was not given adequate medical treat­ Women have had unnecessary ment. A third plaintiff not only suffered hysterectomies and suffered severe a late-term miscarriage after months of complications after delivery. bleeding and cramping, she also reqUired a complete hysterectomy. Plaintiffs al­ which will consist of the OB-managing leged that defendants' failure to provide physician, nurse, midwives, nurse practi­ them with adequate medical care during tioners, a pharmacist, and other neces­ and after their pregnancies resulted in a sary personnel and will act to provide number of infant deaths, still-births and each woman with coordinated health miscarriages, as well as several incidents emergency treatment and high risk pro­ where women had to have unnecessary tocols; 3) implement detailed emergency hysterectomies and suffered severe com­ treatment and high risk protocols devel­ plications after delivery. oped in the course of the settlement Because of the particularly strong -continued from front page discussions; 4) implement a number of and comprehensive nature of the settle­ cerated mothers and their children are other changes with respect to the provi­ ment, we are optimistic that the lawsuit receiving a greater amount of attention sion of care for high-risk pregnant will have implications not only for and response. Legal Services for Pris­ women and women with regular preg­ women prisoners at CIW, but also that oners with Children in California has fo­ nancies and 5) report regularly to plain­ it will lead to improved treatment for cused on several critical areas of concern tiffs, their attorneys, and the court women prisoners in other states and to incarcerated parents in the last sev­ concerning the implementation of the jurisdictions. eral years. We have made some im­ settlement for a period of 18 months. provements in conditions within the Plaintiffs and their attorneys are Prenatal Conditions Suit Pending institutions and in the programs which very pleased with the results of the set­ Against Santa Rita County Jail affect these parents and children. We tlement, since we feel that, if the De­ In February of 1986, women pris­ have also filed conditions lawsuits on be­ partment of Corrections complies with oners at the Santa Rita County Jail in half of pregnant women prisoners in the terms of the settlement, prisoners at Alameda County, California, filed suit state and county jails. Challenges have CIW are far more likely to receive good against county jail officials, alleging that been made to the lack of effective alter­ prenatal and post-natal medical care. they had been given grossly inadequate natives to imprisonment for mothers The lawsuit was filed in September prenatal and post-natal medical care in with young children, and we have scruti­ of 1985 by women prisoners at CIW violation of their constitutional and stat­ nized the policies and procedures of who had suffered miscarriages, infant utory rights. The lawsuit, Jones v. Dyer, state social services agencies which place deaths, hysterectomies or other trau­ seeks not only injunctive relief to im­ these children in foster care. Some vic­ matic pregnancy-related conditions. prove the overall quality of medical care tories have been achieved in these areas, Plaintiffs were represented by Legal Ser­ for pregnant women, but also the crea­ but much remains to be done. vices for Prisoners with Children, the tion of a halfway house alternative for law firm of Heller, Ehrman, White and pregnant women and new mothers who Prenatal Medical Care for Women McAuliffe in San Francisco, and the would otherwise be confined to the jail Prisoners Southern California ACLU. during their pregnancies or separated On April 20, 1987, Judge John Dav­ Plaintiffs alleged that pregnant from their newborns at birth. ies of the Federal District Court in Los women at the prison were being de­ The plaintiffs are represented by Angeles approved the final settlement in prived of adequate prenatal and post­ the law firm of Public Advocates and the Harris v. McCarthy, a lawsuit filed on be­ natal medical care in violation of their office of Legal Services for Prisoners half of pregnant and postpartum state constitutionally protected right to be prisoners in California. A strong and free from cruel and unusual punishment. THE comprehensive settlement covers all as­ The suit was filed as a class action on pects of prenatal and post-natal medical behalf of seven named women prisoners, care. It was based, in part, on prenatal and the class of pregnant women at the J UL OF THE care standards developed by the Amer­ Southern California prison. NATIONAL PRISON PROJECT ican College of Obstetrics and Gyne­ The lawsuit alleged a wide range of cology, and was carefully reviewed by deprivations in the provision of medical Editor: Jan Elvin respected e>q>erts in the field. care, including denial of adequate medi­ Editorial Asst.: Betsy Bernat Specifically, the settlement requires cal care in pregnancy-related emergency defendants (California Department of and life-threatening situations, inadequate Alvin J. Bronstein, Executive Director Corrections and the California Institu­ care following delivery, inadequate treat­ The National Prison Project of the tion for Women) to I) allow pregnant ment of critically high-risk women, dis­ American Civil Liberties Union Foundation 1616 P Street, N.W. women to receive regular treatment and semination of prescription drugs to Washington, D.C. 20036 monitoring of medical care by a qualified pregnant women which were contra­ (202) 331·0500 OB-GYN. (Prior to the filing of the law­ indicated during pregnancy, and other The National Prison Project is a tax-exempt foundation­ suit, many pregnant women at CIW serious violations. Plaintiff Annette Har­ funded project of the ACLU Foundation which seeks to strengthen never saw an obstetrician while at the ris lost her baby at five months after and protect the rights ofadult and juvenile offenders; to improve overall conditions in correctional facilities by using existing ad­ prison until they were brought to an gestation after bleeding and cramping for ministrative, legislative and judicial channels; and to develop al­ outside hospital to deliver); 2) create a over two weeks without, plaintiffs al­ ternatives to incarceration. The reprinting ofJOURNAL material is encouraged with the Pregnancy Related Health Care Team, leged, treatment or without being seen stipulation that the National Prison ProjectJOURNAL be credited or examined by an OB-GYN. She went with the reprint. and that a copy of the reprint be sent to the editor. Ellen Barry is the Director of Legal Ser­ into labor after she had been prescribed The JOURNAL is scheduled for publication quarterly by the vices for Prisoners With Children, /3/7 f1agyl; the baby lived two hours. A sec­ National Prison Project. Materials and suggestiOns are welcome. 18th St, San Francisco, CA 94/07, ond plaintiff gained 120 pounds during The National Prison ProjectJOURNAL is designed by James 4/5/824-/070. her pregnancy, but, it was alleged, she True. Inc.

2 WINTER 1987 with Children in San Francisco. Plaintiffs v. McCarthy, a lawsuit on behalf of preg­ have won two motions for contempt nant mothers and mothers of young chil­ due to defendants' refusal to comply dren in California state prisons on June with discovery requests, and have been 5, 1985, alleging that the Department of awarded sanctions on both occasions. Corrections was failing to properly im­ The parties are now in active settlement plement the Mother-Infant Care Pro­ negotiation. gram in violation of California state stat­ utory and constitutional provisions. Alternatives to Incarceration for Plaintiffs were granted a temporary re­ Mothers and Children straining order placing four pregnant One of the most critical efforts women in the Mother-Infant Care Pro­ identified by Legal Services for Prisoners gram immediately after the birth of their with Children was the need to expand infants, and three weeks later, defend­ available alternatives to incarceration for ants agreed to place several other of the women in prison who had infants or named plaintiffs immediately in the Pro­ young children. This concern was based gram with their young children. on several factors: the intolerable over­ Specifically, the lawsuit alleged that crowding that currently exists for the defendants failed to properly screen women prisoners both in California state and administer the Program, failed to women's prisons and in prisons through­ properly advise prisoners of the program out the nation, the tremendous cost­ in violation of the statutory provisions, effectiveness of using alternatives to unfairly denied applicants who were, in incarceration, both on financial and fact, eligible for the program, and im­ humane levels, and the enormous dam­ properly denied applicants an adequate age done to both mothers and children right to appeal denials. In addition, the by the separation due to parental incar­ lawsuit claimed that the program itself ceration. In California, Section 340 of was inadequately funded, and that insuffi­ A mother at the Children's Center playing with the Penal Code allowed for placement of cient resources were being provided for her child and two others. the primary caretaker of a child under medical care, counseling and programs the age of six years in a halfway house for the children. The Youth Law Center community facility provided that the par­ of San Francisco filed a companion case, carceration. Funding is still not adequate ent met certain screening criteria con­ In Re Maria G., making similar allegations to maintain a comprehensive program cerning length and type of sentence and on behalf of the children who might be for mothers and children; additional sites prior ability to appropriately care for placed in the alternative program. must be opened in order to accommo­ children. The law was originally drafted Since the filing of Rios v. McCarthy date the eligible clients and children; in 1978, enacted in 1979, and amended four additional halfway houses have been standards for acceptance must be fairly in 1981. However, between 1981 and contracted, licensed and opened and consistently applied; conditions 1985 an extremely small number of eli­ throughout the state of California. The within the houses must be improved; gible mothers were placed in the pro­ original halfway house (Brandon House and provisions must be agreed upon gram with their children. Thus, Legal in San Jose) has been kept at full capac­ concerning adequate procedures for Services for Prisoners with Children and ity, or close to capacity, and five addi­ application processing and appeals. the Southern California ACLU filed Rios tional sites for new houses are being -continued on next page explored. However, much remains to be Inmate mothers and children on a "Pumpkin A teacher's aide and two children at the Prison done to ensure that the program is a MATCH Children's Center at Pleasanton Fed­ Patch" trip from the Children's Center at eral Correctional Institution. functional and effective alternative to in- Pleasanton.

Photos this page courtesy of inmate mothers and children at the Prison MATCH Children's Center at Pleasanton-FCI. WINTER 1987 3 C. James Dulfer of Central Florida The California Institution for Legal Services, Inc., Daytona Beach, Flor­ Women is now at over 250% over ida, represented Petitioner, William design capacity. Wirsing. Legal Services for Prisoners with Children submitted an amicus brief on behalf of Petitioner, as did Florida In­ Ct. 12118/86) is a highly significant mile­ stitutional Legal Services and the Florida stone in the advancement of the rights Criminal Defense Attorneys Association. of incarcerated parents and their chil­ Most county jails and state prisons dren. In a unanimous decision, the Court have significantly inadequate systems of overturned the decision of the district providing prenatal and post-natal medical court affirming the decision to terminate care for pregnant women; most county Baby Irwin was born to this Native American a prisoner's parental rights, stating that a jails refuse to allow parents to have con­ woman while she was incarcerated. prisoner's efforts "to assume his parental tact visitation +lith their children; alter­ -continued from previous page duties through communicating with and natives to incarceration are in disfavor in One of the factors that makes this supporting his children must be meas­ many communities, even though they are case-and this avenue of litigation-­ ured against his limited opportunity to tremendously cost-effective and humane; most important is the severe over­ assume these duties while imprisoned." and federal and state revisions to foster crowding that currently exists in Califor­ Even a cursory review of the record care legislation are making it more and nia state women's prisons. The California from the lower court indicates that the more difficult for incarcerated parents to Institution for Women is now at over father in this case had made substantial regain custody of their children upon re­ '250% over design capacity; 75 to 80% efforts to communicate with both his lease from prison. Thus, the battle con­ of these women are mothers of young children and the Department of Social tinues. However, we have found that children, and the overwhelming majority Services. The Florida decision will, we the effort involved is always worth it are single mothers serving time for non­ hope, prOVide gUidance to other state every time we are able to allow one violent and economic-based crimes. The courts and legislatures which are facing child or infant to maintain that precious Mother-Infant Care Program offers a the question of how to ensure contact relationship with his or her imprisoned necessary alternative to the current ware­ and communication between incarcer­ parent. IiIII housing within this prison system. The ated parents and their children. costs of needless and unnecessary incar­ ceration--both economic and human-­ are enormous. The Mother-Infant Care Rhodes v. Chapman Analyzed for Program and other alternatives to incar­ ceration offer a viable and constructive solution to the problems of warehousing Effect on Prison Overcrowding low-security prisoners who are mothers Michael B. Mushlin of young children, the failure of correc­ tions departments to provide effective It has been almost seven years since rehabilitative programs for prisoners, the Supreme Court in Rhodes v. Chap­ In the post-Chapman world, and unnecessary separation of these man, 452 U.S. 337 (1981), held that litigators must do much more than young children from their mothers. At­ double-ceiling at the Southern Ohio torneys for plaintiffs in Rios v. McCarthy Correctional Facility was not unconstitu­ we early prisoner rights lawyers are currently in active settlement nego­ tional. In that time the overcrowding of needed to do. tiation with defendants' attorneys and American prisons has worsened by the hope to be able to arrive at a compre­ day. As of December 1985, prisons in a time of crisis in corrections caused by hensive agreement that will greatly im­ the United States held over a half a mil­ unprecedented growth of prison prove and expand the Program. lion citizens, an astounding figure that populations. represents an increase of over 68% in Chapman has been called "the most Foster Care and Parental Rights the years since Chapman was litigated. encouraging decision in prisoners' rights Issues Four out of five state prison systems to have emerged from the Supreme In a major victory for incarcerated now are overcrowded; thirty-four prison Court in a decade."2 On the other hand, parents and their children, the Florida systems operate at levels of over 50% it has been described as setting "the lim­ Supreme Court issued a decision in De­ beyond capacity. Jails, too, are chroni­ its of the eighth amendment lower than cember 1986 reversing a lower court cally overcrowded. As of June 1984 they had preViously been thought.") From my decision to terminate the parental rights held almost a quarter of a million per­ vantage point seven years later, I think of an incarcerated father who had kept sons.' In short, Chapman was decided at it's a bit of both. But given the prison substantial contact with his children dur­ overcrowding crisis the negative aspects ing the period of his incarceration. In the Michael Mushlin is a Professor of Law at of Chapman are particularly troubling. Interest of B. w., J. W. and M. W., No. 68, Pace University School of Law. From 1973 To see why requires some background 192 (Fla. Sup. Ct. 12118/86) held that to 1981, Professor Mushlin was actively in­ and explanation. the incarcerated father had not aban­ volved in prisoners' rights litigation with doned his children under the Florida the Legal Aid Society in New York City. Department of Justice, Jail Inmates 1984 (1986), statute governing the termination of Laura Hurwitz, a second year law student, reprinted in Ira Robbins, Prisoners and the Law, parental rights, finding that indigency of assisted in the research and preparation of Appendix C and D (Rev. 1987). incarceration alone would not support a 2Herman, Institutional Litigation in the Post-Chapman this article. World, 12 N.Y. Rev. of Law and Social Change, finding of abandonment. 299, 302 (1983- 84). The decision by the Florida Su­ 'These statistics are drawn from Bureau of Justice 'Collins, The Defense Perspective on Prison Condi­ preme Court in In the Interest of B. W., StatistiCS, U.S. Department of Justice, Prisoners in tions Cases, 7-5 in Ira Robbins, Prisoners and the J. w. and M. W., No. 68, 192 (Fla. Sup. 1985 (1986) and Bureau of Justice Statistics, U.S. Law, (Rev. 1987).

4 WINTER 1987 The Supreme Court's Opinions in Brennan, Blackmun, Marshall and Stevens Chapman An overcrowded prison is anything that federal courts are a "critical force" In my days as a prisoners' rights liti­ but a "rose garden." for prison reform. 452 U.S. at 359. As gator before Chapman, we were able to justice Blackmun put it, federal courts address prison overcrowding by present­ The Chapman court was deeply must be a bastion against policies that ing straightforward evidence to the fed­ fractured. While the justices determined would make imprisonment an "open eral courts about the consequences of by a vote of 8 to I that double-ceiling door for unconstitutional cruelty or policies that led to the overcrowding. In inmates at the Ohio Prison did not un­ neglect." 452 U.S. at 369. many cases we were able to persuade constitutionally overcrowd the facility, it Given the seriousness of the over­ courts, through testimony of experts in took three separate opinions to explain crowding crises, there are troubling as­ fields such as penology and psychiatry, why. In a fourth opinion, justice Marshall pects of the Chapman decision. Most dis­ and by the use of minimum standards gave his reasons for concluding that a quieting is that the Chapman majority from professional organizations together constitutional violation did exist. raised the requirements of proof for a with the testimony of inmates who ex­ justice Powell wrote the opinion of finding of uncoAStitutional overcrowding. perienced the conditions, that populating the five-member majority. In it, he lim­ Proving that many more prisoners are a facility significantly beyond its capacity, ited the role for experts and standards housed in a prison than it was designed was unconstitutional.· These results in the judicial determination of constitu­ to hold will no longer require a finding were sensible since when more pris­ tionality. Those persons and groups, jus­ of unconstitutionality. Nor will proof oners are placed in an institution than it tice Powell said, might tell us where we that professionally recognized minimum was meant to hold, one can almost feel as a society should be going, but they do standards have been violated compel the place begin to collapse. Essential ser­ not describe enforceable minimum stan­ court-ordered population reductions. vices, such as medical care, become dards. 452 U.S. at 348 n.1 3. justice Pow­ Experts, while still essential, are no strained. Violence starts to rise as ten­ ell laced his opinion with additional lan­ longer enough to carry the day. In the sions mount. Any semblance of privacy guage unsympathetic to prisoner claims post-Chapman world, litigators must do that may have existed is quickly sacri­ for humane treatment. The opinion re­ much more than we early prisoner ficed to the pressure to accommodate minded lower courts that the state legis­ rights lawyers needed to do. Now they the added bodies. Whatever hope there latures have the primary responsibility must prove in vivid details that the ac­ may have been for the preservation of a for operating state prisons, and they can, tual effect of prison overcrowding is modicum of basic human dignity is lost. if they wish, make them uncomfortable ruinous. To succeed they must demon­ The harmful effects of overcrowding on places. These discomforts apparently can strate that the conditions' actual effect health and well-being are amply docu­ include any deprivations other than on inmates falls below the bottom line mented. See, e.g., Thornberry & Call, those contained in a limited grouping of of human existence. Constitutional Challenges to Prison Over­ items that justice Powell considered crowding: The Scientific Evidence of Harm­ among "life's necessities." 452 U.S. at Experts, while still essential, are ful Effects, 35 Hast. L. j. 31 3 (1983). An 347. In addition, "restrictive and even no longer enough to carry the day. overcrowded "rison is anything but a harsh" prison conditions, in Powell's lex­ "rose garden."s icon, are simply "part of the penalty that My quarrel with this stems from my Even if the United States Supreme criminal offenders pay for their offenses belief that the approach of many of the Court did not encourage our work in against society." Id. Finally, the majority pre-Chapman opinions was not, as the the lower federal courts, it left it largely saw no magic in the rated capacity of an majority suggests, wrong. Minimum stan­ undisturbed. That changed in 1981 when institution. Since prison populations are dards do matter; experts do count; de­ the Supreme Court broke its silence, driven upward by a variety of factors, sign capacities do not descend from the and in Chapman addressed the constitu­ prisons that house more people than air. The Chapman majority's depreciation tional questions posed by prison over­ they are designed to hold are simply fa­ of these criteria, makes prison over­ crowding for the first time.6 cilities built by officials who "guessed in­ crowding litigation unnecessarily difficult. correctly about future prison popula­ When these holdings are added to the ·Pre-Chapman cases outlawing overcrowding in­ tion[s]," and no more. U.S. at clude: Leeds v. Watson, 630 F.2d 674 (9th Cir. 452 349 tone of the Court's majority opinion, 1980); Battle v. Anderson, 564 F.2d 388 (10th Cir. n.15. which at its best, provides only a grudg­ 1977); Williams v. Edwards, 547 F.2d 1206 (5th Despite all this, justice Powell's ing acceptance of federal courts in the Cir. 1977); Detainees of Brooklyn House ofDeten­ opinion reaffirmed a role for lower fed­ correction of overcrowding in prisons, tion v. Malcolm, 520 F.2d 392 (2nd Cir. 1975); Ra­ eral courts in assuring that prison over­ an environment is created in which far mos v. Lamm, 485,f.Supp. 122 (N.D. Col. 1979); crowding does not get out of hand. more overcrowding than should exist Ambrose v. Malcolm, 414 F.Supp. 485 (S.D.N.Y. Federal courts, he said, have a "responsi­ can be condoned. 1976); Pugh v. Locke, 406 F.Supp. 318 (M.D. Ala. bility to scrutinize claims" of unconstitu­ 1976). tional prison conditions. 452 U.S. at 352. The Impact of Chapman on Lower sChief Justice Rehnquist appears to think that the Court Overcrowding Cases goal of prisoners' rights litigation is to make pris­ Four cases in which lower courts had ons into rose gardens. See, Atiyeh v. Capps, 449 ordered extensive changes, including the In the years since Chapman, pris­ U.S. 1312, 1316 (1981) (In Chambers). elimination of overcrowding, were cited oners' rights litigation has continued. As 7 61n an earlier case, Bell v. Wolfish. 441 U.S. 520 with apparent approval. one might expect, much of it has fo­ (1979), the Court upheld double ceiling as prac­ The remaining three opinions col­ cused on overcrowding. I have tried to ticed at the federal Metropolitan Correctional lectively express the view of justices figure out how Chapman has influenced Center in New York City. Chapman. however, is a the conduct and the results of that litiga­ more significant case since it dealt with over­ 7452 U.S. at 352 (citing Ramos v. Lamm. 639 F.2d tion by examining the reported crowding in a prison rather than a jail, and since 559 (10th Cir. 1980). cert denied, 450 U.S. 1041 decisions. the prison. although new. was built according to (1981); Williams v. Edwards, 547 F.2d 1206 (5th rather traditional design concepts. By contrast, Cir. 1977); Gates v. Collier. 501 F.2d 1291 (5th Cir. The good news first. The obviously Wolfish dealt with the rights of pretrial detainees 1974); Pugh v. Locke. 406 F.Supp. 318 (M.D. Ala. restrictive approach of the Supreme in an ultra-modem. state-of-the-art jail which fea­ 1976) aff'd as modified. 559 F.2d 283 (5th Cir. Court majority has not stopped many tured college dormitory-like rooms rather than 1977), rev'd. in part on other grounds. 438 U.S. 781 federal courts from acting when faced cells. (1978) (per curium). -continued on next page

WINTER 1987 5

... .18_111.11.11_._mi· _ -continued from previous page with grave claims of overcrowding. In a Supreme Court Summary host of cases, many brought by the Na­ David B. Goldstein tional Prison Project, lower courts have enjoined overcrowding when it has been During the 1986-87 Term, the Su­ In two cases, Turner v. Safley, 107 shown to cause deplorable prison condi­ preme Court continued its assault on S.Ct. 2254 (1987), and O'Lone v. Estate tions. Those courts have focused on the prisoners' exercise of fundamental con­ of Shabazz, 107 S.Ct. 2400 (1987), a 5-4 totality of conditions affected by the stitutional rights. At the same time, the majority rejected prisoners' claims that overcrowding. They have looked at the Court indicated that it is not quite pre­ their First A':l'lendment free speech and basic architecture and design of the facil­ pared to reduce to empty rhetoric the free exercise rights, respectively, were ity and have calculated the impact made oft-stated principle that inmates do not violated. In Turner, the Court also found, by the increased numbers upon such shed their constitutional rights by virtue unanimously, that a near-ban on inmate basic components of a living environ­ of their incarceration. marriages was unconstitutional. In a third ment as heat, ventilation, lighting, sanita­ case, Board of Pardons v. Allen, 107 S.Ct. tion, and food services. They have also David Goldstein was the ACLU's 1986-87 2415 (1987), the Court, 6-3, found that been concerned with the effect of over­ Karpatkin Fellow. He is currently an asso­ Montana's parole statute created a lib­ crowding on the level of activities that ciate at Rabinowitz, Boudin, Standard, erty interest in parole protected by the can be provided and the ever-present Krinsky, & Lieberman in New York City. Due Process clause. danger of violence in the institution. When overcrowding has caused the facil­ a lower court that had ordered an end cases. Federal courts have remained ity to slip below the "bottom line condi­ to overcrowding in a hundred-year-old available even after Chapman when there tions of basic human existence," Jackson facility in which 56% of the prison popu­ are lawyers with the skill and resources v. Gardner, 639 F.Supp. 1005, 1010 (ED. lation were double-celled in cells that to use them to meet the high standard Tenn. 1986), it has been found to be un­ offered no more than 33 square feet per of proof imposed by the Court. Indeed, constitutional.s The reality of prison life person. In Dohner v. McCarthy, 635 the record achieved by lower federal in America in the 1980s is that many F.Supp. 408 (C.D. Cal. 1985), a court courts in improving the lot of those prisons are so deplorable they are unfit held that housing 4,000 people in a caught in the f100dtide of overcrowding for human existence, much less advance­ prison designed to accommodate only in the years following Chapman is both ment, and thus satisfy the test for un­ 2,400 was not unconstitutional. The impressive and important. But, it would constitutionality. Indeed, in its latest cal­ court recognized that the conditions be incorrect to suggest that Chapman culation, the National Prison Project were an "ordeal," but, because of Chap­ has not had a discouraging effect on the reports that prisons in thirty-six states man, refused to act. 635 F.Supp. at 430. conduct of overcrowding litigation. It . are currently under court order to elim­ In Delgado v. Cady, 576 F.Supp. 1446, has forced some courts to tolerate debili­ inate unconstitutional prison conditions.9 1448 (ED. Wis. 1983), the court recog­ tating levels of overcrowding, and it has Thus, after Chapman it is fair to say that nized that double-ceiling is "among the limited others to only those situations in federal courts continue to playa cru­ most debasing and most dehumaniZing which the overcrowding caused condi­ cial-indeed, an indispensable-role in aspects of present prison life. It rips tions to deteriorate to a point of near offering hope for hundreds of thousands away the sense of privacy--of dignity collapse. We all bear the consequences of citizens who are incarcerated under which can make bearable many things of this development. In a real sense, the unnecessarily harsh conditions in prisons which would not otherwise be en­ Supreme Court in Chapman contributed in the United States. dured." Nevertheless, even though the to the overcrowding crisis. Had it not Unfortunately, this is not the full overcrowding in the prison was "highly ruled as it did the explosive effects of story. The federal reporters now also offensive to human dignity," the court overcrowding could have been dealt contain decisions in which lower courts refused to act based on Chapman. Id. at with before great damage is done. Now have felt constrained by Chapman to ac­ 1457. we must wait. Because this has hap­ cept a level of overcrowding that in the To be sure, in some of these cases pened, I, for one, will not praise Rhodes pre-Chapman days almost certainly the conditions were not quite as bad, as v. Chapman. I11I'II would have been found unconstitutional. a general matter, as conditions in those In Smith v. Fairman, 690. F.2d 122 (7th cases in which courts did intervene. Also Cir. 1983), the Seventh Circuit reversed in some of the cases prison administra­ tors had made good faith efforts to cope Bcody v. Hillard, 199 F.2d 447 (8th Cir. 1986) re­ in a less chaotic way with the effects of jail was overcrowded, see, e.g., Union County Jail hearing ordered. Toussaint v. Yockey, 722 F.2d 1490 the overcrowding. While conditions may Inmates v. DiBuono, 71 3 F.2d 984 (3rd Cir. 1983) (9th Cir. 1984); Wellman v. Faulkner, 715 F.2d 269 not be as subhuman as in those in which (It was agreed that the jail was "seriously over­ (7th Cir. 1983); Ruiz v. Estelle, 679 F.2d 1115 (5th courts have responded, the conse­ crowded". Id. at 986. Conditions were constitu­ Cir. 1982); Reece v. Gragg, 650 F.Supp. 1297 (D. tionally permissible, however, since inmates had Kan. 1986); Palmigiano v. Garrahy, 639 F.Supp. 244 quences of overcrowding were, none­ time away from their cell and the basic physical fa­ (D.R.I. I986); Jackson v. Gardner, 639 F.Supp. 1005 theless, demonstrated to be quite seri­ cilities such as plumbing, ventilation and heating (E.D. Tenn. 1986); Albro v. County of Onondaga, ous. Moreover, the good faith attempts were minimally acceptable); Nelson v. Collins, 659 627 F.Supp. 1280 (N.D.N.Y. 1986); Monmouth of administrators to cope, while admira­ F.2d 420, 427 (4th Cir. 1981); Miles v. Bell, 621 County Correaional Inst Inmates v. Lanzano, 595 ble, cannot compensate for conditions F.Supp. 51, 62 (D. Conn. 1985) (Although over­ F.Supp. 1417 (D.N.J. 1984); Fischer v. Winter, 564 that reduce life to a quest for mere crowding made the prison uncomfortable and in­ F.Supp. 281 (N.D. Cal. 1983); Benjamin v. Malcolm, survival. 1o convenient, conditions are held to be constitu­ 564 F.Supp. 668 (S.D.N.Y. 1983); Grubbs v. Bradley, tional); Lovell v. Brennan, 566 F.Supp. 672 (D. Me. 552 F.Supp. 1052 (M.D. Tenn. 1982); McMurry v. 1983) (Court found conditions to be "unpleasant, Phelps, 533 F.Supp. 742 rN.D. La. 1982); Dawson The Significance of Chapman if not harsh." Id. at 687. Conditions were held to v. Kendrick, 527 F.Supp. 1252 (S.D.W. Va 1981). Chapman did not close the court­ be constitutional, however, because inmates were 9ACLU National Prison Project, Status Report: The house doors to prison overcrowding provided with adequate food, clothing, medical Courts and Prisons, (March I, 1987), reprinted in Ira care, mental health services, shelter, sanitation, Robbins, Prisoners and the Law, Appendix B (Rev. IOFor additional cases which fit into these cate­ lighting and ventilation. Id. at 688. Capps v. Atiyeh, 1987). gories and deny relief even though the prison or 559 F.Supp. 894, 904 (D. Or. 1983).

6 WINTER 1987 I

Clearly, Turner was the Term's deferential standard to the two claims, sible was the Court's acceptance that a most significant, and devastating, pris­ with inconsistent results. The Court rehabilitation rationale of replicating the oners' rights case. The inmates claimed found that the correspondence restric­ work week could override the inmates' that the complete ban on inmate-to­ tions were promulgated primarily for se­ right to attend their central worship inmate correspondence (except between curity concerns and that correspondence service, and that the prison overcrowd­ immediate family) to and from their between inmates can communicate es­ ing could be used as a basis to deny fun­ prison violated their free speech rights. cape plans, be used to arrange violent damental rights. They also claimed that the prison policy acts, and coordinate prison gangs. Thus, As in Turner, the Court found the of authorizing inmates to marry only according to the Court, there was a log­ availability of alternative means of prac­ in cases of pregnancy or childbirth, ical connection between banning inmate ticing Islam sufficient, even if the inmates whether or not the partner was another correspondence and maintaining security. were banned from Jumu'ah. The Court inmate or an outsider, violated the con­ In the most potentially damaging rejected the obvious alternatives of an stitutional right to marry. remarks in the opinion, the Court stated inside Friday work detail because it Justice O'Connor's opinion for the that the ban "does not deprive prisoners would defeat the goal of relieving over­ Court first embraced the "rational rela­ of all means of expression," but only crowding, but also because it could lead tionship" test-the standard that is least bans all communication with a particular to the creation of "affinity groups," protective of constitutional rights and group. The dangers inherent in using which officials testified would inevitably most deferential to government offi­ such a generic view of "expression" as a challenge the prison authorities. cials-as the uniform standard of review sufficient alternative to the particular The Court closed with a firm ad­ for all constitutional claims by prisoners. claimed right is obvious. Finally, the monition that it would refuse, even un­ As framed by the Court, "when a prison Court found that alternatives such as ex­ der the First Amendment, to substitute regulation impinges on inmate's constitu­ amining prisoners' mail would impose its judgment for that of prison officials. tional rights, the regulation is valid if it is more than a de minimis burden on the Justice Brennan's eloquent dissent, reasonably related to legitimate penolog­ prison system. which, like that of Justice Stevens in ical interests." The Court then struck down the Turner, focused on the paucity of the The Court rejected reliance on Pro­ marriage restrictions. It rejected the se­ State's evidence, again emphasized the cunier v. Martinez, 416 U.S. 396 (1974), curity of avoiding love triangles by posit­ degree of deference the Court insists on which had established a heightened stan­ ing the alternative of individualized deci­ paying to the unsubstantiated, specula­ dard of review for restrictions on in­ sionmaking, which the Court considered tive testimony of prison officials. The mate correspondence with outsiders. a de minimis burden. It then rejected the dissent was particularly troubled by the Arguments that the standard of review rehabilitative concern of protecting implausible "affinity group" claim, which should depend on whether the re­ women from dependent relationships carries the potential to deny prisoners stricted activity is presumptively danger­ because the regulation "sweeps much an array of associational rights and of ous and that First Amendment rights are more broadly" than that goal would subtle discrimination. entitled to heightened judicial protection warrant, but failed to explain why this In Board of Pardons v. Allen, the were also rejected. language was not applicable to the cor­ Court broke no new ground. It reaf­ Justice O'Connor elaborated four respondence ban. firmed a 1979 decision which held that factors in considering whether a regula­ Justice Stevens' dissent on the cor­ the presence of a parole system does tion met this deferential standard. This respondence ban, which highlighted the not itself give rise to a protected liberty explication makes it clear that the Court speculative and unsubstantiated nature of interest in parole release, but that the expects lower federal courts to ignore the government's evidence, only served mandatory language of the Nebraska all but the most egregious or unwar­ to emphasize the extraordinary lengths statute did not create such an interest, ranted restrictions on constitutional to which the majority would go to up­ despite the inherently subjective and rights. These factors include: hold restrictions on prisoners' rights. predictive nature of parole decisions. I) whether the connection be­ While agreeing with the majority's result The Montana statute at issue in Al­ tween the regulation and the asserted on the marriage claim, although not its Ien likewise used mandatory language to penological goal is so remote as to be reasoning, Justice Stevens did not miss create a presumption that parole would arbitrary and irrational; the irony of the Court's conservative be granted when designated findings 2) whether alternative means of bloc protecting the nontextual right to were made, even though the required exercising the right remain open to marry, but not the explicit constitutional findings granted parole officials broad prisoners; right of free speech. discretion. The court found that the 3) whether accommodation will In Shabazz, lower security inmates statute sufficiently cabined this discretion have an impact on other inmates, prison were assigned to outside work details to to create a liberty interest subject to guards, and prison resources generally; relieve overcrowding and for rehabilita­ procedural due process protections. The and tive purposes. As a result of a "no­ Court rejected the State's suggestion 4) whether there are "obvious, return" policy, the Moslem prisoners on that a liberty interest is created only if easy alternatives [which] may be evi­ these details could not attend Jumu'ah, the statute is as explicit in its presump­ dence that the regulation ... is an 'exag­ the religion's central and only obligatory tion as the Nebraska law. gerated response' to prison concerns." and congregational service, which is held Unfortunately, unlike Turner and Accommodations must impose no more on Friday, the Moslem Sabbath, in the Shabazz, Allen is of limited impact since than de minimis costs upon penological early afternoon. Ironically, the maximum the wording of parole statutes varies interests, and even costless alternatives security inmates could attend Jumu'ah. from state to state, and because the would only be evidence of unreasonable­ Applying Turner, the Court, per state legislature can simply change its pa­ ness. This is the only insignificant modifi­ Chief Justice Rehnquist, not surprisingly role statute to eliminate a protected lib­ cation of the rational relationship test found the outside work detail logically erty interest. II traditionally applied to economic regula­ connected to relieving overcrowding and tion, in which the availability of alterna­ the "no-return" policy as reasonably re­ tives is generally irrelevant. lated to the security problem of return­ Th~ Court then applied this highly ing through the prison gate. Less defen-

WINTER 1987 7 The Court has carved some specific Death Penalty Law Still Eighth Amendment exceptions to the death penalty. Coker v. Georgia (1977) held the death penalty disproportionate Tolerates Inequities and unconstitutional for the rape of an Katy Baird adult woman where the victim is not killed. The Court has prohibited execu­ Four years after Furman v. Georgia In Pulley v. Harris (1984), the Court held tion of the insane as "cruel and unusual" (1972) invalidated existing capital punish­ that a state-wide proportionality review in Ford v. Wainwright (1986), and heard ment schemes as arbitrarily applied, of cases where the death penalty had arguments last November in Thompson v. Gregg v. Georgia (1976) upheld statutes been imposed was not constitutionally Oklahoma to determine whether the which provided "guided discretion" in required. Eighth Amendment likewise bans the imposing the death penalty. Such stat­ The Supreme Court's relaxation of execution of juveniles. utes separate the guilt and sentencing its previous curtailments on capital pun­ The thorClugh and exacting advo­ prQ,ceedings of capital trials. After con­ ishment illustrates the fluctuating Eighth cacy compelled by the threat of a death viction for first-degree murder, or capi­ Amendment doctrine. Although Enmund sentence has been met, ironically, with tal murder as otherwise defined, evi­ v. Florida (1982) forbids a death sentence cases allOWing expedited federal court dence is presented in aggravation or for one who "does not kill, attempt to review (Barefoot v. Estelle, 1983), dis­ mitigation of sentence. If the jury finds kill or intend to kill the victim," Cabana missal of constitutional claims for 'proce­ that one or more statutory "aggravating v. Bullock (1985) allows a state trial or dural default' (Smith v. Murray, 1986), circumstance"---e.g. the murder oc­ appellate court to determine whether and a difficult standard for proving inef­ curred in commission of a felony-ap­ such intent exists after a jury has sen­ fective assistance of counsel (Strickland v. plies, they may impose the death pen­ tenced the defendant to death. Enmund Washington 1984). The Court has at alty. Concurrently with Gregg, Roberts v. was severely limited this term in Tison v. times candidly refused to burden the Louisiana and Woodson v. North Carolina Arizona (1987). Tison validates the death criminal justice system with constitu­ held mandatory death sentences uncon­ penalty for two boys whose father mur­ tional strictures. Lockhart v. McCree stitutional. Jurek v. Texas upheld a unique dered a family following a prison escape. (1986) allowed potential jurors whose system where defendants convicted of Although the boys did not participate in, attitudes toward the death penalty might capital murder must be sentenced to anticipate or condone the killings, their influence their sentencing decision to be death if the jury answers three questions aid in the escape showed a sufficient removed from the guilt phase of a capi­ affirmatively, including whether the de­ "reckless disregard for human life" to tal trial, even though conviction-prone fendant poses a future danger to society. justify a death sentence. juries result. The alternatives to accept­ Furman, Gregg and many subsequent Although a judge may instruct the ing juries more prone to convict than an Supreme Court cases entail the Eighth jury "not to be swayed by sympathy, average sampling of citizens were con­ Amendment's ban on cruel and unusual passion, prejudice or public opinion" in sidered too cumbersome to be constitu­ punishment. The evolving case law ex­ sentencing under California v. Brown tionally reqUired. hibits a doctrinal tension created by the (1987), the Court has refused to allow This term death penalty jurisprud­ cases' polar mandates of "guidance" and restraints on mitigating evidence. Lockett ence came full circle to countenance the "discretion." The "guidance" promised v. Ohio (1978) held that "any aspect of arbitrary and discriminatory sentencing by the statutes upheld in Gregg, suppos­ the defendant's character or record and outlawed in Furman v. Georgia (1972). edly rendering death sentences uniform, any of the circumstances of the offense McClesky v. Kemp (1987) rejected proof predictable and fair, has been eroded by that the defendant proffers as a basis for of the racially discriminatory application later cases sanctioning varying degrees of a sentence less than death" must be ad­ of Georgia's death penalty scheme. The "discretion." In Zant v. Stephens (1983) mitted into evidence. Eddings v. Okla­ Court held that discretion was inherent one of several aggravating circumstances homa (1982) found that a trial court's in the criminal justice system, and the tainted the sentence. Barclay v. Florida refusal to consider the defendant's vio­ defendant had failed to prove discrimina­ and Wainwright v. Goode (1983) upheld lent family history in mitigation of sen­ tory intent in his individual sentencing. death sentences where the trial courts tence was constitutional error. Exclusion Again, the Court refused to burden the had considered invalid or illegal factors. of prison guards' testimony regarding a system by applying the equal protection death row inmate's adaptability to prison standards of, for example, employment Katy Baird is a graduate of Northeastern life was also found unconstitutional in discrimination suits. In forgiving the University Law School and a former NPP Skipper v. South Carolina (1986). Re­ states' failure to gUide the sentencer law intern. This article was written while cently, Hitchcock v. Dugger (1987) held past racial bias, the Court has clarified she was an intern at the NAACP Legal portions of Florida's death penalty law Gregg v. Georgia's legacy: "guided discre­ Defense Fund. unconstitutional for limiting mitigation to tion" in death sentencing tolerates ineq­ a statutory list of considerations. uity as long as procedural contours remain. I11III

Drawing by Martim Avillez.

8 WINTER 1987 r

Victim and Offender Participation Important to Criminal Sentencing Process Russ Immarigeon

Victims and Sentence Planning Several years ago, Joel Henderson and G. Thomas Gitchoff, sociologists Henderson and Gitchoff made five from the San Diego State University, generalizations about crime victim par­ "Our legal process does not wrote a series of articles describing their ticipation in alternative sentence plan­ encourage accountability on the experiences as private consultants pre­ ning: victims initially want their victim­ paring sentencing plans for convicted izer imprisoned in many cases; victims part of offenders." criminal offenders. Although their work were uninformed. however. about possi­ focused on finding community-based al­ ble sentencing options available to the pears to be an important factor influenc­ ternatives to incarceration for their court; probation pre-sentence reports ing the victim's views on sentencing."3 clients. they found that the quality of containing retributive statements from In a later article. Henderson and their work was improved when they crime victims resulted when probation Gitchoff reported some statistical evi­ asked crime victims for their views on officers offered them no alternative dence supporting their generalizations. In appropriate punishments for the per­ choices; victims were Willing to abandon late 1979, Albert Santiago, their re­ son(s) who victimized them. retributive views if given a meaningful al­ search associate. interviewed 20 felons ternative; victims were increasingly in­ serving long-term sentences in a Nevada Russ Immarigeon is the Associate Editor of terested in alternatives to incarceration prison for non-violent property and drug Criminal Justice Abstracts, and a free­ for their victimizers as time passed after offenses. Henderson and Gitchoff inter­ lance writer specialiZing in criminal justice their victimization; and. lastly, victim viewed more than I00 victims over a 9­ issues. views on appropriate punishment were year period. Together, they found that .. influenced by how and by whom they offenders were not given an opportunity I Russ Immarigeon, "Surveys Reveal Broad Support were asked for their input. to make restitution, victims were not for Alternative Sentencing," NPP JOURNAL, Num­ "We have found," Henderson and given relevant alternative sentencing in­ ber 9. Fall 1986. pp.I-4; Nigel Walker and Mike Gitchoff concluded, "that when victims formation. most victims (not young or Hough, eds., Public Attitudes to Sentencing: Surveys are interviewed directly after the crime well-to-do victims) were initially inter­ from Five Countries, Brookfield, VT: Gower Publish­ ing Company. November 1988. they are much more prone to desire ested in incarcerating their offenders but "The U.S. Department ofJustice is trying to nip harsh retribution than when they are in­ they were less likely to press their op­ this possibility in the bud. The Bureau ofJustice terviewed or re-interviewed several tion when given alternative sentencing Statistics recently sponsored a national public opin­ weeks after the crime has occurred. This arrangements were described to them. ion survey which pronounced that "Americans may be due in part to a 'cooling off pe­ Victims were also likely to want harsh overwhelmingly support incarceration as the most riod when the victim reflects on the cir­ penalties when interviewed shortly after I&) appropriate punishment for criminals." The findings cumstances of the offense and may have their victimization but were attracted to I> from this survey differed dramatically from a f?; received ministerial or familial counsel­ -continued on next page .z wealth of state, national and international studies. ~:: ing. We have found that information on @; and preliminary reaction to the study suggests sig­ nificant methodological and conceptual flaws. A de­ sentencing is crucial to obtaining victim 'Joel Henderson and G. Thomas Gitchoff. "Using fft iA:: tailed analysis of this study, and its poliCY implica­ agreement on alternative sentencing. Experts and Victims in the Sentencing Process," t: tions. will appear in the next issue of the We also found that a professional inter­ Criminal Law Review, 17(3): May-June 1981, pp.229­ i JOURNAL viewing on behalf of the defendant ap- 231. I~.·.·.·.·· WINTER 1987 9 .:------__""_....~,._,...... ,_....._""...... _---_..1 -continued from previous page seem to have too much self-interest. 1 meeting of Victim-offender reconciliation alternatives to incarceration when given remember well a visit to Manhattan's program (VORP) practitioners, a repre­ information by well-informed probation criminal court several years ago where I sentative of a victims' rights advocacy officers.4 observed the work of a local community group presented a keynote address service program. The prosecutor, de­ which angered those in attendance who Victims v. Offenders fense attorney and program liaison all were looking for a serious discussion of The experiences and findings of stood before the sentencing judge who what victim and offender advocates had Henderson and Gitchoff are rarely ob­ inqUired about the offender's history of to offer one another. The keynote served in political debate about crime drug use. Neither the prosecutor nor speech--an unavbidably moving but ov­ and punishment in our society. A more the defense attorney knew anything erbearing recitation of various victims' dominant force is the inaccurate percep­ about the offender's history; the com­ pain--was an unfortunate failure because tion that offenders' rights and interests munity service program representative, VORP practitioners are keenly sensitive are inherently antagonistic to victims' who had at least briefly interviewed the to both victim and offender issues. Un­ rights and interests. George M. Ander­ offender, was not concerned, one way like most victi"\or offender advocacy son has put this dilemma in historical or the other, about the offender's drug organizations, tney do not focus on one context: use. The judge never received an answer group to the exclusion of the other. "One of the fastest-growing move­ to his question, and no one seemed They recognize, along lines discussed ments in the 1980s has been the victims' innovative enough to step back sev- by Norwegian criminologist Nils Chris­ rights movement," he recently observed. eral steps to ask the offender himself tie,? that both groups are involved in a It represents a heightened indignation on as he stood, silently, behind these conflict out of which comes certain the part of women and men who have practitioners. needs reqUiring concerned attention. been harmed through violent crime and With regard to victims, an impor­ VORP practitioners try to address the feel ill-served by a judicial system seem­ tant question remains what happens concerns of both parties; they are orga­ ingly indifferent to their anguish. when victim interests differ from prose­ nizationally and philosophically opposed "Reacting to this anguish in a con­ cutorial or court interests. Anecdotal to coercing the needs of one group certed manner, members of victims' evidence exists to show that courts have against the other. rights groups around the country have listened to victims wanting sentences dif­ Several clarifications are necessary, successfully pressed for the enactment of ferent than prosecutors have recom­ therefore, to debunk the notion that al­ statutes addressing their concerns. Many mended or they would have normally ternatives to incarceration or other of­ jurisdictions have made provisions for imposed. The Connecticut Center for fender-oriented proposals are largely separate waiting areas for victims who Sentencing Alternatives, for instance, contrary to victim needs. must testify against their assailants in was recently involved in a case where Offender-oriented advocates have court. More Significantly, a majority of a 62-year old man, convicted of man­ long urged greater sensitivity to victim states now have victim compensation slaughter in the "crime of passion" needs. The Prison Research Education funds, which help defray medical and shooting death of his wife, was returned Action Project (PREAP), for instance, other costs connected with injuries in­ to the custody of his family. "I loved my wrote, in Instead of Prisons, a prison abo­ curred as a result of crime. sister," the victim's sister told the court, lition handbook originally published in "However beneficial such legislation "but I love (the convicted offender) very 1976, that "all physical threats of vio­ may be for victim assistance," Anderson much also. We want him home." The lence must be dealt with seriously by found, "there exists another underlying man was sentenced to a suspended I0­ both the community and individuals." concern that has become a source of year sentence, along with immediate in­ PREAP argued, moreover, that a victim worry to civil libertarians. If statutes patient evaluation and long-term outpa­ empowerment approach "directed to­ passed during the last few years have tient counseling. 6 ward true solutions" to rape and other carried the message of 'help the victim,' More commonly, however, evi­ crimes of violence should "include aspects of the same legislation have, in dence suggests that victim recommenda­ changing values and attitudes about girls their view, carried a parallel message: tions are overpowered by prosecutorial and women and creating the kinds of at­ 'Punish the offender more.'''s arguments for incarceration or other titudes that provide opportunities for harsher punishments. Paul Landkroner, re-educating and resocializing rapists and Neither Victims Nor Offenders the assistant director of Porter County other potential sexual aggressives.,,8 Are Heard PACT, recently recounted that a victim PREAP, now renamed The Safer Society Victims and their advocates have helped his organization prepare a non­ Program, has, for the past seven years, rightly decried the invisibility imposed incarcerative sentencing plan for one of continued work on developing a caring upon them by criminal justice practition­ PACT's offender clients. The local pros­ community response to victims and of­ ers who are normally invested in other ecutor, however, objected, and the of­ fenders; this work includes a broad organizational concerns (arresting the of­ fender was incarcerated by the court. range of publications discussing various fender, convicting the offender, defend­ This sort of thing happens repeatedly. aspects of community-based and residen­ ing the offender and punishing the of­ One must consider, too, what societal tial treatment programs for juveniles and fender). Not too surprisingly, offenders benefits are lost when prosecutors con­ adult sex offenders.9 are often routinely overlooked in the sistently reject well-planned community criminal sanctioning process. Offender service plans, something which happens 7Nils Christie, "Conflicts of Property," British Jour­ contributions are belittled because they regularly for a program operated by the nalofCriminology. 17(1): January 1977. pp.I-19; Nils Christie, Limits to Pain, Oxford, U.K.: Martin Pennsylvania Prison Society. Robinson. 1981. ~oel H. Henderson and G. Thomas Gitchoff. "Vic­ BFay Honey Knopp. et aI., Instead of Prisons: A tim and Offender Perceptions of Alternatives to Breaking the Victim-Offender Handbook for Abolitionists. Syracuse, NY: Prison Ed­ Incarcertion: An Exploratory Study," South African Logjam ucation Action Project. 1976. p.137. Journal ofCriminal Law and Criminology. 7(1): March Several years ago, at an annual "The Safer Society Program has issued the follow­ 1983, pp.46-50. ing publications: Remedial Intervention in Adoles­ sGeorge M. Anderson. "The Victim's Rights Move­ "Lynne Tuohy, "Family of Slaying Victim Wins cent Sex Offenses: Nine Program Descriptions ment: Backlash on the Offenders," The California Mercy for Her Killer." The Hartford Courant, March (1982); Retraining Adult Sex Offenders: Methods Prisoner. 16(4): September 1987. p.6. 27. 1987. pp.AI, A12. and Models (1984); A Preliminary Survey of Ado-

10 WINTER 1987 Victim-oriented advocates have also seen that alternatives can serve the in­ NPP Celebrates 15 Years With terest of their clients. A recent conver­ sation with John Stein, deputy director of the National Organization for Victim Memories of Past, Hope for Future Assistance, found articulate support for Jan Elvin alternatives to incarceration that take seriously the needs of persons victimized Over 250 people attended the 15th ment had come and how much had been by crime. Moreover, the idea that vic­ Anniversary celebration of the National shared along the way. It was a day to tims are antagonistic to measures that Prison Project on October 24, 1987 in rediscover how much energy and crea­ benefit offenders, even those offenders Washington, D.C. A day of workshops tivity people still have, and be strength­ they were victimized by, belittles vic­ and discussions on the past and future of ened by it. tims' compassion and sense of social prison litigation was capped off with a In what Norval Morris, Kreeger justice. dinner, a keynote speech, and the grand Professor of Law, University of Chicago finale--a roast of NPP Executive Direc­ Law School, call~d "a uniquely American Conclusion tor Alvin J. Bronstein. There was much event," the Project brought together In the I960s, victim and offender retelling of "war stories" from the early prisoners' rights lawyers from around interests were more clearly distinct years of prison litigation, shared memo­ the country, as well as advocates, aca­ when victims were almost entirely ig­ ries, and personal anecdotes. Each one demics, judges, criminal justice profes­ nored, and when alternative sentences was a reminder of how far the move- sionals, corrections professionals, and for criminal offenders were oriented former colleagues and friends. Except more toward rehabilitation than punish­ Jan Elvin is the editor of the JOURNAL. for the prisoners, it seemed that every- The NPP staff also contributed to this ment. In the 1980s, however, criminal one was there. -continued on next page sentences, even those prepared by de­ article. fense attorneys or defense-oriented sen­ "Our legal process does not en­ tencing specialists, are increasingly puni­ times unrecognized) similarities with the prisoners' rights movement. Prisoners courage accountability on the part of tive or incapacitative. Offenders are now and crime victims, for instance, are both offenders. Nowhere in the process are commonly sentenced to victim-oriented seeking a participatory voice in the crim­ offenders given the opportunity to un­ sanctions like restitution. inal justice process. Both groups want derstand the implications of what they In the late I960s and throughout recognition; they no longer wish to be have done. Nowhere are they encour­ the 1970s, prisoners gained an unprece­ ignored or considered insignificant in a aged to question the stereotypes and ra­ dented amount of legal rights through process in which they are intimately tionalizations that make it possible for the concerted efforts of civil rights at­ involved. them to commit their offenses. In fact, torneys, supportive citizen groups, and Henry Adams once wrote that "de­ by focussing on purely legal issues, the prisoners themselves. While individual mocracy is shaking my nerves to pieces." criminal process will tend to sidetrack rights are still threatened daily in most The role of victim and offender rights in their attention, causing them to focus on penal institutions in the United States, creating a more democratic system of legal technical definitions of guilt, on the the U.S. Constitution, with its Bill of criminal justice is far from settled, but possibilities for avoiding punishment, and Rights, at least has a foothold in the ad­ evidence is gradually emerging that the on the injustices the~ perceive them­ ministration of these institutions as a re­ pieces of a more democratic response to selves to undergo." I sult of these efforts. Prisoners' rights crime are falling into place. While proce­ Zehr suggests that both victims and victories have been hard-fought and long dural approaches to providing a full offenders need "an experience of em­ overdue, and many more prisoners' sense of justice for victims and offenders powerment." An equally crucial aspect rights victories are still needed, but they are still in the early stages of develop­ of this process is lessening reliance on have at least brought us one step closer ment, hope exists that victim and of­ incarceration as a response to crime. to a more democratic system of crime fender needs can take a preferential Writing about crime victim restitution, control and criminal sanctioning. place in courtrooms across the United Dan McGillis recently found that "this In recent years, attorneys, citizen States. goal does not appear to have been at­ groups and crime victims have created a A crucial component of such a shift tained, and such a failure seems inevita­ rapidly developing victims' rights move­ in criminal justice practice concerns the ble given the nature of the cases handled ment that has significant (although some- way we think about criminal sanctioning. by typical restitution mechanisms. Resti­ Howard Zehr, who has helped architect tution efforts typically do not focus upon lescent Sex Offenses in New York: Remedies and a grounded philosophy for emerging re­ cases in which incarceration is highly Recommendations (1984); The Youthful Sex Of­ parative sanctions such as victim-offender likely or assured, and thus a relatively fender: The Rationale and Goals of Early Interven­ reconciliation, writes cogently on this low impact on prison and jail caseloads is tion and Treatment (1985); Report on Nationwide topic. the result."11 Survey ofJuvenile and Adult Sex-Offender Treat­ ment Programs and Providers (1986); Treating the "Victims have many needs. They What is needed, it seems, is the Young Male Victim of Sexual Assault: Issues and In­ need to speak their feelings. They need merging of three goals- crime victim tervention Strategies (1986); A Model Residential to receive restitution. They need to ex­ restitution, victim and offender repara­ Juvenile Sex-Offender Treatment Program: The perience justice: victims need some kind tion, and jail and prison population re­ Hennepin County Home School (1987); Female of moral statement of their blameless­ duction--into a cohesive and well­ Sexual Offenders: A Summary of Data from 44 ness, of who is at fault, that this thing coordinated criminal justice policy. III Treatment Programs (October 1987); Informa­ should not have happened to them. They tional Packet: Female Sexual Abusers (October need a restoration of power because the IOHoward Zehr. "Retributive Justice. Restorative 1987); and Sexual Offenders Identified as Intellec­ offender has taken power away from tually Disabled: A Summary of Data from 40 Justice." Elkhart, IN: MCC Office of Criminal Jus­ Treatment Providers (November 1987). For infor­ them." tice. 1985. mation about the cost of these publications. con­ Zehr argues that the criminal jus­ "Daniel McGillis. Crime Victim Restitution: An Analy­ tact The Safer Society Program. Shoreham Depot tice system in this country works nei­ sis afApproaches. Washington. D.C.: U.S. Dept. of Road. Orwell. VT 95760.8021897-7541. ther for victims nor for offenders. Justice. December 1986. p.67.

WINTER 1987 II -continued from preViOUS page During the morning sessions held at the Georgetown University Law Center, Claudia Wright and Elizabeth Alexander from the Prison Project led workshops on settlement and compliance issues along with guest speakers Michael Lewis and Linda Singer. Lewis and Singer are professional mediators and are well known for th,eir work in training lawyers to negotiate effectively. They have both also served in many cases as court­ Has Al Bronstein just appointed special masters or monitors. discovered that he's to The highlight of the settlement work­ be the focus of the Spe­ cial Roast scheduled for shop was a role--playing exercise in the Anniversary's eve­ which the participants were divided into ning events? pairs and presented with a difficult fac­ tual situation to resolve by negotiation. The range of settlement solutions to a One can only guess what single problem was broad and prompted Ira Glasser (c.), Execu­ a spirited and thought-provoking tive Director ofthe ACLU, is saying to discussion. Randy Berg ofthe Flor­ The compliance workshop focused ida justice Institute. on developing new methods to achieve meaningful long-term reforms after set­ tlement. The presentation of new, ex­ john Coleman, former perimental ideas sparked debate over president ofthe Edna the virtues of traditional consent de­ McConnell Clark Foun­ crees versus agr~ements which include dation, presented the the extensive use of experts, monitoring keynote speech at the Anniversary Dinner. arrangements, and provisions for volun­ tary dismissals after compliance is reached. William Bennett Turner, Alexa Freeman of the Prison Proj­ lead counsel in Ruiz v. ect and Urvashi Vaid, former NPP attor­ Estelle, participated in ney, now Public Information Director an afternoon symposium, discussing the history of with the National Gay and Lesbian Task prisoners' rights Force, led a workshop on the problem litigation. of AIDS in prison. Vaid presented statis­ tics on the number of reported HIV, ARC and AIDS cases in various city jails, Erik Andersen, Governor state prisons and in the federal system ofRinge Prison in Den­ based upon data the National Prison mark, meets with con­ ference guests. Project has received from its first survey of AIDS in prison and preliminary results from its second survey. The numbers in­ Chan Kendrick, Director dicate a growing AIDS crisis in the na­ ofthe ACLU of Virginia, tion's jails and prisons. shares a joke with NPP's Vaid highlighted the central issues jan Elvin. that have emerged. These include prob­ lems of AIDS testing in prison (who NPP attorney Alexa should be tested, whether it should be Freeman (c.) and Steve mandatory, availability of the test for Ney (r.), director ofthe those who seek it, reliability of test re­ Maryland Disability Law sults, use of test results, confidentiality, Center and former NPP cost, and availability and quality of coun­ chief staff counsel, chat seling before and after testing); the with medical expert Dr. housing of prisoners with HIV, ARC Lambert King (I.) ofSt and AIDS (they are often segregated in Vincent's Hospital and conditions comparable to punitive or Medical Center. lock-down units); the lack of adequate medical care for prisoners with ARC or Former NPP Associate AIDS; and the rights of third parties to Director, Ralph Knowles, notification of a prisoner's health status (r.), and Randy Berg (I.) versus the prisoner's right of privacy. ofthe Florida justice In­ Freeman surveyed the handful of stitute, were among cases that have been decided dealing those who attended the with issues of AIDS in prison. To date, Anniversary celebration. the courts have upheld prison officials' Photos by Elizabeth Rolando. decisions to segregate all infected pris-

12 WINTER 1987 l _ oners and to test all prisoners for HIV single-issue prisoners' rights cases to the tedious, "how can we expect rehabilita­ (as well as decisions not to test and seg­ systemic challenges to an entire state tion?" Recidivism is a meaningless way to regate in cases brought by prisoners system such as the one he led in Texas. measure the effectiveness of our criminal seeking this), deferring to their exper­ A final view of history came from Lynn justice policies and practices, Andersen tise. However, as the crisis worsens, Walker of the Ford Foundation and for­ added, when we know that crime is the these and other issues necessitate con­ mer head of the Special Litigation Sec­ result of larger social problems. His tinued litigation to protect prisoners tion, Civil Rights Division, U.S. Depart­ views were so refreshing that Norval from unconstitutional deprivations of ment of Justice. She recounted the Morris later called Andersen a "fantasy their rights. influential role that the Justice Depart­ Warden, from a make-believe land in After the presentations, the audi­ ment played in the I970s and spoke of Western Europe." ence engaged in a lively and useful dis­ the work leading to passage of the Civil And, in the end, Norval Morris in cussion. Many of those in attendance Rights of Institutionalized Persons Act. his wonderful and humorous way, re­ were AIDS experts who contributed Philip Hirschkop, one of the found­ minded us all just how fortunate we are enormously to the exchange. At the end ers of the NPP, shared his memories of to have jobs that are meaningful. of the workshop all agreed that it was the early days, as well as his role in the In his openihg remarks during the critical to continue to meet to share in­ early stages of the prisoners' rights evening dinner program, AI Bronstein formation and strategies. movement. said that "whatever we few at the Proj­ Adjoa Aiyetoro of the NPP and Addressing the more difficult topic ect have accomplished during these 15 Claudette Spencer, an attorney with the of the future of prison litigation were years has only been made possible by Prisoners' Rights Project of the New Vincent Nathan, partner in a Toledo law the combined cooperation and support York Legal Aid Society, led a workshop firm and Special Master in several cases, of many, many other people. Praying on· race discrimination in the criminal Allen Breed, President, National Council only that I do not overlook anyone, I justice system. Aiyetoro gave an over­ on Crime and Delinquency, and Charles want to acknowledge that help now: view of the types of race discrimination Ogletree, Adjunct Professor, Harvard "First, Herman Schwartz, Phil found in prison and discussed the possi­ Law School. All three stressed the con­ Hirschkop and Aryeh Neier who con­ bilities of mounting legal challenges to tinuing need for prisoners' rights litiga­ ceived of and put together the Project. those practices. tion and the pressure for positive change Without them there wouldn't be any Spencer described how to convince that it creates. We need to learn how Project; superiors to litigate these issues, and dis­ to end long-standing cases, stated Na­ "The NPP staff over the years, 24 cussed the need to gather as many facts than, so that the pressure for change is lawyers--consistently the most creative as possible while incorporating these not counterproductive. Nathan has been and hard-working group of professionals facts into an appeal to the morality of the special master in the Texas prison ever gathered under one roof; the decision-makers. She also described litigation, Ruiz v. Estelle, which has gone "Over the years 44 support staff, the facts in a case involving a prison in on for many years. The role that masters talented and committed and constantly New York which led her office to file a have played in moving the parties away challenging the lawyers on how to do suit alleging race discrimination. These from an adversarial relationship and into things better; facts include racial segregation in housing a partnership for reform was stressed. "One hundred and ten interns and and job assignments. Allen Breed closed his remarks by law clerks who brought fresh thought During discussion by the workshop saying that "Even with citizen and foun­ and new energy to all of us; audience, the question of the dangers of dation support of civil rights issues, com­ "The ACLU staff, the board, and integration was raised. Some participants mitted attorneys who literally give their especially the ACLU affiliates who are, gave examples of conflicts between ra­ professional lives to the adversarial proc­ after all, our eyes and ears out there. cial groups when institution housing and ess of righting wrongs, and courts that They are what make us a truly national jobs are integrated. Others expressed are willing to make findings of fact and project, and have been a great source of the belief that it was unfair to deny pris­ conclusions of law regarding unconstitu­ help and support; oners of color "good" jobs if violence tional conditions--even with all these "Financial support from foundations, may erupt. The need for responsible forces--changes in prisons and jails will law firms, churches and especially the of­ leadership from the administration and not take place without the partnership ficers and trustees of the Edna Mc­ staff of the institution including the de­ of concerned and professional correc­ Connell Clark Foundation, which is a velopment of a plan for integration was tional staff. Staff who, in most cases, unique institution in charitable giving in suggested as a solution to this problem. given the resources and opportunities, this country. They make major, long­ The history and future of prison liti­ can and do make conditions of confine­ term commitments, and work side by gation were th't! topics for the after­ ment fair, safe and humane.... It is side with their grantees to help make noon's symposium, and a distinguished hoped that conciliation rather than litiga­ things work; group of speakers led us through an tion will be the watchword of the "The experts who have gUided us account of the changes that time has tomorrows." in our litigation, guided us when we brought. The Honorable Robert R. Mer­ But it was Charles Ogletree who should not be litigating, helped us frame hige Jr., Senior Judge, United States Dis­ reminded us just what it is all about. lawsuits and implement decrees; trict Court, Eastern District of Virginia, Decency-he said-the treatment of "The local counsel, legal services began the session with a judge's per­ prisoners as fellow human beings, was lawyers, legal aid lawyers, ACLU affiliate spective on the changes in prison Iitiga~ the most important result of the move­ staff and cooperating lawyers, private tion since the I960s. With particular ment and must continue. practitioners; reference to Virginia's prisons, he com­ We all enjoyed remarks by Erik "Judges, both liberal and conserva­ mented on the many positive changes he Andersen, a visitor from Denmark. An­ tive, united in one common view-that has seen after first describing the vile dersen is the Governor (Warden) of the the Constitution applies to all persons; conditions he encountered there 20 national maximum security prison at "Corrections professionals, people years ago. Ringe in Denmark, where criminal jus­ we have suecl-a named defendant in William Bennett Turner, partner in tice policy is much more enlightened one of our lawsuits is here tonight. In a San Francisco law firm, described the than in this country. He spoke elo­ growing numbers, there are people who movement from the early narrow and quently, saying that when prison life is so -continued on next page

WINTER 1987 13 I" -continued from previous page lawyer on the NPP staff. He soon real­ love you. Keep on for another 15 years want to run humane and lawful ized that the only attribute that really and we'll be back for another institutions; mattered was that prospective attorneys party." III "And finally, our clients, the pris­ be shorter than AI. oners. The men and women who have "No one has taught me more about For the Record been willing to step forward, to work the art of cross-examination than AI," with us, assist us, sometimes to lead and Myers continued. During the Alabama • Joining us as a Staff Associate is Olinda direct us--without them there would be case a warden from the diagnostic facil­ Moyd, previously at the NAACP Na­ no success for the Prison Project." ity was brought in to testify. Myers de­ tional Office in Baltimore where she was Ira Glasser, Executive Director of scribed Billy Long as a "truly enlightened a paralegal and coordinator of legal re­ the ACLU, had time in between debates individual," who asserted vehemently on search. At NAACP she worked on over the history of the Brooklyn Dodg­ direct examination that the reason there school discrimination, voting rights, em­ ers, to give a few remarks and to share were so much violence and so many as­ ployment discrimination and fair housing with us a telegram he had received from saults at his facility was that fully "50% cases. • Ed Meese. "Congratulations to the crim­ of the prisoners who passed through A number of staff members have inal lobby on its 15th Anniversary," it were homosexuals." recently been promoted: read. Glasser stated, "AI and I are having At that, Bronstein said, "I'll do this Claudia Wright is now the Associate an argument over who gets to read him cross-examination." Bronstein stood up, Director. She has been with the Project his Miranda rights if he gets indicted." leaned over to Billy Long, and the fol­ since 1981 and returned recently after a Glasser recounted the beginnings of lowing exchange took place: year at the Federal Public Defender's the Prison Project, when Aryeh Neier Bronstein: Mr. Lo~g, how is it that Office in Baltimore. In addition to assist­ merged Herman Schwartz' and Phil you know that fully 50% of those folks ing the Director, she hopes to expand Hirschkop's projects. "Those people had are homosexuals? the Project's funding base by setting up very little to go on, but they did have a Long: Well, I asked them. special projects in the areas of juvenile vision. What the Prison Project has ac­ Bronstein: I assume it was solely and women's facility litigation. She also complished to date gives us hope that out of prurient interest? hopes to explore institutional reform by what can be accomplished in the future Long: Of course! using a combination of litigation and will conform to the vision of those who Myers could not resist a serious nonlitigation strategies as is currently began it." moment, however, and spoke to the re­ being utilized in our juvenile case in Keynote speaker John Coleman, curring theme of Bronstein's "long-term Hawaii. former president of the Clark Founda­ commitment." "Over the years, Adjoa Aiyetoro is the Director of tion, now owns and operates a country hundreds of students, dozens of lawyers Legislative and Community Affairs. In inn in Vermont. He lives in a town with have passed through the Project, and her 5-1/2 years at the Project she has "no traffic lights, no cells and one pizza not one of them has not been impacted shown an interest in involving the com­ parlor. There are more innkeepers in by AI, by his spirit, his commitment to munity in litigation efforts. Among other the town than all the lawyers and minis­ the civil rights movement, and by his projects, she organized a conference on ters put together." Coleman told us, "If legal skills." the effect of imprisonment on the black you ever begin to lose sight of how The next roaster, Urvashi Vaid, family and community, pursued a race much you have done, take the 15th An­ claimed that Bronstein's ego is one of discrimination claim in the massive Michi­ niversary issue of the JOURNAL and read the Prison Project's secret weapons. "It gan case and has been successful in sev­ the parts about the doghouse in Ala­ has a devastating effect on corrections eral non-litigation settlements. In her bama. That is all you need. That dog­ chiefs. Whenever we reach an impasse in new position she hopes to develop a house in Alabama was in our time. That negotiation we bring in AI. He walks in, methodology for involving the commu­ doghouse is not there today." stands there rocking back and forth on nity in the process of prison litigation He went on to tell the crowd, his heels, and growls. Attorney generals and thereby influence legislative deci­ "You have combined head and heart. back down, judges address him deferen­ sions towards an increased reliance on That's why I like the Project so much tially, prisoners sign settlement agree­ alternatives. and could argue for it with such deep ments, and corrections officials feel like Elizabeth Alexander has been named conviction in the foundation. You he's one of the guys!" Chief Staff Counsel. She also joined the brought head and heart together. AI The evening ended with remarks by Bronstein is an outstanding example Ralph Knowles, former Associate Direc­ • Special edition of that-a brfl1iant mind and a warm tor of the Project and a friend of AI Commemorative heart." Bronstein's for many years. Knowles T·Shirts-See how "You have still got a long road said, "I know that AI would not want suave and debonaire ahead," said Coleman. "Whatever it is me to get up here and simply propose a you can look in the that stands in your way, that too will toast to AI Bronstein. As he has men­ National Prison Proj­ pass." He quoted Roger Baldwin, found­ tioned, there are many other people ect's 15th Anniver­ er of the ACLU, who said that one need who come into the circle." He men­ sary Commemorative only "live long enough to see what tioned prisoners, experts, Iitigators, mas­ t-shirt! Sizes are XL, seemed like defeats turn into victories." ters and monitors, foundations, and the L, M and S (children After pointing out that "you would entire group of prisoners' rights advo­ sizes special order). have to be out of your mind to get up cates. Finally, to AI, he said,"You have The colors remaining in front of 250 people and make fun of been in this emotional and stressful, low are mostly white and AI Bronstein," Glasser introduced the payoff business for years. Some of us yellow (L has some roasters for the evening, Matt Myers, come and go. You have remained hope­ It. blue; S has It. blue former chief staff counsel at the Project, ful throughout and have always main­ and pink). Get them and Urvashi Vaid, former NPP staff at­ tained enormous sensitivity to the rights while they last, first come, first served! torney. Matt spoke of how, at 5'8", he of all people, particularly those who T-shirts are $6.00 plus $1.75 for handling wondered why he was always the tallest other people don't have respect for. We ($7.75).

14 WINTER 1987 Project staff in 1981 and has successfully ronto, Canada. Held annually since 1983, . the NPP Staff: challenged conditions of confinement in the VORP Gathering is a conference for Virginia, Alabama, Wisconsin, South Da­ Victim-offender reconciliation and media­ 'tihileitiS·sOlTle'f\lhatdifficlJltJ()r' . kota and Michigan. Her new duties will tion programs and those with an interest me to•express the•extent ofmy include coordination of the legal work of in such programs. The tentative theme gratitude with words regarding the project attorneys and the paralegals as of the 1988 conference is: "The Needs [NPPJOURNAL, 15th Anniversary well as improving the legal research re­ of Victims and Offenders." Edition],. please ,know. that.. 1consider sources available to the staff. The conference attracts interna­ it a very special blessing and a high Dan Manville, Staff Associate, has tional attention, drawing program direc­ honor to be mentioned among returned to Michigan to practice law tors, staff and volunteer mediators of those who refused to turn a dfaaf after being admitted to the bar there; victim-offender mediation and reconcilia­ 1 ear to the cry for assistance from he was withthe Project for 5 /2 years. tion programs from across U.S. and Can­ the.many men, women and. children Lynthia Gibson and Betsy Bernat have ada. Training workshops and resource who are the Rroduct or by-product both been promoted to Assistants to exchanges are provided for those who ofinhumane 't~eatment which de­ the Director and between them will are interested in starting a local program rives from America's State and Fed­ handle various financial and administra­ or learning more about the VORP el1l1 Prison system. tive duties. concept. For more details, contact the Yours. in. the Struggle Always, • The PACT Institute of Justice an­ PACT Institute of Justice at P.O. Box BobbyBCl~le > . ./..{ nounces that the Annual VORP Gather­ 177, Michigan City, IN 46360, 2191872­ (Lead Plahi.tiff, Battle v. Anderson) ing will be held June 18-22, 1988 in To- 3911.

Sourcebook (1980). Traces ated mothers, health care, and the history of the prisoners' general articles and books. $5 rights movement and surveys prepaid from NPP. ');~ the state of the law on various A Primer For Jail Litiga- prison issues (many case cita- "fa __-'--__ tors is a detailed manual with .~ tions). 24 pages, $2.50 prepaid , from NPP. practical suggestions for jail lit­ igation. It includes chapters on The National Prison Proj­ legal analysis, the use of ex­ ect Status Report lists by pert witnesses, class actions, The National Prison state those presently under attorneys' fees, enforcement, Project JOURNAL. court order, or those which discovery, defenses' proof, $20/yr. $21yr. to prisoners. have pending litigation either remedies, and many practical involving the entire state suggestions. Relevant case cita­ The Prisoners' Assistance prison system or major institu­ tions and correctional stan­ Directory, the result of a na­ tions within the state. Lists dards. Ist edition, February tional survey, identifies and de­ only cases which deal with 1984. 180 pages, paperback, scribes various organizations overcrowding and/or the total $15 prepaid from NPP. and agencies that provide as­ conditions of confinement. The Jail Utigation Status sistance to prisoners. Lists na­ (No jails except District of __-'----:;;, Report gives a state-by-state tional, state, and local organi­ Columbia). Periodically up­ listing of cases involVing jail zations and sources of dated. $3 prepaid from NPP. conditions in both federal and assistance including legal, li­ Bibliography of Women in state courts. The Report cov­ brary, medical, educational, Prison Issues. A bibliography ers unpublished opinions, con­ ~ployment and financial aid. of all the information on this sent decrees and cases in 7th Edition, published April subject contained in our files. progress as well as published 1986. Paperback, $20 prepaid Includes information on abor­ decisions. The Report is the from NPP. tion, behavior modification first nation-wide compilation Offender Rights Litigation: programs, lists of other bibli­ of litigation involVing jails. It Historical and Future De­ ographies, Bureau of Prison will be updated regularly by velopments. A book chapter policies affecting women in the National Jail Project. 1st by AlVin J. Bronstein published prison, juvenile girls, women in Edition, published September QTY. COST in the Prisoners' Rights QTY. COST jail, the problem of incarcer- QTY. COST 1985. $15 prepaid from NJP.

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WINTER 1987 15 III1IIIIII

The following are major develop­ Epps v. Martin-This case challenges months or whenever the population ex­ ments in the Prison Project's litigation conditions at North Carolina's Craggy ceeds certain limits for 30 days. If the fa­ program since August I, 1987. Further state prison. We secured a settlement in cilities are found to be in non-compli­ details of any of the listed cases may be August which prOVides for improve­ ance with court-ordered standards, obtained by writing the Project. ments in fire safety, ventilation, heating, defendants will have 30 days to remedy medical and mental health care, and a the situation or face the imposition of a Abbott v. Meese-This is the national reduction of triple-bunking and overall population cap. ~ class action which challenges the mail overcrowding. A hearing was held in late and literature policies of the Federal Bu­ September for approval of the settle­ Phillips v. Bryan-This is a conditions reau of Prisons. In july, the U.S. Court ment by the district court. case at Nevada's maximum security of Appeals rendered its opinion and de­ prison. In October, parties agreed to a cided the publications issue in plaintiffs' Inmates of D.C. jail v. jackson­ new consent decree, settling all issues favor, stating that the district court had This case challenges conditions, primarily and thereby replacing the 1983 decree. applied the wrong standard. The Court overcrowding, at the D.C. jail. In july, affirmed the district court opinion on the D.C. City Council passed the Emer­ Shrader v. White-In this case chal­ the prisoner correspondence issue and gency Overcrowding Act, alloWing early lenging conditions at the Virginia State remanded the case so that the proper release of approximately 850 prisoners. Penitentiary in Richmond, the only out­ standard could be applied by the district The District has also tried to send newly standing issue was prisoner access to judge. sentenced prisoners to federal facilities, scrap metals and tools which could be a move we oppose. used to make weapons. A settlement Bobby M. v. Graham-This case chal­ agreement providing for adequate secur­ lenges conditions and practices at three Inmates of Occoquan v. Barry-This ing of these materials was approved by Florida juvenile training schools. In july lawsuit challenges conditions at three the Magistrate on August II, 1987. the court approved a comprehensive District of Columbia facilities. On july settlement agreement, settling all issues 30, the court rescinded a previous order U.S. v. Michigan/Knop v. johnson-. in the plaintiffs' favor, including use of for a population cap, requiring instead This is a statewide Michigan prison con­ restraints and isolation. The agreement that the defendants reduce the popula­ ditions case. In August, the court issued also incorporated a population reduction tion by 100 inmates a month until the a highly favorable decision, granting plan, and a monitoring and reporting sys­ population cap is achieved. The D.C. plaintiffs some relief on every issue un­ tem which went into effect in july. City Council approved an Emergency der litigation. Relief on racial discrimina­ Overcrowding Act to ease overcrowd­ tion issues, however, was either very Cody v. Hillard-This suit challenges ing within the entire D.C. system (see narrow or denied, and plaintiffs have conditions at the South Dakota State Inmates of D.C. Jail v. Jackson). moved for reconsideration on segrega­ Penitentiary. In july, the district court tion in the dining halls. held a six-day compliance hearing on all Palmigiano v. DePrete-This case issues except overcrowding. We offered challenges conditions in the Rhode Island Washington v. Tinney-This case defendants a settlement agreement that State Prison system. In july, parties challenges conditions and allegations of recognizes continuing deficiencies and agreed to a new order with respect to brutality and use of force at two Mary­ establishes an expert panel to address Medium Security and the Intake Center land state prisons. On October 2, the compliance issues; defendants tentatively whereby a panel of experts will evaluate court approved a stipulated agreement approved the plan. conditions at these facilities every six which covers all the issues in the case. III

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