""j-f>' A PROJECT OF THE AMERICAN CIVllliBERTlES UNION FOUNDATION, INC. VOl. 6, NO.1, WINTER 1991 • ISSN 074$-2655 }.:.~, , U.S. Now Leads World in Rate ofIncarieration

Incarceration rates for the United States, South Afric and the Soviet Union in comparison to Europe an triving to be Number One is an honored American tradition. S While only ten years ago the Nation United States' incarceration rate was United States third in the world, we have now moved South Africa into first place. Anew study by the Sentencing Project reports that with Soviet Union more than one million people behind bars, the United States has now sur­ Hungary passed South Africa and the Soviet Malaysia Union in punitiveness. Of every 100,000 Americans, 426 live Northern Ireland behind bars. In South Africa, 333 of every Hong Kong 100,000 are in prison; in the Soviet Union, 268; Great Britain, 97; Spain, 76; the Poland Netherlands, 40. New Zealand Perhaps even more shocking is the finding that Black males in the United United Kingdom States are imprisoned at a rate of four Turkey times that of Black males in South Africa: 3,109 per 100,000 compared to 729 per Portugal 100,000. France 81 The study, Americans Behind Bars: A Comparison ofInternational Rates of Austria 77 Incarceration, was written by Marc Spain 76 Mauer, assistant director of the Sentenc­ ing Project. Switzerland 73 The incarcerated population in the Australia 72 Denmark 68 Italy 60 Japan 45 Netherlands 40 Phillippines 22

Source: Penal Reform International, using datafrom theCou· . Australian Institute ofCriminology , United States has more than doubled in along with alternatives to incarceration thelast decade, rising from just over rather than new prison cells.... 500,000 in 1980 to one million today. The "Overwhelmingly, the punitive policies study stresses that incarceration rates, of the first option were the ones selected however, do not rise and fall with crime at both a national and local level," says rates. "Although the crime rate has the report. "Had the punitive policies dropped by 35% since 1980, the prison resulted in dramatically reduced crime population has doubled in that period," it rates, one could argue that their great Editor: Jan Elvin notes. "Breaking down these figures expense was partially justified by the Editorial Asst.: Betsy Bernat further, we see first that crime dropped results. But as the 1990s begin, we are Alvin J. Bronstein, Executive Director by 15% from 1980 to 1984, while the faced with the same problems as in 19~f); The National Prison Project of the number of prisoners increased by 41%; only greater in degree."·p American Civil Liberties Union Foundation then, from 1984-1989 crime rates climbed The Sentencing Project recommends:' if 1875 Connectic~ Ave., NW, #410 by 14%, while the number of prisoners · repeal of mandatory sentencing laws; Washington, D.q. 20009 rose by 52%. Any cause and effect · expansion of alternatives to incar­ (202) 234-483P-' FAX (202) 234-4890 relationship is difficult to discern." The ceration; The National Prison Proied is a tax~exempt foundation­ statistics are furnished by the F.B.I.. · treatment of drug abuse as a health funded project of the ACLU Foundation which seeks to Fear of crime and increasingly punitive problem rather than a criminal justice strengthen and protect the rights of adult and iuvenile attitudes in recent years have led to problem; offenders; to improve overall conditions in correctional facilities by using existing administrative, legislative and mandatory sentencing laws and tougher · redirection of the focus of law judicial channels; and to develop alternatives to sentencing guidelines. Mauer suggests enforcement to address community needs incarceration. The reprinting of JOURNAL material is encouroged with that these new laws reflect counterpro­ and to prevent crime; the stipulation that the National Prison Project JOURNAL ductive and inappropriate policy choices. · government funding of pilot pro­ be cnedited with the reprint, and that a copy of the reprint "The choice for policy makers in respond­ grams to reduce the high rate of impris­ be sent to the editor. The JOURNAL is scheduled for publication quarterly by ing to our high national crime rate...was onment of African American males; and the National Prison Project. Materials and suggestions very stark. The first option was to · establishment of a national commis­ are welcome. continue to build new prisons and jails at sion to examine the high rate of incar­ a cost of $50,000 a cell or more, and to ceration of Americans, particularly spend $20,000 a year to house each African American males. The NPPJOURNAL is available on 16mm prisoner, or to spend these same tax Copies of the report are available from microfilm, 35mm microfilm and 105mm dollars on prevention policies and The Sentencing Project, 918 FSt., NW, microfiche from University Microfilms services-programs designed to generate Washington, D.C. 20004 for $5.• International, 300 North Zeeb Rd., Ann employment and to provide quality Arbor, MI 48106-1346. education, health care, and housing, jan Elvin is editor Of the NPPJOURNAL.

public already exists. Once the public LETTERS TO THE EDITOR knows that, many fewer sentences of death will be imposed, and we may be In his article in the Summer1990 issue "Instead of Death: Alternatives to Capital able to abolish capital punishment. ofthe NPPJOURNAL, Russ Immarigeon Punishment," Vo15, No.3 (Summer 1990), Thereafter, we can come up with the discussed alternativepunishments to the although its publication year was not other sorts of alternatives hypothesized death penalty, noting thatanti-death 1990, but rather 1989. by Mr. Immarigeon. penalty efforts which fail to suggest The difficulty I have is that Mr. Ronald J. Tabak, Esq. alternatives are incomplete.J The most Immarigeon evidently fails to recognize Skadden, Arps, Slate, Meagher & Flom, popular alternative, life withoutparole, that... one need not affirmatively New York he wrote, was an unsatisfactorily broad advocate life without parole ("LWOP") in political ameliorative." Drawingfrom order to take advantage of the public's To the Editor: recent studies andsurveys, he instead preference for some version of LWOP as As a matter of prUdence, Mr. proposed alternatives such as increased an alternative to the death penalty. Immarigeon is right in suggesting that victim servicesprograms, the Instead, one can point out (as the article we need to propose alternatives to the demystification ofviolence through does at the outset) the fact that­ death penalty, but only as a matter of education, broader use ofdefense-based whether we like it or not-LWOP does political prudence. Those who advocated sentencing advocacy services, and already exist in most jurisdictions, and the end of burning at the stake or penalties which coordinate safety and hence the assertion that the death drawing and quartering were hardly victims' needs with social services and penalty is needed to incapacitate death obligated, morally, on the merits, to offer treatment. Two death penalty opponents row inmates from being released speedily alternatives to calm society's shattered respond to his article in the following to kill again is simply untrue. nerves. letters. To me, that is the key point. It is a But so long as it is prudent, I am not factual point which does not require us sure his catalogue is terribly persuasive. To the Editor: to come up with some other theoretical The four he propounds-victim services, I appreciate the use of our article in alternative to the death penalty now. demystifying Violence, sentencing your story by Russ Immarigeon on What's crucial is to explain that an advocacy, and new kinds of penalties alternatives to capital punishment, alternative that is preferable to the (largely non-incarcerative, I suppose)-

2 WINTER 1991 THE NATIONAL PRISON PROJECT JOURNAL

i rl all have merits quite unrelated to the LWOP to slake the public's thirst for Fathi replies. While I wholeheartedly retention vel non of the death penalty beastliness. agree with Bill Douglas on the impor­ and they seem to me utterly unlikely to Henry Schwarzschild, Director tance of resisting repressive legislation, appease the public's desire for tough ACLU Capital Punishment Project, whoever the ostensible target, he is retributiveness (to say nothing of the NewYork incorrect when he states that the courts'). They not only do not address the Communist Party originally supported problem, they dis-address it, if I may say To the Editor: the Smith Act. The origin of this persis­ so, by more "liberal" social service I really appreciated David Fathi's tent misconception is unknown, al­ techniques whose failure (or at least article on U.S. political dissent in your:f though it has been attributed to Socialist perceived failures) are precisely what Fall 1990 issue? but he made a small but Party leader Norman Thomas. In fact, the has turned the society so anti-liberal. No significant historical error when h~;~' CP vigorously fought the Smith Act from one trusts you to cure child abuse before states that Congress in 1940 enacted~he its inception, and several party leaders, they get stabbed waiting for the evening Smith Act to "criminalize membershfp in notably Eliza~eth Gurley Flynn, actively bus; that's what it amounts to. Indeed, if the Communist Party." Actually the opposed the Stnith Act prosecution of you got those four programs actively Communist Party favored the passage of Trotskyists: Ail account of these events implemented, they could serenely co­ the Smith Act because it supported World may be found in Herbert Aptheker, Can exist with capital punishment (and War II and the Act originally targeted We Be Free? An Analysis ofthe Smith/ probably would). anti-war Trotskyists. It is both one of the McCarran Act~ published at the height I abhor life-without-parole notions as great ironies of the left and one of the of the Smith Act trials. does Mr. Immarigeon. I understand the best historical arguments for civil Governor's felt political need for that liberties for all regardless of political push in New York, but I will not be heard belief that the CP originally endorsed an 1 "Instead of Death: Alternatives to the to endorse it. Leon Sheleff (in his act that after the war would have such a Death Penalty," NPPJOURNAL, Vo15, No.3. Ultimate Penalties) quite unnecessarily devastating impact on it. reproaches the American abolition Bill Douglas, Director 2 "U.S. Punishes Political Dissidents," NPP movement for surreptitiously supporting Criminal Justice Ministries, Des Moines JOURNAL, Vo15, No.4.

These data present both a challenge . AIDS Project Presses for and an opportunity for public health officials and prisoner advocates. Tradi­ Programs Behind Walls tionally, IV drug users have been a very difficult population to educate about the AIDS epidemic, but imprisonment offers a prime opportunity to reach them. At ince the beginning of the AIDS tion to poor communities heavily the same time, public health and prisoner epidemic, there have been 5,411 affected by IV drug use and addiction. In advocates have encountered formidable Scases of full-blown AIDS in jails and particular, Black and Latino populations obstacles in putting together AIDS prisons. This figure represents a conser­ are increasingly at risk. Because Blacks programs. vative estimate because many AIDS cases and Latinos are disproportionately This past year the AIDS Project of the are still misdiagnosed or unreported. represented in our nation's jails and National Prison Project has encouraged Statistics compiled for 1989 show, for the prisons, the number of prisoners with the development of effective AIDS first time, that the percentage increase of HIV disease has grown. Notably, however, education programs targeted to the AIDS cases in prisons the growth in the special needs and concerns of prisoners. and jails exceeded the number of HIV­ Much of our work reflects an effort to increase in the outside infected in jails and encourage corrections administrators, general population; prisons is not due to medical service directors, AIDS service prison and jail AIDS transmission within organizations, state legislatures, and AIDS cases in the United the institutions. activists to provide quality, comprehen­ States increased by Instead, people are sive AIDS education to prisoners and 72%, while cases on coming into prisons staff. Also, we have stepped up our the outside only from the street support for peer education and counsel­ increased by 50%. To already infected. ing efforts in the jails and prisons some extent, the Today's profile of a because health educators on the outside higher percentage in prisoner with HIV have emphasized the importance of prison AIDS cases disease is a Black or organizing community-run AIDS reflects better Latino male with a education programs. reporting measures, more accurate history of IV drug use. While the percent­ Last December, for example, Judy testing and better record keeping than age of women with AIDS in prison has Greenspan, AIDS information coordina­ the previous year. However, it also been increasing rapidly, women still tor for the Project, attended AIDS highlights the changing nature of the comprise less than 10% of that population. education seminars at Rikers Island, HIV epidemic in this country. The spread Most correctional AIDS cases are still which is part of the New York City jail of HIV disease in the United States has found in the Mid-Atlantic states of New system. While there, she interviewed shifted from the white gay male popula- York and New Jersey (over 60%). staff at the Center for Community Action

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1991 3 r

to Prevent AIDS at Hunter College. The ActionAIDS of Philadelphia, the now­ prisoners so they are better able to Center has been in the forefront of defunct National AIDS Network, and the monitor their own care; developing peer education and counsel­ NPP. The first project of the Prison . work with prison officials and ing projects in poor communities in New Health Network was an all-day institute medical staff to improve their HIV York City. The Center recently initiated held in Washington D.C. on July 18, 1990. protocols; and an "empowerment" AIDS education Over 100 health educators, attorneys and . obtain attorneys to represent the project for women prisoners at Rikers others attended the day-long session prisoners if necessary. Island. Greenspan interviewed Dr. entitled "HIV/ AIDS Education and Besides often being denied FDA­ Nicholas Freudenberg, the director of the Health Concerns for Incarcerated approved treatments, prisoners are Hunter College Center for Community Populations." Workshops were held on denied access to experimental HIV drug Action and author of the book Prevent­ medical and psychosocial issues, AIDS, .. trials. Last October, the AIDS Project ingAIDS, A Guide to Effective Education education for prisoners and staff, and ~" began collaborating with the AIDS for the Prevention ofHIV Infection. advocacy and support for prisoners wHh Action Foundat\pn to plan a roundtable In March 1990 the American Founda­ HIV disease. conference on prisoner access to experi­ tion for AIDS Research (AmFAR) invited Of course, the most valuable educa­ mental HIV dr,lf§ trials. Access to experi­ NPP staff to serve on their Expert Review tional tool of the AIDS Project is the mental drugs has been a life and death Panel in the AIDS Education Material brochure, AIDS & Prisons: The Factsfor issue for HIV-positive people in the Review Project, and to review a large Inmates and Officers. This year, we general population and a focus of AIDS assortment of AIDS education materials. updated this educational tool to 27 pages, activists around the country. Prisoner In July, Ms. Greenspan attended a four­ with expanded sections on medical care access to these drug trials is a much more day Reviewer's Conference co-sponsored and legal rights for prisoners with AIDS. complicated and sensitive issue than is by the National AIDS Information We also added a new section on women access by people outside prison. After two Clearinghouse (NAIC) of the U.S. Depart­ and AIDS. To date, we have distributed months of planning, this unique ment of Health and Human Services 135,000 copies in the prisons, jails, and roundtable conference, "Prisoner Access Centers for Disease Control. We reviewed detention centers of this country. The to Experimental HIV Drug Trials," was over 1,600 brochures, videos, posters and Spanish language pamphlet remains one held in January 1990, in Washington, D.C. other AIDS information materials from of the few resources available and An impressive grouping of medical the NAIC database. We were able to meet relevant to Latino prisoners. experts, ethicists, attorneys, people with with a diverse group of AIDS and health In addition to education, another major AIDS and health educators attended. educators from around the country, and continuing concern of the AIDS Since this roundtable meeting, prisoner many of whom are beginning to do AIDS Project has been to ensure that HIV­ access to drug trials has been discussed education in local prisons. infected prisoners receive adequate widely in both public policy and The AIDS Project has lent assistance medical care and are treated fairly. Over corrections forums. over the past year to prisoner groups the past year, certain medical break­ In addition to medical advocacy, the who are developing peer education throughs have led doctors to change AIDS Project is constantly called upon to programs at the Attica, Clinton, Eastern, their views of this disease. AIDS, while look at a range of problems stemming Fishkill, Great Meadow, and Bedford Hills incurable, can be managed for an from the isolation of HIV-positive Correctional Facilities in New York State. increasing number of years as a chronic prisoners; the involuntary antibody We have provided educational materials condition rather than the "killer virus" it testing of prisoners; the lack of volun­ and technical assistance to these pioneer was once considered. With proper tary testing for prisoners; the lack of efforts. The Project also produces an medical attention, frequent T4 cell confidentiality regarding medical records informal newsletter to prisoner AIDS monitoring, and access to early treatment and the identities of infected prisoners; educators and counselors now being regimens of such drugs as AZT and and the refusal of public officials to circulated in several prisons in New York aerosolized pentamidine, the life span of develop early release policies for State. Unfortunately, most New York people with HIV disease has increased prisoners dying of AIDS. State prison administrators have not dramatically. The challenge for correc­ One of the most difficult aspects of this responded favorably to prisoner­ tions, health educators and prisoner work is finding lawyers who are willing developed education programs. advocates is to ensure that prison to represent HIV-infected prisoners. NPP Peer education efforts have met with medical care is upgraded to reflect staff work hard to encourage prisoner greater success in Massachusetts. An changes in treatment methods. legal advocates across the country to ongoing, sanctioned AIDS education and Despite the recent breakthroughs in the take on cases by contacting them and counseling program at MCI Norfolk has treatment of HIV disease, most HIV­ offering support. We offer to assist received a great deal of support and positive prisoners do not have access to attorneys by tracking AIDS and prison assistance from the AIDS Project. early or continuous medical care, even cases throughout the country. We help One barrier that prisoner AIDS though FDA-approved. Daily advocacy on them identify the issues and provide educators constantly face is the lack of behalf of prisoners with HIV disease has referrals to experts in the field. Often support by outside AIDS service organiza­ become one of the most important tasks of consultations continue throughout the tions for their efforts inside. The AIDS the AIDS Project in the following ways: duration of a case. Project has helped to form the Ad-Hoc · We respond to prisoners' requests by Alexa Freeman, the AIDS Project Prison Health Network-a broad group of mail and by phone; director, is writing the chapters on AIDS prisoner advocates, health educators, · inform prison officials and prison and prison issues for the updated Yale people with AIDS and AIDS service medical staff of the prisoners' com­ University Press book on AIDS and the organizations, including the National plaints; Law and the National Lawyers' Guild's Lawyers' Guild AIDS Network, · provide medical information to AIDS Litigation Manual The chapter in

4 WINTER 1991 THE NATIONAL PRISON PROJECT JOURNAL the Litigation Manual is directed to many exciting projects over the past support and legal services for prisoners lawyers and should be helpful for those year. It is a unique national resource on with HIV disease. At the same time, we considering taking these cases. AIDS and prison issues and has played an will continue to work with a growing Most lawyers find the Project's updated important role in encouraging local legal coalition of organizations, governmental AIDS and Prison Bibliography very advocates and AIDS service organizations bodies like the National Commission on useful. It remains in great demand with to tackle the complex problems faced by AIDS, and individual corrections admin­ over several hundred copies distributed prisoners with HIV disease and AIDS. istrators, medical directors, health this past year. The 1990 Bibliography Project staff has its work cut out for it educators, prisoners and AIDS activists to contains one of the most comprehensive over the next year: to continue to develop model policies on the care and legal case listings of AIDS and prison advocate for comprehensive and -,' management of HIV disease in the issues. We have added an expanded meaningful AIDS education programs for nation's prisons and jails.• resource section listing educational incarcerated populations. Through ~he materials and organizations servicing a Prison Health Network and our work Alexa P. Freeman, a staffattorney at variety of communities affected by the with local advocacy groups, the AIDS the NPp, is AlliSproject director. AIDS epidemic. Project will continue to seek to secure judyGreenspfm is the AIDS information Finally, Project advocacy on behalf of sorely needed medical, psycho-social coordinator. HIV-infected prisoners has emphasized public education. In the past year, staff have provided background information to news media and have been inter­ FOR THE RECORD viewed for stories on AIDS in prison. We are frequently invited to speak at • The Summer 1990 issue of Jail Colson, Prison Fellowship chairman, conferences around the country. In the Suicide Update includes Part One of a "With prisons packed to capacita'lld past year these have included, among four-part series.on Model Jail Suicide national recidivism studiessho~i others, the National Commission on Prevention Programs.• The Update that two out of three currentintnate~ '. Correctional Health Care Conference, the describes a model program in the will return to prison, that'sata.IFQ~4e~ American Public Health Association Oneida, New York Correctional Facility for a newspaper, but we believgl~$i e Conference, the Lavender Law Confer­ which relies on thorough Suicide journalis a step in the rightdire ence, a program on AIDS and the Bill of Prevention Screening Guidelines, three Colson adds. Rights at Northern Virginia Community levels of inmate supervision, and inter­ Former inmate and senior edit College, the National Conference of Black agency cooperation involving local Insidejourna~ Craig Pruit~addst~~t Lawyers Conference, and the ACLU mental health agencies. Jail Suicide "we want to introduce inmate Executive Directors' and Lawyers' Updateis a quarterly newsletter way of life, and at thesameti Conference. Judy Greenspan continues to published by the National Center on with prison officials and thep write her AIDS Update column which Institutions and Alternatives; the gaining a deeper understandin now appears regularly in the National Summer 1990 issue is available free to justice system from the prison~ Prison Project JOURNAL. readers of the NPPJOURNAL. Contact of view. We are delighted with Perhaps the most important public the NationaFCenter on Institutions and cooperation we've receivedfr() education took place under the auspices Alternatives, 40 Lantern Lane, correctional officials who've a of the National Commission on AIDS Mansfield, MA 02048,508/337-8806. assist us in distributing then~ (formerly the Presidential Commission Jails which would like their model infederal and state prisons." on AIDS). The Commission held its first suicide prevention program considered The newspaper will pUblis hearing on AIDS and prison on August 17, foraJuture Jail Suicide Update stories ofcurrent andJorm.~r 1990 in New York City. The AIDS Project also contact NCIA. and encourage them tocontri played a major role in the .The Prison Fellowship has its many columns, inclUding" conceptualization of this hearing and announced it will officially launch Behind the Walls" {news clip helped develop the speakers' list. We ~merica's first national in-prison prison life); "Bar None" (intIl presented t@stimony on Harris v. newspaper,the Insidejournal, at the "Staying Together,"(advicea. Thigpen, 727 F.Supp.1564 (M.D.Ala.1990), DistrictCorrectionaFComplexat to inmates who will soon be a case brought by the National Prison Lorton, Virginia. The Insidejournal alsowillf Project, the Southern Prisoners' Defense Writtenfor prisoners by current and professional sports schedules Committee, and local lawyers challeng­ formerinmates, the premierissue of on health issues that affec ing the mandatory HIV testing and the quarterly publication is being entertainment, medicaFbreaK; segregation of Alabama state prisoners, distributed to prisons in Alabama, politics,and news from· other and the inadequate medical and mental California,Colorado, Connecticut, institutions nationwide. Pruitt health care provided them. We also Indiana, Pennsylvania and Washing­ the newspaper willprovideiIU collected and presented testimony from ton, D.C. Future issues will be distrib­ access to national statistics and many prisoner peer educators and uted to state and federal prisons developing trends in prisons,t prisoners with HIV disease to the nationwide. resulting in more timelyresp() Commission. The Project is now advising "Our primary goal is to provide solutions to prison problems. the Commission on the preparation of its inmates with resources for life in prison For information,contactPrlso final report and recommendations to so that, once released, they will never Fellowship, P.O. Box 17500,Was President Bush. seHoot in prison again,"says Charles W. ton, D.C. 20041-0500, (703)834-3 The AIDS Project has embarked on

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1991 5 A PROJEO OF THE AMERICAN CIVil LIBERTIES .UNION FOUNDATION, INC. VOL 6, NO.1, WINTER 1991 • ISSN 0748-26,$ .e,:j~

Dowell dealt with classic de jure segrega~!e injunctive terms are presumptively perma­ tion, rooted in the state constitution and ., nent. See Battle v. Jtpderson, 788 F.2d 1421, 1428 statutes and buttressed by state-enforced (10th Cir.1986) (c~e dismissed but prior restrictive covenants and intentionally orders and injunctions remained in force upon discriminatory acts by the school board. a finding of no current constitutional Highlights of Most Racism is alive and well in America, but not violation). this kind of overt official discrimination. Jim In many cases, these arguments will be Important Cases Crow has gone, and its days were obviously supported by the structure or language of the numbered thirty years ago. It was entirely decree itself. For example, if a decree contains Modification ofJudgments/Judicial reasonable to expect that school desegregation some provisions with explicit time limitations Disengagement decrees would be a "temporary measure to and other provisions without them, plaintiffs How long does a court injunction last? What remedy past desegregation," as even Justice will plausibly argue that the latter provisions does it take for prison officials to get out from Marshall agreed in his dissenting opinion. were intended to operate indefinitely. This under judicial supervision? By contrast, the prison conditions that have argument should be particularly effective in The Supreme Court's recent decision in led to large-scale, protracted federal court the case of negotiated judgments. See Board ofEducation ofOklahoma City Public intervention are rarely archaic remnants of a Halderman v. PennhurstState School and Schools v. Dowell, No. 89-1080 (U.S., January 15, bygone social order. Rather, they arise from Hospital, 901 F.2d 311, 317-21 (3d Cir.1990), cert. 1991), a 30-year-old school desegregation case, lack of resources and administrative neglect denied, 11l S.Ct. 140 (1990). may make it easier for school officials to or incompetence, which in turn lead to If Dowell does have some application to escape the obligations of injunctive orders. But deteriorated physical facilities, correctional prison cases-or as long as the question Dowell's relevance to other civil rights and professional staffs that are inadequate remains open-post-judgment proceedings may litigation, especially prison cases, is far from both in numbers and in qualifications, become more intrusive and formal, and good clear, and in practice the decision may make administrative procedures that fail to deliver will may be a casualty. The prudent plaintiffs' post-judgment monitoring in prison cases more essential services and to control hazards to life lawyer will anticipate a motion to vacate intrusive. and health, and the failure of lower-level based on Dowelland will therefore closely Traditionally, a defendant can escape the staff to carry out those policies and proce­ scrutinize defendants' performance for non­ obligations of an injunction only on a showing dures that are nominally in place. compliance and attempt to document in court of "grievous wrong evoked by new and These problems are as modern as the every manifestation of noncompliance, in unforeseen conditions." United States v. SWift & explosion in the prison population, competing place of the present widespread practice of Co., 286 U.S. 106, 119 (1932).1 Dowellholds that governmental priorities, and economic crises resorting first to informal means of resolution. this is the wrong standard to apply to the in states and localities-none of which show Under Dowen therefore, post-judgment dissolution of school desegregation decrees. In any sign of fading away within our lifetimes. practice may by necessity become more formal Swift an antitrust case, the decree "was by its One need look no further than the case of and adversarial, and direct court involvement terms effective in perpetuity." By contrast, Tillery v. Owens, 719 FSupp.1256 (W.D. Pa. may become more frequent. "[f]rom the very first, federal supervision of 1989), aff'd, 907 F.2d 418 (3d Cir.1990), to find local school systems was intended as a recent conditions comparable to those Punitive Segregation temporary measurl!'to remedy past discrimina­ described in the early large-scale prison Once more, a federal court has found that tion." Therefore, the court held that a finding conditions cases in states like Alabama, conditions in a punitive segregation unit that the schools were "being operated in Mississippi, and Arkansas. violated minimum standards of decency and compliance with the commands of the Equal For these reasons, prisoners' advocates will therefore constituted cruel and unusual Protection Clause, and that it was unlikely argue that prison conditions decrees are not punishment. In LeMaire v. Maass, 745 F.Supp. that the school board would return to its intended as temporary measures, but bear the 623 (D.Or.1990), the district judge condemned former ways," would suffice to justify same expectations of permanency as any other the excessive use of physical restraints, the dissolving the decree. injunction. Constitutional compliance, they punitive use of "controlled feeding status" and The Dowellopinion, like most school deseg­ will argue, is not evidence that the decree "strip status," the denial of recreation to many regation cases, is framed almost entirely in should be vacated, but evidence that it is prisoners, and other aspects of confinement in terms of desegregation law, without reference safeguarding constitutional rights against the the Oregon State Penitentiary's Disciplinary to any general jurisprudence of civil rights ever-present dangers of overcrowding, Segregation Unit (DSU). remedies. Its relevance to public institutions inadequate funding, and administrative The LeMaire opinion is striking for its other than schools is therefore debatable, and neglect. While enforcement mechanisms like acknowledgment that the level of hostility there is good reason to believe it will have reporting requirements or the appointment of between staff and inmates in many segrega­ little application to prison litigation. a monitor may be limited in time, substantive tion units is so great that staff misconduct, as

6 WINTER 1991 THE NATIONAL PRISON PROJEO JOURNAL well as inmate misconduct, is not only possible regulations created a liberty interest. The use on the necessary extent ofpublic recognition but is likely. The court observed: of Nutraloaf as punishment therefore denied that long term exposure to ETS[environmen­ Working under the constant threat of due process. In reaching that conclusion, the tal tobacco smoke] in close quarters is unpredictable assaults and bombardment court observed once more that "in a hostile, potentially damaging to one's health, and how with feces, urine, spiUood, and anyavailable explosive environment, there is a high much this recognition mustpercolate movable object as DSU staffdoes, is a likelihood of an erroneous deprivation." Id. throughout our social institutions and nightmare. Itis understandable that in such at 636. ", become manifest in legislative enactments a hostile, violent and confrontational Clothing, Furnishings, Property. The courq~ before a court may invoke the "evolving environment inmates who are locked down concluded that defendants' use of "strip"> standards ofdecency that mark the progress and isolatedfor almost 24 hours a day, status" was unconstitutional, for the same;;' Of a maturing society." We believe this type of sometimesfor years on end, in tiny, damp, reasons it cited in connection with Nutraioaf inquiry is unnecessary. The extensive line of smelly cells, with absolutely nothing to do, will and mechanical restraints. Strip status C§»Sists cases recognizing aprisoner's constitutional strike outany way they can. It is understand­ of the removal of all clothing, bedding,and right to a "healthy habilitative environment~ .. able thatguards will retaliate. other property including toilet paper and reflects a longs'&ndingjudicial recognition 745 F.Supp. at 623. writing materials until such time as the that exposing '4:~risoner to an unreasonable This approach contrasts sharply with many guards decide in their discretion that the risk ofa debilitating or terminal disease does other prison conditions decisions, including prisoner has "earned it back." Id. at 639. indeed offend these "evolving standards of several by the Supreme Court, that have Communication ofMedical Needs. The use decency. "[Citations omitted.] emphasized the risk of dangerous misconduct of "quiet cells" with double steel doors was Thus, the question for the court is whether by prisoners but have ignored the equally real found unconstitutional. The court agreed that infacta challenged practice "poses an risk of abuse of power by prison staff. See, e.g., it is legitimate to separate "noisy, disruptive unreasonable risk of harm to an inmate's Hudson v. Palmer, 468 U.S. 517 (1984) (holding inmates" from the rest of the unit population, health," regardless of social attitudes and that prisoners have no Fourth Amendment but not to isolate them so completely from legislative responses to that practice. The protection against abusive cell searches). staff that they cannot call for assistance in court suggested an appropriate basis for Restraints. Oregon regulations permit the the event of medical problems. comparison: "whether the type of exposure use of mechanical restraints in order to Exercise andRecreation. The imposition of potentially faced by a nonsmoking prisoner control certain behavior, but require that the long periods of "loss of exercise privileges," double-celled with a smoker constitutes a re-straints be removed "as soon as it is resulting in segregation inmates being out of health hazard at least as significant as denial reasonable to believe that the behavior leading their cells three times a week for showers of exercise," which has been found to violate to the use of restraints will not immediately only, deprived the plaintiff of "outdoor the Eighth Amendment in numerous decisions resume." Id. at 632 (quoting regulations). The exposure and exercise opportunities adequate (including LeMaire, discussed above). court found that in practice prisoners were left to prevent physical and mental deterioration." The Clemmons case has been accepted for in full mechanical restraints for days at a time Id. at 643. The plaintiff had accumulated rehearing en banc by the full ten-judge after acts of misconduct, without any almost four years of this punishment. appellate court. continuing emergency and without medical An injunctive judgement was entered in justification. It observed: "Guards exposed to January 1991, and prison officials have filed a Crowding/Remedies/ constant abuse by inmates cannot be expected notice of appeal. Pre-trial Detainees always to make reasonable, controlled Arecent decision from the Supreme Judicial judgments about the appropriate response to Environment-Hazardous Court of Massachusetts in a jail crowding case inmate misbehavior." Id. Substances and Conditions demonstrates that court's willingness to apply Food. Oregon regulations also permit serving Several federal courts have addressed the federal constitutional guarantees in a manner inmates meals of "Nutraloaf," which consists constitutionality of subjecting prisoners to similar to the federal courts. of leftover foods ground up and baked into "second-hand" cigarette smoke. Most recently, In Richardson v. SheriffofMiddlesex bricks, when they throw or misuse food, a three-judge panel of the federal court of County, 407 Mass. 455, 553 N.E.2d 1286 (Mass. human waste, or utensils. Astate court had appeals for the Tenth Circuit has held that a 1990), the court upheld the trial court's previously upheld those regulations as facially policy of "permitting the indefinite double­ conclusion that crowding in the Middlesex valid, and the federal court agreed that they ceiling of smokers with nonsmokers against County jail constituted unlawful punishment are a "valid, temporary safety measure when their expressed will can amount to deliberate of pre-trial detainees. In a familiar scenario, [Nutraloaf's] use is directly connected to the indifference to the health of nonsmoking the jail-a modern structure constructed with misconduct it is intended to curb." Id. at 633. inmates...." Clemmons v. Bohannon, 918 F.2d a capacity of 161-had at times held as many But it found that the use of Nutraloaf was far 858 (10th Cir. 1990). By contrast, other federal as 303 inmates, and the overflow was housed more extensive; the record showed that courts have held that subjection to second­ in visiting rooms, common areas, dayrooms, inmates were routinely kept on Nutraloaf hand smoke does not violate "evolving stand­ and other makeshift housing areas. feeding for seven days regardless of whether ards of decency" at the present time, though it The appeals court agreed that it is unconsti­ their disruptive behavior continued or may in the future. Wilson v. Lynaugh, 878 F.2d tutional to require inmates to sleep on the stopped, and some inmates were subjected to 846,851-52 (5th Cir.1989), cert. denied, 110 S.Ct. floor, with or without mattresses, or to hold Nutraloaf for misconduct that had little or 417 (1990); Caldwell v. Quinlan, 729 F.Supp. 4 them in makeshift dormitories without access nothing to do with the misuse of food or (D.D.C.1990); Gorman v. Moody, 710 F.Supp. to toilets and showers or with inadequate utensils. The court concluded that Nutraloaf 1256,1259-64 (N.D.Ind.1989). toilet and shower facilities. (The trial judge was being used as punishment, and that such The Tenth Circuit did not merely disagree had cited some areas with only two toilets and use violated the Eighth Amendment. The court with the outcomes of the other cited cases. It one shower for sixty prisoners.) The court also also concluded that by limiting the use of accused them of asking the wrong question in agreed that crowding inmates into common Nutraloaf to particular purposes, and by their Eighth Amendment analysis: areas-particularly those designed as open or forbidding its use as punishment, state The dispute among these courts has centered recreational space for inmates-was unconsti-

THE NATIONAL PRISON PROJEG JOURNAL WINTER 1991 7 tutional, as was double bunking in holding achieve the desired result. Only if such informed consentdoctrine has becomefirmly cellsthat were not only small but contained sanctions failed to work should contempt entrenched in American tort law.... benches that further reduced the floor area. sanctions against local legislators have been The logical corollary ofthe doctrine of Although the trial court had relied in large considered. The court relies on the same informed consent is that the patientgnerally part on state regulations, the appeals court considerations that underlie legislative possesses the right not to consen~ that is, to preferred to focus on the inmates' constitu­ immunity in reaching this conclusion. refuse treatment. " tional claims, relying almost entirely on At 241: "The principle that a competent precedent from the federal courts. But it Religion ". person has a constitutionally protected liberty concluded that the state regulations were EmploymentDivision v. Smith, 494 u.s. --' ...,. interest in refusing unwanted medical treat- entitled to "some weight" in assessing the 110 S.Ct.1595, 108 L.Ed.2d 876 (1990). At 886: .." ment may be inferred from our prior decis- standards of decency against which constitu­ "...[T]he right of free exercise does not relieve.: . ions." At n.7: The right is better analyzed as a tional claims are measured. an individual of the obligation to comply an4;11 Fourteenth Amendment liberty interest than The court rejected the sheriff's argument 'valid and neutral law of general applicability as part of a "generalized constitutional right of that the jail's crowded conditions were on the ground that the law proscribes (or privacy." The Court\ssumes that the Con- justified by a legitimate governmental prescribes) conduct that his religion prescribes stitution would gr,ant a competent person "a purpose, "to keep the facility operating so as to (or proscribes).'" (Citations omitted.) constitutionally protected right to refuse life- detain unbailworthy defendants awaiting One court has already suggested that this saving hydration and nutrition" (242), but holds tria!." 553 N.E.2d at 1293. It echoed the non-prison decision has "cut back, possibly to that states may require proof by clear and con- sentiment of a federal court that minute dimensions, the doctrine that requires vincing evidence that the incompetent person [tjhe only conceivablepurpose over­ government to accommodate, at some cost, would have wished to exercise that right. crowding... serves is to further the state's interest minority religious preferences: the doctrine on in housing more prisoners without creating which all the prison religion cases are moreprison space. This basically economic founded." Hunafa v. Murphy, 907 F.2d 46, 48 U.S. COURT OF APPEALS motive cannot lawfully excuse the imposition (7th Cir.1990). on thepresumptively innocent[pretrial Mental Health Care detainees]ofgenuineprivations and hardship Remedies/State-Federal Comity Thomas S. by Brooks v. Flaherty, 902 F.2d 250 over anysubstantialperiod oftime.... Missouri v.]enkins, 495 u.s. --' 110 S.Ct. (4th Cir.1990). In a class action dealing with 553 N.E.2d at 1293, quoting LaReau v. 1651,109 L.Ed.2d 31 (1990). The imposition of a the mentally retarded in psychiatric hospitals, Manson, 651 F.2d 96, 104 (2nd Cir. 1981). tax increase by the district court to fund a de­ the district court properly applied the Young­ For these reasons the court affirmed the segregation remedy was an abuse of discretion. berg v. Romeo standard by declining to weigh trial judge's imposition of a population cap, as It should have ordered the school district to the decisions of treating professionals against well as his orders to comply with state levy the tax and enjoined the operation of the testimony of plaintiffs' experts to decide regulations with regard to bathroom facilities. contrary state laws. At 54: "The difference which of several acceptable standards to apply. But it displayed the same reluctance as have between the two approaches is far more than Rather, it found that many of the treating federal courts to intervene directly and a matter of form. Authorizing and directing professionals' decisions had not been imple­ forcefully in criminal court practices and the local govern-ment institutions to devise and mented. It also found that many of their de­ same concern for protocol if such intervention implement remedies not only protects the cisions departed from accepted standards of becomes necessary. Thus, it rejected the function of the institutions but, to the extent treatment, based on the Secretary's written plaintiffs' request to direct special court possible, also places the responsibility for standards and the plaintiffs' and defendants' sessions for purposes of bail review, without solutions to the problems of segregation upon expert testimony concerning drug use, restraint, excluding the possibility that such an order those who have themselves created the and habilitation. might ultimately be appropriate-but only problems." At 253: "Relevant accreditation is prima after the trial judge "request[ed]" the relevant The requirements of a tax increase in the facie evidence of constitutionally adequate administrative justice to institute special aid of ending constitutional violations did not conditions." However, evidence of deficiencies sessions and if necessary "sought" the exceed the court's equitable powers or Article found by the Joint Commission on Accredita­ assistance of the Chief Administrative Justice III jurisdiction and did not violate the tion of Hospitals and by a federal agency of the Trial Court. Eleventh Amendment. At 58: "Even though a rebutted this presumption even though JCAH particular remedy may not be required in had accredited the institution. every case to vindicate constitutional guarantees, where (as here) it has been found Attorneys' Fees and Costs Other Cases that a particular remedy is required, the State Plyler v. Evatt, 902 F.2d 273 (4th Cir.1990). cannot hinder the process by preventing a The court upholds fee awards at South Worth Noting local government from implementing that Carolina rates for attorneys from the National remedy." The opposite result would be Prison Project. Where plaintiffs prevailed in U.S. SUPREME COURT contrary to the Supremacy Clause. the underlying litigation but lost a motion to modify and permit double-celling, they were Contempt Medical Care/Theories-Due Process entitled to fees for defending the modification Spallone v. United States, 493 u.s. --' 110 Cruzan v. Director, Missouri Dept. ofHealth, motion, since it was "intertwined with the S.Ct. 625, 107 L.Ed.2d 644 (1990). It was an 497 u.S. --' 110 S.Ct. 2841, 111 L.Ed.2d 224 original claims" and counsel were under "clear abuse of discretion to impose contempt (1990). At 111 L.Ed.2d 236: obligation to make the defensive effort." (281) sanctions directly on Yonkers City Council "This[common law] notion ofbodily members for failing to vote for desegregation integrity has been embodied in the require­ Procedural Due Process relief when there was a reasonable probabil­ ment that informed consent is generally Meador v. Cabinetfor Human Resources, 902 ity that sanctions against the city itself would reqUiredfor medical treatment.... The F.2d 474 (6th Cir.1990). Astate statute pro-

8 WINTER 1991 THE NATIONAL PRISON PROJECT JOURNAL viding that "[t]he cabinet shall arrange for a Mental Health Care scious when the officers left the cell and that program of care, treatment and rehabilitation Societyfor Good Will to Retarded Children they knew he had heavily exerted himself of the children committed to it," and that "the v. Cuomo, 902 F.2d 1085 (2d Cir.1990).Judge during the struggle and was under the in­ cabinet shall be responsible for the operation, Weinstein's latest findings of unconstitution­ fluence of drugs, combined with the officers' management and development of the existing ality in this case do not meet Rule 52's callous statements on the tape, supported an state facilities for the custodial care and re­ requirement that facts be found "specially." inference of deliberate indifference, as did the habilitation of children," created an "entitle­ Findings of unconstitutionality from failure of another officer, who later observed ment to protective services" protected by due proceedings made seven years earlier cannot that the decedent was not moving, to summon process. The plaintiffs' allegation was that be relied on to support the present findings medical help. they had been sexually abused in a foster because the district court acknowledged that:~ Pre-trial detainees are owed a duty of "rea­ home (apparently an institution). there had been "enormous improvements.",.,' sonable medical care unless the failure to sup­ A"sweeping grant of relief" could not be .'~j:; ply that care is reasonably related to a legiti­ Procedural Due Process­ justified absent any specific findings that/~ mate governmental objective." (404) The court Disciplinary Proceedings/Discovery patients had regressed as a result of present does not explain 'tow this standard differs from Wagner v. Henman, 902 F.2d 578 (7th Cir. conditions,' the deliberate inA'ifference standard. 1990). The plaintiff was convicted of murder The district court also departed from the .'" in a prison disciplinary proceeding. The Youngberg v. Romeo standard by failing to Pre-Trial Detainees/Suicide district court erred in requiring total determine whether treatment and conditions Prevention/Municipalities/Training disclosure of an FBI report to plaintiff's actually departed from accepted professional Burns v. City Of Galveston, Texas, 905 F.2d 100 counsel without considering the risk of judgment. "The court instead misused expert (5th Cir.1990). Here is yet another case of a inadvertent disclosure of information that testimony by treating it as evidence of drunken arrestee who behaved bizarrely and might identify confidential informants and alternative choices against which the then killed himself. There was evidence that he without looking for ways in which such risk institution's treatment should be compared." had threatened to kill himself if he didn't get a could be avoided, such as redacting the (1089) Experts are to be used only to help the cigarette, but the officers testified that because documents. court determine what the minimum profes­ of other noise in the jail they didn't understand sional standard is. what he was yelling. Another prisoner called Publications/Qualified Immunity Relief requiring population reduction and out to the officers when he saw the decedent Allen v. Higgins, 902 F.2d 682 (8th Cir.1990). community placement was not narrowly hanging, and they told him to be quiet. The plaintiff was denied the right to receive a tailored. The court should not have granted An alleged failure to make hourly cell checks government surplus catalog and a jury injunctive relief "without first identifying the required by city policy could not establish awarded him $1.00. The responsible prison specific constitutional violations that each municipal liability because the decedent killed official made this decision without examining part of the ordered remedy would cure." himself less than an hour after admission. the catalog, which was shown at trial not to (1090) The conclusory statement that The failure fully to implement psychological pose a security threat. He was not entitled to "administrative limitations" made it impos­ screening procedures contained in a.municipal qualified immunity since, without examining sible to remedy the violations without manual did not support municipal liability the catalog, he could not have reasonably reducing population was insufficient; because there is no "absolute right to psycho­ assessed whether his conduct violated clearly defendants should have a chance to cure the logical screening." (104) Officers need not be established law, and its exclusion did not "administrative limitations." Court-ordered trained to screen for suicidal tendencies; this serve legitimate penological interests. community placement is a remedy of last "requires the skills of an experienced medical resort. professional with psychiatric training." False Imprisonment Lee v. Dugger, 902 F.2d 822 (11th Cir.1990). Use of Force/Medical Care­ Religion-Practices­ The plaintiff was held for an extra year Standards of Liability Beards, Hair, Dress because prison officials refused to give him Simpson v. Hines, 903 F.2d 400 (5th Cir. Benjamin v. Coughlin, 905 F.2d 571 (2d Cir. the benefit of an intermediate state appellate 1990). The decedent was arrested and put in a 1990). Equal protection claims based on court decision regarding the proper calcula­ celL He brandished marijuana, and refused to disparate treatment of religious groups are tion of "gain time." Instead, they argued in his give it or his other property up. Ten officers evaluated by a reasonableness standard similar state habeas pr~ceeding in the same court that came into the celL Simpson wound up to the Turner/Shabazz standard. the earlier decision was wrong. One judge held handcuffed and dead from asphyxia caused Defendants in this class action were pre­ that defendants were entitled to qualified by neck trauma. cluded from contesting the unconstitutionality immunity because one case, decided by an The court treats this as a case arising of requiring intake haircuts for Rastafarian intermediate appellate court, "falls short of "before or during arrest" and therefore inmates by decisions of the state court of the clarity of the law required to defeat a governed by the Fourth Amendment, without appeals even though they were rendered in defense of qualified immunity," and defen­ any discussion of where arrest ends and individual actions, since there was a "substan­ dants were "entitled to attempt to persuade the detention begins. tial overlap" of evidence and argument and same court that its prior decision was in error." Afactual issue precluding summary defendants had both incentive and opportunity Asecond judge, concurring specially, argued judgment was created by the presence of ten to contest the issue. The haircut requirement that the plaintiff's rights were not violated officers, the use of a neckhold, an officer's was unconstitutional because there was a because he received the process due through sitting "astraddle" the plaintiff (i.e., on his nearly costless alternative, tying the hair in his state court habeas petition. Judge Johnson, chest), the nature of the injury, and a tape pony tails for an intake photograph. dissenting, argues that the statutes created a recording of the decedent's screams and cries liberty interest, the first court decision clearly for mercy along with "statements from which Protection from Harm established the law, and pre-deprivation the trier-of-fact might infer malice." Fruit v. Norris, 905 F.2d 1147 (8th Cir.1990). process was required. Evidence that the decedent was uncon- The plaintiffs were disciplined for refusing to

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1991 9 clean out a raw sewage facility without the row conditions was resolved by a consent the cases have consistently held that failure to protective clothing and equipment called for decree. Two years later, defendants sought to prevent suicide has never been held to by the operations manual. The temperature move the unit to a newly built prison and constitute deliberate indifference." (1564) The was 125 degrees. The district court dismissed asked for other modifications consistent with decedent had been jailed before and had not because there was no evidence that the their implementation plan. Plaintiffs objected threatened suicide. The defendants didn't defendants had actual or constructive to the reduction of outdoor exercise time from know that he had tried to commit suicide two knowledge of serious dangers. 16 hours to four hours a week; a smaller and days previously. They didn't know that he was Intentionally placing inmates in dangerous less well equipped yard; greater restrictions on ;;: threatening suicide from his jail cell. The surroundings violates the Eighth Amendment. religious services; and limited non-legal 'J' removal of shoelaces, belts, etc., and the The plaintiffs made out a prima facie case telephone access (one hour a week). These presence of closed circuit cell monitoring because common sense suggests that defen­ restrictions were imposed on the higher­ show the absence of deliberate indifference. dants should have known the dangers of security death row prisoners; those in less heatstroke and of disease spread through restrictive classifications received more Protection from Inmate Assault/ contact with human waste. recreation time and other benefits. Statutes of Lim\tations/Qualified The modifications were properly approved. Immunity ..•J Women/Good Time/Equal Protection The move to a new prison was explicitly con­ Ayala SerranotiJ."Lebron Gonzales, 909 F.2d Jackson v. Thornburgh, 907 F.2d 194 (D.C.Cir. templated in the original judgment and the 8 (1st Cir.1990). The plaintiff was assaulted by 1990). Astatute that grants early release to court would have had power to approve it in other inmates and stabbed repeatedly in view prisoners in District of Columbia prisons does any case. of the defendant officer, who did nothing. A not deny equal protection to D.C. women court awarded him $20,000. offenders who are housed in federal prisons Handicapped/Jury Instructions/State, The plaintiff's amended complaint, filed by and do not receive the statute's benefits. Local and Professional Standards counsel, related back for limitations purposes Heightened scrutiny is not applicable because Evans v. Dugger, 908 F.2d 801 (11th Cir.1990). to the time of filing of the pro se complaint, the distinction is not based on gender but on The partly paraplegic plaintiff was denied which named the defendant's supervisors. place of incarceration, "although its interac­ appropriately designed toilet and shower areas The defendant was not entitled to qualified tion with the District's gender-specific and adequate access to toilet and shower, and immunity where he neither intervened in the prisoner-assignment rules clearly make it denied adequate exercise and physical therapy. assault nor summoned others to help. disadvantageous to be female." The disadvan­ Denial of adequate care to a disabled taged class does include males, and some prisoner is to be judged under the Estelle Pre-Trial Detainees/Use of Force/ women (those with short sentences) do deliberate indifference standard and not the Medical Care-Denial of Ordered Care benefit from the statute. There is a rational Whitley standard, since there was no clash Martin v. Board ofCounty Commissioners basis for the distinction in the fact that the between treating him and meeting other ofPueblo County, 909 F.2d 402 (10th Cir.1990). District of Columbia is under a constitutional legitimate needs. The plaintiff was arrested while in the obligation to reduce crowding in its prisons. The district court properly instructed the hospital recovering from a neck fracture and jury that compliance with "generally accepted was moved against doctor's orders. Protection from Inmate Assault standards requiring handicapped accessibility" Pre-trial detainees are entitled to the bene­ Wrightv.Jones, 907 F.2d 848 (8th Cir.1990). is not legally required in prison housing, but fit of the same deliberate indifference stan­ The plaintiff was assaulted by other inmates such standards may be considered insofar as dard applied to convicts' medical care. The rea­ and beaten for five minutes before guards they are relevant. The plaintiff had requested sonableness of an arrest involving movement intervened. This assault followed a period in an instruction that noncompliance with the of an injured person is governed by the same which large numbers of inmates had state statute was evidence of deliberate standard. Physical contact is not necessary to a congregated in the housing unit and there indifference and a basis for holding particular Fourth Amendment use of force claim; the were numerous fights. Evidence that the noncomplying officials liable. threat of physical coercion may be sufficient. guards had knowledge of the prior assaults, Defendants were not entitled to qualified had a duty to supervise the housing area, and Suicide Prevention/Municipalities/ immunity. At 407: "The absence of authority on had a clear view of the area created a jury State, Local and Professional all fours with the unusual facts of this case issue under the reckless disregard standard. Standards should not be considered fatal to plaintiff's The Whitley standard... of "malicious and Popham v. City ofTalladega, 908 F.2d 1561 claim, in light of the patently insubstantial sadistic" behavior does not apply "because the (lIth Cir.1990), aff'g742 F.Supp.1504 (N.D.Ala. character of the distinction upon which de­ guards have not identified a competing 1989). The plaintiff was arrested for public fendants' qualified immunity argument rests." obligation which inhibited their efforts to intoxication. He was emotional, depressed, and protect inmates." (851) The phrase "highly angry. His belt and shoes were taken and his Access to Courts-Punishment and foreseeable" found in the instructions to the cell was ordered monitored by TV. After 11:00 Retaliation/Work Assignments jury does not impose a standard of mere or p.m., there was no physical monitoring Madewell v. Roberts, 909 F.2d 1203 (8th Cir. gross negligence; viewed in context, it required because there were no guards on duty. The 1990). Medically disabled inmates were assign­ that defendants have had notice of the plaintiff hanged himself with his blue jeans in ed to "inside utility" work (vegetable process­ danger. "Under our precedents, liability can be a space in the cell out of view of the camera. ing) and made to work at night sitting directly imposed if guards disregard a known risk to Jail suicide cases are governed by a on a concrete floor. They were excluded from the safety of inmates." (851) deliberate indifference standard and the "Class I" status, a classification which per­ determination turns on "the level of knowl­ mitted inmates to earn more good time. Modification ofJudgments/Adminis­ edge possessed by the officials involved, or Allegations that prison officials retaliated trative Segregation-Death Row that which should have been known as to an for plaintiffs' lawsuit by blocking reclassifica­ McDonald v. Armontrout, 908 F.2d 388 (8th inmate's suicidal tendencies." (1564) "Absent tion opportunities and worsening their living Cir.1990). Aclass action challenging death knowledge of a detainee's suicidal tendencies, and working conditions raised a factual issue

10 WINTER 1991 THE NATIONAL PRISON PROJECT JOURNAL that should not have been decided against prison officials showed that there was a risk 1990). The District of Columbia Good Time plaintiffs on summary judgment. The manifest­ of misfiling. Defendants' arguments were Act, which limits eligibility for certain good ations of retaliation need not themselves amount addressed to substituting the new name in time credits to those convicted of D.C. criminal to constitutional violations. "The violation lies in their records (which they are not required to offenses and incarcerated in D.C. prisons, did the intent to impede access to the courts." (1207) do) rather than adding it. not deny equal protection to D.C. offenders The plaintiff's allegation that his serious The continued use of his old name by prison housed in federal prisons because it was arthritis was painfully aggravated by sitting staff in addressing him did not violate his rationally related both to the goal of relieving on cold concrete for hours in an unheated rights because of the importance of having crowding in D.C. and the goal of letting the space could support the conclusion that his staff know prisoners by name and the inter­ prison system with actual custody apply its work assignment was dangerous to health or ference of name changes with that familiaritfr.· good time system. unduly painfuL -~_.~. Service of Process '::. Habeas Corpus/Access to Courts­ Psychotropic Medication/ Puett v. Blandford, 912 F.2d 270 (9th Ci~}C Punishment and Retaliation Qualified Immunity 1990). At 275: .. Clark v. State <.!( Georgia Pardons and Bee v. Greaves, 910 F.2d 686 (10th Cir.1990). ..'[WJe hold thatan incarceratedpro se Paroles Board,9i~ F.2d 636 (11th Cir.1990). A The plaintiff received a jury verdict of $100 plaintiffproceeding in forma pauperis is § 1983 claim th~t"the parole board denied actual and $300 punitive damages for the entitled to rely on the u.s. Marshal for service parole to the plaintiff because he had pursued forcible administration of thorazine. The doc­ Of the summons and complaint and, having litigation against prison personnel is not tor was not entitled to qualified immunity. prOVided the necessary information to help barred by the Preiser exhaustion rule as long The Supreme Court in Washington v. Harper effectuate service, plaintiffshould not be as it seeks only damages and a declaratory or said it had "no doubt" that the plaintiff had a penalized by having his or her action dis­ injunctive relief and not release, since it liberty interest in avoiding unwanted medi­ missedforfailure to effect service where the would not "undermine his conviction." cation, citing Vitek and Parham v.JR., which u.s. Marshal or the court clerk hasfailed to pre-dated the plaintiff's involuntary medication. perform the duties required ofthem.... Administrative Segregation-Death Ifmail service proves unsuccessfu4 the Row/Modification ofJudgments/ Administrative Segregation­ Marshals should be directed to serve the Monitoring and Reporting High Security/Cruel and Unusual complaintpersonally. Thompson v. Enomoto, 915 F.2d 1383 (9th Cir. Punishment 1990). Death row inmates at San Quentin McCord v. Maggio, 910 F.2d 1248 (5th Cir. Suicide obtained a consent judgment governing 1990). The plaintiff alleged that he was BUffington v. Baltimore County, Md., 913 conditions; after various enforcement motions confined for 23 hours a day in "Closed-Cell F.2d 113 (4th Cir.1990). The court rejects a monitor was appointed, with powers Restriction" in "an unlighted, windowless cell defendants' argument that under DeShaney, including broad access to the premises, with only a hole cut in the steel door for jail officials are not required to take steps to documents, meetings and personnel, the outside access, while water and human waste prevent the suicide of people who have been ability to retain experts or specialists, etc. The sometimes up to ankle high seeped into the civilly committed so they won't hurt appeals court then held that appointment of a cell from frequently broken fixtures and themselves. If the state has taken custody of monitor was not appealable on an interlocu­ pipes," and of being required to sleep on a someone, its obligations do not depend on the tory basis. In subsequent proceedings, the mattress on the floor under these conditions. reason for the custody. The duty of care owed parties agreed to give prison officials more The magistrate should have made findings of is the same as that owed to detainees, Le., the latitude to use handcuffs in return for fact as to the plaintiff's living conditions and deliberate indifference standard, which does providing free weights in the yard, and to assessed the totality of conditions, despite the not require screening for suicidal tendencies permit inmates the use of 4K memory. defendants' argument that the facilities "were or other preventive measures unless the typewriters in return for their dismissing a old and worn down, but prison officials did defendants know of the individual's suicidal state court lawsuit. The present appeal stems the best that they could given the conditions." tendencies. Here, deliberate indifference was from the district court's adoption of several (1250) The State Health and Safety Code is a established by the flouting of the jail's suicide modifications proposed by the monitor, some "valuable index" of contemporary levels of policy despite the knowledge that the favorable to each side, and its rejection of decency but is not the only stanl!ard by which plaintiff was a suicide risk. their request to vacate the order because their they are judge<\.."Conditions not condemned as actions were constitutionaL unfit for human habitation in the prison Protection from Harm/Environ­ At 1388: "Consent decrees have the attributes setting have been held to still amount to a ment-Hazardous Conditions and of both contracts and judicial acts.... Adistrict violation of a prisoner's Eighth Amendment Substances court has the power to modify a consent rights." (1250) Powell v. Lennon, 914 F.2d 1459 (11th Cir. decree if experience with the administration 1990). Afederal prisoner who alleged that he of the decree shows the need for modification Religion-Practices-Names was housed in an area with an asbestos hazard in order to accomplish the primary goals of Ali v. Dixon, 912 F.2d 86 (4th Cir.1990). and that prison officials refused to transfer the decree." Prison officials' refusal to add the newly him to an asbestos-free dormitory stated an An order provided that "jurisdiction" would converted plaintiff's Muslim name to some of Eighth Amendment claim of deliberate indif­ continue for six months, and "[i]f it appears at his prison records, requiring him to use his old ference to serious medical needs. Defendants or before the expiration of said six months name when drawing money from his account, were not entitled to qualified immunity; the that there has been substantial compliance" would violate his First Amendment rights in unlawfulness of their actions "should have with the decree, jurisdiction would not be the absence of any penological justification been apparent...in light of Estelle." (1464) extended. During the six months, there was for the refusaL The prison's refusal to add the further noncompliance and an order new name to official correspondence with the Equal Protection/Good Time continuing the matter for purposes of plaintiff would also violate his rights unless Pryor v. Brennan, 914 F.2d 921 (7th Cir. negotiating modifications. "Implicit in this

THE NATIONAL PRISON PROJEO JOURNAL WINTER 1991 11

n order was the ruling that there had not been Crowding the loss of most program space, serious vio- substantial compliance, that the jurisdiction to Tyler v. United States, 737 F.Supp. 531 (E.D.Mo. lence, deficiencies in food services, mainte- assure compliance was extended, and that the 1980). The court increased the population cap nance, fire safety, and medical services con- decree would be modified." (1389) Besides, on a local jail from 450 inmates to 481 inmates, stitutes "an emergency situation screaming for after eight subsequent years of litigation it is subject to the following requirements: instant action." too late for the defendants to complain about Staff must be increased by 10%. There must The defendants have already been found in it. No distinction is made in this discussion be no deterioration in food services, clothing • contempt. Now they are found in "continuing between "jurisdiction" and "active supervision." allowances, or availability of medical and ~'contempt." They are ordered to: It is also eight years too late for defendants dental treatment. The defendants must submit \ (a) BailProjects: maintain a bail fund of to dispute that the consent decree applied not a plan for house arrest of detainees, including $200,000 to bail out all indigent detainees with only to inmates in the original death row but "electronic shackling," within 30 days, and for", . -bail of $10,000 or less. The court notes that to inmates in the new housing space to which transferring women inmates elsewhere. All r:':; numerous prisoners had been bailed out with death row was extended, since they had had sentenced inmates must be transferred to sti~: the last batch of contempt fines. (1266) at least one clear opportunity to appeal. The prison within 10 days after the imposition of (b) Good Time, Relfase ofPrisoners. give all court's interpretation of the order is law of sentence, and military prisoners, persons" sentenced prisoners.$> days of expedited good the case. awaiting extradition, and persons charged time off their maxj;mum" expiration dates, and, The court refused to interpret Firefighters v. with parole and probation violation must be contrary to state law, off their parole Stotts as barring the modification, since this moved out within 10 days of incarceration. eligibility dates; modification did not conflict with any Defendants must expand their educational (c) Good Time, Release ofPrisoners. give statutory or constitutional requirement. programs. Defendants must submit a plan for additional 90-day good time awards every 30 The court summarily rejected defendants' establishment of a drug treatment center in days until all sentenced prisoners are out of argument that the decree violated the the jail for detainees. the prisons in question; Eleventh Amendment because it no longer The court noted the futility of increasing (d) Crowding. limit the populations of the vindicated substantive federal rights. jail populations and of preventive detention. It prisons to specified numbers; concluded by reminding the defendants that (e) Monitoring andReporting, Contemp~ its orders must be complied with. "Otherwise, supply monthly reports on their daily DISTRICT COURTS the jails must be closed." population, which may subject them to further orders fining them $50 a day per Medical Care-Standards of Liability/ excess prisoner; Medical Care/Handicapped/ Personal Involvement and (f) Medical Care-Examinations: perform Injunctive Relief-Preliminary Supervisory Liability intake medical screening within seven days of Yarbaugh v. Roach, 736 F.Supp. 318 (D.D.C. Kaminsky v. Rosenblum, 737 F.Supp. 1309 incarceration, and read TB tests between 48 1990). The plaintiff has multiple sclerosis. As of (S.D.N.Y. 1990). Aprisoner died after 16 months and 72 hours after their administration; the hearing, about 20 months after the case of allegedly inadequate medical care. He had (g) Fire Safety. assign staff to fire safety was filed, the defendants had not examined multiple illnesses, including AIDS and PCP, duties, properly maintain all fire detection him to establish an appropriate plan for medi­ which were diagnosed at autopsy. and suppression equipment, and have them cal services for him; hehad not received phys­ The court notes the Second Circuit's inspected both by institutional staff and State ical therapy regularly; he had not had a bath reluctance to uphold summary judgment in Fire Marshal personnel; or shower for six months despite his requests; such cases and states that it "has provided (h) Crowding. separate beds in dayrooms he routinely received no assistance in chang­ instruction to the district courts that and dormitories by unobstructed 36-inch ing position in bed or moving between bed and determining the difference between malprac­ corridors; wheelchair; his manual bed did not raise or tice and deliberate indifference is a factual (i) Ventilation: balance and repair the lower; the call button in his room did not work. issue which cannot properly be decided at the ventilation system. In the midst of setting out the deliberate in­ summary judgment staged." Contested issues of difference standard, the court observed, "In fact in this case include whether defendants Contempt/Crowding the District of Columbia, physicians owe the failed to act on an outside doctor's recommen­ Tasker v. Moore, 738 F.Supp.1005 (S.D.W.Va. same standard of care to prisoners as physi­ dation of immediate hospitalization, the 1990). The Warden and Commissioner did not cians owe to private... patients generally." (319) reasons for an "unexplained gap" in medical comply with a state court order to release the The court granted plaintiff a preliminary care during a two-month period when he was plaintiffs and others to relieve overcrowding. injunction, stating that "it is clear to the Court seriously deteriorating, and whether the The Governor then ordered them not to ap­ that plaintiff is not receiving adequate defendant doctor's statements and letters pear at a contempt hearing scheduled by the medical services." (320) "indicate a tendency toward deliberate state judge. Several months later the plaintiffs indifference." (1317) were released. The federal court directed a AIDS Evidence that the Superintendent and verdict for plaintiffs on liability and the jury Deutsch v. Federal Bureau ofPrisons, 737 Medical Director "were made aware of awarded them $19,000 and $13,500 in compen­ F.Supp. 261 (S.D.N.Y.1990) (Ward,].). The Kaminsky's condition and his unhappiness satory damages, respectively, and $100,000 plaintiff complained of being assigned to a with the care he was receiving at Green each in punitive damages against the prison cell with an HIV-positive inmate and Haven" raised a factual issue barring summary Governor. not being warned of his condition. Absent judgment as to their personal involvement. At 1010: "It is beyond peradventure that evidence that defendants had knowledge that officials who willfully, intentionally or the cellmate might do something to expose the Contempt/Crowding/Modification recklessly keep an inmate in prison past the plaintiff to a risk of infection, they were ofJudgments/Pre-Trial Detainees date he was ordered released are liable under entitled to summary judgment on his Eighth Palmigiano v. DiPrete, 737 F.Supp. 1257 section 1983 for infringing upon the inmate's Amendment claim. (D.R.I.I990). Continued crowding resulting in personal liberty protected by the substantive

12 WINTER 1991 THE NATIONAL PRISON PROJEG JOURNAL due process clause of the Fourteenth Amend­ inmates that Missouri regulations required for prison in the form of newspaper articles. The ment." The defendants' conduct therefore protective custody inmates. (They were put in alternative of censoring incoming publica­ violated clearly established rights and they a disciplinary segregation unit and treated tions is not required because prison officials were not entitled to qualified immunity. more or less accordingly.) "Neither a security would have to read the publications, and it problem nor shortage of resources (except as would "create an even greater danger to Pre-Trial Detainees/Class Actions­ self-inflicted)" was cited in justification. society-the censorship of the content of daily Certification of Classes The regulation requiring "substantial ~, newspapers." (1417) McKenzie v. Crotty, 738 F.Supp. 1287 (D.S.D. equality" of privileges is "sufficiently~. 1990). An inmate released from the jail can mandatory and sufficiently definite" to creat.t? Privacy adequately represent a class of jail inmates a liberty interest, and the plaintiffs were .. 1 Best v. District ofColumbia, 743 F.Supp. 44 seeking injunctive relief. Since the plaintiff denied it without due process. They are (D.D.C.1990). The plaintiffs were rousted out was released the day after the complaint was entitled to a preliminary injunction. of bed in Lorton, placed in handcuffs, leg irons filed, the court could not have ruled on the and belly chains and flown to Spokane. On certification issue before his release, and Medical Care-Standards of Liability the way they we)e periodically videotaped by under Gerstein the certification relates back Lavoie v. Town ofHudson, 740 F.Supp. 88 an officer. }oR' to the filing of the complaint even though no (D.N.H.1990). Whether police officers violated Prisoners retain a right to privacy; "they are certification motion was made immediately. the rights of the decedent, whom they had not like animals in a zoo to be filmed and The fact that plaintiff sued for his own shot, to obtain medical care depends on photographed at will by the public or by media compensatory damages gave him sufficient whether they "used reasonable professional reporters...." (48, quoting Houchins v. KQED). personal stake in proving the conditions to judgment" when they called an ambulance and Some institutional justification must be permit him adequately to represent a class. dealt with medical personnel. ("Cf Youngberg asserted to overcome the right. The absence of v. Romeo.") An allegation that an officer was public disclosure did not defeat the claim Use of Force/Training told not to describe the decedent's injury in where the tape had been shown to prison McKenzie v. City ofMilpitas, 738 F.Supp. 1293 calling the ambulance, that only certain para­ personnel and there was a possibility of future (N.D.Calif.1990). Ajury question was medics were allowed to attend the injured disclosure. presented on plaintiffs' failure to train claim man, and that his wife was not permitted to concerning police use of tasers where the accompany him or told where he was being Protective Custody policy included: "supplying tasers to officers taken, stated a deliberate indifference claim. Griffin v. Coughlin, 743 F.Supp.1006 with limited experience; allowing officers to (N.D.N.Y.1990). T\le conditions of protective carry tasers when making investigatory stops; Attorneys' Fees and Costs/ custody confinement at Clinton, more not requiring officers to holster their tasers; Monitoring and Reporting restrictive than at other New York State allowing officers to resort to the use of tasers Hadix v.johnson, 740 F.Supp. 433 (E.D.Mich. prisons, did not deny equal protection because immediately after verbal warnings; and, 1990). Plaintiffs' counsel in a prison case are the plaintiffs did not show the irrationality of inadequately· training officers in the constitu­ entitled to fees for monitoring activities based the restrictions. Defendants justified restric­ tional ramifications and health hazards of on having prevailed in the underlying tions on recreation, programming, access to using tasers." (1301) Plaintiffs must prove a litigation. The fact that some of their work inmate law clerks, etc., by citing reasons of causal connection between the failure to have was done in a related case to which some cost, staffing problems, and security threats. more or different training and the constitu­ issues had been transferred did not mean fees Defendants' legal access scheme, a two­ tional violation. could not be recovered in this litigation. book-a-day cell delivery system supplemented by written communication with law clerks, Food/Medical Care-Standards Communication with Media/ was inadequate because of the lack of face-to­ of Liability Federal Officials and Prisons face communication with law clerks, the fact Hodge v. Ruperto, 739 F.Supp. 873 (S.D.N.Y. Martin v. Rison, 741 F.Supp.1406 (N.D.Calif. that two-thirds of the clerks were not trained, 1990). Allegations that the plaintiff was 1990). The plaintiff wrote articles about and the relative unavailability of the deprived of food and water for two-and-a­ prison life for the San Francisco Chronicle for supervising officer. The cell delivery system half days, that he had to sleep on a steel frame two years and got paid for them. They were was not adequate because inmates did not without a mattress, that the "sanitation run under his by-line. This violated Federal have access to a "basic library," and in add­ facilities" were"so filthy he could not use Bureau of Prisons regulations, but no one did ition there were delays in delivery of books, them, and that he was denied medical care anything until he wrote an article called "The sometimes the wrong books were delivered, stated constitutional claims. Gulag Mentality." He was then put in they couldn't get Shepard's, and the clerks The arresting officers could be held liable administrative segregation and transferred. He didn't always do their Shepardizing correctly. for removing the plaintiff from a hospital continued to write and be published under a The denial of confidential discussion, in a before his x-rays could be examined and his preliminary injunction. room apart from their cells, with priests, injuries treated. Adetainee's medical care The court upholds Bureau of Prisons chaplains, or other religious advisers, violated rights are "at least as great" as those afforded a regulations providing that an inmate may not the Free Exercise Clause. Defendants put forth convicted prisoner. "direct a business" and may not "receive no justification for the denial and there was a compensation or anything of value for room available for such meetings. Protective Custody correspondence with the news media. The Madden v. Kemna, 739 F.Supp.1358 (W.D.Mo. inmate may not act as a reporter or publish Food/Length of Stay 1990). The plaintiffs were transferred from under a byline." Adams v. Kincheloe, 743 F.Supp.1385 (RD. Colorado to Missouri pursuant to contract and The Turner/Abbottstandard, rather than Wash. 1990). The five-day disciplinary restric­ put in protective custody as they requested, but the Procunierstandard, is applicable even tion to a nutritionally adequate but unappe­ were not granted the "substantial equality" of though the case is about material sent out of tizing "nutra-Ioaf" for throwing something at privileges relative to general population the prison, because it comes back into the another inmate did not violate the Eighth

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1991 13 z------_-_------"""d Amendment. The court stressed the short time members were entitled to recover damages compliance." The court distinguishes its previ­ period and the fact that the plaintiff had no through the post-judgment date on which the ous denial of discovery on the ground that this demonstrable adverse physical reaction. Special Master found that defendants had request addresses a "more narrow, discrete inci­ substantially complied with the remedial dent, involving an acknowledged violation." • FEDERAL RULES order. Class members may recover damages incurred after the court's decision if the John Boston is a staffattorney at the

Protective Custody/ constitutional violations continued. Damages A Prisoners'Rights Projec~ Legal AidSociety Class Actions/Damages may extend backward five years beyond the ';} ofNew York. He regularly contributes this Williams v. Lane, 129 F.R.D. 636 (N.D.IlL filing of the complaint where the statute of ': ~ column to the NPPJOURNAL. 1990). The court determined after trial that limitations was five years. the plaintiff class of protective custody in­ 'Some courts have held that modifications may be obtained in institutional litigation under a more mates had established the predicate for comp­ Monitoring and Reporting/Discoverj;: flexible standard as long as they are not "in ensatory and punitive damages in an amount Handschu v. Special Services Division, 131 :;.!f derogation of the prim~FY objective of the decree." to be determined later. F.R.D. 50 (S.D.N.Y.1990). At 52: "[C]onsent orders New York State Assn. /ol'Retarded Children v. Carey, Class certification under Rule 23(b)(2) can do not deprive litigants of their right to claim 706 F.2d 956, 969 (2d Gfr.), cert. denied, 464 U.S. 915 (1983). That rule obvibusly has no application when support an award of damages as long as disobedience with [sic] their terms, or in appro­ the defendants are trying to get the decree vacated injunctive relief was also appropriate. Class priate circumstances to obtain discovery into altogether. Judge Orders Changes at Virginia Penitentiary Cites Fire, EnvironmentalHazards Weeks BeforePrison Closes measures subjects prisoners to life­ threatening conditions resulting in cruel and unusual punishment prohib­ ited by the Eighth and Fourteenth oncerned about fire safety and Amendments" to the U.S. Constitution. environmental health at the While attorneys for the Common­ CVirginia State Penitentiary, United wealth told Judge Merhige they would States District Judge Robert R. Merhige Jr. not represent to him that the Peniten­ recently ordered major changes at the tiary was a model institution, they 190-year-old prison, just weeks before it denied that it was unconstitutional. officially closed. In the November 21, 1990 ruling, the While the judge declined to order that state was also ordered to: the institution close immediately, he did · clean showers and cells daily; order prison officials to repair exposed · have a certified pest control In Congdon v. Murray, U.S. Judge Robert electrical wiring, to properly maintain technician regularly set and maintain R. Merhige Jr. ordered a 24-hour fire fire exits, and to station officers in hous­ watch at the Virginia Penitentiary as part rodent traps in the rear of the food of a series of fire safety measures. ing areas and the infirmary on a round­ service area; the-clock fire watch. An October tour by · repair or cover broken,and missing a fire safety inspector uncovered numer­ windows; Original Petition ous hazards which posed serious risk of · not permit any prisoner to stay more Written By Prisoners injury or death to prisoners and staff. than four hours in a cell with a broken In May of 1990 Cornelius James, a While saying tiJ.at he was pleased with toilet or sink. prisoner at the Penitentiary, sent the some of the changes the state had made, The penitentiary officially closed on National Prison Project a copy of a the judge put state officials on notice December 14. Most prisoners at the petition he had drawn up, signed by 104 that he and/or the ACLU could inspect Richmond institution, the oldest peniten­ inmates, asking Commonwealth officials the prison on 12 hours' notice to ensure tiary in the country, had been on lock­ to "cease unconstitutional prison compliance. down status since August 1988. They practices in B-Building." He asked the The court order resulted from a were confined to their cells 22-1/2 hours Prison Project to intervene on their lawsuit filed in September of 1990, a day, six days a week, and locked in a behalf. After receipt of James' petition, Congdon v. Murray, by attorneys from full 24 hours a day on the seventh day. NPP staff visited the facility in July of the National Prison Project of the They had been double-bunked since 1990. They found conditions to be American Civil Liberties Union and the March of that year in cells so small that intolerable. Shortly thereafter, Alvin J. Virginia ACLU on behalf of all prisoners the man in the top bunk was unable to Bronstein, executive director of the confined at the Penitentiary. "Health, sit up. Prison Project, wrote Department of safety, and lives are in imminent danger," Each cell had to be unlocked individu­ Corrections director Edward Murray, alleged the lawsuit, and prison officials' ally, dangerously slowing evacuation in calling the Penitentiary "the most "failure to provide basic fire safety and case of fire. Also, the building offered shameful prison in America," and environmental health and safety only one means of egress. likening it to a 19th century dungeon.

14 WINTER 1991 THE NATIONAL PRISON PROJECT JOURNAL <3 ..E

~ iii 0-

zf -0 oc E ....c u Q2 Were it not for a recent lawsuit challenging squalid and unsafe conditions, the 190-year old Virginia Penitentiary might still be in use today. Instead, the facility closed in December 1990.

Neither Mr. Murray nor anyone else in summer of 1990 with the Attorney Penitentiary is Finally the Department responded to the letter. General's office were unsuccessful, and Closed in Mid-December Bronstein called on prison officials to on September 21, the Prison Project, along The site has been purchased for $5 end the two-year lockdown and improve with the Virginia affiliate of the ACLU, million by the Ethyl Corporation, which environmental and sanitary conditions, filed suit in federal court on behalf of all has announced no plans for the land, or close the prison down. prisoners at the Penitentiary, listing as although it has said that it will raze the The lawsuit was the latest in a long representatives of that class of prisoners prison. series of attempts by private citizens and Alfred Congdon, Kareem Olajuwon, and "The state has been promising for years concerned organizations to bring Lloyd Wasloski. Mr. James, author of the now that the Penitentiary is 'just about pressure to bear on the Department of original petition, had since been trans­ to close,' "said Fathi. "It is almost certain Corrections to close the Penitentiary or, ferred to Powhatan Correctional Center that, without the pressure of the lawsuit, at the very least, to improve conditions. and therefore could not be listed as a the Penitentiary would still be open An active forum of local religious leaders named plaintiff. today, housing prisoners in dangerous toured the antiquated prison in 1989, Shortly after filing the lawsuit, Prison and squalid conditions." characteriZing liVing conditions there as Project attorneys filed a motion for a All of the former inhabitants of the "inhumane and immoral." In a letter to temporary restraining order, asking prison have been moved either to other the official state Commission on Jail and Judge Merhige to enjoin defendants from existing prisons or to the newly built Prison Overcrowding, the religious group continuing to confine prisoners at the Greensville Correctional Center, 55 miles stated its fear for the "immediate health Penitentiary "unless certain basic south of Richmond, which will ulti­ and safety of the inmates, prison guards, environmental health and fire safety mately provide cells for 1,700 men. Two and administrators at the Virginia State measures [were] immediately taken." hundred of those will be isolation cells. Penitentiary. We are even more con­ The judge ordered an immediate Double-ceIling is planned for 35% of the cerned for the future health and safety hearing. On October 12, 1990, NPP remaining cells, which could bring the of the Commonwealth; such inhumane attorney David Fathi told the court that capacity to 2,225. The other new prison conditions hardly prepare offenders to the Penitentiary was "a fire tragedy awaiting occupancy is the Keen Moun­ become productive members of society waiting to happen." In the event of a fire, tain Correctional Center in Buchanan when they are released." he warned, "people are going to die." He County.• Attempts by Prison Project lawyers to again noted the problem with the reach out-of-court agreement over the individual locking system. Jan Elvin is editor ofthe NPPJOURNAL.

THE NATIONAL PRISON PROJEO JOURNAL WINTER 1991 lS and civic leaders are usually good Third Party Supervision candidates. The position titles of these community members project images of Bolsters Probation Programs respectability because in most cases these positions are filled by individuals who possess strong personal attributes. Of course, not every defendant will have friends or acquaintances that fall into ver since John Augustus! stepped proper attire, and developing interview these stereotyped categories. Neverthe­ forth as a probation volunteer over skills, and it may be that the third party less, most individuals know someone of E100 years ago, volunteers have supervisor is the only person able to help; upright character who can be presented offered their guidance and supervision to The supervisor, in this role, is alsow( as such. Of course, co-defendants or offenders on probation. The degree of available to assist in times of crisis; if he" convicted felons ~hould not be consid­ involvement that volunteers have been or she has been attentive and available ered as third par~r. supervisor candidates. permitted has changed over the years, to the probationer, the supervisor could In selecting a!tiird party supervisor but the kinds of tasks that the volunteers be the person the probationer turns to in from the realm 'of the defendant's can perform have remained fairly a crisis. acquaintances, attorneys should also constant. The roles of volunteers (or In the role of advocate, the supervisor consider: 1) the candidate's familiarity third party supervisors) can be divided is overtly looking out for the best with the criminal justice system; 2) the into three categories: compliance interests of the offender.3 candidate's common sense and knowl­ monitor, advocate, and mediator.2 Mediator. The third party supervisor edge of psychology, counseling, or Compliance Monitor. This role most may also negotiate for or speak on behalf criminology; 3) how well the potential closely resembles that of a probation of the offender in case of difficulties supervisor and defendant match up in officer. As a compliance monitor, the with the probation department, a terms of personality and background; third party supervisor performs many of community service organization, or a and 4) the time the potential supervisor the tasks that a probation officer ideally social service agency, or, in cases has to devote to the supervisory task. would, if he or she had a reasonable involVing financial restitution, a victim. Qualities that make up a good "ac­ caseload. In this role, the third party Athird party supervisor may be able to quaintance supervisor" are the same ones supervisor monitors the offender to clarify and rectify problems that involve to look for in a supervisor who does not ensure compliance with any alternative another party. know the defendant. Asupervisor of this sentencing plan requirements that have type is likely to experience less discom­ been established as conditions of How Should a Third Party fort in the compliance monitor role than probation. Depending on the require­ Supervisor Be Chosen? would the acquaintance supervisor. ments of the specific case, the supervisor There are four major sources for third However, this same individual, as a may track the offender's attendance and party supervisors: 1) responsible citizens stranger to the offender, may be less level of performance at the workplace or in the community who know the effective in the advocate and mediator at a program (e.g., substance abuse offender or the offender's family; 2) roles. Should the supervisor and offender testing, counseling, community service). responsible citizens who are not ac­ fail to get along, it is likely that the only He or she may also report on the quainted with the offender or the role the supervisor can effectively take probationer's progress (for example, the family; 3) correctional service agencies on will be that of compliance monitor. number of hours of community service that provide probationary supervision The major drawback to this type of completed to date) to either the proba­ free of charge; and 4) agencies that supervisor, however, is that there are tion officer or to the sentencing judge. provide the service for a fee. rarely organized ways of locating such The supervisor may, in addition, periodi­ The advantage in selecting someone persons willing to perform this kind of cally visit a program to observe the known to the defendant or the family is service. Churches and organizations such offender's participation first-hand. The that this person already has an estab­ as the Salvation Army sometimes yield compliance monitor is usually committed lished bond to the defendant and is candidates, but the attorney or sentenc­ to report any in"fraction of the alterna­ likely to be committed to the defendant's ing professional should realize that the tive sentencing plan to the judge or success. This type of supervisor usually search for this supervisor type will probation officer. performs well in the advocate and require some time and effort. Advocate. As an advocate, the third mediator roles, but may find it difficult Some community agencies prOVide party supervisor has the opportunity to to report a violation when acting as the third party supervision free of charge. A counteract some of the messages of compliance monitor. In selecting a third potential benefit of this option is that a disapproval and rejection that often party supervisor from the defendant's judge may feel that strangers can be accompany an encounter with the sphere of acquaintances, an attorney or more objective than friends. Apossible criminal justice system. The supervisor sentencing professional should attempt disadvantage to going this route is that it can provide support and encouragement to gauge the potential supervisor's may produce a supervisor who will favor (in the spirit of John Augustus) for the overall sense of responsibility and the "monitoring" role, relegating the probationer's efforts toward self­ commitment to the offender. It is advocate and mediator roles to the improvement, and may help with day-to­ practical and strategically wise to select background. day matters and with logistical situations a third party supervisor who is a Finally, in some jurisdictions there are that arise out of the probationary plan. respected member of the community. for-profit agencies that provide third The offender may need assistance with Law enforcement officers, clergymen, party supervisors. These programs, too, transportation, scheduling, selecting PTA preSidents, teachers, coaches, judges, project an aura of objectivity that may

16 WINTER 1991 THE NATIONAL PRISON PROJECT JOURNAL appeal to the court. However, because third party supervisor along with the likelihood at succeeding on probation is this agency is usually paid by the alternative sentencing plan may have increased, and his chances for rehabilita­ defendant, the agency may fear losing a provided the judge with the confidence to tion are substantially improved. client if it reports a violation. Asupervi­ grant Donald probation. Donald would be Use of third party supervisors is not sor from this type of agency may have a spared the lasting, negative impact of without pitfalls, but if both the indi­ financial stake in retaining the client and incarceration and would be provided a vidual selecting the supervisor and the thus be less likely to rigorously perform plan with rehabilitative, compensatory, l' supervisor are aware of potential the compliance monitor role. In addition, and punitive components. Once on,} problems, they can deal more effectively this option is probably least likely to probation, Donald would have to perform with them if they appear, and the produce a supervisor who is committed to community service, participate in family, advantages of the third party supervisor the defendant and who will actively counseling, work a full-time job, and;{~' are more likely to be realized. participate in the mediator and advocate attend A~coholics Anony~ous meeti~s. The benefits, however, that come from roles. Some courts, however, may prefer it The third party supervisor would tllen using a third ijarty supervisor greatly to the acquaintance supervisor. This be in a position to monitor his participa­ outweigh the, potential difficulties. _ option also becomes more appealing if tion in the plan, provide him with , '~.i viable candidates in the community emotional and logistical support, and Michael Couflander is a Criminaljustice cannot be found and if a "no-fee" supervi­ serve as a mediator if needed. As an Specialist atSteptoe &Johnson, a 200­ sory program is not available.4 advocate, the third party supervisor attorney lawfirm in Washington, D.C would work with Donald to secure He has testified infederal andstate Donald's case employment-probably the first order of courts as an alternative sentencing Examining the fictional case of Donald business. The supervisor would also be specialis~ and haspublished other works (a defendant denied probation because available to mediate difficult situations aboutsentencing, crimeprevention and the judge feared there would be inad­ for Donald, should they arise. With a third corrections. David E. Tracey is Clinical equate supervision of the probation plan) party supervisor as a part of the proba­ Director ofFamily Advocacy Services, presented in David Tracey's sidebar piece, tionary plan, considerable burden is lifted Inc., in Baltimore, Maryland. For 12 we can speculate that the inclusion of a from the probation officer, Donald's years, he served asprogram director and chiefoftrainingfor The National Center on Institutions and Alternatives.

Donald's Story The authors would like to thank Jerry Miller In a heated encounter, an inebriated accou,ntable monitor-tnejudge woulti and Herb Hoelter of The National Center on Donald (a fictitious character) slu ortierprobation. He reluctantly sent< Institutions and Alternatives for their tutelage patron in a local tavern, andfou Do#aldto 60 days in the localjail in alternative sentencing. charged with assault and battery. This troubling profile is an increasi IProbation's acknowledged founder,John month earlier, Donald had been c familiar one for judges,probatiOll offi Augustus was a Boston cobbler who, beginning with committing domestic violence i treatment professionals and offenders in 1841, assisted over 2,000 offenders in an incident involving his oldest son. A c themselves. In this particular case, the intensive supervisory capacity. prior convictions revealed thathe judge's dilemma resulted fromtheprobaWlll 2A third party supervisor is defined here as been convicted oftwo charges ofD department's limited resources. The While Under the Influence in the changing nature and expansion of an individual outside of the probation three years. Afterconducting a probation officers' responsibilities a department who provides additional guidance background investigation, Don prevailing political climate in crimi and supervision to a probationer. realized thatDonald was an a justiceJurther complicate the decisi(j 3Miller characterizes advocacy as "one-Sided, who drank heaVily as a reactio today's judges must make. In Donald's driven with a point of view, aimed toward Donald had been laid offfrom h the plan lacked an individual oragen action and, if successful, wide ranging in recently; his resulting depression shepherd him through the proposed outcome." See Miller, ]., (undated) "Advocacy periodic outbursts ofanger se alternative sentencing plan. The judg for Youth in Trouble," National Center on his home life. AllDonald's diffic sensed the risk that an offender who Institutions and Alternatives, p. 1. closely supervised in anindividualiz the law had been precipitated by 4Volunteers in general, and specifically abuse. Atthe sentencing hearing, probation plan often fails. Too often, attorney detailed his client'spro however, this abandoning of a sound volunteers who have worked with probation presented a comprehensive alter punitive alternative only guarantees a departments, have historically come under sentencingplan composed offou greatedailure for thatoffenderand a fire, often unjustly, for their casual commit­ community service, family ther, additional financial burden to the pup ment to the tasks at hand and for a lack of employmen~ andparticipation The criminal justicesystem needsto professionalism. The third party supervisor Anonymous. The judge, however, develop and use creative options t drawn from the field of acquaintances or from aware ofthe limitations ofthep address public safety, punishment, an agency is not likely to suffer from the department: could itimplement restitution, deterrence, and rehab tandem of these two criticisms. The acquain­ effectively monitor this individ For probation departments, in par tance supervisor will have a vested interest in program?Despite theplan'spra the task is even greater. Saddled the probationer, and thus will be highly apparent suitabilityfor the offe staggering caseloadsand ex(:essive Donald's voiced commitment to co bureaucratic demands,the committed. The supervisor from an agency will carried inherent risk-risk thatth become so stretched be subject to organizational control and was not capable ofmonitoringan is often forgotten. supervision. The supervisor who is not Donald's success in this communi acquainted with the offender and who is not tionalplan. Without this vitalli E.Tracey associated with an organization, however, is potentially vulnerable to both criticisms.

THE NATIONAL PRISON PROJECT JOURNAL WINTER 1991 17 te for biting and spitting on police or corrections officers. In almost every

case, the defendant with HIV has .~'" 'CD been convicted and sentenced to a Z long prison term. a:i c: Curtis Weeks, a Texas prisoner ~ serving a two-year term, was iIi Criminalization Gj.~gory Smith, an HIV-irfected prisoner, was sentenced to life in prison for sentenced to 25 years i.'l prison for allegedly of An Epidemic allegedly spitting on a prison guard. biting a guard; yet, sciii,htific studies indicate While Mr. Weeks' case is being that AIDS and HIV are"not transmitted through utraged cries of "Shame, Shame," appealed, there are two other biting and saliva exchange. and "You've just given this man a prisoners who have been charged Odeath sentence," echoed through­ with "attempted capital murder" for reports from the CDC, fears of contracting out the crowded Camden County, New similar incidents. HIV or AIDS by correctional personnel Jersey courtroom after Superior Court Gregory Scroggins, a Georgia resident have actually abated. Judge John B. Mariano sentenced Gregory with HIV, was convicted of aggravated Nonetheless, people with HIV and AIDS Smith to 25 years in prison for allegedly assault with intent to commit murder for continue to face serious charges of biting a prison guard. Mr. Smith, a young, allegedly biting a policeman during an attempted murder or assault with a Black, gay prisoner with the Human arrest after police had been called to his deadly and dangerous weapon for acts Immunodeficiency Virus (HIV) had residence to break up a domestic dispute. that would commonly be treated as recently been convicted by a jury for The jury deliberated for three hours; Mr. routine misdemeanors or disciplinary attempted murder despite the court's Scroggins was sentenced to 10 years in infractions were AIDS not a factor. The acknowledgment that HIV is not transmit­ prison. seriousness of these charges is com­ ted through biting or the exchange of Donald Haines, despondent over his pounded by the inadequate legal represen­ saliva. Judge Mariano stated in court that illness, was in the midst of a suicide tation afforded some HIV-positive he wanted to send the message that attempt when police and paramedics defendants, many of whom have been "criminal conduct of this nature will be burst into his home. Astruggle ensued represented by attorneys who suffer from met with swift and severe punishment." between the distraught Mr. Haines, who their own variety of fear of AIDS and who Criminal cases involving the Acquired was bleeding, and the emergency person­ lack critical knowledge about HIV Immune Deficiency Syndrome (AIDS) nel. Mr. Haines, accused of "intentionally" transmission and the disease itself. Cases have indeed been sending a message to the spraying the paramedics with his blood have been reported in which court­ public for several years-the wrong one. and biting a policeman, was convicted of appointed lawyers and public defenders Criminal charges of attempted murder or attempted murder. Mr. 'Haines was have refused to represent HIV-positive assault with a deadly and dangerous sentenced to 30 years in an Indiana prison. defendants. Some HIV-positive defendants weapon for alleged acts of spitting, biting These cases stand in contradiction to do not have the financial resources to hire or spilling blood directly contradict the the latest scientific studies and transmis­ medical experts who could refute inac­ medical facts of HIV transmission. The sion information issued by the federal curate testimony about HIV transmission. effect of these charges has been to cause Centers for Disease Control. In February In New Jersey, Mr. Smith maintains his unfounded and Widespread fear in the 1990, CDC delivered the results of the innocence. He says that not only did he not general population and to fan the flames largest study to date concerning the bite the correctional officer but he was of discrimination and abuse against people possibility of "casual transmission" severely beaten and brutalized by the with AIDS and IlIV. through biting and the exchange of saliva. officer. Fear of AIDS and the stigma of HIV CDC researchers tested 89 household In his statement to the court Smith said, infection has led to a dangerous members living with 25 children with "This is a matter of civil rights. It's not "criminalization" of the disease. The HIV. Although many of the children with about criminal conduct." The growing disease has been treated in the courts as a HIV had bitten non-infected siblings and coalition of AIDS activists, lawyers, health criminal matter, rather than as a serious other members of the households, there educators and community leaders that medical crisis. Arash of criminal transmis­ was no transmission of the virus. The CDC have rallied to his case concur and have sion cases brought against people with has removed saliva from its list of body begun to focus needed national attention HIV and AIDS has sprung up around the fluids that requires the use of universal on the discriminatory treatment faced by country. While many felony charges have precautions, i.e., the wearing of surgical defendants with HIV and AIDS. It is this arisen out of alleged attempts at sexual gloves and masks. combination of legal advocacy and transmission, this article will only focus According to the 1989 study of the political activism that is needed to make a on biting and spitting incidents. National Institute of Justice on AIDS and difference in all of these cases.• Over the past three years, approxi­ correctional facilities, no police or mately 10 cases have been brought to correctional officers have contracted HIV Judy Greenspan is the AIDS information court in which people with AIDS have infection through on-the-job exposure. coordinatorfor the National Prison been indicted for attempted murder or The NIJ report concluded that due to Projec~ and contributes a regular column assault with attempt to commit murder increased AIDS education and recent to the NPPJOURNAL. 18 WINTER 1991 THE NATIONAL PRISON PROJEG JOURNAL The National Prison The jail Litigation Project Status Report l' Status Report gives a lists by state those presently state-by-state listing of cases under court order, or tho~' involving jail conditions in which have pending lit~jj:-, both federal and state courts. tion either involving the The Report covers unpub­ • • .< 1>/, entlfe state pnson syst~:P1 or lished opinions, consent major institutions wHhfn the ~crees and cases in progress state. Lists only cases which , ~5 well as published deci­ deal with overcrowding and/ ,~lons. The Report is the first or the total conditions of nationwide compilation of confinement. (No jails except litigation involving jails. 1st District of Columbia.) Edition, published September Periodically updated. $3 1985. $15 prepaid from NPP. prepaid from NPP. 1990 AIDS in Prison Bibliography of Women Bibliography lists The National Prison in Prison Issues. A resources on AIDS in prison ProjectJOURNAL, $25/yr. bibliography of all the that are available from the $2/yr. to prisoners. information on this subject National Prison Project and contained in our files. other sources, including The Prisoners Assis­ Includes information on corrections policies on AIDS, tance Directory, the result abortion, behavior modifica­ educational materials, of a national survey, identi­ tion programs, lists of other medical and legal articles, . fies and describes various bibliographies, Bureau of and recent AIDS studies. organizations and agencies Prison policies affecting $5 prepaid from NPP. that provide assistance to women in prison, juvenile prisoners. Lists national, girls, women in jail, the AIDS in Prisons: The state, and local organizations problem of incarcerated Facts for Inmates and and sources of assistance mothers, health care, and Officers is a simply written including legal, library, AIDS, general articles and books. educational tool for prison­ family support, and ex­ $5 prepaid, from NPP. ers, corrections staff, and offender aid. 9th Edition, AIDS service providers. The published September 1990. APrimer for jail Litiga­ booklet answers in an easy­ Paperback, $30 prepaid from tors is a detailed manual to-read format commonly NPP. with practical suggestions for asked questions concerning jail litigation. It includes the meaning of AIDS, the Offender Rights Litiga­ chapters on legal analysis, the medical treatment available, tion: Historical and use of expert witnesses, class legal rights and responsibili­ Future Developments. A actions, attorneys' fees, ties. Also available in book chapter by Alvin J. enforcement, discovery, Spanish. Sample copies free. Bronstein published in the defenses' proof, remedies, and Bulk orders: 100 copies/$25. Prisoners' Rights many practical suggestions. 500 copies/$100. 1,000 copies/ Sourcebook (1980). Traces Relevant case citations and $150 prepaid. the history of the prisoners' correctional standards. 1st rights movement and surveys Edition, February 1984. 180 the state of the law on pages, paperback. (Note: This various prison issues (many is not a "jailhouse lawyers" case citations). 24 pages, $3 manual.) $15 prepaid from QTY. COST prepaid from NPP. QTY. COST NPP. QTY. COST

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Congdon v. Murray-In this case Mecklenburg County Jail (N.C.). A challenging conditions at the 190-year-old settlement was reached in November he following are major develop­ Virginia Penitentiary (but really designed.. ~ which includes a substantial reduction in ments in the Prison Project's to close it), the court on November 21 '. the population, a population cap, a Tlitigation program since October 15, ordered an around-the-clock fire safety~;' doubling of staffing and recreation space, 1990. Further details of any of the listed watch, regular cleaning and pest control, ~ and improvement, in medical care, fire cases may be obtained by writing the and repairs. State officials, who had safety and envirQqmental conditions. Project. promised to close the Penitentiary for ",'f?"" years, finally did so in mid-December. u.s. v. Michigan/Knop v.Johnson­ Austin v. Lehman-On November 27 This is a statewide Michigan prison the Prison Project, along with the ACLU Hamilton v. Morial-This case conditions case. Following an October of Pennsylvania, the Pennsylvania challenges conditions at the Orleans compliance hearing, the court ordered Institutional Law Project and the Parish Prison, the municipal jail for the improvements in the evaluation and Philadelphia law firm of Kairys & city of New Orleans. Shortly after the treatment of mentally ill prisoners and Rudovsky, filed this case which chal­ start of a November trial on medical care ordered state officials to grant prisoners' lenges overcrowding and conditions in 13 issues, parties opened settlement talks. On attorneys access to prisoners, their records Pennsylvania prisons. The case was filed November 30 they reached a settlement and reports. The court also ruled that in following investigations into the October providing for an organized system of the future, state corrections officials 1989 Camp Hill prison riots and a series medical care delivery and covering all would be held responsible for noncompli­ of other disturbances in the state prison components relating to that system. ance, regardless of advice given them by system. state attorneys. (There is a history here of Palmigiano v. DiPrete-This case lawyer misbehavior.) Bates v. Lynn-This case seeks to challenges conditions in the Rhode Island ensure adequate legal access for death prison system. Ahearing was held on Wilson v. Seiter-We argued this case row prisoners in Louisiana. Parties have January 11, 1991 requiring defendants to before the Supreme Court on January 7 reached a partial settlement which show cause why they should not be held maintaining that the Sixth Circuit had provides death row prisoners with in contempt for failing to open two new applied a standard in conflict with human contact legal visits and increased indigent facilities on November 15 as they had decency, and with the standard applied by mail privileges. promised the court. The new medium other circuits for Eighth Amendment facility has been only partially operable violations. Also, for the first time in 20 Brown v. McKernan-On November 30 since opening November 20 and the years, the U.S. Solicitor General's office we reached a partial settlement in this opening of the new Intake Service Center took a pro-prisoners' rights stance, filing new case, filed in October, challenging addition was pushed back to late January. an amicus brief and arguing in support of overcrowding and conditions for protec­ our position. tive custody and administrative segrega­ Thomas v. Kidd-This case challenges tion prisoners at the Maine State Prison. conditions and overcrowding in the

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