:', :,~ A PROJEG OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC. VOL 6, NO.4, FAll 1991 • ISSN 0748~;955

ACLUAwards Medal ofLiberty to Bryan Stevenson, Stephen Bright

nJune 1991, the ACLU awarded its worker, labor organizer, and journalist. Roger Baldwin Medal of Liberty to Bright and Stevenson made the remarks I Stephen B. Bright, director of the printed below at the awards ceremony at Southern Center for Human Rights the ACLU Biennial in Burlington, Vermont (formerly the Southern Prisoners' Defense onJune 29, 1991. Committee), and Bryan A. Stevenson, an attorney with the Southern Center for Remarks of Stephen B. Bright: Human Rights and director of the Iam most grateful to the American Civil Alabama Capital Resource Center, in Liberties Union for this medal. Iam recognition of their work on behalf of especially grateful to the ACLU for death row inmates. The Medal of Liberty recognizing the capital punishment work is awarded biannually to aliving Ameri­ that we and others are doing. And of can for distinguished contributions to course, we most appreciate the financial civil liberties in the United States. It award that accompanies this medal includes astipend of $25,000 and was because we urgently need it to carryon endowed by an anonymous donor who the work. fled Nazi Germany in the 1930s. Over twelve years ago, George Kendall "I feel quite fortunate to be engaged Former ACLU President Norman Dorsen and Iwere contacted by Patsy Morris of in some small way in the struggle for described the Medal as "a kind of Nobel the Georgia ACLU and asked to prepare a human rights for the very least among Prize of civil liberties." The Medal of petition to the Supreme Court on behalf of us-to stand with those who most Donald Wayne Thomas, a poor, 18-year old desperately need the protection of the Liberty was established only recently, in Constitution. - Bryan Stevenson 1989, and its first recipient was Anne African American-severely handicapped Braden. Braden is alifelong civil rights by schizophrenia-who had been sen- tenced to death in person could be sentenced to death in Georgia. such aperfunctory proceeding. Itwas Iwill never forget our simply alegal lynching. first look at the record Weare still horrified by what we see in that case. We were today. The case on which Ihave been horrified by what we .:E saw. The entire record- '"Ol all the pleadings and the ~ transcripts of pretrial ::E hearings, jury selection, Ji and trial-wasabout an ~ inch thick. Itwas less (':J than 700 pages. The j defense lawyer was "8 terrible. The jury was

V) never told of Donnie's "I can assure you that we will put [the award] to good mental handicap. Until use in a living tribute to the ideals of Roger Baldwin-to shine the light of liberty, equal rights and racial that time, I, like so many equality on some courts and communities where it has others in this country, never shone very brightly."- Stephen Bright never knew that a

.. working most recently involves a battered the important rights that protect us all Remarks of Bryan A. Stevenson: woman,Judy Haney, sentenced to death growing every day, there is adanger that Thank you very much. Iam deeply for the murder of her husband in the importance of defending those parts honored by this award and by the very Alabama. Her case is one of the clearest of the Bill of Rights which apply prima­ kind words and introduction from Nadine examples which show that the death rily to prisoners, the condemned, and Strossen. This award from the ACLU is penalty is not restricted to punishing the other despised members of the society truly special to me and it is a bit over­ worst criminals for the worst crimes. Ms. may be overlooked or forgotten. Or that whelming for me to be here to receive Haney was only adangerto the man who there will simply be no one left to defend this. had abused her and her children for over them. Iwas talking to one of my clients on 10 years. Nevertheless, she is one of But-asthe American Civil Liberties death row yesterday and it was a very several battered women on Alabama's Union has so long recognized and recog­ difficult conversation. He was quite death row. nizes again here tonight in presenting discouraged about the events of the past During one morning of Ms. Haney's trial, these medals-it is the poorest, the week and somew!tat hopeless about the her court-appointed lawyer came to court weakest, and the most powerless who future. He had h~rd about the Supreme too drunk to go forward. The judge halted most desperately need the protections of Court's decision,in Payne v. Tennessee, a the trial for the day and sent the lawyer the Bill of Rights as ashield against the decision that permits and encourages to jail. The next morning, he produced passions of the moment. states to introduce victim impact evidence both Ms. Haney and her lawyer from jail The only currency that we have to at the penalty phase of acapital trial for I and the trial continued. She was sen­ spend on behalf of those facing the death consideration by juries in deciding tenced to death at the trial's conclusion. penalty is the Bill of Rights. We represent whether to impose the death penalty. Itis The death sentence was vacated on people who cannot call their Senators and a very disturbing decision. This is so not appeal and the case sent back for sentenc­ Congressmen and ask them to pass only because it undermines the opportu­ ing. We received notice at 5:30 p.m. one legislation overruling a new Supreme nity of capital defendants to have an Wednesday that Ms. Haney would be Court decision. Those condemned to die impartial and rational decision made resentenced the following Friday after­ cannot petition the state legislatures for about whether their lives have sufficient noon at 1:30. Even in the People's Republic protections that are no longer available purpose and value to avoid the death of China, the defendant gets more notice from the federal government. Quite to the penalty, but also because it sanctions the than that. She was resentenced to death. contrary, they are victims of the most already intolerable influence of race, class Just acouple of years after we took vicious demagoguery. and societal status in determining how Donnie Thomas' case, George Kendall and I This past week the United StatesSenate criminal justice is dispensed in this moved from Washington to Georgia to do voted to enact legislation that would remove this work full time. George went to the the availability of the once-great writ of Georgia ACLU and did a magnificent job habeascorpusfrom all prisoners, including bringing lawyers from all over the those under death sentence,ifthere has been country into this work-showing them ahearing in state court. Ifpassed by the what we had seen in these cases, helping House, this legislation will takeaway federal them master capital litigation, vindicating court enforcement of the entireBill of Rights constitutional rights and saving lives. with regard to the life and liberty of the Editor: Jan Elvin And we have worked closely together to poorest and most powerless people in the Editorial Asst.: Betsy Bernat this day. Any accomplishment that may land. Yet it is being suggested in the Congress Alvin J. Bronstein, Executive Director be attributed to me, George Kendall had a that these most precious constitutional The National Prison Project of the major hand in it somewhere. protections may be traded away for very American Civil liberties Union Foundation Iam grateful as well for the help that modest gun control legislation. Surely, we 1875 Connecticut Ave., NW, #410 Al Bronstein has given us in the last 10 cannot do that Washington, D.C. 20009 years. In those first few years in Georgia, So we are most grateful to the ACLU for (202) 234·4830 FAX (202) 234·4890 Al had more confidence in us than we had recognizing the importance of waging this The National Prison Project is a tax~exempt foundation­ in ourselves. Ihave no doubt that our effort in the trenches on behalf of poor, funded project of the ACLU Foundation which seeks to program wouldnothave survived had it minority and disadvantaged persons facing strengthen and protect the rights of adult and juvenile not been for the support and encourage­ the death penalty. offenders; to improve overall conditions in correctional facilities by using existing administrative, legislative and ment of Al Bronstein. At our shop, the $25,000 that accompanies judicial channels; and to develop alternatives to Weare particularly grateful to the this Roger Baldwin Medal of Liberty will incarceration. The reprinting of JOURNAL material is encouraged with ACLU for recognizing this work at this pay the salary and benefits for me or one the stipulation that the National Prison Project JOURNAL critical time. We realize that this award of our lawyers for over a year. Ican be credited with the reprint, and that a copy of the reprint does not so much recognize anything in assure you that we will put it to good use be sent to the editor. The JOURNAL is scheduled for publication quarterly by particular that Bryan and Ihave done, but in aliving tribute to the ideals of Roger the National Prison Project. Materials and suggestions recognizes the importance of people Baldwin. That we will use it to shine the are welcome. taking on the death penalty and the light of liberty, equal rights and racial importance of waging this battle in the equality on some courts and communities trenches-in some of the most God­ where it has never shone very brightly The NPPJOURNAL isavailableon16mm forsaken parts of the country. before, if at all. I hope that even in these microfilm,35mmmicrofilmand105mm Today so many of our most precious troubled times, we will help bring about a microfiche from University Microfilms liberties are in jeopardy-liberties of all new measure of justice in those places and International,300 North Zeeb Rd., Ann citizens, including those of the upper and save some lives in the process. Arbor, MI 48106-1346. middle classes. With the task of defending Thank you very, very much.

2 FAll 1991 THE NATIONAL PRISON PROJEG JOURNAL ,....,.,------.._.__._------_._------

country. Acriminal justice system that Congress. He knew that the Senate had believe that I could become a lawyer already devalues crimes committed passed abill that totally eliminates was to believe that Icould be something against racial minorities and poor people federal habeas corpusfor death row I'd never seen or experienced. Inever met is expressly authorized under Payne to prisoners. He didn't see how he had any alawyer until Ienrolled in Harvard Law consider the tragedy of afour-year-old hope for relief when the Senate had School and Imust admit that Iwas quite murdered child whose mother is a eliminated the only opportunity for full horrified to find out exactly what they business executive differently from the and fair review of his conviction and were. murder of afour-year-old whose mother death sentence by mindlessly passing Yet, it is this dynamic of belief and hope, is adrug addict. This places an additional habeaslegislation contained in the sometimes in the face ofgreat uncertainty burden on the poor and powerless within President's crime bill. and hopelessness, that compels us to reach the criminal justice system to prove their My client knew ofjustice Marshall's·~· out and stand with death row prisoners in pain, justify their tears, and to establish resignation and he was just deeply}; this country. Death row prisoners are the that the victimization against poor and discouraged because he could see no hope most condemnEiP, despised and hated people marginalized people has "impact." My for fair review of his case, he could see no in our society. 1ltey have literally been client did not see how he had any hope opportunity to have full constitutional rejected fromthe human community. They for relief in a judicial system that was so consideration of the problems he encoun­ have been told their lives have no meaning, dishonest about equal justice. tered during his trial. Iremember feeling purpose or value. They have had to deal My client had heard about the Court's quite sad at the sense of despair that he with the reality of such harsh condem­ decision in Coleman v. Thompson. In conveyed and Ibegan to tell him that nation from a society that dares to judge Coleman, the Court had erected yet sometimes you have to believe things them while that same society accepts another procedural barrier to correcting that you can't see. Itold him sometimes and fosters the poverty, bigotry and other even an undisputed violation of an you have to hope for things that you've injustices that this organization individual's constitutional rights by never had. so valiantly struggles against. precluding federal review of constitu­ I thought about that idea as I came to Ifeel quite fortunate to be engaged in tional claims not adequately preserved in Vermont today to receive this award. It some small way in the struggle for human state court. My client appreciated that is quite amazing to me to receive an rights for the very least among us-to this most recent step in the march of form award for the work that I do as a stand with those who most desperately over substance signaled agreater willing­ lawyer, mostly because when I was a need the protections of the Constitution ness to tolerate gross violations of little boy I wanted to be a lawyer but I and whose lives literally depend on the constitutional requirements out of had never seen or met a real lawyer. I development of awiser, more just society: deference to state injustice and quicker knew of the things that had become Your work and your very kind recogni­ executions. My client did not see how he possible because of lawyers, like tion of our work is clearly acritical part had any hope for fairness when fairness integrated school systems, which in my of the effort in creating that more just was so casually and effortlessly dismissed. community meant that little black society and Iam very, very grateful. He had heard about the developments in children could go to high school. Yet, to Thank you very much.•

Sixth Circuit Court of Appeals affirmed. Proving "Deliberate Indifference" The Supreme Court, in an opinion by justice Scalia, reversed the Sixth Circuit. in the Wake of Wilson v. Seiter The Court said that the Sixth Circuit had erred by requiring that the prisoner show that prison officials acted with "persistent malicious cruelty" in order to prove that conditions of confinement n the Summer 1991 issue of the NPP arguing that prisoners are not required violated the Eighth Amendment. JOURNAL, john Boston presented an to make any shOWing about prison Rather, prisoners need prove only that I extensive analysis of the Supreme officials' state of mind in order to prison officials were "deliberately Court's decision in Wilson v. Seiter, 111 succeed in a cruel and unusual punish­ indifferent" in allOWing unconstitu­ S.Ct. 2321 (1991).1 Regular readers of the mentclaim. tional conditions to exist. NPPJOURNAL undoubtedly noticed that The plaintiff, a prisoner at the The majority opinion noted that the Mr. Boston's analysis differed in tone Hocking Correctional Facility in prison officials in this case had not from what they may have read else­ Nelsonville, Ohio, contended that the claimed that lack of funds were where. Much of the media coverage of Eighth Amendment was violated by responsible for the failure to provide the Wilson decision misleadingly conditions at the prison, including decent conditions, and the Court did not portrayed it as another 5-4 conservative overcrowding, excessive noise, insuffi­ decide whether such a defense would victory. The real legal significance of cient locker storage space, inadequate succeed. The opinion did not explore Wilson is more complicated. In fact, the heating and cooling, improper ventila­ how prison litigators could prove a Supreme Court unanimously ruled that tion, unclean and inadequate restrooms, deliberately indifferent state of mind. the Sixth Circuit had erred when it unsanitary dining facilities and food In addition, the lower court had said applied a "persistent malicious cruelty" preparation, and mixing mentally and that some of Mr. Wilson's claims, standard to a prison conditions of physically ill prisoners in dorms. The including those involving overcrowding confinement lawsuit. Four members of district court granted summary judg­ and the failure to separate mentally and the Court would have gone further, ment for the prison officials, and the physically ill prisoners, did not allege

THE NATIONAL PRISON PROJECT JOURNAL FALL 1991 3 •

conditions bad enough to violate the the time the complaint was filed, Richard perform this affirmative duty are obvious l Eighth Amendment. The Supreme Court, Seiter, director of the Ohio Department of and foreseeable, such failures are deliber­ while not expressing a view on the Rehabilitation and Corrections, and Carl ately indifferent under the standard set specific claims of the prisoner, held that Humphreys, superintendent of the HCF. On forth in City ofCanton, Ohio v. Harris, 109 some conditions of confinement may August 28, 1986, the plaintiff filed a S.Ct.1197, 1205 (1989), the Supreme Court's establish an Eighth Amendment complaint challenging a number of condi­ leading case on deliberate indifference. violation in combination with other tions of confinement, including overcrowd­ Justice O'Connor, in her concurring conditions, when the conditions have a ing, excessive noise, lack of heat and warm opinion in City ofCanton, indicated that the mutually enforcing effect that produces clothing, excessive heat in summer because deliberate indifference standard for a deprivation of a specific human need, of a lack of ventilation, dirty and malodor- . municipality could be satisfied "where it can such as food, warmth or exercise. ous toilet facilities, unsanitary food service~ be shown that policymakers were aware of, Four members of the Court concurred and a lack of classification and the mixingc'S and acquiesced in, a pattern of constitutional only in the judgment vacating the of physically and mentally ill prisoners in violations involviftg the exercise of police decision and remanding the case to the the dormitory. discretion." 109&~i. at 1209. Sixth Circuit. Justice White, in an On November 10, 1986, plaintiff Wilson Consistent with this analysis,Justice opinion joined by Justices Marshall, filed for summary judgment. In the O'Connor's opinion characterizes the Blackmun, and Stevens, argued that it is affidavits accompanying the motion, "deliberate indifference" standard adopted unnecessary to examine prison officials' plaintiff alleged that onJuly 8, 1986, or a by the Court in City ofCanton as involving state of mind to determine whether the month and a half before filing suit, he had "tacit authorization" by city policymakers. Eighth Amendment has been violated. sent defendants Seiter and Humphreys a Justice O'Connor's opinion cites four The concurrence expressed special three-page certified letter detailing the appellate decisions, described below, as concern that the majority's intent conditions of confinement challenged in the properly applying the "deliberate indiffer­ requirement "likely will prove impos­ complaint. Defendant Seiter never re­ ence" standard. Under the standard as sible to apply in many cases. Inhumane sponded to that letter. Defendant applied in all four of the cases, the defen­ prison conditions often are the result of Humphreys responded but failed to take any dants' failure to act in response to notice of a cumulative actions and inactions by action to alleviate the conditions; he simply pattern of unconstitutional conditions is numerous officials inside and outside a referred the letter to HCF unit manager enough to show deliberate indifference. prison, sometimes over a long period of Friend. Mr. Friend did not, and could not, In Fiacco v. City ofRensselaer, N. Y. ,783 time. In those circumstances, it is far take any actions to correct the conditions at F.2d 319 (2nd Cir.1986), the Second Circuit from clear whose intent should be HCF, because he lacked any authority to do upheld a finding of liability against a city examined, and the majority offers no so. At no point did defendants assert that based on the city's failure to supervise the real guidance on this issue." 111 S.Ct. their failure to take corrective action was police officers who injured the plaintiff. at 2330. due to a lack of funds. Wilson v. Seiter, 111 The court held that evidence of notice of This case is important because the S.Ct. at 2326. claims of police brutality demonstrated a Supreme Court unanimously reversed "policy of negligent supervision rising to the the Sixth Circuit's application of a ARGUMENT level of a deliberate indifference to the "malice" state of mind requirement to I. WHETHER DEFENDANTS SEITER AND violation of constitutional rights." Id. at 327. prison conditions lawsuits. Itis also HUMPHREYS ACTED WITH DELIBERATE Similarly, in Patzner v. Burkett, 779 F.2d important because the Supreme Court INDIFFERENCE CANNOT BE RESOLYED ON 1363,1367 (8th Cir.1985), the court stated reinstated the overcrowding and SUMMARY JUDGMENT that a municipality may be liable for failure failure-to-classify claims dismissed by A.TheStandardforSummaryJudgment to train or supervise its police officers if it the Sixth Circuit on the ground that Aparty requesting summary judgment has had notice of prior misbehavior by its they did not rise to the level of an the burden of demonstrating that there is no officers and failed to take remedial steps, Eighth Amendment violation. genuine issue as to any material fact. amounting to deliberate indifference to the Although the decision was a victory, Pursuant to Fed.R.Civ.P. 56(c), in the absence offensive acts. In Languirand v. Hayden, 717 there is troubling language in the of such a demonstration, the party cannot be F.2d 220, 226-227 n.7 (5th Cir.1983), the court majority opinio.p by Justice Scalia, granted summary judgment. See lOA Wright, indicated that one way to demonstrate including the majority's failure to Miller & Kane, Federal Practice and municipal liability was to show notice of clarify how prison litigators will show Procedure: Civil2d §2727. prior misbehavior and afailure to act. that officials have a deliberately For the reasons given below, if plaintiff Finally, in Wellington v. Daniels, 717 F.2d indifferent state of mind, particularly establishes the facts alleged in his affidavits, 932,936 (4th Cir.1983), the court stated that when officials claim that they were he will have established that the defendants afailure to supervise gives rise to §1983 prevented from acting by lack of funds. were deliberately indifferent and that he is liability on the part of a municipality when In an attempt to assist prison litigators entitled to an injunction against the there is a history of widespread abuse, so on some of the issues raised by Wilson, conditions of confinement that violate the that knowledge can be imputed to the we reprint below an edited and abbrevi­ Eighth Amendment. Accordingly, summary supervisory personnel. ated version of the brief that we judgment is inappropriate. Accordingly, the four court of appeals submitted to the district court on B. The Defendants'DeliberateIndifference decisions discussed above and cited by remand in the Wilsoncase. 2 The defendants have an affirmative Justice O'Connor as correctly applying the obligation under the Eighth Amendment to "deliberate indifference" standard set forth a FACTS provide prisoners with the basic necessities consistent test: knowledge of the constitu­ Pearly Wilson is a prisoner at the Hocking of life. See, e.g., DeShaney v. Winnebago tional violations and failure to act. Because Correctional Facility (hereinafter "HCF") at County DSS, 109 S.Ct. 998, 1005-1006 (1989). Justice O'Connor's opinion in City ofCanton Nelsonville, Ohio. The defendants were, at Because the consequences of the failure to argues for a narrower standard of liability

4 FAll 1991 THE NATIONAL PRISON PROJECT JOURNAL than the majority opinion, deliberate nor could they, that they lacked the power Circuit, the Supreme Court vacated the indifference indisputably includes the to make the changes that would have dismissal of plaintiff's claims regarding situations described in these four cases. rendered the facility constitutional. 4 excessive heat, failure to classify so that Nothing in the Supreme Court's opinion Plaintiff's affidavits necessarily created mentally and physically ill prisoners were in Wilson v. Seiter indicates any change in an issue of material fact regarding defen­ mixed in the dormitories, and overcrowding. the standard for demonstrating deliberate dants' deliberate indifference. Moreover, Wilson at 2327. Although the Supreme Court indifference on the part of prison officials. continuing conditions of confinement diff~' expressed no opinion on the Sixth Circuit's For example, in Wilson the Court quoted in fundamental ways from incidents of .,A; discussion of the specific Eighth Amendment with approval from LaFautv. Smith, 834 F.2d police brutality. Police misconduct involver claims, the Court did give some guidance in 389 (4th Cir.1987). In that case, former individual acts, and these individual act~.afe' application of the Eighth Amendment test to Justice Powell, sitting by designation, found generally not continuing in nature. Thu~ the totality of prison conditions: that prison officials had acted with when a municipality ultimately receiv~ Some conditions ofconfinementmay deliberate indifference when defendants notice regarding a continuing practice of establish anEihl!th Amendmentviolation were aware that the plaintiff had inad­ police brutality requiring action, that notice "in combinatifJ/'» when each would notdo so equate toilet facilities, but it was two consists of information about a number of alone, butonly when they have a mutually months before any "significant" attempt to past individual acts; municipal liability cases enforcingeffectthatproduces the depriva­ modify the toilet facilities took place and never involve situations in which tion ofa single, identifiable human need three months before the prisoner was policymakers received actual notice of an suchasfood, warmth, orexercise,jor transferred to a room with adequate incident of police misconduct that was still example, a low cell temperature atnight facilities. in progress. Proof of deliberate indifference combined with afailure to issue blankets. See also Powell v. Lemmon, 914 F.2d 1459 in such circumstances requires that [d. (lIth Cir.1990). In that case, the prisoner policymakers have notice of a pattern of The claims in this case do interact so that plaintiff wrote to the Unit Manager incidents because otherwise policymakers do none of the claims should have been complaining that he was being exposed to not have compelling reasons to assume that dismissed. For example, the claims that the asbestos in his dormitory. The Unit Manager objectionable conduct will recur. In dormitory is overcrowded cannot be stated that the matter fell outside the scope contrast, the conditions of confinement evaluated without considering the claims of of his authority, so the plaintiff sent the challenged in plaintiff's complaint are filth, lack of ventilation, and mixing of letter to the defendant warden, who never intrinsically continuing conditions; the physically ill prisoners into the general responded to the letter. [d. at 1461. The sanitation and the ventilation violations, for population. Certainly the adequacy of the court of appeals reversed dismissal of the example, will not abate until someone takes ventilation is directly related to the degree case, holding that the defendants were not affirmative action to change the conditions. of crowding in the facility. The reasonable­ entitled to qualified immunity for their The conditions challenged by plaintiff are ness of using two fans to supply ventilation deliberate indifference. also obvious conditions. All the defendants for a dormitory turns on the number of In this case, plaintiff's affidavits specifi­ had to do was walk through the institution bodies in the dormitory. Minimally adequate cally contend that defendants had knowl­ for which they are responsible to see the ventilation for 143 prisoners is different edge of the conditions denying the basic problems. Accordingly, the plaintiff's actual from the ventilation necessary for the necessities of life because plaintiff notified notice to the defendants, coupled with the smaller number of prisoners that could be the defendants about the conditions more defendants' failure to act, was more than accommodated were the dormitory not than six weeks before the complaint was enough to establish deliberate indifference double-bunked. Similarly, the overcrowding filed, yet defendants took no action to under the standard endorsed by the Supreme may have caused the lack of sanitation in change the conditions. Court. the dormitory. Sanitation procedures that Accordingly, the defendants had knowl­ Finally, the plaintiff's complaint was filed may have been barely adequate before edge of the facts constituting a denial of the in August 1986. It makes no practical sense, overcrowding may have been overwhelmed basic necessities of life. 3 They also had an for the purposes of injunctive relief, to by the numbers of prisoners. Accordingly, affirmative obligation, as a matter of law, to determine whether or not the defendants the allegations of filth, vermin infestation, supply those necessities. By virtue of their were deliberately indifferent in 1986. At and build-up of urine around the toilets and positions as dJ.rector of the Department and this point, defendants have had five years of urinals may well be related to the greater superintendent of the facility, they had the notice of the conditions of confinement pressure on the sanitation of the facility power to remedy the complaints. For alleged by plaintiff, and failure of the resulting from the increase in population. example, the Superintendent had the power defendants to remedy any of the conditions Thus, the overcrowding has a "mutually to enforce sanitary procedures regarding that the Sixth Circuit characterized as enforcing effect" with the sanitation food services and the toilet facilities, to "suggest[ing] the type of seriously inadequate procedures that in combination may result repair the windows so that they would open and indecent surroundings necessary to in a deprivation of sanitation. Plaintiff also in summer, to install fans sufficient to establish an eighth amendment violation" 5 alleged that prisoners recovering from provide ventilation, to assure that the heat would clearly demonstrate deliberate surgery, including prisoners with open sores, was working and that prisoners had warm indifference. Accordingly, the appropriate were put into the dormitories as a result of a clothing in the winter, and to patch the procedure is for this Court to deny summary shortage of space in the infirmary. Again, holes in the walls. The director of the judgment and to reopen discovery so that the this allegation suggests an interrelation Department necessarily had the power to parties can present their proof as to the between overcrowding and the other claims order prisoners classified by mental illness current realities of the conditions at the HCF. of the plaintiff. and infectious disease status, so that such In addition, the plaintiff alleged that prisoners would not be placed without SUMMARY JUDGMENT SHOULD BE defendants were planning steps that would screening in the dormitories at HCF. In DENIED ON PLAINTIFF'S CLAIMS exacerbate the lack of adequate ventilation, particular, the defendants never suggested, In vacating the judgment of the Sixth (cont'd onpage 12)

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the appeals court called an "intricate fracas," remanded the case ~nly because "[f]actfinding the Albertiand Ruizcourts entered orders is a province of the,ldistrict court." requiring population reductions in the jails, by The Court found the case less clear-cut with means of releases of inmates if necessary. The respect to the county's liability. On one hand, Alberticourt later ordered additional relief, the county was faced with a huge increase in Highlights of including payments by the state to the county the ready-felon population in ashort period of for housing ready-felons. Both state and time. On the other, there also were significant Most Important county appealed from the findings of a problems in the jails' plumbing, ventilation, continuing constitutional violation, reached in fire safety, supplies, food service and medical Cases late 1989, and all the subsequent remedial care, and the jail would have been over­ What difference does Wilson v. Seiter make? orders. crowded even without backed-up ready-felons. "Not much," we suggested in the last issue of Wilson v. Seiter was decided while the In its deliberate indifference analysis, the the JOURNAL. We argued that the Supreme appeal was pending. In supplemental briefs, most striking aspect of the Albertiopinion is Court's adoption of "deliberate indifference" as the state and the county each argued that the its consistent focus on the actual behavior of an element of all Eighth Amendment other, and only the other, had acted with state and county governments when con­ conditions of confinement claims simply deliberate indifference towards the "objec­ fronted with "objectively cruel" conditions. It ratified existing lower court practice. This is tively cruel" conditions in the jails. Since the neither explores the actual state of mind of true both for medical care and inmate assault district court had made no findings concerning any of the defendants nor directs the district cases, in which deliberate indifference has deliberate indifference, the appellate court court to do so. For this court-as for most long been the governing standard, and for remanded so those findings could be made, but courts before Wilson v. Seiter-deliberate other conditions cases, in which the courts not without commenting on the parties' indifference remains as much astate of fact as have in practice required proof of deliberate contentions. Itobserved that Wilson itself, as astate of mind. indifference without invoking that phrase. well as lower court cases on which Wilson Asmaller-scale illustration of this approach Logical enough, but do the courts agree? The relied, support the view that knowledge of appears in Arce v. Miles, 1991 WL 123952 first post- Wilson opinions give divergent objectively cruel conditions can support a (S.D.N.Y.,]une 28, 1991), an unreported answers. finding of deliberate indifference. Here, the magistrate's opinion. The plaintiff alleged that In Albertiv.SheriffofHarrisCounty, Texas, conditions were well known and undisputed. for afour-month period he was subjected to 937 F.2d 984 (5th Cir.1991), the twenty-year The Court also observed that the state had construction noise so injurious that he now effort to ensure constitutional conditions in means to accept the backed-upprisoners requires a hearing aid. The court held that the the jails of Houston, has collided with the "epic without violating the Ruizdecree: building plaintiff's allegation "that prison authorities struggle" of Texas with its prison populations, new prisons, contracting with other suitable supplied ear plugs to guards and workers but and specifically with the order in Ruizv. facilities, or releasing inmates early pursuant not to inmates, if true, would satisfy the Estelle limiting crowding in Texas prisons. The to state statute. Thus, 'deliberate indifference' standard" by backup of "ready-felons"-inmatessentenced [tjhere is no doubt thatthe relevantstate establishing "either actual knowledge, or to state custody hut remaining in local jails­ officialsknew thatreadyjelons were being constructive knowledge as asupervisory threatened to frustrate the jails' substantial backloggeddespite the objectivelycruel official," of the dangerous conditions. progress toward compliance with a1975 conditions in the county'sjails. Yet the state Adifferent approach was taken by the consent judgment and with subsequent orders chose to leave them in thejails. This isstrong Seventh Circuit in Steading v. Thompson, 1991 designed to ensure humane conditions. At one ifnotcompellingevidence ofdeliberate WL 158070, No. 90-2588 (7th Cir., August 19, point, 2,800 to 2,900 prisoners were sleeping on indifference to theplightofthese ready­ 1991), a challenge by an asthmatic prisoner to the floor at night, largely because of the ready­ felons, anditis onlyaccented by the exposure to environmental tobacco smoke. felon backup. alternativesavailable to thestate . Two federal circuits have recently held that In previous proceedings, state officials were The state's argument that it was thwarted by such exposure can violate the Eighth Amend­ joined as third-party defendants, and the Fifth the state legislature's failure to provide ment. McKinneyv. Anderson, 924 F.2d 1500 Circuit directed traffic between the Alberti funding was rejected for lack of factual (9th Cir.1991); Clemmons v. Bohannon, 918 and Ruizcourts by transferring to the Ruiz support; the appeals court thus did not reach F.2d 858 (10th Cir.1990), rehearingand court any request for relief requiring the the question whether such adefense has merit rehearing en bancgranted. The Steading transfer of prisoners into state custody or under Wilson. court stated that these holdings are effectively otherwise intervening in the state prison In short, the Court concluded, afinding of overruled by Wilson v. Seiter's requirement system. In reClements, 881 F.2d 145 (5th Cir. deliberate indifference by the state "would be that a "culpable mental state" be shown to 1989). In subsequent joint proceedings in what virtually unassailable" on this record; it establish "punishment."

6 FAll 1991 THE NATIONAL PRISON PROJEG JOURNAL I This approach establishesahurdleSteading usually factual in nature, involving some on this point. The magistrate should cannotsurmount. Secondary tobacco smoke assessment of the degree of risk posed to the determine the truth of the claim and whether is common in offices, restaurants, andother plaintiff and the defendants' knowledge of the there was any feasible alternative for housing publicplaces throughout the UnitedStates risk (or its obviousness). Here, the factual the plaintiff. I andthe rest ofthe world. No onesupposes inquiry was apparently limited to the appellate To recover damages, the plaintiff must be thatrestaurateurs who allowsmokingare court's judicial notice of contemporary found to have endured "pain, suffering, and/or subjecting theirotherpatrons to "punish restaurant conditions and the Founders' min~' mental anguish sufficiently significant to ment»ordesire to harm them. Theguards set and agricultural practices. ,~~ justify monetary relief," but not "lasting harm." andadministrators who breathesmokyair (849) The court presents this as an extension in theprison are notpunishingthemselves. Other Cases of the "significant injury" requirement it has No one wouldsuppose, either, thatthe imposed in use of force cases which is now gentlemen tobaccofarmers who wroteand Worth Noting before the U.S. Supreme Court in Hudson v. adopted the eighth amendmentcouldhave McMillian, #90"!P.531 (argument scheduled for conceivedofsmokeaspunishment .... U.S. SUPREME COURT November 13, 19M. The trouble with this construction of Wilson ··;''1l is that it has little to do with what Wilson Attorneys' Fees and Costs Protectiorihom Inmate Assault actually said, expressing instead the Court's West Virginia University Hospitals, Inc. v. Moore v. Winebrenner, 927 F.2d 1312 (4th Cir. own idiosyncratic view of what constitutes Casey, 439 U.S. --'111 S.Ct.1138, 113 L.Ed.2d 68 1991). Inmate assault cases are governed by a punishment. The Wilson Court stated that in (1991). Expert witnesses appearing at trial are deliberate indifference standard and not a prison conditions cases, the punishment compensated at $30 aday under 28 U.S.C. negligence standard, and the two standards are inquiry is to be guided by "the 'deliberate §§1821(b) and 1920. Nontestimonial expert not the same thing. The question is whether indifference' standard articulated in Estelle." services are not compensable at all under these the warden acted "obdurately or wantonly." In 111 S.Ct. at 2327. Insofar as Wilson defines statutes. Neither testimonial nor nontesti­ making the last statement, the court quotes deliberate indifference, it relies on the large monial services are compensable under 42 Whitley v. Albers but ignores Whitlejs holding body of lower court interpretation of Estelle. U.S.c. §1988. that, in effect, deliberate indifference can These cases generally hold that deliberate constitute obdurate and wanton conduct. indifference "encompasses acts oromissions so Cruel and Unusual Punishment (This point was reaffirmed in Wilson v. dangerous (in respect to health and safety) Harmelin v. Michigan, 501 U.S --'111 S.Ct. Seiter.) The court also states incorrectly that that a defendant's knowledge of [a large]...risk 2680,115 L.Ed.2d 836 (1991). Astatutorily Whitley rejected the contention that its can be inferred." Cortes-Quinones v.jiminez­ mandated sentence of life without possibility holding is limited to the prison riot context. Nettleship, 842 F.2d 556, 558 (lst Cir.1988), cited of parole, with no consideration of mitigating Assuming that there was a pervasive risk of in Wilson v. Seiter, 111 S.Ct. at 2327 (internal circumstances of the crime or the criminal, did assault, the warden could not be held liable quotation marks omitted, emphasis supplied); not violate the Eighth Amendment. There is where he "embarked on a persistent campaign accord, Canton v. Harris, 489 u.s. 378, 389-90 no majority opinion. Justices Rehnquist and to rectify the situation" (l316) and "did the best (l989) ("the need for more or different Scalia conclude that "the Eighth Amendment he could under aregrettable set of circum­ training [maybe] so obvious, and the inad­ contains no proportionality guarantee" and stances and considerable handicap" (1317). His equacy so likely to result in the violation of that the 1983 case of Solem v. Helms should be campaign of renovations and staffing constitutional rights, that the policymakers of overruled. enhancements was begun before the plaintiff the city can reasonably be said to have been was assaulted but was not completed until deliberately indifferent to the need"). U.S. COURT OF APPEALS afterwards. The factors cited in Steadinghave little relationship to the deliberate indifference Administrative Segregation/ Use of Force standard as developed in the federal courts. Financial Resources/Cruel and Davis v. Mason County, 927 F.2d 1473 (9th Cir. The prevalence of second-hand smoke outside Unusual Punishment 1991). Damages were properly awarded against prison certainly has little relevance. After all, McCord v. Maggio, 927 F.2d 844 (5th Cir. the county for misuse of force by sheriff's assaults and bad medical care are also 1991). In this pre- Wilson v.Seiter decision, the deputies where lack of training amounting to prevalent in some places outside prison; that plaintiff spent months in a "Closed-Cell deliberate indifference was shown and the fact does not undermine Estelle v. Gamble and Restriction" cell that was flooded with sewage Sheriff was the policymaker with respect to Cortes-Quinonesv.jiminez-NettleshijJ . and foul water with a bare mattress to sleep use of force training. Similarly, the generations of builders who on. These conditions violated the Eighth Remedial measures by the municipality did insulated prisons and other buildings with Amendment. "[L]ack of funds is not a not bar punitive damages against the indi­ asbestos had no intention to inflict punish­ sufficient justification for neglect of a vidual defendants. Punitive damages may be ment; that hardly absolves present-day prison citizen's constitutional rights." (847) The awarded despite the absence of compensatory officials who knowingly fail to abate a possibility that inmate vandalism was a damages. hazardous asbestos condition. Powell v. partial cause of sewage backup was not Lennon, 914 F.2d 1459, 1463 (11th Cir.1990) dispositive of the plaintiff's claim. Contempt/Consent Decrees/Mental (exposure of prisoners to asbestos constituted The conditions of the plaintiff's confine­ Health Care deliberate indifference). ment constituted a "clear violation of the Langton v.Johnson, 928 F.2d 1206 (lst Cir. Itis particularly striking that Steadingwas Eighth Amendment" and the defendants are 1991). Inmates of a hospital for "sexually dismissed, and the dismissal affirmed, on the not entitled to qualified immunity unless they dangerous persons" alleged constitutional pleadings. Despite the appeals court's can show some "extraordinary circumstances." violations and contempt of aprior consent statement that Wilson "establishes ahurdle (848) This standard may be met if budgetary judgment. Steading cannotsurmount" (emphasis constraints prevent constitutional compliance, The district court properly refused to supplied), the deliberate indifference inquiry is though the defense carries a "difficult burden" consider the constitutional claims because the

THE NATIONAL PRISON PROJEG JOURNAL FALL 1991 7 consent judgment set astandard for treatment Use of Force-Beating Protection from Inmate Assault higher than constitutional requirements. "[I]f a Hudson v. McMillian, 929 F.2d 1015 (5th Cir. Andrews v. Siegel, 929 F2d 1326 (8th Cir. court can resolve adispute without confront­ 1991). Force that was unreasonable, malicious 1991). The plaintiff and another inmate had ing an unsettled constitutional issue, it should and sadistic did not violate the Eighth an argument at work and were separated by proceed in that fashion." (1217) Amendment in the absence of "significant other prisoners; the incident was witnessed by The district court properly exonerated the injury." The plaintiff alleged that his lip was staff. The next day the other inmate stabbed defendants of contempt even though it appears split, his dental plate was cracked, and he was the plaintiff. that they were not in compliance with all its bruised, but the court does not consider this To prevail in an inmate assault case, the requirements. Perfection is not required; significant. plaintiff "must show that he was faced with a "progress, after all, should not be reduced to a The Supreme Court has granted certiorariin. 'pervasive risk of harm' and that the prison mere numbers game." (1220) The decree is this case. (Note: In April 1991, the Court . officials failed to respond reasonably to that "susceptible to satisfaction by diligent, good appointed Alvin]. Bronstein of the National ';' risk." Although the court uses the phrase faith effort, culminating in substantial Prison Project to represent petitioner. "pervasive risk," m~t often found in cases compliance." (1220) The district court Argument is scheduled for November 13, 1991. alleging a generali~d lack of safety rather properly concluded that "in light of the See Highlights, p. 20.) than arisk from-3:~specific inmate, the court defendants' notable progress, there was analyzes the specific risks posed by the substantial compliance with the overall Food/Qualified Immunity assailant in the usual fashion of individual­ mandate of the consent decrees, and hence, no Cooper v. Sheriff, Lubbock County, Texas, 929 threat cases, concluding that neither asingle contempt...." F.2d 1078 (5th Cir.1991). The plaintiff's prior argument nor the assailant's history of In private law litigation, appellate courts allegation that he was denied food for 12 mental illness was sufficient to place have "greater freedom" in reviewing the consecutive days should not have been defendants on notice of the danger of assault. interpretation of consent decrees than in dismissed as frivolous. The officials responded public law litigation, where "the district court's that they had arule that an inmate who Medical Care-Denial of Ordered Carel construction of a consent decree should be refuses to "fully dress" for ameal "voluntarily Qualified Immunity accorded considerable deference, because rejects" the meal, but the plaintiff denied this, Boretti v. Wiscomb, 930 F.2d 1150 (6th Cir. broad leeway is often necessary to secure there was no copy of the regulation in the 1991). The plaintiff was returned to prison complicated, sometimes conflicting, policy record, and in any case the existence of such a after surgery for agunshot wound with orders objectives." (1220-21) The court goes on at regulation "is not an automatic shield against a for daily dressing changes and Motrin. He was some length about the trial judge's "pivotal role civil rights suit." Itis "questionable" whether then transferred to a local jail, where he was in the conduct of public law litigation." meals are a "privilege" that can be taken by placed in aholding cell with no beds for five regulation. (1083) days and received no dressing changes or Use of Force/Qualified Immunity "Because depriVing aprisoner of adequate medication. He stated that he repeatedly asked Streetv. Parham ,929 F.2d 537 (10th Cir. food is aform of corporal punishment," the the nurses for help and they refused to call the 1991). Where the jury found that the force Eighth Amendment imposes limits on it. Due doctor or provide any treatment. used by police officers was unreasonable, there process also forbids deprivation of food Defendants were not entitled to summary was no basis for finding the officers entitled to without due process. judgment. "[I]nterruption of aprescribed plan qualified immunity. At 540: "No officer could The plaintiff's allegation that the defen­ of treatment" is one of the forms of deliberate reasonably believe that the use of unreason­ dants acted outside their authority because the indifference identified in Estelle. able force did not violate clearly established regulation did not permit their actions was The defendant is not entitled to summary law....This is one of the rare instances where sufficient to overcome qualified immunity at judgment based on qualified immunity because the determination of liability and the the pleading stage. The right to "reasonably this defense is available only to persons availability of qualified immunity depend on adequate food" has long been established. exercising "discretionary functions." "Comply­ the same findings." ing with adoctor's prescription or treatment Searches-Person-Visitors/Procedural plan is aministerial function, not adiscretion­ Medical Care-Denial of Ordered Due Process-Visiting/ ary one." (1156) Care/Qualified Immunity Qualified Immunity Kaminskyv.Rosenblum, 929 F.2d 922 (2d Cir. Long v. Norris, 929 F.2d 1111 (6th Cir.1991). In Contempt/Consent Decrees/Judicial 1991). Defendantswere not entitled to the mid-1980s, it was not clearly established Disengagement/Searches-living summary judgment on qualified immunity that visitors had the right to be free from strip Quarters grounds in aprison medical care case in which and body cavity searches without probable Kendrick v. Bland, 931 F.2d 421 (6th Cir. there were disputed factual issues that would cause, but it was clearly established that they 1991). Astatewide prison conditions case was "seriously undermine their argument that it had the right to be free of such searches resolved by consent decree and was placed on was objectively reasonable for them to believe without reasonable suspicion. the inactive docket after afinding of their acts lawful" ifdecided in plaintiff's Prison regulations stating that prisoners substantial compliance. The district court favor. The disputed allegations were whether "shall" have visitation rights "limited only by ruled that it would take "major violations of there was afive-day delay in acting on a the institution's space and personnel resources" the consent decree" to reinstate it. recommendation for immediate hospitaliza­ and that they may be suspended only with Several class members later moved for tion, whether the Superintendent and the "good cause" created alibertyinterest contempt. The court held that "major medical administrator knew of the prisoner's protected by due process. Threats to remove it violations" meant "institution-wide violations." deteriorating medical condition during an in retaliation for refusing an illegal search, unexplained three-month gap in his medical without procedural protections, violated Medical Care-Standards of Liability­ treatment, and whether they were aware of clearly established rights. Deliberate Indifference/Summary previous allegedly inadequate medical care. Judgment Hughes v.JolietCorrectionalCenter, 931 F.2d

8 FAll 1991 THE NATIONAL PRISON PROJEO JOURNAL 425 (7th Cir.1991). The plaintiff arrived in law.... The third, although ultimatelya legal constitute probable cause to read the letter as a prison with a spinal injury; he complained for question, mayrequiresomefactual matter of law, and the issue was properly six weeks about weakness in his legs and pain determinationsas well. (Citations and submitted to the jury. in his back before he saw a neurologist, by footnote omitted.] which time he was paraplegic. Ifthe analysis reaches the third stage, the Prison Records/Procedural Due Ifthe defendants "were merely careless in court may permit limited discovery concerning Process their diagnosis and treatment...-being honestly the reasonableness of the conduct. 11' Monroe v. Thigpen, 932 F.2d 1437 (lIth Cir. convinced that he was a malingerer," the _if", 1991). Due process is denied by denial of parole plaintiff should be pursuing amalpractice Procedural Due Process-Disciplina~¥'''''' relying on admittedly false information even action. Ifthey were "trying to cripple" him, Proceedings,.' if the parole statute does not create a liberty the Eighth Amendment would be violated. An Taylorv. Wallace, 931 F.2d 698 (10th Cir/;. interest in obtaining release. Eighth Amendment claim was also stated by 1991). The failure of ahearing committee!~ the "less egregious" misconduct alleged by the make an independent determination of thlt plaintiff: that the defendants reliability of confidential informant testimony DISTRICT COclRTS '" ~~~' were treatingHughes notas apatien~ butas (on "[a]ny reasonable basis") denies due anuisance; ... thatalthough theydoubtless process. At 702: "Without sufficient indicia of Attorneys' Fees/Contempt underestimatedtheseverityofhis injuries, reliability, the testimony of the confidential Morales Feliciano v. Hernandez Colon, 757 atthesame time they were insufficiently informants can be given no weight, and the F.Supp.139 (D.P.R.1991). Private attorneys interested in hishealth to take even requirements of due process as set forth in pursuing systemwide litigation over prison minimumsteps toguardagainstthe [Superintendent v. ]Hillare not satisfied." conditions without institutional support were possibilitythatthe injury wassevere. Such entitled to monthly fee payments from wordsanddeedsas tellingHughes he was Procedural Due Process-Disciplinary contempt fines paid into court for violations of fullofbullshi~shiftinghim to the Proceedings population orders. The court notes in the psychiatric ward where he would notbe Campbell v. Henman, 931 F.2d 1212 (7th Cir. course of the opinion that the fees can be paid allowed to havehiscrutchesandleg brace, 1991). The court reaffirms the holding of from the intereston the accumulated fines andordering the bed movedawayfrom the Chavis v. Rowe (7th Cir.1981) that Brady v. (over $30 million dollars) and that it does not toiletso thatHughes wouldhave togetup Maryland, requiring the disclosure of material intend to give the money back to the defen­ andwalk to it...suggestmore than mere exculpatory evidence, applies to prison dants in any case. The court also notes that the neglectsuggesthostility, brutality, even disciplinary proceedings. The disclosure "may defendants have fought all prior fees motions . viciousness. be limited to its substance in situations where "tooth and nail" and delayed payment until the Medical records showing that the plaintiff disclosure of the entire report could create last possible moment. received "more or less continuous medical security problems." (1214) Afinding that attention, of sorts" and that the defendants information provided by confidential Medical Records/Use of Force/Use of genuinely thought he was malingering "greatly informants is reliable does not end the Force-Restraints/Protection from undermine an inference of deliberate analysis; even if there is sufficient evidence to Inmate Assault indifference." The records were the only support the conviction, the question whether Jackson v. FortStanton Hospitaland evidence submitted on summary judgment. there was exculpatory evidence must be TrainingSchool, 757 F.Supp.1243 (D.N.M.1990). However, the district judge, whose policy was answered. At 1306: Medical care at schools for the not to appoint counsel unless an evidentiary developmentally disabled is found not hearing was scheduled, gave insufficient Work Assignments "minimally adequate" because of "significant thought to appointing counsel to help prepare Gilbreath v. CutterBiologica4 Inc. ,931 F.2d lapses" in medical records. They an affidavit to get the complainant's allega­ 1320 (9th Cir.1991). The Fair Labor Standards demonstrate an incomplete medical tions into the summary judgment record. Act is an exception to the Eleventh Amend­ analysisandunderstandingofthe ment and any claim for back wages against the residents. The records lack broaddescrip­ Qualified Immunity state was therefore not barred by that tions Ofa resident's clinicalstatus. Instead, Romero v. Kitsap County, 931 F.2d 624 (9th Amendment. the records contain repetitive listings which Cir.1991). At 627: Prisoners who worked for a private reflectalack Ofindividualizedanalysis. The plaintiffbears the burden of proof that company at alab site inside the prison were These matters mayaffecta resident's health the right allegedly violated was clearly not "employees" entitled to the minimum wage andlong-range outlook. They maylead to established at the time of the alleged under the Fair Labor Standards Act. One judge the loss ofnecessary interventions. misconduct....If plaintiff carries this burden, thinks that prisoners are perse not covered by The institutions also fail to provide then the officers must prove that their the Act. He goes on to write, and the concur­ reasonable safety from physical abuse and conduct was reasonable even though it might ring judge agrees, that these prisoners do not accidents. The court cites "unexplained" acts have violated constitutional standards. meet the "economic realities" test because of violence and the failure to terminate astaff The qualifiedimmunitytestnecessitates neither the prison nor the company was an member who repeatedly kicked aresident. three inquiries:(J) the identification ofthe "employer" within the statutory definition. With respect to accidents, "the evidence specific rightallegedly violated; (2)the showed that there are anumber of injuries determination ofwhether thatright wasso Correspondence-Legal and occurring repeatedly with no attempted "clearly established»as to alerta reasonable Confidential pattern analysis and no intervention...to make officerto itsconstitutionalparameters;and Lemon v. Dugger, 931 F.2d 1465 (11th Cir. changes...to prevent further accidents or (3) the ultimatedetermination Ofwhethera 1991). An officer opened and read a letter from injuries." reasonable officercouldhave believed the plaintiff's attorney. Ajury found for the At two of the institutions, physical restraints lawfultheparticularconductatissue.... The plaintiff. The fact that the letter contained a are used to constitutional excess because of first two inquiries... presentpure issuesOf photograph, arguably contraband, did not insufficient staffing.

THE NATIONAL PRISON PROJEG JOURNAL FALL 1991 9 Medical Care/Pendent Claims; State Rights of Staff/Color of Law condonation, oreven acquiescence, ~ .. all Law in Federal Courts Corrente v. State ofRhode/sland, Dept. of have been basesforfindingsupervisors Rosen v. Chang, 758 F.Supp. 799 (D.R.I.1991)' Corrections, 759 F.Supp. 73 (D.R.I.1990. Several liable undersection1983. The prisoner's estate alleged that his repeated officers alleged that they reported other complaints of abdominal pain were treated officers' misuse of force and were subjected to Personal Property with Metamucil while in reality he was dying harassment and threats. Muhammad v. Moore, 760 F.Supp. 86 9 (D. of acute appendicitis. Those allegations, Allegations that these threats were Kan.1991). The plaintiff, afederal prisoner, combined with the phrases "deliberate "reported" to the Governor were insufficient to refused to cooperate with the Inmate Financial indifference" and "so outrageously indifferent show that he actually "knew" of the harass­ Responsibility Program and was consequently as to amount to wanton recklessness," stated a ment. More specific allegations that the limited to maintenance pay of $5 amonth. constitutional claim. Director of Corrections knew of the harass­ "The IFRP clearly serves valid penologica I in­ The court entertains supplemental (formerly ment but failed to investigate or take ... terests of rehabilitation, and the requirement pendent) jurisdiction over a negligence claim disciplinary action stated aclaim under §1983: that an inmate cho"ebetween participation under the state wrongful death statute. Any The Federal Rules of Civil Procedure in the program or ~isk significant reduction in possibility of jury confusion based on different authorize suit against the unincorporated his employment oilncome potential does not legal standards is outweighed by the economies officers' association for violation of federal violate constitutional rights." (871) The of trying both claims in one suit. rights despite state law that did not permit statute that permits discharge of court-ordered such suit. Allegations that the association obligations where aprisoner is incarcerated Medical Care-Standards of Liability­ defendants "acted together with or obtained solely because of inability to pay had no Deliberate Indifference significant aid from state officials," e.g., by the application. The fact that the plaintiff' s fam­ Brown v. Coughlin, 758 F.Supp. 876 (S.D.N.Y. latter's tolerating the association defendants' ily had had to provide funds for his personal 1991). The plaintiff came to the city jail system conduct, sufficiently alleged action under color use did not state aconstitutional claim. with a broken leg, was eventually transferred of state law. to state prison, and had his leg amputated as a Publications result of an infection that was allegedly not Damages/Pendent Claims/Indemnifi­ Beckford-El v. Toombs, 760 F.Supp.1267 properly treated. cation (W.D.Mich.1991)' Another inmate sent the The municipal defendants, including the Hankins v. Finnel, 759 F.Supp. 569 (W.D.Mo. plaintiff abrochure from acorrespondence City, were not entitled to summary judgment 1991). The plaintiff won a judgment of $3,000 school; prison officials refused to deliver it, on the merits, given evidence of in punitive damages in a§1983 case alleging citing a rule prohibiting inmates from entering repeatedinstancesofdenied treatmen~ sexual harassment by a prison employee. The into certain contractual arrangements. excessivelydelayed care, substantialdelays State moved in state court to enforce th e The brochure "is presumptively within the infollow-up appointmentsanddiagnostic Missouri Incarceration Reimbursement Act, First Amendment's protection" since it is "not testing, incorrectmedications, improperor which authorizes forfeiture of 90% of a pornographic or obscene, does not contain inadequate treatmen~failure to transfer prisoner's assets. The prisoner moved i n federal escape plans, incitement to violence, or any necessary medical records ina timely court to stay the state proceedings and enforce other matter obviously inimical to prison order fashion, noncompliance with medical the judgment. or safety." Since the sender did not solicit the orders, andfailure toprioritize[the The federal court has authority to enforce plaintiff's enrollment and there was no plaintiff's}statusforplacementina larger its judgment through the mechanisms of state application form in the brochure, the use of tertiarycarefacility upon learningofthe law and has jurisdiction over the State of the contract rule "is a farfetched interpreta­ festering infection. This adequately Missouri because the State agreed to pay the tion of the rule and is wholly arbitrary." (1271) indicatesorconstitutesasystemicfailure to judgment that it is now trying to have "No possible penological justification exists for follow minimumprofessionalstandards in forfeited. The State also waived its Eleventh confiscating an educational brochure under the delivery ofcare .(882) Amendment immunity by agreeing to the pretext that its mere receipt constitutes a The pendent malpractice claim against the indemnify the individual defendants. forbidden contractual relationship." (1272) state defendants individually is barred by The Missouri statute is pre-empted under the Correction Law §24, which prohibits personal Supremacy Clause insofar as it applies to a Protection from Inmate Assault/Use suits against correctional employees. However, damage award under §1983 because it conflicts of Force the claim can be pursued against .the defen­ with the deterrent purpose of such damages. Williams v. Blackburn, 761 F.Supp. 24 dants in their official capacities. (M.D.La.1991)' The plaintiff alleged that he Evidence of "elemental and systemic" Personal Involvement and Supervi­ was twice attacked with scalding water by deficiencies in delivery "or lack thereof" of sory Liability/Use of Force another inmate and later beaten by an officer, medical care support the inference that the Martinez Correa v. LopezFeliciano, 759 resulting in blisters and bruises, respectively. Commissioner and the Superintendent of F.Supp. 947 (D.P.R.1991). The court grants The Eighth Amendment was not violated Downstate "could be charged with knowledge summary judgment as to some supervisors but because there was no "significant injury" in of the unconstitutional conditions." (889) not others in a police shooting case. At 954: either case. At 26: Their claim that they relied on medical Failure ofthe supervisor to take remedial The courtfeels compelled to note, however, personnel's judgment is unavailing. "Each action againstan individualofficerafter thatthe "significantinjury"standard...seems defendant must be held to astandard of rea­ numerous complaints;employmentby the destined to encourage venalprisonguards sonable judgment for someone within the supervisorofawholly inadequateand in theirdeliberate use offorce upon range of professional competence in his or her impotentdisciplinarysystem thatpermitted inmates. [By thisstandard}the courts in particular official position." (889) Th e Com­ officers to continue to violate citizens'rights; effectpronouncean "open season"upon missioner and Superintendent had personal ...anddemonstration ofapattern of inmates which is likely to encourage duties to ensure adequate delivery of medical violations "so strikingas to allowan unrestrainedcorrectionalofficer use Of services. inference ofsupervisoryencouragemen~ force andviolence inpenalinstitutions .

10 FALL 1991 THE NATIONAL PRISON PROJECT JOURNAL Pre-Trial Detainees/Crowding/Class with case reporters available through inter­ his preliminary injunction motion providing Actions-Settlement/Remedies/ library loan. The court characterizes this as that he would be medically evaluated by Release of Inmates a "reasonable accommodation," with no outside physicians and that if they found Harris v. Reeves, 761 F.Supp. 382 (E.D.Pa.1991)' reference to any evidentiary proceedings or he required hospitalization, they would Anew consent judgment in the Philadelphia further inquiry on the question, and declares hospitalize him and not remove him until he jail conditions case obligates the city to the case moot, noting that the plaintiff is no was discharged by the hospital staff or by develop ten-year population projections; longer incarcerated at the hospital. .' court order. develop a"population management plan" consistent with the projections; promulgate Pre-Trial Detainees/Injunctive Relief­ "Physical and Operational Standards for Preliminary FEDERAL RULES existing and any new prison facility that Youngv. Battis, 762 F.Supp. 823 (S.D.Ind. comply with constitutional and correctional 1990). At 827: "In cases such as this, claims Transfers/Discovery industry standards," and comply with them; that jail conditions are so poor that they are Green v. District0!f0lumbia ,134 F.R.D.1 and implement aCapital Projects Management constitutionally violative, money damages ate (D.D.C.1991). The pl!lY1tiffs challenged Plan, an Operational Management Plan, and a inadequate." However, the plaintiffs are conditions of confin'ement of District of Management Information Service Plan. A denied apreliminary injunction on the merits. Columbia prisoner~ transferred to Criminal]ustice Project Coordinator is to be The court cautions that this ruling is not institutions outside the District in which appointed to supervise this process. dispositive of the outcome of the trial on the District prisoners are held by contract (e.g., the The plan also provides short-term relief, merits. Zavala County, Texas Detention Center). requiring the City to provide at least 250 Medical Care (830-31): Medical care was not After the defendants' blatant failure to alcohol and substance abuse beds and to constitutionally inadequate. Aphysician was comply with discovery requests over a submit to the Special Master the names of 35 on call within walking distance, anurse visited period of months, the court imposes sanctions pre-trial detainees for early release per day, the jail three times a week, a county nurse including ordering that the facts as asserted five days per week, whenever the overall located across the street was available during in plaintiffs' complaint be held as true. population cap is exceeded. The District business hours, and emergency cases were Attorney will get notice and have 72 hours to transported to a local hospital. Asingle John Boston is the director ofthe object in writing and to propose someone else incident of apparent inadequate treatment did Prisoners'RightsProject LegalAidSociety to be released. not establish a pattern supporting relief. ofNew York. He regularly contributes this ASpecial Master is to be appointed to Crowding, Classification, Financial column to theNPPJOURNAL. monitor compliance with these provisions and Resources(831-32): The plaintiffs did not show provide quarterly plan compliance reports. irreparable harm even though there was Afine of $100 a day is imposed for each evidence of prisoners sleeping on mattresses on inmate admitted in violation of the population the floor and failure to segregate local limits or not released pursuant to the early prisoners from state prisoners. "Further, the release provisions defendants would bear great expense and difficulty if required to change these conditions." Medical Care-Standards of Liability­ Ventilation (832): The ventilation is poor Deliberate Indifference and the plaintiffs likely to succeed at trial, but Lynsky v. City ofBoston, 761 F.Supp. 858 there is insufficient evidence of irreparable (D.Mass.1990). Ajail doctor who failed to harm to support apreliminary injunction. order additional diagnostic tests for heart ExerciseandRecreation (833): The prisoners disease based on EKG abnormalities, but who get outdoor recreation four times a year treated the patient continuously for his other because of lack of staff; there is no exercise complaints, was not deliberately indifferent. equipment; exercise is limited to calisthenics in "Where aprisoner has received some medical the day room. These facts did not establish attention and the dispute is over the adequacy irreparable harm. of the treatment, federal courts are generally reluctant to secon

Law Libraries and Law Books/ Mootness/Mental Health Treatment Murray v. Didario, 762 F.Supp.109 (E.D.Pa. 1991). Prisoners held in mental hospitals have a right of access to courts as set out in Bounds v. Smith. When the court threatened to appoint counsel for the pro se plaintiff, the defendants agreed voluntarily to establish a law library consisting of constitutions, statutes, and evidence and criminal treatises,

THE NATIONAL PRISON PROJECT JOURNAL FALL 1991 11

j (cont'djrompage5) judgment on the claim of mixing psychotic and 1 John Boston, "Highlights of Most Important Cases," including further increases in population general population prisoners in the dormitory. NPPJOURNAL, pp. 6-8 (Summer 1991). and the installation of cubicle divisions in Plaintiff alleged that this lack of classification 2 The Supreme Court remanded the case to the Sixth Circuit. That court, in turn, remanded the case to the the dormitory. These changes, ifthey caused stress because other prisoners could not federal district court on July 29, 1991. occurred, would also be relevant in judging predict the behavior of the mentally ill 3 Because plaintiffs affidavits specifically aver that the constitutionality of the resulting prisoners. Afear of psychotic prisoners is not defendants had actual notice of the conditions, there conditions. an unreasonable fear, and this Court should is no need to infer notice on the part of the Similarly, the claims of excessive heat allow an evidentiary inquiry into whether defendants. cannot be viewed in isolation from the other psychotic, dangerous prisoners are actually 4 As the Supreme Court noted, the defendants never attempted to raise afunding defense in this case. claims raised by plaintiff. The degree of mixed into the general population as aresult Wilson at 2326. Nor would a funding defense make potential harm from air that is 95' Fahrenheit of overcrowding, creating an unreasonably \~,,: any sense in a case in which the allegations included depends on the relative humidity of the air, dangerous situation. a failure to attend to basic sanitation and safety. the presence or absence of ventilation, the For the above stated reasons, the Court 5 Wilson v. Seiter, 893 F.ld 861, 865 (6th Cir.1990), general health of the persons exposed to this should deny summary judgment on all issues vac. and remanded,111~'Ct. 2321 (1991). ,;.' condition, and the duration of exposure. In and reopen discovery so that the parties can this case, the plaintiff alleged that the air was present evidence as to current conditions of Elizabeth Alexander is the NPP's damp because of nonfunctioning windows. confinement at the BCF. • associate directorfor litigation. This Court should also deny summary

Potential Environmental Problems Prisoners Need Protection From in Prisons .Indoor pollution; Environmental Hazards ,Groundwater contamination; ,Pesticide use on prison farms; ,Exposure to and removal of asbestos; ,Faulty or non-existent evacuation plans • Prisoners andstaffattheStatePrison hazardous industries. Itis only ashort jump, in case of an accident during transportation inJackson, Michigan have been exposed to then, to make the connection between of hazardous wastes, atoxic spill, or afire; AgentOrangeandDDT, stored illegally by prisons and environmental hazards. Most of ,Lack of protection of workers in prison prison officials. society thinks of prisoners asgarbage, so why industries. • In an Arizonaprison, asign in the should they not go hand in hand with other Here is a"snapshot" look at some of the visiting room warnsfriendsandfamilies "hazardous waste": the prison and the toxic problems uncovered in researching this issue: ofprisoners, '1jyou arepregnantorof waste dump, the prison and the landfill. 1) Adamage case, brought by prisoners at childbearingage, do notdrink the water." Itbegins to make sense. What else do we the Marion Federal Penitentiary in Illinois, • OccupationalSafetyandHealth want to ignore, put out of sight and out of is pending against the Environmental standards, which exist to ensure the safety mind, as much as these two? As stateand Protection Agency, officials of ofall workers in the u.s., exemptstateand localgovernments search out sites for new the Bureau of Prisons and federalprisons. In addition, manystate prisons, their profit-seeking counterpartsin the Marion Peniten­ prisonsare exemptfrom state employee the toxic waste industry are doing exactly tiary. Thewater right-to-know laws, soprisonersare the same thing: Where do we dump it?, they supplied to unable even to determine whathazards both ask. the theymaYface. All this wreckage, both environmentaland human, must, of course, eventually return to ll of us, including prisoners, face the us. Do we treat it responsibly, or do we environmental consequences of our ignore it, poison it, and leave it to rot? Aculture's predominantindustrial. age Ifwe don't "recycle" responsi- values -culturalvalues.. that pnze consump- bly, it may come back to us tion, competitionand conquest. even more toxic than In the race toward acquisition, our it was before. materialism andgreed have nearly ruined the earth and have brought about agross disparity ofwealth, opportunity and basic human rights. The losers in the race are rounded up and herded into overcrowded prisons. Our national criminal justice policies are too bankrupt to address the real issues of poverty and racism.

Making the Connection: Prisons and the Environment Research has shown that communities of color are most often targets for toxic dumping and for placementof many

12 FAll 1991 l

staff and prisoners at Marion comes from communities, local citizens were con­ however, persuaded the federal officials Crab Orchard Lake. The lake lies next to a cerned about evacuation in case of an to drop $33,000 of the fines. 7 chemical waste dump and was designated accident either at the incinerator itself 8) In 1985, Buckingham Security Ltd., aSuperfund site in 1984 by the EPA as one or aspill during the transportation of aprivate corrections firm, tried to build a of the nation's worst toxic hot spots. hazardous waste to or from the private prison on atoxic waste site in There is currently astay of discovery in incinerator.3 Pennsylvania which they had purchased the case, pending a judge's ruling. 1 4) Itwas also discovered that Butner­ for one dollar. They later tried to sell the 2) The Georgia Department of Correc­ the town, not the prison-is the site of a property for $790,000, without cleaning tions succeeded in obtaining an exemption "cancer cluster." The rate of non-;?· it up.s from the state Employee Hazardous Hodgkin's lymphoma, atype of cancer, W.' > 9) At the Arizona State Prison in Chemical Right-to-Know Law of 1988. The the Butner area is 50% higher than in the Florence, asign in the visiting room warns law protects state employees by requiring rest of the state. Studies have linked ,1; visitors, "Ifyou are pregnant or of child­ that they be notified if they are working herbicides such as Agent Orange to this' bearing age, do I\ot drink the water." Staff with hazardous chemicals. In addition, it type of cancer. 4 The ground upon which bring bottled ;w,.~ter to drink. 9 requires that they receive proper training the prison now sits was defoliated at one 10) The Florlqa Environmental Regula­ in the safe usage of such chemicals and point, although reports differ over exactly tion Commission has approved a200-acre that they be given proper equipment. when that occurred. Some say that Camp site for ahazardous waste facility in Prisoners in Georgia manufacture all the Butner was defoliated with herbicides for Raiford, near the Florida State Prison and solvents and cleaning products used by experimental purposes during WorId War two other prisons. Any accident either at the state, many of which are considered II. Meanwhile, the editor of the local or en route to the facility would require highly toxic. 2 newspaper told the NPPJOURNAL that the evacuation of thousands of prisoners. 3) In Butner, North Carolina, acitizen's 400 acres were defoliated much more When prison officials expressed concern group succeeded this year in stopping recently in order to build the prison. over lack of evacuation procedures, they construction of ahazardous waste 5) In 1989 afire broke out at the were told by state officials that no plan treatment facility near its communities. hazardous waste incinerator in Rock Hill, would be needed. 10 Thermal-KEM, afor-profit company, South Carolina. The incinerator was run More general areas of interest to wanted to build afive-state incinerator by Thermal-KEM, the same company that environmental justice advocates are: designed to burn 50,000 tons of hazardous tried to open the five-state incinerator in 1) Former military basesset to be used chemical waste per year. Butner. Rock Hill is also the site of a forprisons. President Bush has signed The incinerator would have affected an prison. In addition to the fire, state and legislation authorizing the turnover of additional 3,000 people, either housed in federal officials cited numerous explo­ some former military bases and buildings or employed by ten state institutions sions and excessive arsenic emission levels for use as minimum security correctional located within three to ten miles of the among the violations. The company had facilities. Ships, airplanes, tanks and incinerator site. The facilities include long ignored warnings about these maintenance yards generate avariety of homes for the retarded, juvenile problems.5 solid and liquid paints, solvents, petroleum institutions, minimum security 6) The EPA recently fined the State of products, propellants, explosives, obsolete prisons and others, plus the Florida $100,000 for pollution violations at chemical weapons, and radioactive wastes. Federal Correctional the Florida State Prison near Starke. 2) Prisonfarms and the use ofpesti­ Institution. Besides Violations involved operation of the cides. Pesticides are commonly used by concern for the prison sewage plant. 6 prison farms which grow their own food surround­ 7) The Michigan State Prison in]ackson and raise livestock for prison consump­ ing houses the state's largest assortment of tion. Some prison farms, such as Angola, toxic messes. Alocal newspaper's Louisiana, and Parchman, Mississippi investigative report uncovered violations imprison many long-termers whose which included illegal storage of DDT exposure over the years to these chemicals and Agent Orange. The prison in their air, water and food is great. In was fined $160,000 by addition to the risk from breathing federal officials. The pesticides, prisoners may risk health State Attorney hazards from eating the fish, livestock General's and produce which have been subjected to office, herbicides. Overexposure to pesticides has been linked to various forms of cancer. 11 3) Exposure to asbestos. Notonlyare prisoners put in proximity to asbestos in antiquated buildings, they are sometimes required to clean up the asbestos without proper protective gear. Lead poisoning from paint and old pipes and fixtures presents another danger in outdated prisons.

What Can be Done? We know that prisoners are subject to higher incidences of exposure to toxic

FALL 1991 13

• NPPLawyer Discusses Wilson, Legal Trends

Elizabeth AleXfI.. nder, associate director for litigation attlJeNationalPrison Project has bee~practicingprisoners' rights lawsince the early1970s when, as an attorney inMadison, Wisconsin, sheserved as chiefstaffcounselatCorrectionsLegal ServicesProgram, andthen asassistant statepublicdefender responsiblefor conditionsofconfinementlitigation. AlexanderjoinedtheNationalPrison Project in1981as a staffattorneyandhas since been responsiblefOr, or been involved substances, yet their legal and political probablythe nearby townspeople. in, some oftheProject's mostimportant remedies are more restricted than other We have seen some of the intercon­ cases. Injanuary1991, she arguedWilson citizens'. nections between race and environ­ v. Seiter before the United States Supreme What can be done to ensure that the ment, and prisons and the environment. Court. She discussed the Court's decision rights of prisoners to clean air and water Now it is time to form new partner­ andothercorrections issues inanAugust and to be free from toxics are upheld? ships to accommodate a broader agenda. interview with BetsyBernat editorial In the coming years, prisoners' rights The new agenda already has a name, assistantoftheNPPJOURNAL. lawyers, jailhouse lawyers, and other "environmental justice." We know how advocates should develop some exper­ "criminal justice" is dispensed among NPPJ: You began practicing prisoners' tise in environmental issues. Interdisci­ racial minorities and the poor in the rights law in the '70s in Wisconsin. What plinary study will be needed to meet United States. We are now beginning to kinds of cases did you handle, what was these challenges. see how "environmental justice" is the legal climate then, and how does it allocated. Like toxic waste, it's not a compare with the work you're doing now? Action Advocates Can Take pretty sight. • Alexander: Iwas extraordinarily Here are afew things to do if you fortunate because at the time, the federal become aware of aserious environmental jan Elvin is editor ofthe NPPJOURNAL. district judge who sat in Madison was problem in prison: James E. Doyle, who was really asaint of a 1) Contact alocal newspaper editor or person, ascholar, and someone extraordi­ reporter. They can be good sources of I Linda Rocawich, "Toxins on Tap?" The narily sensitive to the issues that prison information and, of course, you may want Progressive, pp.24-27, (May, 1989). law raised. In one of his well-known 2 Georgia Environmental Project, Atlanta, Georgia. to interest them in writing astory. Any 3 Numerous newspaper articles from the Butner opinions, he said he was convinced that information on the manufacturer of the Creedmore News and the Oxford Ledger, (May, someday the institution of prison would toxic substance in question, or June, and July, 1990). end. He had areal vision of what prison the chemical waste company, that you can 4 "Reversing Twelve-Year Old Policy, VA Agrees law ought to look like. Agent Orange Linked to Cancer," The Veteran's offer the reporter will be helpful. Make Advocate, VoU, No.1, Oune, 1990). So, it was an era in which we enter­ sure your sources are reliable and 5 "S.C., Federal Officials Discuss Action Against tained hopes that we could move forward accurate. Waste Company," Durham MorningHerald, (May to asociety that had amore rational idea 2) Contact alawyer. Attorneys may see 10,1990). about the criminal justice system. That 6 "EPA Fining Florida Prison," CorrectionsDigest, vision of the future is hard to maintain the advantage in linking prison litigation (May 2, 1990). to violations of state or federal environ­ 7 Jeff Alexander, "Officials Shrugged as Prison these days when Willie Hortonism mental laws. Contact one of the growing Became a Pollution Hot Spot," The Grand Rapids dominates the public dialogue on correc­ number of environmental law groups. Press, (Sept. 3, 1989). tions issues. Even people on our side who 3) Connect with the local community, 8 Jody Levine, "Private Prison Planned on Toxic are working for prison reform have far Waste Site," NPPJOURNAL, No.5, pp.10-11, (Fall especially in the case of a landfill or 1985). more modest hopes about what we can hazardous waste incinerator. Air and 9 Observations by NPP staff. accomplish. Ultimately, our goal ought to water are not static. They move. Ifthe 10 "Waste Site Poses Penal Evacuation Contro­ be not just barely constitutional prisons problem affects the air and the water versy," Florida Times Union, (October 3, 1988). but are-examination of the basics of II "Cancer in Humans and Potential Occupational criminal justice policy. in the prison, chances are it affects and Environmental Exposure to Pesticides: the greater community. Certainly Selected Abstracts," Prepared by Marion Moses, NPPJ: Which of the cases that it will affect the prison staff and M.D., San Francisco, CA, (May 31, 1988). you've worked on do you feel have been

14 FAll 1991 THE NATIONAL PRISON PROJECT JOURNAL most important? excellent Alexander: In importance to the judge and we future of prisoners' rights, the Wilson v. made alot of Seiter case is the most critical. Wilson difference in extended the "deliberate indifference" the South standard to all conditions of confinement Dakota cases. It was, in formal terms, a victory system. for prisoners' rights because it rejected the NPPJ: even heavier burden on prisoner­ There were plaintiffs that had been imposed by the some strange Sixth Circuit. practices We had no choice but to seek certiorari going on in Wilson. We have other very important there, as I litigation from Michigan pending in the recall, before Sixth Circuit and those cases would have the litigation been seriously affected if the Sixth was filed. Circuit's decision in Wilson had been Alexander: allowed to stand. Even so, we did Prisoners Elizabeth Alexander (center) conducts a recent NPP legal staff consider withdrawing the petition for drilling other meeting attended by Adjoa Aiyetoro (left) and David Fathi. writ of certiorariafterJustice Brennan prisoners' resigned. teeth; inmates taking X-rays of other question. As you know, coming up in the IfJustice Brennan had remained on the prisoners. There were areas in which, United States Supreme Court this term is a Supreme Court when Wilson was decided, because South Dakota had not been the case called Rufo v. Inmates oftheSuffolk Wilson would have held by afive to four subject of major prison litigation before, CountyJail,5 out of the First Circuit. In majority that there is no state of mind they had some practices that were that case, the district court refused to requirement under the Eighth Amend­ inconsistent with contemporary correc­ modify an old consent decree requiring ment. That would have been a tremen­ tional practices. On the other hand, as Boston to keep its new jail single-celled. dous victory. defendants go, after they lost the case they The new jail was built as aresult of a Even so, Wilson is adecision that prison were not particularly recalcitrant. In consent decree that was entered after the. litigators can live with. The "deliberate many ways, I've had agood relationship old jail was found to be unconstitutional. indifference" standard is the standard with the State of South Dakota. In The Supreme Court this year may overrule that federal courts have been applying to contrast, some of the states with more the district judge and make it much easier medical care claims since 1976. The progressive reputations, such as Michigan, for states to get out of consent decrees standard hasn't had any negative impact have made adecision to fight everything that they have freely negotiated, and in on plaintiffs pursuing injunctive medical tooth and nail. particular, consent decrees that involve care claims. NPPJ: Why do you think that is? restrictions on overcrowding. One of the The concerns that prison litigators have Alexander: It's not clear. How states things that we attempted to do in the about Wilson stem from the nasty react to litigation seems to reflect local newest rounds of negotiations in Duran, language thatJustice Scalia inserted in politics. There are not many generaliza­ and Al Bronstein is primarily responsible the decision. Iwish thatJustice Scalia tions that can be made about it. for this, was to write provisions that and ChiefJustice Rehnquist had dissented, Another satisfying case to litigate is would make the overcrowding limitations and agreed with the defendants. In that Duran v. Carrutheri' from New Mexico. As written in stone. For example, in the new case, if someone nearer the center of the aresult of the riot, in which alarge Duran modified settlement agreement, Court such asJustice O'Connor had number of people were killed, the state the ban on double-ceIling is made written the decision, the decision would signed acomprehensive consent decree enforceable in state court. This means not have had any significant negative which was excellent. Ibecame involved in that even if the Supreme Court, in Rufo, impact. the litigation at a much later stage. Avery makes the consent decree non-enforceable NPPJ: What about some of the other prestigious Washington, D.C. law firm had in federal court, we'll still be able to cases? been hired by the State of New Mexico to enforce that ban on double-ceIling. We Alexander: An extraordinarily break the consent decree. It was a think we have developed a model to rewarding case was the Mecklenburg professionally rewarding experience to do protect the provisions we previously Correctional Center case. 2 It was a hard battle with a top D.C. firm and beat them negotiated. Whatever happens in Rufo, case, but overall the litigation was just in the district court and the court of these provisions will still be enforceable. about as successful as any in the Prison appeals and to have certioraridenied by NPPJ: Ifthe Supreme Court does decide Project since I've been here. We turned the Supreme Court. in favor of the defendants in RUfo, do you Virginia's version of asupermax-­ NPPJ: Iwanted to talk about Duran think states will be more reluctant to Virginia's version of Marion Federal because of the renegotiated settlement in enter into that sort of settlement model? Penitentiary--into just an ordinary bad that case. How do you tie up these cases Alexander: It's certainly going to make prison. That was aterrific accomplish­ that have been going on for so long in a it harder for consent decrees to be ment and I've always felt proud about way that will guarantee the prisoners negotiated because plaintiffs are going to that. continued reforms? Did we establish a be more reluctant to enter into consent Even though the appellate litigation model in Duran that can be used in other decrees when they know that, as soon as was disappointing, the South Dakota case 3 cases? the pressure's on, defendants are likely to was rewarding because we had an Alexander: That's a very interesting be able to get out of them. Therefore,

THE NATIONAL PRISON PROJECT JOURNAL FALL 1991 15 there will be fewer consent decrees and corrections officials has weakened. because they have some long-standing more things will be litigated in federal Certainly nothing good will come of this. problems, medical care is an area in which court. That concern, however, isn't nearly The standards will have very little the Bureau does not appear to deserve its as great as my concern about the fate of credibility. reputation. We were struck with the existing consent decrees. Rufocould cause NPPJ: What do groups like ours do numerous problems we encountered when severe disruption in the great majority of now that this decision has been made? we investigated the Springfield facility, jurisdictions in which one or more prisons Alexander: We continue to work with ranging from the use of mentally ill or the entire system is now under court progressive correctional officials to seek prisoners as nursing attendants for other order. What will happen to prison to overturn the changed standards prisoners, ause that's been routinely conditions when the great bulk of those because the changed standards are wron~.. condemned by everybody that's looked at orders may possibly be opened to major We have to work state by state to l; medical standards in prisons, to the lack modifications? Ihope that many of the persuade people in each correctional /~ of appropriate numbers of staff. Virtually states will realize that it's in their own system that they should not be misled by none of the psyctyatric positions were interests to keep restrictions on their the new standards. Finally, in those filled. There wa~o 24-hour physician prison systems to avoid even worse systems in which overcrowding results in coverage. It's d;rilgerous to get sick at problems. unconstitutional conditions, we're simply Springfield unless you do it between 9a.m. NPPJ: The Standards Committee of the going to have to litigate. The standards and 5p.m., Monday through Friday. American Correctional Association just weren't standards of constitutionality in Otherwise there's no on-site physician voted to allow double-ceIling and other any event, and their change doesn't make coverage. We observed an apparent lack forms of multiple-occupancy housing in those conditions any more constitutional. of concern and lack of treatment by many medium security facilities. 6 How do you NPPJ: You and [NPP attorney] David members of the staff who were there. I see that decision playing itself out? Fathi have been investigating allegations was immediately concerned about an Alexander: Ifind it really depressing of inadequate medical care at the Federal apparent lack of diagnosis and treatment that the ACA did that, and Ithink it Bureau of Prison's medical facility in for specific prisoners--medical problems undermines their credibility. The Springfield, Missouri. What have you that needed urgent treatment. OnJuly 17 Supreme Court in Rhodes v. Chapman 7 found? Itestified before asubcommittee of had indicated that professional standards Alexander: We're very concerned Congress about the medical problems we are different from constitutional stan­ about Springfield. There's astrong found. Iretain some hope that either dards in that professional standards were tradition, particularly among many through legislation or through discussions expected to be significantly higher than federal judges, that the Bureau of Prisons with the Bureau of Prisons we can make constitutional standards. What's hap­ is a progressive organization and not some progress, but the problems are very pened with the ACA is that they've bent to prone to the sorts of ills that are common serious. political pressure and have decided that if to state systems. It has been, in many NPPJ: Back in the 70s when you constitutional standards are decreasing, areas, a professional organization, but in started practicing prisoners' rights law, then professional standards also have to part because of the tremendous impact of the entire field was a virtual frontier. decrease. The political backbone of overcrowding in the system and, in part, What frontiers remain? Alexander: We're desperately trying to hold on to what's left of decent constitu­ tionallaw. Isee us as under attack all the way across the face of the law. Ifthere are areas of expansion, they are in areas such as statutory rights. We've got to explore federal statutory rights such as Section 504, the Rehabilitation Act that prohibits discrimination against persons who have a handicap. We have to exploit federal statutory rights in amuch more systematic way than we've done in the past. In those states with decent state court systems, we have to go into state court. One of the things that sustains me is the idea that there are cycles in legal theories, and that the Willie Horton era in American politics and theJustice Scalia, ChiefJustice Rehnquist era in constitu­ tionallaw will not last forever. At some point, just asJudge FrankJohnson in Alabama developed the area of prison law, there will be a new chance to come up with a humane framework for law in the area of corrections. My hope is that when that day comes about, it won't be limited to looking at conditions of confinement litigation in isolation. Conditions of

16 FALL 1991 THE NATIONAL PRISON PROJEG JOURNAL confinement law has only limited impact this kind of law? have to stick it out. Second, I've got two on corrections systems because we've Alexander: There are several levels of wonderful daughters, and I expect them never had adeveloped body of law that answers to that question. Ireally like the to be fighting for justice in the 21st looked at the whole range of criminal people in the office. Ifind doing prison century.• justice policy. We can't really solve the law intellectually exciting. I've had problems of prisons out of the context of wonderful opportunities here. I've I 111 s. Ct. 2321 (1991). See also, in this issue, the whole criminal justice system. worked on numerous Supreme Court "Proving Deliberate Indifference in the Wake of NPPJ: When you go home to Iowa, and briefs and worked with other lawyers Wilson v. Seiter," p. 3. 2 Brown v. Murray, C.N. 81-0853-R (B.D. Va.). people ask, "Why in the world do you do who are just extraordinarily good at <1 3 Cody v. Hillard, 599 F.Supp.l025 (D.S.D.1984), work for prisoners?," how do you trying to preserve the rights of prison~!s: ' rev'{/, in par~ 830 F.2d 912 (8th Cir.1987) (en respond? Whenever Iactually go to prisons suchjls bane). Alexander: The answer Iuse is that Springfield or the New Orleans jail ari~J 4687 F.Supp. 839 (D.N.M.1988); 885 F.2d 1485 and 885 F.2d 1492 (10tl;l Cir.1989). For more over 90% of the people who are now in talk with individual prisoners, Irealize information, see "Iilew Mexico Seeks to Elude prison will eventually be back on the how terrible their lives are for reasons Obligations of C

[Attica] broughthome to the were stripped nakedand made to crawl Attica Americanpublic, atleastfor a while, as through afield ofmudand broken nothing else had, the horror ofprison glass, andthenforced to run through a Anniversary lifeandthe desperation ofthe gauntletofcorrections officersas they prisoners. For a while we thought that were beaten viciouslyandshowered thatdreadful tragedy... mightdo some with the most vile ofracial epithets... eptember 9, 1991 marked the 20th real good. We were wrong. anniversary of the Attica rebellion Itis onlyatourgreatperil that we when prisoners seized control of allow ourselves toforgetwhatAttica S -Herman Schwartz, Professor of Law, means. Attica Correctional Facility in upstate American University College of Law. New York and demanded reforms. - Haywood Burns, Dean, CUNY Law The disastrous end to that uprising The horrorofthe re-taking was came on September 13 when the School at Queens, was the coordinator compounded by the brutalityofthe of the Attica Brothers Defense National Guard, state police and aftermath. By the hundreds,prisoners corrections officers stormed the facility, Committee. and, in a15-minute flood of gunfire, killed 43 prisoners and hostages, wounding 80 others. The roots of the National Prison Project are closely woven with those events. When the world glimpsed firsthand the atrocities of prison, a movement for reform rose from the cries of outrage. Now, 20 years later, reforms gained are quietly being squeezed out by the demands of overcrowding and a public infuriated by crime and spurred on by the careless, inflammatory crime-speak of politicians--a public which cannot understand why it should care about a.. prisoners. « Still, for many, the voices of Attica Authorities stormed and recaptured Attica on September 13, 1971. Here, inmates echo on. We remember Attica here. herded into A Yard lie on the ground as they are stripped and searched. THE NATIONAL PRISON PROJEG JOURNAL FAll 1991 17 te

but leading role in educational sessions. Women's AIDS Project, is an excellent The project holds bi-annual "AIDS Speak­ manual for educators in women's prisons. Outs" for prisoners and staff. :;- While developed for small group discus­ • The Delaware Council on Crime and sions in women's homes and on the street, Justice, which runs peer education the workshops can very easily be adapted Women Develop programs in the men's prisons, has for sessions behind the walls. The recently initiated asimilar program for curriculum includes., "safe sex" quizzes, women prisoners in that state. The helpful handout~;a risk assessment Effective AIDS Council trained several women prisoners summary and creative role-plays. This as peer educators. These women are now manual is available by writing to the Education conducting weekly and monthly AIDS Chicago Women's AIDS Project, 5249 N. education sessions at the Women's Kenmore, Chicago, Illinois 60640. Programs Correctional Institution. One woman has • TheEmpowermentProgram-A ince the publication of the report by the written acomic-style coloring book about CurriculumforHealth Education Groups National Commission on AIDS in March AIDS that will soon be distributed for Women AtRikersIslandwas prepared S199~ interest in and support for peer throughout the prison. by Beth E. RicWe of the Hunter College AIDS education programs in prisons and jails • Over the past year, two programs Center for Community Action to Prevent has increased dramatically. Corrections have been started by prisoners at two AIDS. The goal of the program is to administrators and prisoners alike are federal women'sprisons. The"AIDS empower women prisoners to "playa recognizing that prisonerscan best commu­ Education and InformationGroup" has more active role in reducing their risk of nicate and educate other prisoners about already completed a12-week session at the HIV infection." The sessions revolve AIDS, substance abuse and other problems Shawnee Unit of the Federal Correctional around the many issues that incarcerated people face behind the walls. Some of the Institution in Marianna, Florida. Designed by women face-sexuality, relationships, most effectiveeducation programs have the women prisoners themselves, the drug use and economic situation. This been developed in women's prisons. educational sessions focus on such topics as curriculum with hand-outs is available "mv transmission," "Myths and Fears about from the Center for Community Action to Peer Programs inWomen's Prisons AIDS," and "Living with AIDS." TheAIDS Prevent AIDS, Hunter College, 425 E. 25th • ACE (AIDS Counseling and Education) at education course started up again in Street, New York, NY 10010. the women's prison at Bedford Hills in New September. • AIDS,SubstanceAbuseandHealth, York State, is the best-known peer education • Another Wghly successful peer VolumesIandH is a comprehensive and counseling project. This summer, the education project is underwayattheFederal training manual and curriculum "to train women of ACE organized their first annual Correctional Institutionat Pleasanton, peer educators within the prison commu­ AIDS conference, "Sisters Helping Sisters; California. The project, wWch began as a nity." Written and compiled by Sara Dubik­ Experiences ofSolidarity in Prison" Over100 small study group on AIDS and health, has Unruh, an outside AIDS educator with the AIDS educators and outside friends of the beengiven the green light to provide participationof studentsat Billerica House of ACE program attended aday of workshops, education sessions in the women's housing Corrections in Massachusetts, this manual is panel discussions and performances about units. The Pleasanton AIDS Counseling and very thorough in its approach to AIDS AIDS education. Education (PLACE) project has designed an education workshops. Dubik-Unruh • Inthe summer of1990, Ivisited an mv/ effective poster for their AIDS education provides comprehensive lesson plans with AIDS education program for women at efforts. handouts and even clocks the time it should Rikers Island, pmof the New York City jail Videos, educational materials and take to present each subject. Her "Suggestions system, started by the Center for Community assistanceprovided by the National Prison for Working in Correctional Facilities" is Action to Prevent AIDS at Hunter College. Project, Women in the Director's Chair in must reading for outside community-based This program, built on the "empowerment CWcago, and local AIDS service organizations organizations going into prisons and jails modeL" promotes discussion ofpregnancy, and activists have helped make these two for the first time. Some of the prisoner birthcontroL prenatal care, sexually peer education projects areality. educators have prepared acourse curricu­ transmitted diseases and AIDS. lum, translated into Spanish, which has • In1988,Socia1}ustice for Women Materials Available been incorporated into the manual. This initiated the Women and AIDS Project at the Outside organizations and innovative two-volume AIDS educational tool is women's prison in Framingham, Massachu­ AIDS educators have produced curricula available to outside educators and setts. This program provides education, and training manuals that can provide community organizations for $20. Itis counseling and workshops for all inter­ invaluable assistance to both prisoner peer free to prisoner peer educators. Write to ested women. As the NPP AIDS Informa­ educators and community-based organiza­ Sara Dubik-Unruh, Lowell House, 555 tion Coordinator, Ihad the opportunity to tions beginning projects in local jails and Merrimack Street, Lowell, MA 01852. • visit with and meet some of the women prisons. involved in the Project. Many of the • "GirlsNight Out"ASaferSex Work­ Judy Greenspan is theAIDSinformation women prisoners are playing an informal shopfor Women, produced by the Chicago coordinatorfor the NPP.

18 FALL 1991 THE NATIONAL PRISON PROJEG JOURNAL bHcations

The National Prison 1990 AIDS in Prison Project Status Report li${s Bibliography lists resources by state those presently ugder on AIDS in prison that are court order, or those which available from the National have pending litigation f;4her Prison Project and other involving the entire state soyrces, including corrections prison system or major p~icies on AIDS, educational institutions within the state. jrl'aterials, medical and legal Lists only cases which deal articles, and recent AIDS with overcrowding and/or the studies. $5 prepaid from NPP. total conditions of confine­ ment. (No jails except District AIDS in Prisons: The of Columbia.) Periodically Facts for Inmates and updated. $3 prepaid from NPP. Officers is a simply written educational tool for prisoners, Bibliography of Women corrections staff, and AIDS in Prison Issues. Abibliog­ service prOViders. The booklet raphy of all the information on answers in an easy-to-read The National Prison this subject contained in our format commonly asked ProjectJOURNAL, $25/yr. files. Includes information on questions concerning the $2/yr. to prisoners. abortion, behavior modifica­ meaning of AIDS, the medical tion programs, lists of other treatment available, legal The Prisoners Assistance bibliographies, Bureau of rights and responsibilities. Also Directory, the result of a Prison policies affecting available in ~pani$. Sample national survey, identifies and women in prison, juvenile girls, copies free. Bulk orders: 100 describes various organizations women in jail, the problem of copies/$25. 500 copies/$100. and agencies that provide incarcerated mothers, health 1,000 copies/$150 prepaid. assistance to prisoners. Lists care, and general articles and national, state, and local books. $5 prepaid from NPP. (order ACLU Handbook, The organizations and sources of from Rights of Prisoners. Guide assistance including legal, APrimer forJail Litiga­ ACLU) to the legal rights of prisoners, library, AIDS, family support, tors is a detailed manual with parolees, pre-trial detainees, and ex-offender aid. 9th practical suggestions for jail etc., in question-and-answer Edition, published September litigation. Itincludes chapters form. Contains citations. $7.95 1990. Paperback, $30 prepaid on legal analysis, the use of (free to prisoners) from ACLU, from NPP. expert witnesses, class actions, 132 West 43rd St., New York, NY attorneys' fees, enforcement, QTY. COST 10036. Offender Rights litiga­ discovery, defenses' proof, tion: Historical and remedies, and many practical Future Developments. A suggestions. Relevant case book chapter by Alvin J. citations and correctional .l!ronstein published in the standards. 1st Edition, February Prisoners' Rights 1984.180 pages, paperback. Sourcebook (1980). Traces (Note: This is not a"jailhouse the history of the prisoners' lawyers" manual.) $15 prepaid rights movement and surveys QTY. COST from NPP. the state of the law on various prison issues (many case citations). 24 pages, $3 prepaid QTY. COST from NPP.

Fill out and send with check payable to: Name _ The National Prison Project Address _ 1875 Connecticut Ave, NW, #410 Washington, D.C. 20009 City, State, Zip _

THE NATIONAL PRISON PROJEO JOURNAL FAll 1991 19 modifiable set of population controls the Solicitor General of the United including a prohibition against double­ States have filed amicus briefs in ceIling. The new agreement was ap­ support of the petitioner. proved by the court on August 30, 1991. ,:. he following are major developments U.S. v. Michigan/Knop v.Johnson is a inthe Prison Project's litigation Harris v. Thigpen challenges the AIDS statewide Michigap prison conditions case. Tprogram sinceJuly 1, 1991. Further testing and segregation policies of the On July 2, the SiXJ!l Circuit Court of Appeals details of any of the listed cases may be Alabama Department of Corrections. On issued an order ),imiting the Prison Project's obtained by writing the Project. September 18, 1991, the Eleventh Circuit involvement as amicus in u.s. v. Michigan. partly reversed adistrict court opinion The court also upheld one of two findings Casey v. Lewis, filed on behalf of all which had rejected plaintiffs' claims and of contempt against defendants and upheld Arizona state prisoners, challenges legal dismissed the case. The appeals court ruled the requirement that defendants imple­ access, health care and practices relating that my-infected prisoners are considered ment a classification plan and prepare to assignment to segregation. On August handicapped under the federal Rehabilita­ population projections, while it reversed 30, 1991, the district judge enjoined tion Act and therefore, under section 504 of various other relatively minor orders. defendants from continuing a blanket the Act, cannot be excluded from programs policy of prohibiting contact visits and activities. The court also reversed and Wilson v. Seiter--InJune 1991, the between prisoners and their attorneys. remanded the trial court's order dismissing Supreme Court overturned aSixth Circuit Defendants must now submit written plaintiffs' claims that they were denied decision requiring that a r,risoner show reasons for denial and establish proce­ access to the courts. The appeals court that officials acted with 'persistent dures for the prisoner or attorney to denied claims that medical care for HIY­ malicious cruelty" in order to prove that challenge the denial. The court also infected prisoners was inadequate and that conditions of confinement violate the ruled that prison officials may not deny mandatory segregation violated their right Eighth Amendment. Rather, prisoners food service jobs to HIY-infected to privacy. need r,rove only that prison officials prisoners who would otherwise qualify were 'deliberately indifferent" in for these positions. Hudson v. McMillian--On April 29, allOWing unconstitutional conditions to 1991, the United States Supreme Court exist. The Supreme Court remanded the Duran v. King is a statewide New appointed the National Prison Project to case to the Sixth Circuit which in turn Mexico prison conditions case. After serve as counsel in this brutality case remanded to the district court. We filed more than a year of intensive negotia­ filed pro seby Louisiana prisoner Keith our brief with the district court in tions, the parties agreed in June to Hudson. The Fifth Circuit rejected September. See p. 3for further details. modify the 1980 consent decree. Because petitioner Hudson's claim because he did the state is near substantial compliance not suffer significant injury. Petitioners Witke v. Vernon challenges conditions with the decree, it has been agreed that argue that an Eighth Amendment and inequitable programming in the the decree will be vacated after a violation should not require a shOWing of Idaho women's prison. InJuly, the court finding by the Special Master of significant injury. Parties filed briefs approved asettlement which places a cap substantiaLcompliance and a period of over the summer, and argument is on the prison population, expands further reporting. In exchange, the scheduled for November 13, 1991. A medical staffing and services, and state has agreed to a permanent, non- number of important organizations and provides for safety-related renovations.

National Priso...n Project Nonprofit Org. American Civil liberties Union Foundation U.S. Postage 1875 Connecticut Ave., NW, #410 Washington, D.C. 20009 PAID (202) 234-4830 Washington D.C. Permit No. 5248

20 FAll 1991 THE NATIONAL PRISON PROJEG JOURNAL