Winter 1991 1

Contents VOL. 2, NO. 1 n WINTER 1991

3 The Log Special Report 30 Working the Morning Watch Correctional notes and comments 10 Inside Soviet Prisons John A. Mattsen Meeting Death in Prison A report by the U.S. delegation “Quality sleep” is all too often an elusive A unique portrait of a correctional The First Offenders’ Program goal for both inmates and staff. Here are system-and a nation-in transition. at FCI La Tuna some practical guidelines for achieving it-especially for shift workers. Innovations in Satellite Feeding Wartime Precautions

24 Involuntary Treatment Bill Burlington The courts are increasingly involved in some of the most difficult treatment issues prison administrators have to make. 38 Ethics and Prison Administrators J. David Newell A philosopher offers a framework for ethical decisionmaking in corrections. Federal Prisons Journal

Federal Prisons

Published quarterly by the Doug Green Federal Bureau of Prisons Editor From the editor J. Michael Quinlan Kristen Mosbæk Design Studio We are sorry that, due to the Design and Art Direction Director recent budget imbroglio on Dan Dove Judy G. Gordon Capitol Hill, this issue will be in Chief, Office of Public Affairs Associate Editor your hands in 1991 rather than Richard Phillips 1990. Chief of Communications Editor’s Advisory Group: Despite our lateness, we are Joe Holt Anderson pleased to bring you this issue’s Senior Editor, National Criminal Justice special report on Soviet prisons. Reference Service The cover illustration depicts John J. DiIulio, Jr. some images from Mozhaisk 5 Associate Professor of Politics and prison (the Cyrillic title translates Public Affairs and Director, Center of as “official visit”). The U.S. Domestic and Comparative Policy delegation, which toured five Studies, Princeton University institutions, found particularly supportive interaction between Dennis Luther Warden, Federal Correctional Institution, the staff and female inmates, and The Attorney General has determined an impressive prison industry, at that the publication of this periodical is McKean, Pennsylvania this prison. In future issues we necessary in the transaction of the public Patricia L. Poupore hope to continue to provide business required by law of the Depart- Director of Communications and information on aspects of ment of Justice. Publications, American Correctional international corrections work. Opinions expressed in this periodical are Association not necessarily those of the Federal Dr. Vicki Verdeyen As the Soviet Union has been Bureau of Prisons or of the U.S. Depart- Chief, Psychology Services, Mid- much in the news, so too has ment of Justice. Atlantic Regional Office, Federal Bureau Germany. Our next issue will of Prisons feature an interview with former Printed by Federal Prison Industries, Inc. Bureau of Prisons Director Myrl Contributing artists: Michael Hill, E. Alexander, who served as Rebecca Leer, Mark Stutzman, Sam head of the German corrections Ward, Anthony Woolridge. system in the American zone of occupation in the first year after Cover by Mark Stutzman. World War II. Finally, additional copies of the The Federal Prisons Journal welcomes your contributions and letters. 60th anniversary issue of the Letters may be edited for reasons of Journal are now available. Please space. Please contact the editor at: contact the Office of Public Federal Bureau of Prisons Affairs at 202-307-3 198. Office of Public Affairs 320 First Street NW Washingten, DC 20534

202-307-3198 Meeting Death in Prison Henry A. Pedersen

“This is why I weep and my eyes overflow with tears. No one is near to comfort me, no one to restore my spirit.” —Lamentations 1:16 [NIV]

“9-3 officer to Chaplain Pedersen, 9-3 officer to Chaplain Pedersen,” my small radio was blaring. I grimaced as I answered, “Chaplain Pedersen to 9-3.” “Please call 360, 360,” the radio blurted again. I knew before I even dialed the number what the person on the other end of the phone was going to say: “Chaplain, Mr. Tomaso wants to see you.” I was right. This was the third time today that Mr. Tomaso wanted to see me. I walk up to his bed and clasp his hand. can at least die in a more homelike He opens his eyes and looks at me. I environment. Those who die with us, Louis Tomaso* was dying. He had acknowledge what is obvious on his unless it is sudden and unexpected, already lived 24 hours longer than the face—he is in pain. We sit quietly for a have committed too serious a crime to medical staff thought he would. He had few minutes holding each other’s hand. be released, have been declared too already received the last rites of his The medical staff leave us alone. I lean much a risk to be returned to their church—twice, as a matter of fact. over the bed so that our faces are about community even though terminal, or 6 inches apart. have absolutely no resources or family Once again I stopped what I was doing to assist them. and went over to 9-3 as fast as I could. “Shall we talk to God again, Louis?” I I thought about not going, but several ask. Louis whispers, “Please.” I pray. I I feel there should be several guidelines things compelled me to go—one more end with the “Lord’s Prayer.” Louis for ministering effectively to the time. Louis was dying alone. I was one prays with me, each phrase slowly and inmate who is dying in prison. The first of the few people he had related to in deliberately. He says “Amen” after is to be nonjudgmental. I am not saying these last days—no family, no friends, praying “forgive us our trespasses as that God does not judge—I am saying dying in prison. We all need a friend. we forgive those who trespass against that we ought to let God do the The other reason became obvious on us.” As I add my Amen, Louis judging. I don’t pretend to understand the faces of the medical staff as I squeezes my hand and requests that I many of these situations myself. We walked on to the floor. Medical people leave him now so I won’t see him die. currently have an inmate who will die are oriented toward healing. To face An hour or so later, Louis dies. with us. I know that he is a murderer, a death is in some ways to face failure. tale bearer, a thief, and a snitch, yet There is a sense of relief when I arrive For me there is something cold about somehow all of that does not interfere at times like these. the thought of dying in prison. In the Federal system every effort is made to *A pseudonym. release a dying inmate so that he or she Federal Prisons Journal

with our relationship. We communicate patient’s emotions, appreciate the makes death what it can be, a death well, we share deep feelings, we help therapeutic worth of tears. freely and voluntarily accepted.” each other, we laugh together, we cry —Dietrich Bonhoeffer, Letters and together, we allow ourselves to be At the Federal Medical Center in Papers from Prison. human together. Rochester we try to find a volunteer to visit the inmate if the inmate wishes it. Reverend Henry A. Pedersen recently A second guideline is to be in touch We are presently working on a pro- retired as Chaplain at the Federal with one’s own feelings about death gram of training inmates to minister to Medical Center, Rochester, Minnesota. and life. That is not to say that we have other inmates in these circumstances. A different version of this article was to have all the answers or even an We also spend time with staff, inviting published in NM Dialogue, a newslet- answer, but I do believe that we have to them to express their feelings. ter for Baptist chaplains and work out a faith relationship with our counselors. God that allows us to trust him to take When the time comes, we conduct a care of the future for us. memorial service in the day room on the hospital floor for each inmate who A third guideline is to be in touch with dies. Not only does this allow any The First Offenders’ one’s feelings about sexual orientation. inmates who were the deceased’s This is necessary because some of friends to work through their grief; it Program at FCI La Tuna those who are dying have one of the also allows staff members who have Rudy Franco several diseases that are the common invested a great deal of their efforts and manifestations of Acquired Immune emotions to grieve. Furthermore, it The First Offenders’ Program at the Deficiency Syndrome. Some of them assures each inmate who has been Federal Correctional Institution, La have acquired AIDS from contact with diagnosed as being terminally ill that Tuna, Texas, was born from an effort another male. he or she will not be forgotten. Finally, to help the community in combating it also declares our faith and trust in drug abuse among the A fourth guideline is to be in touch God and allows us as chaplains to deal with touch. There is a common with our own grief. meetings with the Chief deprivation of touch in prison. This is State Juvenile Probation especially true of the inmate who “It is not the external circumstances, Officer, Southern District receives no visits. I had to work but the spirit in which we face it, that of New Mexico through the process of gowning up in protective garments to visit some of these patients. My initial reaction was not to do it, until I realized that the purpose of my gowning up was more to protect the inmate patient than to protect me. Now when I am required to do this, I do it and explain it at some point to the patient. As our relationship grows, I will ask him if he feels comfortable with me taking off the gloves so that we can hold hands.

The rest of the guidelines are these: be there, listen, don’t feel you need to have all the answers, validate the (the institution is located on the Texas- for use by staff when presenting New Mexico border), it was decided community drug abuse programs. that FCI La Tuna would be a “tour Three different tapes were stop” for first-time, adjudicated produced: a 5-minute version aimed juvenile offenders. In addition to the at elementary school children; tour, inmates would present lectures on a 10-minute version for the the consequences of drug abuse and the junior high age group; and a 30-minute negative lifestyles associated with version titled “A Day in the Life of La drugs. The tour and lecture program Tuna,” for high school and adult would supplement an ongoing diver- groups. These videotapes have been sion program, run by the Juvenile extremely well received in community Probation Office in southern New presentations by staff. Mexico, which certain adjudicated In its present form, La Tuna’s program juveniles and their parents were includes a tour conducted by the This program was so well received by required to attend. inmates, lectures of about 5 minutes by the Juvenile Probation Office that it four to six selected inmates in a large was offered to the Gadsden (N.M.) La Tuna’s participation was initiated group setting, then smaller group School District. Two of the Gadsden with the agreement that the institution dialogues with two to three inmates per junior high schools have brought would provide an educational drug group. Staff continually supervise these students (troublemakers, suspected abuse program conducted by inmates activities but do not take an active part drug users, and potential dropouts) to and supervised by staff, with the goal in the discussion. The emphasis is on the institution program. The reaction of teaching juveniles the consequences “responsibility for actions, choices to from school administrators has been of drugs and their effects on loved be made, the consequences of these overwhelmingly positive. In addition, ones, and the associated lifestyles as choices, and resistance to peer pres- the program has been used by the evidenced by the incarcerated status of sure.” Texas Youth Commission for a group the presenters. The program was to aid of adjudicated delinquents in a halfway the community by supplementing its A typical large group segment begins: house, and by the El Paso Job Corps resources in combating its local drug “My name is Joe. I’m serving 15 years for a group of potential dropouts. For abuse problem. for trafficking in cocaine because of a this last group, the program was choice I made to involve myself in changed slightly to include motiva- Inmates who wished to volunteer were drugs.” The inmate participants are tional reasons for staying in school. considered if they met several criteria: given some specific directions: profanity is never used, there are never To date, about 200 youths and 150 n No history of violence. any references to sex, and the partici- parents, staff members, teachers, pants are never threatened (this avoids principals, and administrators have n No sexual offenses. the problems associated with “Scared attended and participated in this n No recent history of incident reports Straight”-type programs). The format is program. An estimated 350 people in within the institution. strictly educational; the inmates meet the area have seen “A Day in the Life for an hour on the day following the of La Tuna.” n Recommendation by the unit team program to discuss and improve their that manages the inmate’s housing unit. presentations. One of the positive, unanticipated n Recommendation by the institution’s effects of this program has occurred psychologist after an interview and When the program started, all sessions among the inmate participants. Inmates psychological testing. were videotaped (juveniles’ faces were articulate and share more of themselves not shown) to safeguard against “for the kids,” and have achieved some potential liability. From these tapes real psychological growth—at least as grew the idea of producing a videotape 6 FederalPrisons Journal

positive, if not more, than many staff In the past, inmates in segregation units to move around in multifloored and peer counseling programs. Inmate and hospital wards were fed from housing units, and the time required to participation has become one of the portable serving carts that were prepare and individually pre-plate and treatment activities offered at La Tuna wheeled from the food preparation area wrap each serving added to the in support of the long-held notion that to these units. Individual food trays demands already placed on food positive personal growth occurs were prepared and delivered to the service staff. Additionally, some foods through helping others, Because the inmate’s cell. Under this system, the do not reheat well; care must be taken First Offenders’ Program has evolved quality and the quantity of the meals in the reheating or the food suffers. into an inmate treatment program that varied greatly compared to meals on is as much for inmates as for the the main serving line. Within the high security operation at community, the institution is also the U.S. Penitentiary (USP), Marion, beginning an evaluation component to Illinois, more than 80 percent of the assess the psychosocial changes made inmates are fed in their cells. The by the inmate participants. microwave food service system had beenan institution-wide operation Rudy Franco is Associate Warden at at Marion since late 1983. By the Federal Correctional Institution, fall 1986 the food service La Tuna, Texas. department began exploring alternatives to the microwave-based

Innovations in Satellite After visiting other correctional institutions, local hospitals, and some Feeding: Improving During the early 1970’s the Bureau adopted a microwave food service schools, staff decided to implement a Delivery and Food Quality system for inmates confined in pilot feeding program in the most Stewart Rowles and Elmer L. Knowles Metropolitan Correctional Centers. secure unit in USP Marion (and in the Later the microwave-based system was entire Bureau of Prisons) that used The importance of maintaining a high- expanded to include use in hospital thermal trays. The thermal tray design quality food service program within wards and segregation units. Under this allowed hot and cold foods to be placed our correctional facilities cannot be system food is prepared, placed on in a single covered tray and delivered overstated, especially as overcrowding plates, and moved to the housing units to the inmate without reheating. This places greater demands on other in refrigerated and heated food carts. would decrease the amount of time that operational areas. Ensuring that all Those foods requiring reheating prior unit officers would be involved in the inmates receive palatable and nutritious to serving are heated to the appropriate feeding process, ensure consistent food meals—both those who can go to the temperature in microwave ovens. The quality, decrease waste, provide good main serving line and those who must microwave system allowed the food heat retention, and improve the have meals delivered to them— service department to control portion nutritional value of the meal (Breeden, requires complex food service pro- sizes and serve all food at appropriate 1982). grams. The need to provide high- temperatures, increasing the quality of quality meals to inmates not eating in the meal. The pilot project was intended to the inmate dining room has motivated determine whether appropriate food the Bureau of Prisons to develop While the microwave system greatly temperatures could be maintained innovative delivery systems and use improved the quality of meals and throughout the tray preparation and evolving food service technologies. reduced the amount of time that the delivery and to assess the inmates’ unit officers were involved in the reaction to the new feeding system. It feeding process, some problems remained. The food carts were difficult Winter 1991

was abandoned after about 1 month. were necessary to fill the trays effi- population via the institution’s educa- Proper food temperatures could not be ciently. The hot food items are pre- tional closed-circuit television channel. maintained, the design of the tray did pared and loaded into the trays accord- The inmates’ tape stressed the nutri- not allow for sufficient food portions, ing to housing units; the trays are then tional benefits of the new program and and the inmates reacted negatively to placed into a thermal bag to maintain attempted to explain the “two-tray” the new program. Staff also found the the proper temperature. The cold trays process in detail sufficient to answer thermal trays bulky and hard to handle. are then prepared and the hot and cold any questions. trays for each housing unit are loaded While the thermal tray project was into thermal bags and placed on flat The “two-tray” system has been in temporarily abandoned, the benefits of carts for delivery to the units. operation for more than a year at USP a feeding system that eliminated the Marion. The response from both staff need for food to be reheated at the The “two-tray” feeding system was and inmates has been favorable. Unit feeding location seemed obvious implemented institution-wide at USP staff spend less time in delivering enough to encourage further effort. Marion during August 1988 after a meals to the inmates; the inmates Although the original thermal tray was training videotape was shown to all receive a meal that is more appealing abandoned, new trays, more suited to correctional staff. The tape clearly and higher in nutritional content. As a the Marion operation, were designed explained the roles of all staff involved side benefit, more time is available for by the institution’s Food Service in the preparation, setup, and delivery activities within the living unit due to Administrator. The new tray design of the meal. An additional videotape the considerable time savings offered included one cold food tray and one hot was prepared and shown to the inmate by the “two-tray” system. food tray for each meal; the trays were smaller and easier to handle than the This food delivery system, developed original thermal tray. within a high security environment, could well be adapted to other settings The trays were constructed of clear with populations having restricted Lexan plastic and the lids were mobility, such as disciplinary segrega- interchangeable between hot and tion units, pretrial detention facilities, cold trays. Constructing the trays or hospital areas. It is another example from a clear plastic allowed the of how staff initiative can shape unit officers to inspect the trays technology to provide better inmate without removing the lids. services—demonstrating once again Thermal bags were also that innovative staff are the Bureau’s designed and constructed to best resource. insulate the food as it was moved from the food Stewart Rowles is a Research Analyst service area to the and Elmer L. Knowles is Food Service housing units. The thermal Administrator at the U.S. Penitentiary, bags provided insulation Marion, Illinois. for the food trays and eliminated the need Notes for the more expensive Breeden, Howard E. “Food Service for the refrigerated and heated Future,” Corrections Today, 44:64, June 1982. food carts.

A conveyor system and hot and cold serving lines major railhead of the Southeast, in the nature). In the federal prisons, those Wartime Precautions midst of industrial and military responsible for such protective pro- concentrations. Danbury, Petersburg, grams have foundationed their activi- This article is reprinted Editor’s note: Lewisburg, Chillicothe, Tallahassee— ties upon the basis of thorough surveys from Gearing Federal Prisons to the all of these and others are within range of their local physical plants. War Effort, published in 1942. While of possible enemy air invasion. The German or Japanese air attacks may Detention Headquarters at New Medical preparations seem outlandish from the perspective of Orleans and at New York City are both the 1990’s, they were very much on the Under this heading comes the estab- located in large metropolitan centers minds of defense plannersincluding lishment and equipment of emergency which are reasonably conjecturable the Bureau’s, as Federal Prison operating rooms and first aid stations in objectives for attack. All of the Industries put its factories to work sections of institutions least likely to institutions, however, no matter what suffer raid damage; also the training of producing war goods. their location may be, have carried out first aid and rescue squads. Consider- intensive programs of preparation for The Federal Prisons Journal will able attainment has been made in any and every eventuality. occasionally reprint other articles that respect to such activities. reflect the history of the Bureau of Measures taken fall under three Morale stimulation and instruction Prisons. classifications: Protection from Direct Damage, Medical and Surgical Every effort has been made to inform Large or small, remote to national Preparations, and Morale Stimulation inmates of federal penal institutions of frontiers or close to them, all of the and Instruction. the exact nature, effect and extent of federal correctional institutions have jeopardy of air raid attack. Lectures taken steps to protect life and Protection from direct have been given, information has been property in case of air raid. damage published (via institutional magazines and bulletin boards) and government- Within this subdivi- Many of them are issue movies have been shown. News sion of defense directly within broadcasts and war bulletins have been activity falls the “target areas.” made increasingly available, for such creation of McNeil information is regarded as importantly equipment Island is contributive to good morale. Commit- and directly tees have been formed to undertake mate- within the morale-stimulative activities that will rials Puget Sound be carried out if and when attacks for the military area, occur. close to defense extinguish- ing of fire installations of In these and other ways, the Federal bombs, the teaching many kinds. Bureau of Prisons has met the chal- of fire-fighting tech- Alcatraz stands at lenge of the times, has taken steps to niques, the appointment the front gate of insure the safety of every man and of crews to perform this Japan’s hypotheti- woman confined within its various function, and the cal “number one institutions, has fallen in line with the holding of practice objective” in North American institutions and groups, drills where possible. America, San public and private, who are not waiting Methods and measures Francisco harbor. for a first attack to do the things they for dealing with gas The Atlanta should have done long before. Penitentiary is bombs receive consid- situated at the eration (of a limited Winter 1991 9

I really enjoyed the issue and your article Bureau Director Myrl Alexander with Letters in it. James Vorenberg. We should correct some other errors in that issue. On page J. Michael Quinlan Yours truly, Director, Federal Bureau of Prisons 36, column 3, paragraph 2, the final Alfred Blumstein sentence should read: “As I worked with Dear Mike: Dean and J. Erik Jonsson Professor of delinquent kids, I learned much about I just got a chance to look at your 60th Urban Systems and Operations Research their frustrations and deprivations.” On Anniversary issue of the Federal Prisons School of Urban and Public Affairs the foldout, the “start date” for Federal Journal. It is really an excellent and Carnegie Mellon University corrections should be 1789. Maxwell thoughtful issue. Pittsburgh, Pennsylvania should be the “oldest” rather than the “first” prison camp; a handful of camps I particularly appreciated your article Editor’s note: Professor Blumstein is opened a few months before Maxwell, but attempting to get the public to be realistic correct. The photograph shows former closed within 2-3 years. about what prisons can and cannot do. I have just one minor nit to pick. One facet of public perception that seems to contribute to our horrendous prison crowding problem is their over-expecta- tion of how effectively prisons can assure public safety. It seems that whenever we have a difficult and intractable societal problem (like the drug problem today), the public—egged on by political figures who understandably don’t have anything better to propose—seems to be satisfied with the proposal to crank up the sanctions. Doing that seems to be Conference on the accepted as having dealt with the History of Federal Corrections problem. In that context, your statement March 28, 1991, National Archives’ Theater, Washington, D.C. that “society should expect that prisons will protect public safety” might also 1991 marks the Centennial of the Three Prisons Act, which estab- feed that expectation. I fully appreciate the limited sense in which you meant that lished the first Federal prisons in the United States. This special (keeping offenders assigned to you off conference will commemorate that event by furthering scholarship the street and thereby precluding their and discussion on the historical evolution of prisons in American predatory behavior), but many people will take it in the context of “protect[ing] society. Admission is free, but seating is limited. Attendees must public safety” much more broadly. pre-register on a first-come/first-served basis.

Incidentally, the photograph on page 36 For registration information call 202-307-1202. sure looks to me like Jim Vorenberg (then Executive Director of the Chairman: Norval Morris Constance Potter John J. Dilullo, Jr. “Resources for Future “Bureau of Prisons President’s Commission on Law En- Paul W. Keve “Early History of Federal Research” Management” forcement and Administration of Justice Corrections” Robert B. Levison Comment: Gustavo Fernandez, Julius Debro and my first mentor on matters of David A. Ward “Classification and criminal justice), and not Ramsey Clark. “Alcatraz and Marion” Programming” Special Panel Discussion: Myrl E. Alexander, Norman A. Carlson, Esther Heffeman Ira. P. Robbins J. Michael Quinlan. Moderator: “The Role of Women in “Inmate Rights ” Hon. Helen G. Corrothers Federal Corrections” 10 Federal Prisons Journal

BHYTPEI COB~TCECEIX TIopeM

by the U.S. Delegation Commission on Security and Coopera- We had hoped to tour the KGB-run tion in Europe (Helsinki Commission), to investigations prison, Lefortovo, but ive years ago, who would the Perm 35 labor camp to investigate KGB approval was not forthcoming in a have thought the Soviet human rights. At that time, Congressman timely manner. Union would soon open its Wolf suggested that Mr. Quinlan and prisons to scrutiny by U.S. Government officials of Prison Fellowship travel to A number of Soviet officials met us upon officials? Yet that is exactly what did the Soviet Union to open a dialog with arrival in Moscow and accompanied us happen in March of this year, when a Soviet correctional officials on matters of throughout the week. They answered U.S. delegation, headed by J. Michael mutual concern. Attorney General Dick endless questions about the Soviet Quinlan, Director of the Federal Bureau Thornburgh expressed his support to the system and were anxious to hear our of Prisons, traveled to the Soviet Union Soviet Minister of Internal Affairs, observations at each stage of the visit. In for a 1-week tour of penal institutions Vadim Bakatin, in December 1989. Mr. addition, the Soviets learned what was and to establish a working dialog with Quinlan subsequently wrote to Soviet important to us simply by noting our Soviet criminal justice officials. We officials to officially request permission questions in each of the prisons and the toured five correctional institutions in the to visit Soviet penal institutions. The programs and policies that were of Soviet Union and discussed our observa- Soviet Government granted the request particular interest. tions about the Soviet penal system and and endorsed the visit as “official.” the common issues that arise in prison The Soviets also arranged for us to meet administration with high-ranking We visited two labor camps in Penn, a with officials in the Ministry of Internal officials in the Soviet Ministry of Internal region 800 miles east of Moscow: Perm Affairs, including its Minister, Vadim Affairs and in the Office of the Procura- 29, a “strengthened regime” labor camp, Bakatin, and with officials from the tor General. and Perm 35, the “strict regime” labor camp in the Ural Ours was the first official U.S. delegation Mountains visited to visit Soviet prisons, although previous earlier by Congressmen groups from the United States have Wolf and Smith. The delegation visited particular prisons. The U.S. also visited three facilities in the delegation had a balance of perspec- Moscow region: the Butyrka tives—administrative, legislative, and Investigations Prison in Moscow oversight, as well as prisoners’ rights. In and a women’s labor camp and addition to Mr. Quinlan, the delegation a juvenile camp in Mozhaisk. included Margaret Love, Associate Deputy Attorney General for the Depart- ment of Justice; Elizabeth Fine, Counsel to the House Judiciary Subcommittee on Courts, Intellectual Property, and the Administration of Justice; Charles W. Perm 29 Colson, Chairman of Prison Fellowship a Leningrad Perm 35 International; and Jack Eckerd, a member + of the Prison Fellowship International Board of Directors. 2

The idea for the visit grew out of an Mozhaisk Children’s Colony August 1989 visit by Congressmen Frank Wolf of Virginia and Chris Smith of New Jersey, both members of the U.S.

12 Federal Prisons Journal

tently released in the amnesty. In a single organizational structure for the classification system markedly different addition, as Minister Bakatin noted, administration of the entire Soviet from our own. The labor camps are changes in all aspects of life in the Soviet corrections system. divided into four different “regimes”: Union, including economic and political ordinary, strengthened, strict, and special. changes, the questioning of traditional The Soviet Department of Corrections is The regimes are apparently not distin- values, and the resurgence of ethnic within the Ministry of Internal Affairs; guished by security considerations, but nationalism, have generated greater the Director of the Department reports to by the inmates’ access to certain privi- willingness on the part of Soviet citizens a Deputy Minister. The Department is leges. The number of letters, packages, to challenge authority. Increased ultimately responsible for the 2,100 labor and visits per year to which the prisoners expectations on the part of Soviet citizens camps and the small number of prisons are entitled varies according to regime. and an impatience with the pace of operating in the Soviet Union and In addition, the prisoners’ daily caloric economic reforms contribute to the oversees the 400,000 employees working intake is adjusted downward as the growth in crime. Finally, just as the for the Department of Corrections severity of the regime increases. United States has a high rate of drug- throughout the system.* However, much related crime, the Soviets have a severe of the responsibility for operating the Most of the 761,000 prisoners are problem with alcohol. Indeed, we were penal system has been transferred to sentenced to labor camps. There are, in told that 30-40 percent of crimes regional authorities in the 15 republics of addition, a small number of facilities, committed in the Soviet Union are the U.S.S.R. Whereas in the past there perhaps no more than six, that the Soviets alcohol-related. were 1,000 officials at the Central label “prisons.” The prisons are reserved Department Headquarters in Moscow, for the most serious offenses and difficult According to Minister Bakatin, the there remain only 148. offenders. Prisoners there are housed in climate in the labor camps and prisons cellblocks, and the regimen is harsher has deteriorated since the release of Prisoners in the Soviet Union are than in the labor camps. nonviolent offenders because only the assigned to labor camps and prisons by a most dangerous prisoners remain; The court in the Soviet Union, instead of 350,000 of the 761,000 Soviet prisoners *The Department of Corrections is also responsible the Department of Corrections, deter- are second- or third-time offenders. for the nation’s mental hospitals, which have been mines a prisoner’s classification, and it is much criticized by human rights groups in the past, Accordingly, Soviet prisons are increas- particularly with respect to the treatment of Soviet part of the sentence. The more severe the ingly difficult to administer. Yet the dissidents. offense, the more severe the regime. Ministry at the same time is anxious to proceed with its second stage of re- forms—the humanization of the prison system, with a greater emphasis on reeducation and rehabilitation.

Changes in prison administration he Soviet Union has a centralized legal system, and all law is national law. Unlike the United States, the Soviet Union has no state governments, each with its own laws and administrative and political bodies, although reforms are moving in the direction of greater regional authority. Accordingly, there is U.S. delegation members with local officials and officials from the Ministry of Internal Affairs. Left, Jack Eckerd; third from left, Elizabeth Fine; center, J. Michael Quinlan; third from right, Margaret Love; second from right, Charles W. Colson. Winter 1991 13

Repeat offenders are also likely to be Soviet Prisons—Usually appeared run-down and the physical placed in a more stringent regime. Soviet Humane, Sometimes Grim setting was rudimentary and grim. law provides for a maximum sentence of Nevertheless, there were clear indications Perm 29 15 years’ confinement for any offense, that the facility was orderly and erm 29 is a 34-year-old though a death sentence may also be efficiently run. “strengthened regime” imposed. We were told that about 30 to labor camp in the Soviet 40 executions took place last year. Once The tour took us through educational region of Perm. The Perm region has 13 a prisoner is sentenced, the Department facilities, where all inmates study to penal facilities: one educational colony of Corrections identifies the specific complete the 10 years of schooling for children; three women’s colonies; a facility for the prisoner’s sentence from required of all Soviet citizens, and where strict reinforced labor camp, Perm 35; among those in the specified regime. training in various trades was offered for two ordinary regime labor camps; four Policy favors placement of prisoners in prisoners who had no profession. As in strict regime camps, and the two facilities close to their home and family. all Soviet penal institutions, the educa- strengthened regime camps, including tional staff works not for the Ministry of Perm 29. Three camps have been closed The Office of the Procurator General Internal Affairs, but for the Soviet as prisoners have been released in recent serves as a general oversight authority in educational authorities. years. the Soviet penal system, much like an Inspector General’s role in the U.S. As a strengthened regime labor camp, At the time of our visit, there were 900 Officials from the Procuracy have the prisoners were entitled to 2,800 calories a inmates at Perm 29, which has a capacity right to enter any prison and investigate day. (This compares with a diet in a U.S. of 1,300. According to the prison cases in which prisoners’ rights may be Federal prison, which is not based on commander (who led the tour of the violated. While on the one hand, the calories, but on nutritional content.) The facility and then hosted us for discussion, Procuracy’s role is to contribute to the dining room had some tables at which cognac, chocolate, and tea), 800 of these defense of the weakest, according to the inmates would have to eat standing up. prisoners have been convicted of crimes Deputy Procurator General, its official According to the commander, it cost against a person and about 380 of position is one of neutrality. In addition, approximately 1 ruble a day to feed each murder. the Soviet Parliament, with its expanded prisoner. At an exchange rate of 6 rubles authority, will begin to exercise oversight to the dollar, the per capita expenditure Despite the fresh paint that we could of the Ministry of Internal Affairs, and for food amounted to less than 17 cents smell throughout the institution and the thus over the penal system. per day. In addition, prisoners were fresh gravel covering the mud in the permitted to spend 25 rubles a month in fenced-in yard, the prison facilities the prison shop, which sells some foods and items such as toothpaste.

We also toured the library, where there was a local radio station run by a prisoner; the auditorium, used for films and assemblies, and in which the commander indicated there had been a very well-attended religious service only days earlier; and the fenced-in courtyard and dormitory housing unit, where we had the opportunity to talk briefly with inmates. Curiously, inmates seemed puzzled about the existence of a library Above: Margaret Love, J. Michael Quinlan, or the opportunity to borrow books from and Minister of Internal Affairs Vadim Bakatin. Right: The gate at Perm 29. 14 Federal Prisons Journal

it. Also, no prisoner confirmed that there Taking into account the spartan condi- recently been released as part of a had been a religious service earlier in the tions, the dark, harsh punishment cells, nationwide amnesty program. Perm 35 week. and questions about prisoners’ access to attracted international attention when it library facilities and religious services, opened in 1972 because of its high Prisoners wore black uniforms and had the camp’s conditions and programs were concentration of prisoners who were shaved heads, and a high degree of generally better than what we had classified as “prisoners of conscience” by discipline was evident. The 900 men expected. Although primitive relative to international human rights groups and were divided into separate housing units. standards for correctional institutions in concerned governments. The National The dormitory unit housed 169 inmates the U.S., conditions of confinement at Geographic Society and the 60 Minutes in crowded, but neat, double-bunk beds. Perm 29 were humane and not substan- news team reported on the severe Men in the unit’s recreation room sat in dard relative to the surrounding commu- conditions at this “gulag” in the weeks an orderly fashion watching television. nity. The facility was clean and orderly, preceding our visit. Even with just a few A few reading materials were available, and administered in a professional remaining prisoners, Penn 35 is a living including a newspaper written for the manner. remnant of the Soviet past, and for that labor camps across the country. There reason was worth the lengthy trip. was no evidence of any other recreation Perm 35 facilities or activities, either inside or It takes about 6 hours to Previous foreign visitors to Perm 35 outside the housing unit. drive, over snow-covered focused on the plight of specific impris- roads, from the city of Perm oned individuals. We did not revisit the The Soviet officials were quite accom- to the infamous labor camp Perm 25, question of whether the prisoners were modating and agreed to show us the high in the Ural Mountains. A.M. properly confined, but, rather, examined punishment cells, even though they were Rosenthal of the New York Times and a the conditions of confinement. not on the scheduled tour. Punishment representative from Helsinki Watch were cells are referred to as “schizo’s” the first Americans to visit this prison, in Our most immediate impression of Perm (pronounced sheezo) in the Soviet Union. late 1988. Congressmen Wolf and Smith 35 was its desolation. Amidst the The isolation area was easily identifiable returned there in August 1989. snowdrifts, there was a small inmate not only by its darkness, but by its population of 22 prisoners and a staff of stench. The commander offered to open Perm 35 is a “strict regime” labor camp 40. This contrasted markedly with up any of the dozen cells at random. with a capacity of 400 prisoners. (At its another labor camp, several kilometers Each punishment cell was 12 square peak, the prison held 250 inmates.) At down the road, where 1,000 prisoners meters in size, and would house up to the time of our visit, only 22 prisoners were held and there were signs of a four prisoners for 1 to 15 days, although were held there. Other prisoners had bustling industry inside the barbed-wire officials said the average stay is about 5 fences. Moreover, according to the Penn days. Officials here repeatedly men- 35 prison commander, nine inmates were tioned that prisoners are rarely placed alone in punishment cells because isolation is considered too grave a punishment. Benches for sleeping are folded up against the wall during the day and taken down at night. Prisoners can sit only on iron benches during the day. The cells have toilet facilities, and running water is made available at 7 a.m. daily.

Above: A worker in the Perm 35 factory. Right: En route to Perm 35. Winter 1991 15

scheduled for release and an additional temperature inside the living quarters We spoke with a number of prisoners in three were being considered for early was comfortable. The residential facili- the visiting area in the presence of release. The commander said he would ties were roomy but rudimentary, and journalists (including a television camera certainly recommend that the camp be there was little in the way of recreational that accompanied the delegation through- closed rather than remain open for the activities—just a weight room of sorts out the tour) and prison administrators. other 10 prisoners, although the decision and a room with a television set, although We had asked if we could conduct will be left to the Minister of Internal the remote location would undoubtedly interviews in private, but were told that Affairs. interfere with the reception. “it is the law” that the administrators listen in. We first visited the factory, where half a The remoteness of Perm 35 raised dozen prisoners worked on heavy questions concerning the availability of Prisoners told us about a number of machinery under equally heavy supervi- medical care. The labor camp had little problems with conditions in the camp. sion. According to the commander, in the way of modem medical equipment. One prisoner indicated that it is impos- prisoners at Perm 35 work 8 hours a day, An operating room and a dentist’s chair sible to avoid infraction of the rules (and 6 days a week, and have 1 hour to rest looked like remnants of the 19th century. therefore spending time in the punish- before dinner. It was impossible to talk There was, we were told, a full-time ment cell). He reported that since with any inmate freely; correctional doctor on staff. Congressman Wolf’s August 1989 visit, officers quickly appeared when we struck he had been placed in isolation five up conversations with prisoners, and at The commissary shop for prisoners was times. Another prisoner told us that he least one prisoner who conversed with us well stocked, with canned goods, had been in the punishment cell continu- met with clear disapproval from the cookies, cigarettes, socks, toiletries, and ously for over a year; a third indicated guards. writing materials; prisoners could spend that his stay in the “schizo” now ex- 10 rubles a month and supplement their ceeded 6 months. There were also Everything about the labor camp re- 3,000-calorie-per-day diet. In the reports that family visits are often denied flected its small population. In contrast apartment-like family visiting area, and that prisoners have not received to the crowded living quarters at Perm prisoners are allowed to receive 3-day incoming mail. Finally, we noted that all 29, the Perm 35 residence had two conjugal family visits once each year. the Perm 35 prisoners were very thin. spacious rooms with only nine cots to a Only three members of the delegation room. Other prisoners were confined to were permitted to see the punishment We had a number of concerns regarding the “schizo” or punishment cells, and two cells—one small cell and one larger one the conditions of incarceration at Perm prisoners were ill in the infirmary. The where two prisoners were held. The 35. First, the camp is located in a remote larger cell had food on a table and many area, far away from many prisoners’ newspapers. Again, at the time of our families. This is compounded by the visit, the temperature in the cells was restrictions on mail and family visits. In comfortable. addition, to the extent that confinement to the “schizo” is used routinely for minor infractions, the practice would not be acceptable in the United States. Nor would the long periods of confinement in the punishment cells. In addition, if facilities are not adequately heated, or punishment cells are intentionally kept at cold temperatures (as we were told is the Above and right: Scenes at Perm 35. The case), conditions would be inhumane by poster reads: “Work better to increase U.S. standards. productivity and quality.” On a positive note, the prison was orderly more difficult cases may stay for up to 1 We spent more time touring the prison and neat, and the prisoners were occu- year. In addition, there is a work cadre museum than walking around the prison pied. Yet Perm 35 has a reputation that of about 120 sentenced inmates. facilities. will survive the camp itself. Many prisoners believe that they are unlawfully Uniform rules govern all “investigations The prison was indeed a fortress. Every imprisoned, and should not have to abide prisons”;as the commander explained, door was solid and one could not see into by the same rules as those convicted of these prisons serve several tasks: to or out of the cells or rooms. Prisoners property crimes or crimes of violence. provide the authorities with all possibili- inside the cells could call staff by We were encouraged by indications that ties for investigation, to insulate society pressing a bell. The delegation was the labor camp may be closed in the near from dangerous criminals, and to prevent shown an empty cell on the prison’s future. escapes. special block that would accommodate one to five persons and an empty Butyrka Investigations Prison Roughly 60 percent of the prisoners in punishment cell, located in one of the e next visited the Butyrka Butyrka are held in common cells, each comer towers. Regular cells are investigations prison in accommodating 20-25 persons, while 40 equipped with toilets, radios, mirrors, and Moscow, one of the oldest percent are in l-5 person cells. Men are running water. Prisoners leave their cells prisons in the Soviet Union. Butyrka is separated from women, repeat offenders for showers every 7 days, and at that time located in an ancient fortress that was from first-time offenders, those who the bedding is changed. These and other used by Peter the Great for military committed “hard” crimes from those prison rules are posted on every cell wall. purposes. It was converted for use as a involved with less serious crimes, and prison in 1787 and as such has housed adults from juveniles. In addition, all Punishment cells at Butyrka hold many well-known revolutionary figures. prisoners who are “inclined to excesses” prisoners in solitary confinement. are separated. Unsentenced prisoners can stay up to 10 Butyrka was slated for demolition in the days and nights in the cells, and sen- late 1950’s. However, the Government We were given a detailed description of tenced prisoners for 15 days. On instead built an apartment house adjacent the prison, but actually saw very little on average, about seven prisoners are held to the prison to block any view of it from the tour. There were virtually no in the punishment cells at any given time. the street. The Butyrka prison is now a prisoners to be seen anywhere in the historical landmark and the prison institution (with the exception of one On the way into the prison, there are commander repeatedly explained the prisoner pressed with his face against the holding cells—really, closets—that are difficulty he faces in gaining approval for wall on the stairwell as we passed and renovations from the Government one or two others who were in transit). bureaus charged with protecting historic buildings. A 10- to 15-million ruble renovation has, however, finally been approved.

According to the commander, the number of prisoners at Butyrka totaled “a little more” than the facility’s 3,500 capacity, and included about 450 women. Those detained at Butyrka are awaiting trial or transfer to another prison, and in some cases prisoners who are material wit- nesses in a trial are held at Butyrka. The average stay is 4 to 6 months, although

Above and right: A dormitory and bathroom at Perm 35. Winter 1991 17

not used as punishment cells, but would were like. When the tour ended, we Mozhaisk 5 certainly serve the same purpose. We commented that with more than 3,500 ur next stop was a 40-year- were informed that prisoners typically prisoners, it was curious that as few as 2 old colony for women at spend 1 hour or so in these “cells” while or 3 prisoners had been seen during the Mozhaisk, a suburb of they are sorted for assignment to an area entire tour. The commander explained ozhaisk 5 is one of approxi- in the prison. Nonetheless, we felt that that it is forbidden by law for anyone to mately 80 colonies for women in the these closet-cells had the potential for see unsentenced prisoners, but agreed to Soviet correctional system, 40 of which grave abuse. bring us back into the prison, where we are commanded by women. Mozhaisk 5 met with one sentenced prisoner who had is headed by a male commander and two In the medical facility, prison officials been elected by his fellow prisoners as female assistants, who led the tour of the proudly displayed their Soviet-made X- supervisor for the 120-prisoner work camp and who impressed us with their ray machine. The tour continued through cadre. After a brief chat and a tour of the knowledge and professionalism, and their an area in which the commander told us living area for the sentenced work cadre, extremely comfortable and supportive that behind each of the solid, closed the commander led us out of the prison interaction with prisoners. Most of the doors, investigators were meeting with through a side door. 380 military and civilian employees at prisoners and working on criminal the camp were women. investigations. Finally, we were given a Why did the Government allow us to very detailed tour of the prison museum. visit the prison, but place such severe The 900 women prisoners at Mozhaisk 5 restrictions on what we could see, in have been convicted of more serious In short, we saw empty cells, closed stark contrast to the openness of the two crimes than had been the case for women doors, and relics, and had no opportunity Perm facilities? We could only speculate in the past. Typical crimes today include to see how prisoners lived in the institu- about the reasons for this secretiveness, state and property offenses, offenses tion or what conditions of confinement and surmised that they must relate to against the person, and murder. Half of conditions inside the cell areas, the all women in Soviet prisons are serving lengths of time prisoners are actually time for property offenses. Women held before trial, and the nature of the convicted of lesser crimes now have their charges. In addition, we were unable to sentences postponed and are essentially confirm with inmates any of the staff’s placed on probation. Those who fail to assertions about access to counsel, obey the conditions of their probation are visitation, and other pretrial rights. sent to a labor camp such as Mozhaisk 5. While prisoners can be sentenced to Mozhaisk 5 for anywhere from 6 months to 15 years, the average sentence is 3.5 to 4 years, and prisoners range from 18 to 70 years of age. In fact, we were surprised by the number of older prisoners in the camp.

This year, the Soviet Government is conducting a bold experiment in seven women’s colonies, including Mozhaisk 5. In addition to a new policy of awards—expanding the number and size of parcels women can receive, extending visiting privileges, and adding a 12-day furlough—it makes special provisions for women who are mothers. Mothers tion building, samples of children’s also seemed to chat freely with the are considered the heads of households, clothes that prisoners had made were prisoners. At one point a prisoner and under this experimental program, displayed on the classroom walls. The handed the commander a note with initiated in March 1990, pregnant women dormitories were crowded, but walls specific requests; he approved two and are released from prison at the time of were covered with colorful posters and turned down one. childbirth and allowed to stay with the drawings, and pillows, curtains, and family until the child is 3 years old. At cloths were all hand-embroidered by the The medical clinic was filled with that time, if the mother has behaved well, prisoners, who apparently took great care activity; we were told that the focus in the court decides whether to cancel the with their surroundings. Women on a medical treatment was on preventive original sentence or lessen its severity. dinner break sat in the television room or care. At the time of the visit, there were All women at Mozhaisk 5 are eligible to in the outside courtyard talking in small a number of prisoners in the clinic participate, provided they are not repeat groups. In the auditorium, several awaiting outpatient care and 19 inpatient offenders and are not sentenced for women rehearsed for an upcoming prisoners who were anxious to find out particularly violent or serious crimes. concert—one stood at the piano singing from the delegation or Soviet authorities along with an accompanist. The library if there was any news about when they While we were not intimately familiar was centrally located, well stocked, and would be released. General V.N. with Soviet culture and norms, we felt apparently well used. We took particular Kremenesky, a Deputy Chief in the that this experimental policy could note of the poster-sized prison newspa- Department of Corrections who accom- unwittingly encourage pregnancies. This per, hand-made by prisoners and contain- panied our tour, indicated that an policy would be very controversial in the ing original articles and artwork. An amnesty plan was awaiting approval at U.S., particularly if, as in this experimen- artist showed us many previous editions the Ministry. tal program, conjugal visiting privileges of the newspaper, stored in a room at the were extended to nonfamily members. In library. A high point of the tour was the dining addition, male prisoners in the United room, where we partook of the prisoners’ States would claim that women were We talked easily with all the prisoners soup, meat, kasha, and fruit tea. Women receiving preferential treatment in we approached. One woman who spoke prisoners and officials appeared to enjoy violation of the equal protection require- English commented that she did not our visit; one prisoner sat with us as we ments of the Constitution. consider this to be prison, but a place sampled the cuisine. where she lived and worked, although it Mozhaisk 5 was without doubt the most was not her home. The administrators impressive facility the delegation toured in the Soviet Union. Two members of the delegation had toured prisons throughout the world and found the level of prisoner morale and the administration of the prison to be among the best that they had seen anywhere.

While there were trees, birds, and signs of spring inside the labor camp com- pound, much was also done by both prisoners and administrators to make the camp a humane place. Personal touches Left: The clothing factory at Mozhaisk 5. were evident everywhere. In the educa- Above: Lunch in the cafeteria at Mozhaisk 5. Winter 1991 19

Most notable, however, was the prison administration randomly opened the door compassion and discipline, order and industry. On the day of our visit, the 300 to one of the cells; inside were five personal freedom, and opportunities for or so women in the factory were making women dressed in nightgowns who were women to improve themselves, improve clothes for servicemen at railway apparently as surprised to see us as we their surroundings, and keep productively stations. There was music playing; we were to see them. One prisoner was occupied during their sentences. The were told that prisoners decide whether particularly disturbed and began crying visit to Mozhaisk 5 convinced us of the music should be on or off and what kind uncontrollably. The prison administrator importance of providing prisoners with of music should be played. The women tried unsuccessfully to calm her. The real opportunities for productive employ- wore head coverings to comply with delegation was told that the young ment. Moreover, the administration safety requirements and worked for net woman was in the “schizo” for refusal to showed concern for creating a humane earnings of 90 rubles a month. In work, although insolence, fighting, or environment. addition, they could receive good-time stealing from other inmates typically credits and increased earnings for landed prisoners in the punishment cells Mozhaisk Children’s Colony production in excess of their quotas. At for up to 15 days—sometimes for ur final visit was to the least 50 percent of each woman’s protection from retaliation by other highly disciplined earnings is kept by the administration to prisoners. children’s colony in pay for living, food, and clothes. Some Mozhaisk. There are 89 juvenile funds are deducted to repay victims of Our stay in the “schizo” ended abruptly facilities in the Soviet Union; a total of property crimes. when the young woman’s crying turned 28,000 juveniles are in custody. Six of into a hysterical episode or seizure. We the camps are for girls and four are for While overall morale in the colony commented that continuous confinement serious, violent juvenile offenders. The seemed excellent, we found the punish- in the dark punishment cell for up to 15 Mozhaisk children’s colony holds ment cells to be somewhat disturbing. days could have very deleterious effects. roughly 400 boys, aged 14-18, and Mozhaisk 5 has about 12 punishment The consequences could be lessened, provides them with education and cells, and the prison officials noted that however, if, as the administration professional training. All of the boys they are used only as a last resort. The indicated, the women are not left in the were serving time for property offenses. cells all day, but get out to work and Sentences were 3 years on average, exercise in the punishment area although most are released after complet- compound. ing one third of their sentence.

Notwithstanding the concerns about the There are two general categories of punishment cells, we found the institu- juvenile prisons in the Soviet Union: tion to be very well run, with a balance of one, including Mozhaisk, is for first-time offenders, and a second is for juveniles with previous records. Most first-time offenders are not sentenced to prison, but are given probation, and would only be sent to a colony such as Mozhaisk for violation of probation.

None of the Mozhaisk juvenile prisoners had been sentenced for violent crimes. Above: Working on the prison newspaper at Yet the atmosphere and physical sur- Mozhaisk 5. Right: Courtyard at Mozhaisk 5. roundings at the colony were extremely basic. Boys were dressed in brown and black uniforms, some with red armbands, and most had shaved heads. About 300 20 Federal Prisons Journal

of the boys were in school in the prison, company, this boy was in solitary ties visited would be considered substan- completing their 10 years of education, confinement, and was clearly disoriented dard in the U.S. For example, whereas or are in professional school learning after 5 days in the cell by himself. Federal prisoners and most State prison- steelworking, mechanics, or the assembly ers have virtually unlimited access to of radio equipment. The boys in the While not a nurturing, supportive showers, Soviet prisoners can shower classroom were shy about striking up environment, the children’s colony at only once a week. However, the stan- conversations, although several had Mozhaisk was highly structured and dard of living in the Soviet Union is questions regarding U.S. facilities for disciplined. The boys there seem to have substantially behind that in the U.S. juveniles. the opportunity to learn a skill and to Inmates in prison cannot live better than spend their time productively. The citizens in the surrounding community. Prisoners were involved in production at colony may instill some discipline in the Based on living conditions that the the prison’s six assembly plants and are youths, most of whom seemed to have delegation observed in Moscow, Perm required to work 4 hours a day if they are been sent there for stealing cars. Yet the and Mozhaisk, prison conditions ap- under 16 years of age and 6 hours a day regimen was severe for juveniles who are peared appropriate relative to community if older. After the administration deducts primarily first-time property offenders. standards. expenses, the boys were left with 40 to 50 rubles a month. The boys worked General observations and n Prison industries. together energetically and persistently in lessons for the U.S. A prominent theme that emerged in our teams on assembly lines, and were hile we did not discuss in visit was the importance of prison rewarded for production in excess of advance of the visit what industries; 82 percent of Soviet prisoners their quota. In one factory, boys as- each of us expected Soviet are so employed. Mindful of the fact that sembled light sockets; in another, prisons to be like, we agreed that in labor should not be used as punishment, loudspeakers. certain respects, conditions in the and of the volumes that have been institutions we visited surpassed our written on the brutal work conditions In contrast with the school and industry expectations. More surprisingly, we imposed in the past on Soviet prisoners, sections of the prison, which were all were able to compare the two nations’ the delegation was nonetheless favorably cement, the residential area had trees and prison systems and develop some ideas impressed with the compulsory work picnic tables. Still, the boys live in for the American correctional system. regimes at Perm 29, and at the women’s barrack-styled housing and there was and children’s camps in Mozhaisk. little evidence of any recreation, other w Conditions of confinement. Prisoners appeared productively em- than a television room in each dormitory. Living conditions at many of the facili- ployed in work that did not appear either

Tall fences surrounded the residential and industry sections of the prison to prevent escapes.Escape attempts were reported to be quite common; in fact, there was a boy in the punishment cell for an attempted escape. Unlike other prisons, where administrators made a point of noting that it is too difficult for a person to be alone in a punishment cell, and where administrators intentionally housed prisoners in groups—even in punishment cells—to provide them with to be exploitive or generally regarded by with the positive effect that the Soviet history are again being used as places of the inmates as a form of punishment. prison industry program has on morale, worship. Similarly, the Ministry of discipline, and administration that it Internal Affairs has begun to implement The difference between U.S. and Soviet returned with a renewed commitment to new religious freedoms in prisons; we prison systems with respect to prison increasing employment opportunities for applauded these advances in our meeting industries is somewhat ironic. Whereas American inmates. with Minister Bakatin. the Soviet Union has a problem of a shrinking prison workforce, the U.S. w Prison regimes. Prison administrators stated that prison- faces the difficult challenge of creating Soviet prisons and camps are divided into ers could freely practice their religion. enough jobs for the rapidly growing “regimes,” distinguished in part by the The members of our delegation associ- inmate population.*The tales of exertion number of letters and visitors prisoners ated with Prison Fellowship were given in Soviet gulags contrast greatly with can receive each year, and by the number permission to hand out Bibles in the complaints of inmate idleness in many of calories each inmate can consume prisons visited. While it is unclear to U.S. prisons. “Factories within fences,” each day. what extent prisoners actually have a goal that American correctional access to religious ceremonies inside the institutions strive to achieve, is a reality We had serious concerns about the use of prisons, the opportunity is there for in the Soviet Union. food and family communications as a outside religious groups to hold services. form of punishment, and raised the issue Currently, about one-third of qualified of limitations on mail and visiting rights w Oversight of prison administration. Federal prison inmates in the U.S. are with Minister Bakatin, who noted that We noted the positive trend toward employed in industry programs, and just these are remnants of the old Soviet greater oversight of the administration of 5-10 percent of State inmates. The system that have yet to be revised. the prison system. Currently, the delegation was sufficiently impressed Supreme Soviet member Golik, another Procurator General has a certain degree of the officials who met with us, indi- of oversight and review of the Ministry cated that new laws were being written, of Internal Affairs. Yet there is a need *In contrast to the Government funds used to run and questions such as ours would be for greater openness and public scrutiny prisons in the U.S., Minister Bakatin indicated that the entire operating budget for Soviet prisons in addressed through penal law reforms. of corrections. The Soviet parliament is 1989 was raised through prison production, and the developing its oversight role as it obtains full appropriation was returned to the Government. n Religious freedoms. greater autonomy from the executive For years, the beautiful cathedrals in and branch of the Government. New around Moscow have been without freedoms for the press and greater press decorative crosses on their steeples. That independence are contributing to the is now changing; the churches that were concept of public accountability on the for a long time museums of Soviet part of administrators. In fact, a televi- sion news crew and newspaper photogra- pher accompanied us into two prisons.

H Punishment cells. A number of the punishment cells that the delegation saw were harsh, dark, and unpleasant. While prisoners are gener- ally sent to punishment cells for no more than 15 days (although at Perm 35, at least one prisoner had been in the Mozhaisk Children’s Colony: Left, at work in punishment cell for over a year for the prison factory; above, outside security; right, a classroom. refusing to work), we felt that conditions 22 Federal Prisons Journal

are unnecessarily punitive. In contrast to their high degree of discipline. Prison- write to the Procuracy to seek relief for procedures in Federal prisons, we learned ers’ neat manner and appearance—for misconduct on the part of administrators 9 of no administrative process to ensure example, prisoners’ shirts were buttoned or others violating their rights.* Admin- that prisoners are not arbitrarily or up to the collar and their heads shaven— istrators must forward all prisoner mail to I inappropriately sentenced to punishment tidy dormitories, and regimented sched- the Procurator’s office within 24 hours. cells. ule evidenced a high degree of orderli- Regional Procuracy offices receive about ness. Inmates watching television sat in 75,000 prisoner claims and letters each On the one hand, the Soviet authorities rows. Prisoners with whom we spoke year, although the Central Department displayed concern for the prisoners in were quick to stand and respond politely. Headquarters in Moscow receives only punishment cells and hold them in groups 1 l-12,000 letters, most of which are of four or five to a cell, as loneliness and n Family visiting. appeals of decisions by lower authorities. isolation are considered the greatest Family visits are limited to as few as one punishment of all. On the other hand, or two a year or as many as five or six a We learned of no mechanisms for prisoners are often deprived of natural year, depending on the nature of the prisoners to seek redress directly within light, and the benches for sleeping are regime.* Certain visits, however, extend the Ministry of Internal Affairs, such as pressed against the wall during the day, for 3 days and 3 nights. During these exist in U.S. prisons. Such administra- leaving prisoners with only metal stools long family visits, the prisoners stay with tive relief mechanisms could be very for sitting. their families in apartment-like areas useful in resolving disputes internally, inside the prisons. While U.S. Federal unless prisoners would hesitate for fear n Levels of unrest. prisons allow more frequent family visits, of retaliation. While we did not see evidence of unrest there are no conjugal visits. We encour- in the prisons visited, Soviet officials aged the Soviet Government to allow w Medical care. noted that unrest and riots are on the rise more frequent family visits, and came Medical facilities generally appeared as the concentration of violent prisoners away with an interest in exploring anew rudimentary. Moreover, according to the increases. Correctional staff have the issue of conjugal visitation. Deputy Procurator General, inadequate increasingly been taken hostage and the authorities are grappling with how to n Administrative remedies. According to the Office of the Procura- *Although if an inmate is found to be at fault address this problem. instead of an administrator, the inmate may be tor General, prisoners have the right to punished. In meeting with the Deputy Procurator General, we reviewed recent prison riots in the U.S. and the lessons learned about *Juvenile camps allow somewhat more frequent family visits. In addition, the women’s camps are the use of force to counter prison experimenting with extra visitation privileges. rebellion. Since the Attica State prison uprising, the policy in Federal prisons has been to avoid use of force because it leads to greater bloodshed. Currently, the policy in the Soviet Union is to use force to counter prisoner rebellions.

n Discipline. While Soviet officials discussed the problem of prison unrest, the prisons and prisoners we visited were notable for Left, A washroom at Mozhaisk Children’s Colony. Above: A classroom at Perm 29. Winter 1991 23

medical care is a chief complaint among Soviet Government still does not degree of innovation and commitment prisoners. The Procurator’s office, adequately respect human rights. will ideally be applied to men’s facilities however, does not view medical care as a Accordingly, prisoners’ rights and as well. serious problem, as many individuals prisoners of conscience were a compo- arrive in prison with “damaged health.” nent of the official American delegation’s Future steps in U.S.-Soviet visit. Mr. Colson raised a concern about criminal justice relations While medical care was of interest to us, the incarceration of prisoners of con- verall, we were encouraged there was insufficient opportunity to science at Perm 35 in our meeting with with the course of Soviet explore this issue in depth. It would be the Ministry of Internal Affairs. How- prison reforms and found useful to learn more about the medical ever, Minister Bakatin was not receptive many positive elements in the current care afforded to prisoners in future to the discussion, and defended the administration of the Soviet prison exchanges, especially since the issue Soviet Government’s imprisonment of system. Mr. Quinlan invited Soviet poses many difficult questions for individuals who have violated Soviet officials to continue their discussion administrators in the United States. law. about prison administration by visiting the United States. n Prisoners of conscience. n Women’s penal facilities. While we did not focus on the question Soviet officials are experimenting with The entire visit was extraordinarily of prisoners of conscience, we did visit some bold reforms in women’s prisons, educational, and a very positive, friendly Perm 35, which has been noted for the and while certain experimental policies relationship was established. The Soviet political nature of its prisoners’ offenses. would be controversial in the United and U.S. governments and their respec- Moreover, the U.S. Government and States, the fact that the Government is tive prison systems are certain to benefit Members of Congress, including Repre- attempting to improve conditions in from the delegation’s visit and from sentative Wolf, are concerned that the women’s prisons through reforms and future discussions regarding mutual innovations is encouraging. The same efforts to improve criminal justice. n

J. Michael Quinlan is Director of the Federal Bureau of Prisons. Elizabeth Fine is Counsel to the Subcommittee on Courts, Intellectual Property, and the Administration of Justice, Committee on the Judiciary, U.S. House of Representa- tives. Margaret Love is Associate Deputy Attorney General, U.S. Department of Justice. Charles W. Colson is Chairman of Prison Fellowship International. Jack Eckerd is a member of the Prison Fellowship International Board of Directors.

Above: The operating room at Perm 35. Right: Religious symbols have been restored to Moscow cathedrals.

26 Federal Prisons Journal

my right side of my body...you are there may be other circumstances under The Court in Harper was concerned that burning me out of my life...you are which medication may be involuntarily the inmate has an opportunity to ade- burning me out of my freedom.” administered to a hospitalized inmate. quately prepare and be heard at the hearing. The Court approved of In Harper, the two parties, as well as n Administrative procedures. Washington’s procedures, which seven other interested groups, filed briefs The Court rejected Mr. Harper’s conten- required: with the Supreme Court. These groups tion that he was entitled to a judicial were hotly divided over the desirability hearing before the State could treat him 1. At least 24 hours prior notice of a of using antipsychotic medication. As over his objection. Finding the real hearing that will determine whether the Justice Blackmun observed in his debate to be over the benefits and risks of inmate should be involuntarily medi- concurring opinion, “The difficult and cated, during which time the inmate may controversial character of this case is not be medicated. illustrated by the simple fact that the American Psychiatric Association and The real debate is over 2. The notice must state the tentative the American Psychological Association, diagnosis, the factual basis for the which are respected, knowledgeable, and the benefits diagnosis, and why the staff believes informed professional organizations, and ..- and risks of medication is necessary. which are here as amici curiae, pull the Court in opposite directions.” The antipsychotic 3. At the hearing, the inmate has the right American Psychiatric Association had to attend, to present evidence, including stressed that the benefits from cautious medication... witnesses, and to cross-examine staff use of these medications outweigh the the Court found witnesses. potential side effects, while the American Psychological Association had urged the this should be 4. The inmate can have the assistance of opposite. a lay adviser who has not been involved decided by in his case and who understands the Harper— Implications of mental health psychiatric issues involved. There is no Procedural and substantive right to have an attorney present at the The narrow holding of the Harper professionals. hearing. decision is that a dangerous inmate may 5. Minutes of the hearing are kept, with a be medicated against his will when such copy given to the inmate. treatment is found by mental health professionals to be in his or her best 6. The inmate may appeal the decision to medical interests. However, the decision antipsychotic medication, the Court the Superintendent within 24 hours of the contains both a procedural and a substan- found this was the type of question that decision, and the Superintendent must act tive component, and by looking at each should be decided by mental health on the appeal within 24 hours of its component individually, it appears that professionals during an administrative receipt. If still dissatisfied, the inmate hearing, rather than by a judge. The may seek judicial review of the decision. Court stressed that the hearing official should be independent, and approved the 7. Once authorized, the involuntary Washington State regulations, which medication decision must be reviewed guaranteed that the mental health professionals who presided at the hearing must not be personally involved in the current diagnosis and treatment of the inmate. Winter 1991 27

after 7 days and, if approved again, individual’s cognitive volitional func- case the Court previously agreed to hear, reviewed (with a report prepared) every tioning, and where the Fourth Circuit Court of 14 days while treatment continues. At Appeals approved of medicating an the end of 180 days, a new hearing is 2. As a result of disorder, the person is inmate who was not currently dangerous, held to consider the need for continued “gravely disabled,” defined as either so he could regain competence to stand treatment. trial. By the Supreme Court’s declining a. being in danger of serious physical to hear the case instead of remanding it n Conditions that must be found at harm resulting from a failure to provide for further proceedings in light of the the hearing to justify involuntary for his or her essential human needs of Harper decision, an argument can be medication. health or safety, or made that involuntary medication may be The second aspect of the Harper decision authorized in certain circumstances to focused on the substantive component of help even a nonviolent inmate regain the hearing—what factors must the competence to stand trial. hearing officials find before they can An argument can authorize medication against the patient’s In addition, it is likely that additional will? Because the record contained be made that light will soon be shed on the question, numerous instances of assaultive as the Supreme Court has agreed to hear behavior by Mr. Harper, the Washington involuntary medi- this year a case involving the question of State hearing panel authorized his cation may be whether the State of Louisiana can involuntary medication due to its belief involuntarily medicate an inmate to help that he was a danger to others as a result authorized in him regain his competence, after which of his disease. Given that Mr. Harper’s the inmate will be executed.6 lawsuit challenged this decision, the certain circum- holding of the Supreme Court was a stances to help Competence to consent to narrow one—that an inmate with a admission or medication even a nonvio- 7 serious mental illness can be involuntar- Zinermon v Burch —On December 7, ily treated with antipsychotic medication lent inmate re- 1981, Darrell Burch was found wander- if the inmate is dangerous to himself or ing along a Florida highway, appearing others, and the treatment is in the gain competence disoriented and injured. He was taken to inmate’s medical interest.5 However, in to stand trial. a private mental health facility, and after its opinion, the Supreme Court spoke 3 days was transferred to a public approvingly of regulations that author- hospital operated by the State of Florida, ized medication where the following as he was felt to need long-term treat- conditions were found: b. manifesting severe deterioration in ment. routine functioning, evidenced by 1. The person suffers from a “mental Dr. Zinermon, the attending physician, disorder,” defined as any organic, mental, repeated and escalating loss of cognitive or volitional control over his or her wrote upon admission that Mr. Burch or emotional impairment that has a was “disoriented, semi-mute, confused substantial adverse effect on an actions and is not receiving such care as is essential for his or her health or safety. and bizarre in appearance and thought...not cooperative to the initial Thus, the narrow holding of the Court interview,” and “extremely psychotic, should not be read as defining the entire appeared to be paranoid and hallucinat- spectrum of situations in which involun- ing.” A day after his admission, a nurse tary treatment of a prison inmate may be noted that Mr. Burch was confused and allowed. In fact, shortly after the Court unable to state the reason for his hospi- handed down the Harper decision, it denied certiorari in U.S. v Charters 863 F.2d 3D2, (4th Cir. 1988) (en Banc), a 28 Federal Prisons Journal

talization and believed “this is heaven.” admitted himself, and when he agreed to personal liability if they fail to consider At the time of his admission, Mr. Burch treatment. The case was remanded to the whether the patient is competent to make signed forms for voluntary admission and District Court for a trial on the merits of certain decisions. treatment. Mr. Burch remained an Mr. Burch’s allegations. inpatient for 5 months, during which time While both the Harper and Burch he received antipsychotic medication. Implications of decisions seem fairly straightforward Burch v Zinermon when read together and when seen in the Upon his release, Mr. Burch initiated a Staff who work in psychiatric hospitals context of the Federal statutes governing the treatment of Federal prison inmates Federal lawsuit seeking to hold person- have long been troubled by the fact that ally liable 11 staff members at the (Title 18, United States Code, Section hospital. Mr. Burch claimed staff knew, 4241-4247), these cases raise the or should have known, that he was potential of temporarily placing a legal “incapable of voluntary, knowing, Thus, a patient straitjacket upon treatment staff, and of understanding and informed consent to relegating certain categories of patients admission and treatment...,” and that who voices a who may desire help to little or no such conduct deprived him of his liberty treatment. without adequate procedural due process. desire for Before the Supreme Court, the narrow admission and After Burch, the effect of finding a question presented was whether these person incompetent to consent to allegations stated a valid claim of treatment, yet is voluntary admission to a psychiatric violation of Mr. Burch’s constitutional hospital is that staff will be forced to rights. found incompe- initiate the State involuntary commitment tent to consent procedures. In most States, such proce- The Supreme Court held if Mr. Burch dures can be accomplished in a matter of could prove the above facts at trial, he to such weeks, if not days. However, involuntary would prove that Florida hospital staff commitments under the Federal statute, had violated his constitutional liberty treatment, may 18 United States Code, Section 4245, interest by improperly admitting him to not be treated. have taken on average several months, the hospital, and by subsequently treating and in one case as long as 10 months.8 him without a valid informed consent. Thus, a patient who voices a desire for While the State of Florida had regula- admission and treatment, yet is found tions that required that a valid voluntary their patient’s mental condition may incompetent to consent to such treatment, consent to admission and informed preclude obtaining a valid informed may not be treated for several months. consent to treatment be obtained, they consent. A need for informed consent This possible scenario is extremely had failed to develop procedures that arises in a variety of situations with upsetting to Federal mental health staff, would ensure that the patient was psychiatric patients, aside from decisions who feel an obligation to provide needed competent to make such decisions. In so regarding admission to the hospital or treatment. holding, the Court left open the possibil- treatment. Virtually all States require ity that staff at the hospital could be mental capacity to make a will, to get An even more upsetting dilemma for personally liable for failing to ensure that married, to transfer property, and to some is seen in the case of the patient Mr. Burch was competent when he manage one’s affairs. In Burch, the Court who expresses a desire for treatment, is required staff specifically to assess not competent to consent either to whether Mr. Burch was competent to admission to the hospital or to treatment, consent either to admission or treatment. yet is not dangerous or gravely disabled. If they determined he was not competent, involuntary admission or treatment procedures should have been imple- mented. After Burch, it appears that mental health staff will run the risk of Winter 1991 29

After Burch, it is clear that this patient posed no danger to him- or herself, has a Notes must be involuntarily committed. constitutional right to live free in society. 1.494 U.S._,110 S.Ct.1028, 108 L.Ed.2d 178 However, it is conceivable that after This rationale does not seem to apply to (1990). Harper, even though the patient could be the prison context, where the inmate’s 2. Mr. Harper filed suit under Title 42 U.S.C. involuntarily committed under Federal liberty has already been substantially Section 1983, claiming violation of the Equal law, where dangerousness or a finding curtailed, where the Federal commitment Protection, Due Process, and Free Speech clauses that the patient is gravely disabled is not statute does not require a finding of of the Federal and State constitutions; he also claimed that State tort law had been violated. necessary for commitment, staff could “dangerous to self or others,” and where not legally treat this person. While the bizarre behavior by a mentally ill 3.SeeHillsvRodgers,457U.S.291,299(1982); patient is too sick to give valid consent to and Rennie v Klein, 720 F.2d 266 (3rd Cir. 1983), admission or treatment, he or she may vacated and remanded at 458 U.S. 1119 (1982). not be sick or dangerous enough to treat 4. See Bee v Greaves, 744 F.2d 1387 (10th Cir. involuntarily. Mental health 1984) and Walters v Western State Hosp., 864 F.2d 695 (10th Cir. 1988), adopting a very restrictive The above scenarios will be frustrating staff will run the approach to involuntary treatment, versus Dautremont v Broadlawns Hospital, 827 F.2d 291 for mental health staff and others who risk of personal (8th Cir. 1987); Johnson v Silvers, 742 F.2d 823 believe in the patient’s need for treat- (4th Cir. 1984); Project Release v Prevost, 722 F.2d ment, and that antipsychotic medication liability if they 960 (2nd Cir. 1983); and United States v Charters, offers the only form of meaningful 863 F.2d 302 (4th Cir. 1988) (en Bane), which fail to consider adopt the more liberal “professional judgment” treatment for some mental illnesses. In standard for involuntary treatment. the case of delays in the commitment whether process, there is a clear need to explore— 5. In defining what amounts to a danger to self or with the judiciary and the inmate’s others, the Washington regulations included the the patient is concept of harm to the property of another, stating, counsel—means to streamline the “Likelihood of serious harm means either, commitment process. The Burch decision competent to exacerbates the problem, as there could make certain a. a substantial risk that physical harm will be now be substantial delays in the treat- inflicted by an individual upon his own person, as evidenced by threats of attempts to commit suicide ment of a person who is not openly decisions. or inflict physical harm on one’s self, opposing treatment. b. a substantial risk that physical harm will be Mental health staff may find it difficult to inflicted by an individual upon another, as evidenced by behavior which has caused such harm legally treat, under the Harper and Burch prisoner places that individual at risk of or which places another person or persons in decisions, a person who is incompetent to being victimized. To simply warehouse reasonable fear of sustaining such harm, or give an informed consent, yet is not ill mentally ill inmates may subject them to enough to treat involuntarily. An danger at the hands of other inmates, who c. a substantial risk that physical harm will be inflicted by an individual upon the property of argument can be made that the Court in may not tolerate what they see as “crazy” others, as evidenced by behavior which has caused Burch recognized this dilemma when behavior. substantial loss or damage to the property of they noted that some persons who are not others.” competent to consent to admission would This author believes that this conse- 6. Perry v State of Louisiana, 502 Sc.2d 543 not necessarily be involuntarily com- quence was not anticipated or intended ( 1986), cert. granted March 5, 1990, No. 89-5 120. mitable, as most States require a finding by the Court; unfortunately, however, its of “dangerous to self or others” before resolution will come only through the 7.494 U.S._,110 S.Ct.975, 108 L.Ed.2d 100 such commitment can take place. long and often uncertain course of future (1990). litigation. n 8. At one Bureau psychiatric hospital, the average However, in making this statement, the time from the filing of the commitment petition Court was stressing that a person who until the final judicial decision was: 1988—3 was not dangerous to others, and who Bill Burlington is Deputy General months, 24 days; 1989—4 months, 10 days; 1990— 2 months, 22 days. Counsel for the Federal Bureau of Prisons.

Winter 1991 31

Working the Morning Watch

John A. Mattsen dreaming. It is difficult to measure the effects of losing REM sleep because one The other day my wife tried to convince type of sleep may partially take over the me that there are people who prefer to functions of another. In some experi- work on the morning watch (12-8 a.m.) ments, however, subjects who were and do so without the mental, physical, sleep (A,B) is the peak period of sleep, deprived of their REM sleep showed which the person is dreaming. Notice how and emotional stresses so common to theREM peaks are to the awake stage. increased aggressiveness and irritability, most of us. To prove her point she and seemed to have difficulty keeping mentioned the husband of a 58-year-old their impulses under control. In contrast, female associate who had worked in a subjects who failed to obtain sufficient powerhouse for more than 30 years, all deep sleep for even one night suffered on the morning watch and supposedly from feelings of lethargy (low energy). loving every minute of it. She went on to explain that he was now retired, and I Notice how close the REM sleep cycles couldn’t help but wonder if he was still are to the threshold line (awake/asleep). living on the morning watch. While it may be very difficult to wake an inmate from a deep sleep cycle, it is Morning watch isn’t something you just relatively easy to wake the person during do, it’s something you learn to do, and to REM sleep. If the officer fails to properly some extent it involves trial and error. If control the sleep environment—light, this is so, then how do we teach new noise, movement, and temperature— employees how to adapt to morning inmates will not get enough REM sleep. watch hours? All too often it is learned In other words, the morning watch informally from other officers who officer is not just a night watchman in a propose such strategies as “drink a lot of warehouse. coffee to stay awake” and “turn on a fan in your bedroom to go to sleep.” In fact, Within the context of a low security these ideas may be poor advice. institution, let’s take a look at how this applies to the operation of a unit on the Beyond the need to stay awake and alert morning watch and the consequences of to perform well on the job, knowledge failing to control the sleep environment. about sleep patterns (later I will discuss 1pm 12 1am 2 3 4 5 6 7 Refer to the floor plan diagram on page something called the “circadian rhythm”) 32 as needed. is essential for optimum morning watch supervision of inmates. Many officers pattern, the person experiences his/her In this scenario the officer leaves the seem to believe that because most deepest sleep. When officers become lights on in the TV rooms, hallways, inmates are asleep, their job entails little “sleep stressed” (haven’t had good sleep toilet area, and washroom. Already, we more than being available in the event for days), they can achieve deep sleep in have light shining into the first cubicles. that something goes wrong. This is a a matter of minutes (the line to the first dangerous misconception. deep sleep cycle would become nearly There are two kinds of inmates in the TV vertical). rooms: watchers and talkers. When the Sleep cycles talkers yell back and forth the watchers Figure 1 represents an average normal Note the peaks of the graph—the periods turn up the volume, causing the talkers to sleep cycle for a young adult. You’ll during which the sleeping person is talk louder, and so on. With the doors to notice that about 45 minutes into the nearest to an awake state—(A) 12:45 the living area (by the shower) closed, we a.m., (B) 2:15 a.m., and so on. Sleeping now have considerable light and some associated with these peak periods is noise in the first cubicles. called “REM (Rapid Eye Movement) sleep,” during which the person is 32 Federal Prisons Journal

Inmates Smith and Jones leave the TV room talking loudly, treating the hall- ways as if they were an extension of the TV room. When they reach the wash- Living Area (Cubicles) room, they exchange loud greetings with inmate Williams, who is brushing his teeth. Smith and Jones proceed down the aisles of the cubicle area, talking loudly until they reach their respective cubicles.

Some of this behavior is clearly intimida- tion of the inmates who are asleep—a way for Smith and Jones to assert dominance. Every time they engage in this type of behavior they gain power, and every time the night watcher fails to Floor plan take action he/she loses power and respect. Failure to take action in this deep sleep by a fellow inmate who is Controlling the sleep scenario will result in the loss of sleep for concerned that he’ll be late for work. environment many inmates in the unit. (One can only speculate how this affects Morning watch officers can employ the number of sick calls and chronic various measures to ensure a proper sleep The inmates react in a variety of ways. medical complaints.) environment. The behavior of inmates Some return to normal sleep as if nothing Smith and Jones must be realistically had happened. Some will lay awake, The broken line in Figure 2 represents an viewed as a serious problem, hampering anxious and hostile, for 30-60 minutes inmate we’re all familiar with. He goes to the secure and orderly running of the before assuming an irregular sleep bed for about an hour, gets up complain- institution. (The hypothetical situation pattern. Some will give up and go ing that he can’t get to sleep, and returns discussed here does not, of course, watch TV. to bed (F) about 6 a.m., when the lights invalidate security procedures in place at are turned on. He then drops into a deep any given institution; nor should the This cycle of light, noise, and movement sleep cycle (G) until he is awakened at reader infer that these observations results in a number of inmates achieving 7:30 a.m., late for work. invalidate particular current policies.) sleep cycles similar to the patterns in Figure 2. The solid line represents an There are a number of reasons for a sleep n Light and sound. inmate who is successful (A) in achiev- pattern such as this, including prescribed It is essential that the officer control the ing the first deep sleep cycle, but is medication, drugs, a previous lifestyle, or lighting, not only because excess light awakened by noise (B) as he approaches fear. The relevant point here is the has the potential to wake the inmates the first REM sleep. He views this officer’s failure to control the sleep from REM sleep, but because light interruption only as an irritation, and is environment. breeds noise. Light encouraged the successful in again achieving deep sleep presence of inmate Williams in the (C), though not as deep as if he hadn’t Whatever the reason, we should ask washroom, as well as the exchange been interrupted. ourselves: What happens to someone among Williams, Smith, and Jones. The who experiences these irregular patterns lighting patterns failed to provide a On the way to the second REM sleep (D) night after night? No surprise—job psychological barrier that defined noise he is awakened by Smith and Jones, performance will drop off, he’ll feel as being unacceptable. Darkness must triggering anxiety and hostility that irritable all the time, and eventually he’s imply silence to inmates; once this is affects sleep patterns for the rest of the going to ventilate. He may well wind up established, darkness will come to equal night. At 7 a.m. he is awakened (E) from in Segregation, where he’ll have plenty of time to catch up on his sleep before the cycle starts all over again. Winter 1991 33

something else—privacy. More inmates When Smith and Jones leave the TV will spend less time in the TV rooms and room talking at high volume, the mes- will instead engage in quiet activities in sage of darkness and silence begins at the their cubicles (such as reading or letter TV room door. The officer’s eyes are . . . . writing). From here, they are just one L-l I adjusted to dim light; if more light is step away from a good night’s sleep. i needed the officer has a flashlight. I I Contrary to some correctional thinking, Controlling light is not just a matter of I under some conditions more light does ensuring that sleep areas are dark. The I not necessarily equal more security. security concerns of a correctional I environment require a more sophisticated I n Temperature control. approach. Return to the diagram, and I Body temperature drops a couple of let’s turn out all the lights in the unit I degrees during sleep (or tries to). A trick except in the TV rooms and the hallway I of the officer’s trade is to turn up the heat just outside the offices. This would so the inmates will uncover, thereby appear to be a perfect solution—darkness I making it easier to see flesh for the in the sleep areas with a closed door (by I count. In the long run it turns out not to the shower) to act as a physical and ~ be so clever. Physical discomfort (stress) psychological barrier beyond which noise I during REM sleep will induce tossing is unacceptable. However, this solution I and turning, which in many cases will has problems. I cause the inmate to wake up, and in I others will cause a reduction in At 4 a.m., when all the inmates have I REM sleep. gone to bed and the officer is standing in the hall across from the TV rooms, the I n Snoring. only person he is supervising is himself. I Snoring can be a major problem not only $4p Light from the hall against the glass in $ for the snorer but for anyone in the the doors by the shower creates an I vicinity. The solution is to stop the impenetrable mirror so effective that the I snoring—easier said than done, but in officer is unable to detect the movement some severe cases there is a way to do it. of an inmate into the shower. Further- more, the officer is essentially standing llpm 12 lam 2 3 4 5 6 7 8 More severe cases of loud snoring may under a spotlight that eliminates the need well be symptoms of a potentially fatal for the inmates to establish a “jigger.” the first cubicles need a good night’s sleep disorder called “sleep apnea.” It is sleep as much as anyone else. most common in males over 50, who are If a serious incident should occur in the overweight and have a short neck. As cubicle area, the officer’s eyes may not The officer might achieve better results they fall asleep the muscles in the throat have had time to adjust to the darkness by turning the lights on in the TV rooms, collapse and block the airway, causing when he arrives at the scene. Of course, toilet areas, and maybe the shower. Light the person to stop breathing for several the inmates’ eyes will be well adjusted. from the TV rooms is adequate for the seconds to a minute or more. Then they hallway. Light in the toilet area spotlights suddenly gasp for air, but because the When Smith and Jones leave the televi- a potential problem area, adequately throat is relaxed and collapsed the air sion room, they pass through the hall lights the hall and washroom areas, and passes through the nostrils—loudly. This doors by the shower as if they were an provides enough light on the back side of causes the person to awake and is often extension of the lighted hallway and the glass in the doors by the shower to accompanied by thrashing. In severe won’t quiet down until they reach the enable the officer to clearly see through cases this can happen hundreds of times a washroom. That’s too late; the inmates in to the back wall of the living area. The cubicle area is lit indirectly from outside security lights. 34 Federal Prisons Journal

night and can produce a dangerous heart arrhythmia.*

n Making frequent rounds. Inmates who suffer from anxiety tend to have difficulty achieving deep sleep and tend to wake more often than they should. Frequent rounds instill a sense of security, and allow the inmate suffering from anxiety to believe that the environ- ment is safe enough for sleep.

Once you’ve established a good environ- ment, go after the details. Deal with noisy staff who enter your territory and disturb the environment you’ve created. jackhammers, chainsaws, telephones, Figure 3 represents a typical circadian Adjust the door closers so that doors sirens, barking dogs, lawn mowers, small rhythm for a “night person” (owl) and don’t make noise. Have maintenance children who don’t seem to comprehend Figure 4 is a typical rhythm for a staff take the squeaks and groans out of Bureau policy no matter how often you “morning person” (lark). Eighty percent air handler systems. explain it to them, and teenagers who of the population are neither extreme disregard it as a matter of convenience. larks nor extreme owls, but viewing sleep Achieving deep sleep cycles is never problems from the extreme perspectives more important than basic security None of these obstacles are as evasive, allows us to better understand our own considerations. The inmate who doesn’t unknown, and (for some) powerful as the rhythm and its effect on our ability to want his sleep disturbed always has the great circadian rhythm. The circadian achieve proper sleep for the morning choice of leaving some skin exposed for rhythm is a “biological clock” that is set watch. the count. at birth and is based upon a 24-hour cycle (or circle) of voluntary and involuntary Through trial and error, staff who work The circadian rhythm physiological functions and events. In the morning watch develop coping Staff who work the morning watch may other words, your body is programmed to strategies that allow considerable experience problems with sleep that are do the same things at the same time and flexibility in their sleep patterns, but are considerably more challenging than those in the same order every 24-hour day. extremely specific to each individual. typically faced by inmates. Controlling This includes voluntary actions like What they have done without knowing it the sleep environment during the day eating and sleeping and involuntary is to become acutely aware of their own when the rest of the world is awake, actions like the organic secretion of circadian rhythms. active, and noisy is difficult. It requires hormones. By age 25, the body has controlling disturbances that include been trained in the basic pattern almost Most coping strategies appear to include 10,000 times. one principle and two patterns. The principle is that it’s important to sleep in *A simple machine is available that (when used under proper security procedures) can eliminate the At about 50 years of age, the circadian the evening just before you go to work so major problems associated with sleep apnea—a rhythm changes. As people grow older that you at least start out wide awake and small, very low pressure pump connected to the they tend to nap more frequently and alert. user by a hose and a nose mask that provides wake up more often during the night. positive air pressure through the nostrils. Further information on these machines is available from Thus a 50-year-old officer who has spent If a little sleep is good, is a lot of sleep your local sleep disorders clinic or from the years as a morning watch worker and has automatically better? One pattern is to American Sleep Disorders Association, Rochester, adjusted fahly well suddenly finds force yourself to stay awake until 2 or 3 Minnesota. himself having difficulty, despite a better sleep environment and no children at home. Winter 1991 35

in the afternoon, then sleep 7 or 8 hours just before going to work. Let’s take a look at how this fits with the circadian rhythms in Figures 3 and 4.

Assuming no extraneous factors such as caffeine consumption, by 2 or 3 p.m. you’ll be so tired that falling asleep will be no problem. But if you’re an owl (Figure 3), where is your circadian rhythm? It’s high, and so in 3-4 hours the power of the rhythm coupled with any disturbance causes you to wake up. Where is your rhythm at 6 p.m.? It’s high and headed for the highest peak of the day. So you toss and turn until it’s time at 6, you will arrive at work with only 3 endorphins affect the opiate receptors in to go to work, and on your arrival you’ve hours of sleep, and those 3 hours were 12 the brain and are a more powerful had only 4 hours of sleep in the previous hours before going to work. anesthetic than opium. When your body 24 (and by morning, when it’s time to is running high on adrenaline, achieving drive home, you’ll have had only 4 in Obviously no one pattern works for deep sleep is very difficult; after intense 32—the psychological equivalent of everyone. The human body is like an aerobic exercise it can take hours for the driving drunk). orchestra and the circadian rhythm is the endorphins to overcome the effects of conductor. Working the morning watch is high adrenaline. Forcing yourself to stay awake all day like adding a second conductor who presents additional hazards. What are you attempts to make the orchestra play a If improperly timed with the circadian going to do in this stupefied condition? different tune—but only for 5 days of the rhythm, the combination of adrenaline Operate a chain saw? Make financial week. The resulting confusion and noise followed by endorphin can develop a decisions? are all too often forgotten by those who one-two punch that is capable of knock- have returned to the rhythm of the day ing you out. If, for example, a person The second pattern is to sleep when you watch. engages in strenuous exercise for 2 hours get home from work in the morning for prior to going to bed at 10 p.m., the 3-4 hours, get up, and then sleep another Exercise combination of a night person’s rhythm 3-4 hours just before going to work and adrenaline will certainly prevent again. Let’s see how this pattern fits the Employees who engage in a regular deep sleep and possibly prevent any sleep circadian rhythm of a lark (Figure 4). At exercise program for aerobic fitness will at all. By midnight, when this person 9 a.m., your rhythm is high and on the find that the morning watch may present starts work, he or she is sleep-stressed, way to the highest peak of the day. some discouraging obstacles, particularly physically stressed, has a circadian You’re so sleep-stressed that falling if part of their healthier lifestyle also rhythm that says “sleep,” and a high level asleep will be no problem, but sleeping includes the elimination of caffeine from of endorphins. I’ve been here before, and more than 3-4 hours will be difficult due their diet. People who achieve a reason- by 3 a.m. was so fatigued that I’ve to the circadian rhythm. able level of aerobic fitness have bodies that require exercise. People who work fallen to the floor because I fell asleep while walking. It was ignorance, not So you get up and wander around feeling the morning watch usually end up with irresponsibility! lethargic until 6 p.m. Trying to sleep at 6 bodies that need rest. is easier for a lark than an owl, but if This raises interesting questions about extraneous factors—anxiety, caffeine, Aerobic exercise raises adrenaline, and some BOP operations. When a supervisor domestic problems—interfere with sleep when the body comes to rest the adrena- line continues at an elevated level until discovers an employee sound asleep on the body eventually produces enough endorphins to bring it back down. The the job, does the act represent dereliction only half the problem; staying alert consume caffeine 2 hours in advance. If of duty or a lack of understanding of necessitates the use of caffeine. it occurs at 3 a.m., drink coffee at 1 sleep cycles? Is this an example of a lack a.m.—8 hours in advance of sleep. of proper training? What if that employee Most sleep experts suggest that if you had recently experienced the loss of a must consume caffeine and are experi- Putting it all together loved one—a stressful situation that encing difficulty with sleep, you should The old adage “ignorance is bliss” typically disrupts sleeping patterns? avoid it for 6-8 hours prior to retiring. obviously originated with someone who What about a new employee, already never worked the morning watch. Misery strained by his/her need to demonstrate is the consequence of ignorance about the competence in a stressful environment? Caffeine subject of sleep. To demonstrate the Chances are these individuals will not be actual application of the information able to sleep when they should and will doesn’t start working fully presented in this article, let’s take a look when they shouldn’t. at a worst-case scenario and then at a until 1-3 hours after scenario that uses the information I’ve I certainly don’t mean to suggest that presented. sleeping on the job is ever acceptable, but it is consumed... there may be more involved than a but continues to affect Worst case. After drinking several cups disciplinary problem. of coffee on the morning watch, the mental functioning for as officer arrives home at 8:30 a.m. and eats Caffeine long as 20 hours after breakfast, which includes a cup of coffee. Caffeine is chemically related to am- He fills a Thermos with coffee and heads phetamines. Caffeine’s ability to increase it is ingested. out to cut firewood. (Note: excess mental alertness and reaction time for caffeine in conjunction with elevated sleep-stressed individuals is both well heart rates can cause a dangerous known and well documented, as are the arrhythmia.) The officer plans to sleep Experienced employees will not accept undesirable side effects of the drug. Less from 4-10 p.m., so he stops drinking the idea that they should not drink coffee well known are some facts about caffeine coffee at noon. He arrives home fatigued after 1 a.m., because they know all too that have a profound effect on one’s and is in bed by 4, confident that sleep well that sometime during the night, ability to stay alert on the morning watch will be no problem. usually between 3 and 4 a.m., they and to sleep during the day when the experience a period of fatigue where it is circadian rhythm is at its highest levels. With the circadian rhythm, adrenaline, extremely difficult to stay alert. and caffeine levels high, he fails to get to Caffeine continues to affect mental sleep until 10 p.m., when his circadian However, caffeine doesn’t start working functioning for as long as 20 hours after rhythm is coming down, endorphins are fully until l-3 hours after it is consumed. it is ingested. Research confirms that high, adrenaline is down, and the coffee Typically, officers wait until they are caffeine interferes with sleep. Countless is wearing off. So at 10 p.m. he crashes really fatigued at 3:30 a.m. to drink a cup cases of insomnia have been cured by into deep sleep, and at 10:15 his wife of coffee. By 4, they discover that the simply (or not so simply) eliminating wakes him up for work. He feels far first cup didn’t do the trick and have a caffeine from the diet. Most employees worse than if he had never slept at all. second or third. By 5 they start feeling who work the morning watch will not He’d call in sick but it’s too late. It pretty good, but 5 is only 4 hours away view this as realistic. They point out that doesn’t get any worse than this. from when they’ll try to go to sleep. “getting good sleep” during the day is Caffeine is also a diuretic, and so Best case. After a morning watch without increases the odds that the user will caffeine, the officer arrives home at 8:30 experience physical discomfort during a.m. and has a light breakfast. She’s a REM sleep.

A much wiser use of caffeine might be to anticipate this period of fatigue and then Winter 1991

morning person, and her circadian Conclusion John A. Mattsen is a Senior Officer rhythm is rising to its highest peak. She In Europe, many companies are switch- Specialist at the Federal Correctional exercises from 9 a.m. to 10:30, which ing to “rapid rotating” work schedules, Institution, Sandstone, Minnesota. increases adrenaline. commonly referred to as the “Continental Rotation” (2 days, 2 evenings, 2 morn- References By 3 p.m. the adrenaline is down, the ings, and then 2 days off.) This rotation Torbjorn Akerstedt, “Sleepiness as a Consequence of Shift Work,” in Sleep, V 11, N 1, 1988. endorphins are up, she’s sleep-stressed allows the circadian rhythm to maintain (and therefore primed for a plunge into a its daytime orientation. Timothy H. Monk, “Circadian Rhythms in deep sleep cycle), physically stressed, Subjective Activation, Mood, and Performance and the circadian rhythm is on the way While this sort of scheduling is not on Efficiency,” in Meir H. Kryger, Thomas Roth, and William C. Dement (eds.), Principles and Practice down. Her sleep environment is properly the immediate horizon for the Bureau of controlled and she turns on the sleep of Sleep Medicine. Philadelphia: W.B. Saunders, Prisons, we can begin to train staff about 1989, pp. 163-172. machine (see sidebar). It doesn’t get any the circadian rhythm, sleep patterns, and better than this, at least not if you’re coping strategies for shift work. These Timothy H. Monk, “Shift Work,” in Meir H. Kryger, Thomas Roth, and William C. Dement working morning watch. After 7 hours of subjects have an important bearing on deep and restful sleep she reports to work (eds.), Principles and Practice of Sleep Medicine. inmate management, stress management, Philadelphia: W.B. Saunders, 1989, pp. 332-337. in prime condition. At 1 a.m. she drinks disciplinary actions, and the interper- two cups of coffee to get through the sonal relations of staff. Correctional Colin E. Sullivan and Ronald R. Grunstein, anticipated 3 a.m. slump. “Continuous Positive Airways Pressure in Sleep- workers have everything to gain by such Disordered Breathing.” in Meir H. Kryger, Thomas training and much to lose by leaving this Roth, and William C. Dement (eds.), Principles subject in the dark. n and Practice of Sleep Medicine. Philadelphia: W.B. Saunders, 1989, pp. 559-570.

Winter 1991 39

Ethics and Prison Administrators Learning to articulate the reasons for your decisions

J. David Newell

Like other Chief Executive Officers Stage 1: Concept of a Stage 5: Particular case. (CEO’s), the Federal warden is respon- subordinate. The facts of the case drive the problem- sible for making daily decisions and solving process; inadequate or mistaken Stage 2 : Theory of punishment. factual information subverts the whole judgments about policies, programs, Stage 3: Universal ethical enterprise. procedures, and particular problems principles. concerning a wide variety of issues. In an Stage 6: Moral judgment. ethically sensitive age such as ours, it is Stage 4: Code of the profession. Once the facts of the case are presented, essential that such decisions have a solid our immediate response is frequently a Stage 5: Particular case. judgment about what should or should not ethical grounding—but it is just as Stage 6: Moral judgment. be done—that is, we make a moral judgment important that the CEO be able to or decision. articulate these grounds when necessary. Since intuitions sometimes differ among individuals, it is important to be able to One does not become a warden without provide good reasons for them...Such reasons are found in stages 1-4. having passed muster as a man or woman of character and good moral standing. Most of the decisions wardens make are our model are specific to prison ethics: a is important to be able to articulate why no doubt good ones, even if a particular theory of punishment and what I will call we believe what we believe, in profes- warden on a particular occasion may be a “concept of the subordinate”—that is, sional work as in any other area of our at a loss for words when it comes to how you think about those who are lives. In this sense, this model should articulating the reasons for a decision, subordinate to your decisions (primarily serve as a self-monitoring tool for when required to do so by an inquiring inmates in this context, but also staff). corrections professionals. superior or a concerned public. In the second section, we will examine A model of moral reasoning In this essay, we will address two issues: three theories of punishment and suggest By understanding the model of moral How can we assure ourselves that our how each affects the day-to-day deci- reasoning presented here and the rela- decisions are ethically valid? How can sions wardens and administrators make. tionship between theories of punishment we best articulate the reasons for our In section three we will consider four and “concepts of a subordinate” we decisions to others? These questions are “concepts of a subordinate” and suggest should enhance our ability to think closely related. By establishing a how the view of punishment one through the ethical aspects of decisions procedure for justifying our decisions adopts depends on which concept of a and judgments. Such an understanding and judgments, thereby assuring our- subordinate one holds. should also provide us with a rationale selves that we have made the right for our decisions and judgments when- decision, we will also have developed a The model presented here attempts to ever a legitimate request for a justifica- framework that allows us to account for take into account a wide variety of tion is made. In bare outline the model our thinking about moral issues. possible influences upon decision- looks something like the six stages at the making. Breaking down what are always top of the page. Moral decisions and judgments in prison complicated (often instantaneous) administration are justified in essentially decisions, with serious consequences, Typically, when an ethical dilemma the same way they are in other areas of into such a “checklist” may seem occurs, a problem presents itself and the applied ethics. In the first section of this unrealistic or even beside the point. In facts of the case are given—that is, article we will consider a model of moral addition, as we follow the stages of the chronologically, Stage 5 comes first. It is reasoning that can be used in justifying model back toward Stage 1, you may find critical that the very best factual informa- ethical decisions. While this model is particular elements with which you tion be obtained before attempting to somewhat similar to the way reasoning is disagree. reflect on what should be done. The facts performed in business, medicine, engineering, and so on, two features of While it’s not the purpose of this article to prescribe a particular ethical system, it 40 Federal Prisons Journal

of the case drive the problem-solving of reprisals for noncompliance. People process; inadequate or mistaken are much more likely to engage in factual information subverts the whole Standards of Employee voluntary compliance with rules if they enterprise. understand them. Programs in which Conduct and Responsibility employees are educated about the Once the facts of a case involving an claims that “loyalty reasons behind the code are likely to ethical issue are presented, our immedi- have the highest degree of compliance. ate response is frequently a judgment to the highest ethical Moreover, periodic evaluations of the about what should or should not be code require that there be some higher principles and the country” done—that is, we make a moral judg- court of appeal against which its precepts ment or decision. Thus, Stage 6 is often is to be placed “above can be tested. the second step chronologically. This initial judgment may be correct; if it goes loyalty to parties or n Completeness. The “Standards of Conduct” can’t cover all the territory. It unchallenged, the matter may end there. govermental departments.” The initial judgment may be the result of tells us about conflicts of interest, our intuition or general good sense or cheating, lying, stealing, fraud, bearing judgment, but since intuitions sometimes false witness, bribery, favoritism, differ among individuals, it is important confidentiality, privacy, loyalty, and so codes of ethics. Where a code does not to be able to provide good reasons for on. It even makes the claim that “loyalty exit, a company or institution often them. Such reasons are found in the first to the highest ethical principles and the creates one specific to that particular four stages of our model. Because each country” is to be placed “above loyalty to workplace. It is a condition of employ- stage to some degree depends on the parties or governmental departments.” ment that the worker subscribe to the stages before it, we will discuss them in But it does not tell the employee what code or be denied employment. reverse order, from Stage 4 to Stage 1. larger ethical principles are behind the code. Moreover, while it specifies a In the case of Federal prison workers, the Stage 4: range of penalties for particular offenses, code is the “Standards of Employee it leaves open to administrative discretion Code of the profession Conduct and Responsibility” (Basic whether, for instance, to issue a repri- The first court of appeal, so to speak, Federal Personnel Manual, Chapter 735, mand or a 3-day suspension. How are should be the “code of the profession”— and Department of Justice Order No. wardens to decide such matters fairly? Stage 4. Whether the code is developed 350-65 (28CFR45), Document #3000.1). by a recognized association of profes- If a particular moral problem in Federal n Conflict. Finally, some particular rules sionals, or handed down by parties who prison administration can be straightfor- of a code may have to be set aside in the have legitimate authority, the general wardly settled by a direct appeal to this interest of doing the right thing. For duty to follow the code of the profession code, the matter would end there. This example, in Herman Melville’s novelette, stems from a voluntary agreement (stated will happen at times. But there are certain Billy Budd, about life at sea in the 19th or unstated). It is the idea that certain limits to every code of conduct, and century, Captain Vere must decide the duties come with certain stations in life the Federal prison standards are no fate of the sailor Billy Budd. Before the and by agreeing to accept a certain exception. captain’s eyes, Billy kills the master-at- station the individual agrees to abide by arms, John Claggart—who has falsely its code of conduct to the best of his or Although “Standards...” is a pretty accused Budd of mutinous activities. her abilities. commendable document, it is not Budd is an inarticulate innocent—he is so sufficient to ensure ethical conduct in overwrought by Claggart’s lies that he Virtually every profession has a code of even the most conscientious employees, cannot speak. His only resort is to conduct that is presented to new employ- for three reasons: swing—without intending to kill ees. Psychologists, architects, nurses, Claggart. But Claggart strikes his head as doctors, insurance brokers, engineers, n Compliance. It is much better when he falls and dies. social workers...all have professional people willingly obey a set of rules than when they comply with them out of fear Winter 1991 41

How is Captain Vere to decide this case? The strict rules of the code push him in one direction, but his own moral sense Stage 4: Stage 3 : pulls him in another. He must decide; he Code of the profession. Universal ethical principles. has Billy hanged, but Melville leads us to In the case of Federal prison workers, the Four principles seem relevant to contempo- question whether he did the right thing. code is the “Standards of Employee rary moral problems (these are not the only Conduct and Responsibility.” important principles): Codes in the various professions often Although “Standards...” is a commendable n Autonomy. present fixed rules that are too rigid to be document, it is not sufficient to ensure n Beneficence. followed to the letter without violating ethical conduct in even the most conscien- Do positive good. tious employees, for three reasons: Remove harm. higher ethical principles and sensibilities. n Compliance. Prevent harm. Hence, the codes of the profession need n Completeness. C Nonmaleficience. to be supplemented by higher ethical n Conflict. n Justice. principles—and we move to Stage 3. The codes of the profession need to be Equal treatment. supplemented by higher ethical principles— Impartial treatment. Stage 3: see Stage 3. Desert. Universal ethical principles At this point we must turn to ethical prevent mutiny, and Vere perceives the (2) Justice also requires us to engage in theory proper for some basic universal prevention of mutiny as doing positive impartial treatment of others. Impartial principles. Without suggesting that they good or preventing harm, then his treatment means an absence of prejudice are the only (or even the most) important decision may have been justified. But and favoritism in the way we treat others. principles, we will focus on four prin- hanging the popular Budd could have in Most of the “Standards of Employee ciples that seem relevant to contemporary fact caused mutiny. Nor was removing Conduct” hang on this principle. moral problems: autonomy, beneficence, Budd removing something harmful, since nonmaleficence, and justice. up to that point Budd had had a good (3) Finally, there is the notion of effect on the crew. desert—that everyone should get what n Autonomy states that every human they deserve, neither more nor less. The being is a self-determining agent with n Nonmaleficience is usually seen as the concept of desert requires us to give intrinsic value. This means that we must flip side of beneficence. This principle everyone his/her due. This rules out treat human beings as ends in them- requires that we do not do deliberate, excessive as well as inadequate punish- selves, never merely as a way to achieve unnecessary harm to others—for in- ments, excessive as well as inadequate other ends. It means that we must respect stance, torture others for the pleasure rewards. It is compatible with what we the inherent freedom and dignity of the of it. will later see as the “retributive theory” individual. Human persons are not of punishment (see below). In the case of objects, but subjects. They are not tools n Justice requires us to be fair in our Billy Budd, if he did not intend the death or instruments to used. (In hanging Billy dealings with others. We can identify of Claggart, his punishment of death by Budd, Captain Vere used him as a means three common applications of the notion hanging seems cruel and unnecessary— of averting a mutiny, violating the of justice that are relevant to prison work. disproportional, undeserved. Of course, if principle of autonomy.) Budd were a favorite of Vere’s, it would (1) A central feature of virtually every be wrong to lessen the punishment that n Beneficence states that we must do theory of justice from Aristotle to the another sailor would have received...that what we can to maximize good or benefit present is the notion of equal treatment. would be partiality. for all who are affected by our actions. Justice is not done unless we treat equals Specifically, beneficence requires us to equally and unequals unequally. By itself These four principles, then, can be used (a) do positive good, (b) remove harm, this does not tell us either how to to justify much of the conduct called for and (c) prevent harm. If Captain Vere’s determine when two or more people are by the professional code of the Federal decision to hang Budd was designed to equal. Still, given that persons are viewed Bureau of Prisons, and to supplement the as equal, justice commands us to treat them the same way. 42 Federal Prisons Journal

code in areas beyond its scope. It is from doing likewise. As with the reform tempting to end the story here, but the view, deterrence is aimed at making potential for competition between and Like moral retributivism, society a safer and better place, but it among these four principles remains a does not focus on the betterment of the problem. If conflict occurs, how do we legalistic retributivism individual offender. If the punishment of decide which of these ethical principles says that the an offender can serve as an example to outweighs the others? future offenders, then the punishment is sole justification of justified. Unlike the reform view, I maintain that the way we prioritize deterrence seems to account for the death universal principles (Stage 3) is deter- punishing someone penalty. mined in large measure by the views we is the fact that he or she hold about punishing offenders. We are However, critics of this view argue that if brought to that stage of the model in has actually 3 years in jail is the prescribed punish- which “theories of punishment” are ment for an offense, it is additional brought into play—Stage 2. committed a crime. punishment to also give the incident three columns in the local newspaper. It is also Stage 2: difficult to know how successful punish- ment is in deterring others, since any Theories of punishment If the aim is reform, we can punish successes will go virtually unrecognized. Punishment, whatever its form, involves lawbreakers to change them—improve Moreover, this theory could hypotheti- the deliberate infliction of “pain and their character—so that they will not cally be used to justify the punishment of suffering,” or deprivation, on human repeat the deed, perhaps not even want to an innocent person, if such punishment beings. In putting offenders behind bars, do it again. By reforming the individual could be shown to have a significant limiting their freedom, or curtailing their we ultimately make society a better deterrent effect. rights, we are inflicting some sort of place—contributing to the greatest suffering or deprivation on them, happiness of the greatest number. n Retributive theories. In general, whatever else we may want to call it. Decisions about programs and policies retributivists insist that the punishment of Since suffering and deprivation are aimed at rehabilitation are justifiable a criminal must be only in response to the generally viewed as negative, how we using this principle. deeds he or she has done. No amount of can we justify their infliction? punishment of an innocent man, no Whether or not rehabilitation works is matter how much good results for society Theories of punishment are designed to another question entirely. But even if it as a whole, can be justified on retributive provide answers to this question. There does work, opponents of the utilitarian grounds. Retributive theories usually fall are three main theories: utilitarian, view say that mandatory vocational into either the moralistic or the legalistic retributive, and vengeance-based. training, mandatory counseling, manda- category. tory trips to chapel, and so on, constitute w Utilitarian theories. Utilitarians additional punishment for those who do The moralistic retributive view says that believe that ethical conduct should not want such experiences. Critics also we must set the punishment to match the increase the total amount of happiness or argue that we could, using utilitarian moral gravity of the offense. This theory pleasure in society. They see the inflic- principles, justify punishing someone argues that the penalty should be tion of pain on offenders as a necessary who has a bad character, even if that appropriate to the degree of wickedness evil aimed at producing the maximum person has not actually been convicted of of the criminal’s intentions. (Billy Budd benefit for society as a whole. The anything. Some people think that it is a did not intend to commit murder.) utilitarian, then, argues that our justifica- weakness of this view of punishment that tion for inflicting pain on others is either it cannot justify capital punishment. The difficulty with this view is that it reform or deterrence. requires us to be able to reliably deter- According to the utilitarian view, we can also justify inflicting pain on offenders if we see it as a way of deterring others Winter 1991

mine the exact intentions of the offender. It also requires us to decide precisely what degree of punishment corresponds Stage 2: Stage 1: exactly to the offense. Intangibles such as Theories of punishment. Concepts of the subordinate. “intentions” and “moral gravity” are Punishment, whatever its form, involves the A subordinate is someone who is subject to slippery items. deliberate infliction of pain and suffering on or under the authority of a superior. human beigns. There are at least four ways in which a Like moral retributivism, legalistic Three main theories are used to justify the supervisor or other person in charge may retributivism says that the sole justifica- infliction of pain and suffering: view subordinates: tion of punishing someone is the fact that n Utilitarian. n Subordinate as “object.” Reform. n Subordinate as “animal.” he or she has actually committed a crime. Deterrence. n Subordinate as “devil.” This avoids some of the problems of the n Retributive. n Subordinate as person. moralistic view by insisting that the Moralistic. In this last view,the subordinate is seen as punishment be prescribed by law and that Legalistic. a human being—a person with dignity—who intentions and moral gravity are not n Vengeance-based. thinks, makes choices, has goals, can improve. relevant to the issue of whether or how much to punish. (It is worth noting that the “Standards of Employee Conduct and Responsibility” is largely based on this The trouble with vengeance is that, since or other person in charge may view point of view.) it is emotionally based, there is a danger subordinates: of getting carried away by unreasoned passion. One traditional problem with this view is w The subordinate as object. The that it is unclear how we decide what and subordinate is seen as a means to an end, how much punishment to establish by It may be that no one of these theories is as an instrument of one’s own or the law for various offenses. Another adequate by itself to decide what prison’s ends. A person with this view punishment is appropriate, but that some problem is rigidity: presumably, there uses people to advance his/her own will be times when we will want, with combination of them could be. And yet, program or career, regardless of the good reason, to make exceptions. (Of in cases of conflict, it remains important effect it has on the subordinate. The course, in the Federal system, to be able to decide which takes subordinate is not given an opportunity to Sentencing Guidelines address both of precedence. participate in decisions, make choices, or these concerns.) contribute ideas. The subordinate is a As suggested earlier, the view we take of “thing”—incapable of improvement, punishment is largely bound up with the n Vengeance theories. Aimed at satisfy- deserving of virtually nothing. This ing our desire for vengeance, especially concept we have of the inmate (subordi- perspective sees the prison as warehous- for heinous offenses such as child abuse, nate)—the first stage of the model. ing human objects, and staff as mindless rape, and cold-blooded murder, this robots-equivalent to the bars on the Stage 1: theory says we are justified in punishing windows or the gates on the entrance. a criminal as an outlet for aggressive Concepts of the subordinate feelings that would otherwise demand A subordinate is someone who is subject n The subordinate as animal. In this satisfaction in socially disruptive ways. It to or under the authority of a superior. view, the staff person or the inmate is may also give pleasure to those who wish Staff workers in a prison are subordinate seen as a living thing with basic biologi- to see the offender suffer for his/her to the warden and inmates are presum- cal needs (food, shelter, clothing, sex), crime. Some vengeance theories see ably subordinate to the correctional but not as a human animal. The subordi- punishment as an expression of the hate workers and others in jurisdiction over nate is more than an inanimate object, but and anger we often feel toward the them. The concept one has of those who less than a person who has higher needs. offender. are in his/her charge can dramatically affect the way one treats them. There are at least four ways in which a supervisor 44 Federal Prisons Journal

From this perspective, the prison is the greater good if he held this view. In viewed as a kind of kennel and staff as this view, the only policies, procedures, animal keepers. Needs of staff or inmates The subordinate as person, and programs that are justifiable are that go beyond the basics are ignored. in this view, those that respect the inherent worth of the individual. w The subordinate as devil. A superior is seen as a human being— may see the subordinate as something a person with dignity— Prisons are first and foremost places evil—clever and intelligent, perhaps, but where people live and work. Where there bent on lying, stealing, or murder. with feelings, thoughts, are rules and regulations on the books, Holders of this view tend to establish needs, desires, they should be laid down with respect for policies and procedures designed to make persons in mind. Once they are estab- life miserable for the subordinate. The hopes; who thinks, lished, compliance should be based on penalties they devise are designed to makes choices, has goals, respecting people as individuals. “Stan- punish for the sake of punishment alone. dards of conduct” at Stage 4, that are Their decisions will perhaps be designed can improve. drafted with respect for persons in mind, to retaliate for evil, to strike back, or to deserve to be followed because they are get even, regardless of whether reform or so based. They should be followed, deterrence occurs. Hostile emotions are unless their abandonment can be justified vented through punishment of the will always override considerations of by appeal to a higher principle such as offender. People with this view tend to autonomy and justice. those at Stage 3. Principles at this stage see punishment as vengeance. are to be prioritized by appeal to our One who views the subordinate as evil or basic philosophy of punishment (Stage 2) n The subordinate as person. In this an agent of evil will be inclined toward and our view of subordinates as human view, the subordinate is seen as a human vengeance theory, in which punishment beings (Stage 1). being—a person with dignity-with is seen as a way of striking back at evil— feelings, thoughts, needs, desires, hopes; or as good triumphing over evil. This While the viewpoints in this article may who thinks, makes choices, has goals, person will use (or abuse) justice appear clear-cut and easily defined, life can improve. A person has a family, principles by treating all subordinates as experiences are more dynamic and tend makes friends, wants to be happy. A equal to each other but unequal to “us.” not to fall so neatly into recognizable person can change or be changed. A categories. Thus, this article is intended, person is worth saving. A person has Finally, those who view subordinates as as mentioned at the start, to enable inherent worth or dignity. persons will most likely embrace the correctional workers to examine the lines “moralistic retributive” theory of of reasoning they employ to reach the Someone who sees the subordinate as an punishment and gravitate toward the decisions they make. In this way, they object or a brute animal is likely to be principle of autonomy as the superior can either reaffirm or reexamine their drawn to the utilitarian perspective, in ethical principle. This view has several decisions—and they will be able to which the subordinate is seen as a means advantages: allowing reform measures as articulate the underlying reasons for to an end. If reform measures are an option to the offender (respecting his/ these decisions, adding consistency to introduced, the outlook shifts to a her right to choose); making deterrence correctional decisionmaking all along the behavioristic (Skinnerian) view, arguing incidental; ruling out vengeance as line. n that staff should retrain or modify the abusive to the fundamental dignity and behavior of the offender. From this worth of human beings; avoiding rigid perspective, anything we do to objects rules that cannot account for wrong J. David Newell is Visiting Professor of and animals for the good of society is things done with good intentions. Philosophy at the United States Military acceptable-including using them to Academy, West Point, New York. A deter other offenders. The principle of Such a view puts autonomy, or respect version of this article was presented to maximizing benefits for the greater good for persons, above utility, or maximizing the Northeast Conference of Federal happiness. Captain Vere would not have Prison Wardens in 1989. sacrificed Billy Budd to the interests of