prison -----'---- Women in Prison _-,-_ Bibliography lists resources lists information on this subject on AIDS in prison that are available from the National Prison available from the National Prison Project and other sources P1'9ject and other sources, concerning health care, drug il)qluding corrections policies on treatment, incarcerated mothers, AIDS, educational materials, juveniles, legislation, parole, the medical and legal articles, and death penalty, sex discrimination, recent AIDS studies. $5 prepaid race and more. 35 pages. $5 from NPP. prepaid from NPP. AIDS in Prisons: The Facts _-,-_ APrimer for Jail Litigators _-,-_ for Inmates and Officers is is a detailed manual with practical a simply written educational tool suggestions for jail litigation. It for prisoners, corrections staff, includes chapters on legal analy­ and AIDS service providers. The The National Prison sis, the use of expert witnesses, booklet answers in an easy-to­ ProjectJOURNAL, $30/yr. class actions, attorneys' fees, en­ read format commonly asked $2/yr. to prisoners. forcement, discovery, defenses' questions concerning the proof, remedies, and many prac­ meaning of AIDS, the medical The Prisoners' Assistance tical suggestions. Relevant case treatment available, legal right~ Directory, the result of a citations and correctional stan­ and responsibilities. Also national survey, identifies and dards. 1st Edition, February 1984. available in Spanish. Sample describes various organizations and 180 pages, paperback. (Note: This copies free. Bulk orders: 100 agencies that provide assistance is not a "jailhouse lawyers" manu­ copies/$25. 500 copies/$100. to prisoners. Lists national, state, al.) $20 prepaid from NPP. 1,000 copies/$150 prepaid. and local organizations and sources of assistance including 1B: The Facts for Inmates (order ACLUHandbook,The legal, AIDS, family support, and _---'-__ and Officers answers from Rights of Prisoners. Guide to ex-offender aid. 10th Edition, pub­ commonly-asked questions about ACLU) the legal rights of prisoners, lished January 1993. Paperback, tuberculosis (TB) in a simple parolees, pre-trial detainees, etc., $30 prepaid from NPP. question-and-answer format. in question-and-answer form. Discusses what tuberculosis is, Contains citations. $7.95; $5 for The National Prison Project how it is contracted, its symp­ prisoners. ACLU Dept. L, P.O. Box Status Report lists by state toms, treatment and how mv QTY. COST 794, Medford, NY 11763. those presently under court order, infection affects TB. Single copies or those which have pending free. Bulk orders: 100 copies/ litigation either involving the $25.500 copies/$100. entire state prison system or 1,000 copies/$150 prepaid. thajor institutions within the state. Lists cases which deal with overcrowding and/or the total conditions of confinement. (No jails except District of Columbia.) Updated January 1994. $5 pre- QTY. COST paid from NPP.

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THE NATIONAL PRISON PROJECT JOURNAL WINTER 1995 19 he following are major developments in November and on December 27, in a Onishea v. Herring-(originallyHarris in the National Prison Project's litiga­ unanimous decision, upheld the trial court's v. Thigpen) challenges the Alabama Ttion program since September 30, ruling that the Arizona Department of Department of Corrections policy of testing 1994. Further details of any of the listed cases Corrections denies prisoners access to the all state prisoners for HIV, segregating all may be obtained by writing the Project. courts. The ruling affirmed virtually all of the those who test posit,ive and preventing them trial court's order, and applies to all 15,000 from taking part ilJ)Nork, educational, recre­ Carty v. Farrelly-Agreement has been prisoners in the Arizona system. The order, ational and other programs available to non­ reached in this lawsuit contesting conditions however, will not be implemented until the segregated prisoners. The plaintiffs sought of confinement at the Criminal Justice Supreme Court decides whether to grant relief on various constitutional claims and Complex in St. Thomas, U.S. VIrgin Islands. review of the decision because in May 1994 under §504 of the Rehabilitation Act. In 1991 The complaint filed in June 1994 alleged the Supreme Court, with four Justices dissent­ the Eleventh Circuit Court of Appeals vacated severe overcrowding, unconstitutional envi­ ing, granted a stay of the trial court decision. and remanded the dismissal of plaintiffs' ronmental and fire safety conditions and §504 claim challenging this blanket exclu­ grossly deficient medical and mental health Knop v.johnson-involves four sion, and the dismissal of the plaintiffs' legal care. The agreement, which has the same Michigan prisons. The case was filed in 1984 access claims. Years of settlement discussions force as a court order, provides for improve­ after the original comprehensive consent finally proved fruitless, and the issues were ments in all these areas, including limits on decree reached by the Department ofJustice retried before Judge Varner in November population, improved and expanded medical and the state of Michigan in United States v. 1994. We are waiting for the court's decision. services, with testing and treatment for tuber­ Michigan was replaced with a modified five­ culosis, and separate housing for mentally ill page, non-enforceable consent decree. Sandin v. Conner-The NPP filed an prisoners. Prisoners will have recreation for The new lawsuit, Knop v. Johnson, raised the amicus curiae brief on behalf of the respon­ tlrree hours daily with a maximum cell lock­ same claims as U.S. v. Michigan as well as dent in this case before the Supreme Court. in time of twelve hours daily. The agreement some additional ones. In 1992, the Sixth Conner, a Hawaii state prisoner, claimed that also contains several important provisions for Circuit affirmed the trial court's finding of a he was punished with 30 days of solitary con­ monitoring. The BOC is also prevented from denial of access to the courts but remanded finement without an adequate due process instituting another facility-wide lockdown to the trial court to revise the remedy. In June hearing after allegedly resisting a strip­ without the court's permission. 1993 the defendants filed their legal access search. The Ninth Circuit Court of Appeals, plan which the plaintiffs opposed. In March overturning the trial court's ruling in favor of Casey v. Lewis-This statewide class 1994 the district court held oral argument on prison officials, held that the prisoner had a action suit, filed on behalf of Arizona state the plan. On December 22, 1994Judge right not to be arbitrarily subjected to puni­ prisoners in January 1990, challenges legal Enslen issued an order rejecting the defen­ tive segregation. The Supreme Court granted access, health care and asSignments to segre­ dants' plan and requiring them to implement prison officials' petition for certiorari from gation. In November 1992, the court held a revised plan at the Michigan Reformatory that decision. Oral argument is scheduled for unconstitutional the state's policies restricting on a trial basis. After evaluation of the plan at February 28, 1995.• prisoners' access to the courts. The Ninth the Reformatory, it will be ordered imple­ Circuit Court of Appeals heard oral argument mented at all the Knop facilities.

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20 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL