ISSN 0748·2655

INSIDE ...• Nation of Islam

Rights Within the Walls ..... p. 3

• Rhode Island"Eternal Vigilance" isHallmark of Prison Case ..... p. 5

• John ConradAn Expert Witness' View ofWhat Needs to be Done ... p. 12

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court proceedings, Tennessee, likealmost every other state, was con­fronted with steadily worsening over­crowding of its prisons. Such over­crowding resulted from the stiffsentencing policies adopted by statecourts and lawmakers in reaction toincreases in the crime rate in the 1960sand 1970s. Like most other states, Ten­nessee responded to the overcrowding

on Tennessee's unique state constitu- crisis by attempting to "outbuild" thetional guarantee of "safe and comfort- population trend. The state initiated anable prisons" and the "humane treat- ambitious prison construction program,ment of prisoners." After five years of which was particularly costly in light oflitigation and early successes in the trial the fact that Tennessee's per capitacourt, the case came to an inconclusive income is among the lowest in theend when Tennessee's Supreme Court country. Between 1973 and 1983, therefused to rule on the merits of the prisoner population jumped from 3,000case, leaving the hot potato of prison to 7,000, and the number of majorreform to the federal court. prisons also more than doubled, from

Throughout the course of the state -continued on page JJ

Tennessee prisoners wait for cells to be found for them at one of the reception centers.

Gordon Bonnyman

In only three months, the increasewiped out the gains in populationreduction that had been made overa period of more than a year.

For decades the conventional politi­cal wisdom in Tennessee dictated thatthere was no political constituency forprison reform. Although voters couldalways be counted on to support longerprison sentences, they were indifferentor even hostile to improving prison con­ditions. The resultant neglect producedsqualor, waste and violence throughoutthe prison system.

A federal court has recently turnedconventional wisdom on its head, cre­ating a powerful political constituencyfor prison reform almost overnight.Improvement in conditions has alreadybeen dramatic, and continued reform ispromised. These developments offer anencouraging example of the progressmade possible by the careful and well­timed intervention of a federal courtcommitted to the rule of law and thevindication of prisoner's rights under theConstitution.

Recent Federal Court OrdersSpur Tennessee Toward PrisonReforms

The recent legal and political devel­opments are the result of court battleswaged by the National Prison Projectand Tennessee co-counsel for more thanten years. In the fall of 1975 we filed aclass action in state court on behalf ofTennessee inmates. The prisoners' claimsin that case were based not only on theEighth Amendment's prohibition of"cruel and unusual punishment," but also

The National Prison Project of theAmerican Civil Liberties Union Foundation1616 P Street, N.W. Washington, D.C. 20036 (202) 331-0500

The National Prison Project is a tax-exempt foundation-funded project of the ACLU Foundation whichseeks to strengthen and protect the rights of adult and juvenile offenders; to improve overall conditions incorrectional facilities by using existing administrative, legislative and judicial channels; and to develop alterna­tives to incarceration.

The reprinting of JOURNAL material is encouraged with the stipulation that the National Prison ProjectJOURNAL be credited with the reprint, and that a copy of the reprint be sent to the editor.

The JOURNAL is scheduled for pUblication quarterly by the National Prison Project. Materials andsuggestions are welcome.

The National Prison Project JOURNAL is designed by james True.

essence was telling the state that itwould have to make its peace with theSpecial Master, to whom the court was,in effect, entrusting the implementationof the decree. While the SpecialMaster's powers were explicitly circum­scribed in the original decision of AugustI I, 1982, he implicitly was given verybroad powers in the subsequent orderof reference.

The ambiguity of the SpecialMaster's role has, I think, been an assetto the parties and the ~ourt in theirefforts to resolve the litigation. TheTennessee prison system has beenwracked with violence and riots sincethe court's initial decision and theappointment of the Special Master, andwe are still years from achieving aconstitutional system which would justifythe closing of the case. Nonetheless,there has been very substantial progressto date, with reason to believe that wewill someday be able to achieve a systemwhich does more than simply meetconstitutional minima. While "the jury isstill out" on the Tennessee experience,there is reason to prehminarily judge theexperience with "mastering" here asbeing a success.

Although the Grubbs court'sapproach to defining the Special Master'srole in ambiguous terms appears to haveworked well in Tennessee, I would hesi­tate to be prescriptive about using thesame approach in all other cases. Thepolitical climate, as well as the personal

Letter to the Editor

NKECHI TAlFA-CALDWELLURVASHI VAID

DAN MANVILLEResearch Associate

LYNTHIA SIMONETTELORNA TUCKER

STEVEN NEYChief Staff Counsel

histories, temperaments, and personaland professional relationships of the vari­ous players all tended to create acontext which made the court'sapproach particularly appropriate.

I tend to think that the same ambig­uous definition of the Special Master'sresponsibilities might be similarly desir~

able in some other, but by no means all,cases.

I do not want to imply that thecourse of the litigation since the entryof the original order has been tranquil oruncontroversial. On the contrary, it hasbeen characterized by a great deal ofpolitical and legal controversy, contemptproceedings, and the imposition of anunprecedented injunction against admis­sions into the prison system, pendingresolution of the overcrowding crises.At the same time, substantial progresshas been made through hard bargainingand the negotiation of consent decrees.The Special Master has been able tomodify his role as appropriate torespond to these varying conditions andcrises. That he has managed to do sowhile maintaining his neutrality is at­tested to by the fact that state officialsconcurred in Mr. McManus' appointmentas Special Master in 1985 in a separatelawsuit dealing with conditions of con­finement on Tennessee's death row.

I hope that this information is help­ful to you and to others at the nationallevel who are analyzing the experienceof "mastering" around the country in aneffort to identify which approaches arethe most effective in different cases.

Sincerely,Gordon Bonnyman

ALEXA FREEMANEDWARD I. KORENMARY E. McCLYMONT

ALVIN j. BRONSTEINExecutive Director

SHARON R. GORETSKYAdministrative Director andResearch Associate

BERYL JONES

SUPPORT STAFF

BETSY BERNATEditorial Assistant

MELVIN GIBBONS

JAN ELVINEditor, NPP JOURNAL

STAFF ATTORNEYS

ADjOA A. AIYETOROELIZABETH R. ALEXANDER

In the Winter 1985 issue we published anarticle by Susan Sturm entitled, "SpecialMasters Aid in Compliance Efforts." Thefollowing letter is in response to thatarticle.

Dear Ms. Sturm:

This letter is prompted by yourarticle in the Winter .1985 issue of theNational Prison Project JOURNALregarding the role of Special Masters inimplementing prison decrees. Because ofyour leadership role in this area, Ithought it might be appropriate to bringto your attention the experience of onestate which appears to contradict one ofyour conclusions.

In the article, you state:"The master must be able to define

and maintain a position of neutrality inorder to function effectively. In thepast, masters have sometimes carriedout their responsibilities in the absenceof any clear guidelines as to how to pro­ceed, what to achieve and what toavoid. This absence of a clear mandatecan lead to unrealistic expectations andmixed signals among inmates and prisonofficials alike. For this reason, mastersnow recognize the importance of defin­ing carefully, in order of reference, amaster's duties, responsibilities, powersand limitations."

In 1982, a U.S. District Courtdeclared unconstitutional major portionsof the Tennessee prison system. Grubbsv. Bradley, 552 F.Supp. 1052 (M.D.Tenn. 1982). The initial opinion of thecourt called for the appointment of aSpecial Master, and, in doing so, set outin general terms the parameters of theSpecial Master's role. 552 F.Supp. atI 13 I. Actual selection and appointmentof a Special Master did not occur untilthree months later, by which time adecision had been made by the state notto appeal the original decision. Theorder of reference, which was enteredon Novembel'" I2, 1982, read in itsentirety as follows:

"It is ordered that Patrick McManusbe and he is hereby appointed theSpecial Master in accordance with amemorandum and order of this courtentered on August I I, 1982. He willcarry out the provisions of the orderand will be compensated at the rate of$50 per hour. He will make one reportto the Court when the terms and condi­tions of the memorandum and order arecomplied with. These cases are retired."

Thus, the order of reference wason the one hand very vague and on theother hand fraught with quite seriousimplications for the state. The court in

2 SUMMER 1986

Muslims in Prison SeekReligious RecognitionNkechi Taifa-Caldwell

In the past, we have seen greatresistance to official recognition of thepractice of certain non-Christianreligions within America's prisons. Thisresistance has often stemmed from thecultural prejudices of prison administra­tors, under the guise of security con­cerns. In the I960s the courts began tocarefully scrutinize how those regula­tions and practices infringed upon theright of inmates to practice the religionof their choice. Prison administratorsacross the country have begun to recog­nize, albeit reluctantly, that certaingroups, particularly Black inmates,possess legitimate religious interests andmodes of expression.

Since the I960s, thousands of Blackprisoners have embraced Islam as theirfaith, and many of its most prolific min­isters have spent time in prison. A 1960address by slain Nation of Islam (NOI)minister Malcolm X, described theachievements of Nation of Islam leaderElijah Muhammad, in converting theimprisoned:

"He has taken men who werethieves, who broke the law-men whowere in prison-and reformed them sothat no more do they steal, no more dothey commit crimes against the govern­ment. I should like to think that thisgovernment would thank Mr. Muham­mad for doing what it has failed to dotoward rehabilitating men who havebeen classed as hardened criminals. Thepsychologists and the penologists-all thesOciologists-admit that crime is on theincrease, in prison and out. Yet whenthe Black Man who is a hardenedcriminal hears the teachings of Mr.Muhammad, immediately he makes anaboutface. Where the warden couldn'tstraighten him out through solitary con­finement, as soon as he became a Mus­lim, he begins ts become a model pris­oner rightin that institution, far morethan whites or so-called Negroes whoconfess Christianity." I

Contrary to "thanking Mr. Muham­mad," as Minister Malcolm suggested,many prison administrators responded tothe rapid embrace of Islam under thedirection of the Nation of Islam byclaiming that it was not a religion, andthat its converts were protected bynone of the constitutional rights enjoyedby followers of the more conventionalreligions.

I Address by Malcolm X. Boston University HumanRelations Center. February 15. 1960. reprinted inThe Black Muslims in America, C. Eric Lincoln.

At the same time, mass hysteria wasbeing generated against the Nation ofIslam (popularly known as "Black Mus­lims") in the larger society. Through theFreedom of Information Act, we nowhave evidence that the Federal Bureauof Investigation used every "dirty trick"at its disposal to attempt to misdirectand disrupt the Black liberation move­ment in general, and the Nation of Islamin particular. The FBI targeted' not onlythe Nation of Islam for attack, but also

Anthony Coleman, Lonon Photography Workshop

such groups as the NAACP, the BlackPanther Party, the National UrbanLeague, the Republic of New Afrika, theSouthern Christian Leadership Council,and the Student Nonviolent Coordinat­ing Committee. The stated goals of theFBI's program, code-named COINTEL­PRO, were to prevent the coalition ofBlack nationalist groups, prevent the riseof a Messiah who could unify and elec­trify the movement, pinpoint potentialtroublemakers and neutralize them,prevent groups and leaders from gainingrespectability, and prevent the growthof these organizations, especially amongthe young. 2

A bulletin emanating from theChicago FBI office in 1969 illustrates

2 "Supplementary Detailed Staff Reports onIntelligence Activities and the Rights of Amer­icans." Washington: U.S. Government PrintingOffice. 1976. pp. 21-22.

just one of countless examples:"Over the years considerable

thought has been given, and action takenwith bureau approval, relating tomethods through which the NOI couldbe discredited in the eyes of the generalBlack populace ...."3

Nation of Islam pronouncementsequating whites with "devils," advocat­ing a separate ·territory for Blacks, andmaintaining a highly disciplined para­military force were more than enoughto send chills up the spines of thosewho, consciously' or unconsciously, feltthreatened by thh reinvigorated attemptwithin segments of the Black communityto blend spirituality, racial pride andidentity into a cohesive force.

Interpretations of Islam and its holytext, the Koran or Qu'ran, vary, andsuch distinctions likewise manifest insideprison walls. The societal fears and gov~

ernmental efforts to discredit the Islamicfaith, however, demonstrate the obsta­cles that those who have embraced theIslamic faith have struggled with in theirarduous battle with prison officials,simply for recognition of their religion.

Since the 1960s, thousands ofBlack prisoners have embracedIslam as their faith, and many ofits most prolific ministers havespent time in prison.

In addition to the Nation of Islam, otherMuslim groups such as the AmericanMuslim Mission, Moorish Science Templeof America, Sunni Muslims, Melanic Mus­lims, Shiite Muslims, and AI-Islam alsohave adherents in prisons, and all havebeen engaged in court battles for recog­nition of their religious faiths.

Religious Rights in PrisonThe argument over the constitu­

tionally protected rights of Muslims inprison has focused on the following: theright to a religious diet, the recognitionof religious names, and the controversyover pat frisks by female guards. Theseand many other issues have beenaddressed by the courts, and the deci­sions have generally sought to balancethe inmates' right to religious freedomwith prison officials' concern forsecurity and discipline.

The Right to a Religious DietThe Islamic religion prohibits the

consumption of pork, and requires theobservance of the religious holiday of

-continued on next page.

3SAC Chicago. "Counterintelligence Program.Black Nationalist Hate Groups Racial Intelligence(Nation of Islam)." Chicago: January 22. 1969.pp. 1-5.

SUMMER 1986 3

-continued from previous page.Ramadan. In celebrating Ramadan, fol­lowers are to refrain from eating duringthe daylight hours, and are to consumeonly ritually significant foods after sunsetand before sunrise. The dietaryrequirements of Muslim prisoners haveoften led to conflict between prisonersand corrections officials. Because of itslow cost, pork and its by-products fre­quently appear on prison menus, some­times to the extent that an adequatenon-pork diet is unavailable. Further­more, prison officials assert that thewidespread use of pork as a seasoningmakes it difficult to isolate pork-freedishes.

Although prison administrators gen­erally defend these policies on thegrounds of cost, convenience and secur­ity, courts have upheld many of the die­tary requirements of the religion. TheDistrict of Columbia Circuit, for exam­ple, held that inmates in the D.C. jailhad a valid claim against jail administra­tors since their request for a minimumof one full-course pork-free meal perday had been denied. The court heldthat the use of pork as a seasoningcould be reduced, non-pork substitutesfor main dishes could be provided,menus shoWing pork content could beposted in advance, and pork dishes couldbe more evenly dispersed throughoutthe meal cycle.4

Similarly, another court emphasized:"[T]he state has little affirmative

interest in what kind of food prisonerseat; and it is of no great problem toprepare alternative diets. The rule pre­sumably would be different if the prison­er's religion mandated him to eat thetongues of hummingbirds and drink themilk of paradise. "S

Once the inmate rejects the porkitems, if the regular menu can prOVide anutritionally adequate non-pork diet,then he is reqUired to accept it. TheFood Services department must identifyany items which might contain pork. 6

Muslim prisoners have also establishedthe right not to handle pork as part oftheir work assignments.?

Courts, however, have placed somerestrictions upon the Islamic prisoner's\right to adhere to the dietary tenets of .the religion. Utensils used in preparationof non-pork meals need not be segre-

'See, Barnett v. Rogers, 410 F.2d 995, 1002-03(D.C.Cir. 1969).

sSee, Walsh v. Louisiana High School AthleticAssociation, 428 F.Supp. 1261. 1268 (1977).

'See, Battle v. Anderson, 376 F.Supp. 402(ED.Okla. 1974); X. (Bryant) v. Carlson, 363F.Supp. 928 (E.D.1I1. 1973); Barnes v. VirginIslands. 415 F.Supp. 1218 (D.V.1. 1976).

'See, Chapman v. Pickett, 586 F.2d 22, 26 (7thCir. 1978), following remand. 491 F.Supp. 967(C.D. III. 1980); Kenner v. Phelps. 605 F.2d 850(5th Cir. 1979).

4 SUMMER 1986

gated from pork items as long as theyare sufficiently cleaned before being usedto cook food consumed by those whodo not eat pork.s

In Walker v. Blackwell, 411 F.2d 23(5th Cir. 1969), several Muslims allegedthat their First and Fifth Amendmentrights had been violated since prisonadministrators refused to prOVide themwith a special diet and special feedinghours during the observance of Rama­dan, which lasts 30 days. The prison offi­cials had been providing Jewish inmateswith one special meal each year duringPassover. The Fifth Circuit, however,held that a special diet lasting 30 days,instead of just one, could not be pro­vided because of the added cost ofpreparation, and the additional "securityproblem" created by assigning securitystaff to move the Muslims during thenight hours. These factors served tooutweigh "whatever constitutionaldeprivations petitioners may claim. "9

Recognition of Religious NamesA prisoner's need for cultural and

religious identity has compelled many toadopt another name. A look at the case

. . . [W]e now have evidence thatthe [FBI] used every "dirty trick"at its disposal to attempt tomisdirect and disrupt the Blackliberation movement . . .

law reveals, however, that many prisonadministrators have required Musliminmates to use religiously offensive, non­Muslim names, under the threat of pun­ishment or the withdrawal of privileges(such as access to the law library, sickcall, visits, food and clothing). 10

The courts have held that prisonerswho have adopted Muslim names areentitled to First Amendment protectionas an integral part of their faith andreligious practices, and that they areentitled to use these names, absent acompelling state interest, without thethreat of punishment or the withdrawalof privileges. II In Masjid v. Keve, the dis­trict court disagreed with the defen­dants' assertion that the Muslims' resis­tance to. use of their previous nameswas socially, rather than religiouslybased,12

8See, Masjid Muhammad-D.C.C. v Keve, 479 F.Supp.131 1 (D.DeI.l979).

'Walker. supra, at 25-26; Cochran v. Sielaff. 405F.Supp. 1126 (S.D.1I1. 1976).

'°Azeez v. Fairman, 604 F.Supp. 357. 364 (C.D.1I1.1985); Masjid Muhammad. supra.

"Azeez, supra, 604 F.Supp. at 365; Masjid, supra.479 F.Supp. 1324; Akbar v. Canney. 634 F.2d339. 340 (6th Cir. 1980) (per curiam).

'2Masjid, supra. 479 F.Supp. at 1323.

"While it is true that plaintiffs viewthose names as insulting for reasonswhich could be described as historic orsocial, it does not follow that theiranimosity towards those names is with­out a religious base. Plaintiffs regardtheir old names as haVing their genesis inthe institution of slavery, but ... theyalso regard those names as representa­tives of a spiritual identity they nolonger have:"13

Thus, courts have held that absentan important objective and a policy rea­sonably tailored to the achievement ofthat objective~a state may not punish aprisoner for failing to acknowledge aparticular name; nor may he be punishedfor failing to perform a task where todo so would involve the acknowledge­ment of a religiously offensive name.The courts, however, have determinedthat this reasoning does not mean thatprisoners are entitled to disregardorders with impunity whenever a staffmember fails to use the Muslim name.The holdings only denote that a prisonermay not be disciplined for his refusal toacknowledge his non-Muslim name. 14

Prison officials cannot be mandated toaddress a prisoner by a religious name,and they need not change the person'sprison records to reflect the newname. IS

Pat SearchesPat searches upon Muslim males by

female guards present a most intriguingdilemma for those who uphold therecognition of religious rights for prison­ers while advocating the equal employ­ment rights of women. In juxtaposingtwo cases which have addressed theissue, we find contrasting arguments,both embodying substantial merit.

First, in Madyun v. Franzen, 704F.2d 954 (7th Cir. 1983), the courtstressed that there was "substantialinterest" in haVing its female officersperform pat searches on nonconsentingMuslim inmates. The court reasoned:

"Clearly frisk searches are an inte­gral part of prison security and animportant part of a prison guard'sduties. If women are not allowed toperform these limited searches-or canperform them only on women inmates­the utility of women prison guardswould be significantly diminished ....[T]he state is obligated under Title VII ofthe Civil Rights Act of 1964, 42 U.S.c.§200e(h) (1976) and Supp. Iv (1980), toavoid discriminating on the basis of sexin the employment of guards. [Quoting

131d. at 1323.14/d. at 1325; Azeez, supra, at 364.ISBarrett v. Commonwealth of Virginia, 689 F.2d

498 (4th Cir. 1982); Imam Ali Abdullah Abda v.Connery. 634 F.2d 339 (6th Cir. 1980).

Sweeping New Order in RhodeIsland Case Promises FurtherRelief

Smith v. Fairman, 678 F.2d at 54, thecourt continued] 'If a state is requiredto hire women as guards in its maleprisons, it reasonably seems to followthat it must be allowed to utilize femaleguards to the fullest extent possible.' "16

Thus, the court held that the provi­sion of adequate prison security andequal opportunity for women to serveas prison guards were important enoughstate interests to allow frisk searches ofmale prisoners by female guards.

The second case, Rivera v. Smith,742 N.E.2d 1015 (N.Y. 1984), how­ever, held that there was no legitimatesecurity interest and a minimum of frus­tration of employment opportunity tojustify pat frisks by female guards. InRivera, testimony was presented at trialby William Gohlman, a professor ofIslamic history, about the importance toMuslims of preserving their bodilydignity.

"[T]he Qu'ran forbids a Muslimfrom revealing his genitals to or havingthem touched by a member of theopposite sex other than his spouse.According to Gohlman, the Qu'ran isthe 'direct, literal word of God, is thefoundation of all Islamic law and cannotbe controverted in any way.' Gohlmantestified that for a Muslim to have hisbody touched, even with clothing on, bya member of the opposite sex would beabsolutely prohibited, shameful and avery great sin. He futher indicated thatthis prohibition is listed in the Qu'ranamong its major tenets and is put on thesame level as prayer, alms giving and theother pillars of Islam, the basis of Islamicreligion.' ' 17

Under the circumstances of thecase, Rivera found that no legitimatesecurity objectives were advanced bythe use of female prison guards to friskmale Muslim prisoners and that thestate's interest in affording women equalopportunity to serve as correctionalofficers did not compel a differentresult. 18

The objectives of upholding the. dignity of Muslim prisoners and pre­serving the eqt:lal opportunity forwomen are both admirable, and thedilemma of the clash between the twowill most likely be the subject of futurelitigation.

ConclusionNo doubt, much of the opposition

by prison officials to the recognition ofreligious rights for Muslim prisoners inthe past had roots in the public hysteriaand smear campaign generated againstthe Nation of Islam in the larger society.Prison officials often raised exaggerated

16Madyun, 704 F.2d 954, 960 (7th Cir. 1983).17 Rivera, 742 N.E.2d at 1017.IS/d. at 1021.

Alvin j. Bronstein

On May 12, 1986, the UnitedStates District Court in Rhode Islandissued another in a long series of opin­ions in the Rhode Island State Prisoncase finding two of the facilities uncon­stitutionally overcrowded. In a sweepingorder, the court set population caps oneach facility and directed the state todevelop plans to remedy serious currentproblems with idleness, environmentalhealth and safety, and medical andmental health care.

A little over one year ago wedescribed the progress that had beenmade in the Rhode Island prison system(NPP JOURNAL, Spring 1985), and con­cluded that story saying " ... sevenyears of judicial involvement in thisstate's prison system have made a differ- .ence." We also mentioned a concernabout future overcrowding and that thecourt had created new timetables and areporting mechanism to insure that con­ditions in the various facilities did not fallbelow constitutional requirementsbecause of population pressures. By late1985, the overcrowding at the MediumSecurity Facility (Medium) and the IntakeService Center (ISC)I had become quite

I Rhode Island has no jails. All pre-trial detainees are in state

custody and are housed in the ISC.

concerns for security, discipline oradministration in opposing any attemptby Muslim groups to practice their reli­gion. Depsite this, some of those preju­dices have given way to the recognitionthat rights valued by other religious enti­ties apply equally to adherents of theIslamic faith in general, and the morecontroversial Nation of Islam in particu­lar. This is the result of massive FirstAmendment litigation emcompassing awide variety of issues. The propagationof these issues, regardless of whetherrelief has been obtained, has been anattempt by Islamic prisoners to validatetheir existence in the face of what onceappeared to be an essentially homo­geneous cultural and religious environ­ment, and to gain at least a modicum ofrespect and recognition from other pris­oners and the administration. Addition­ally, the raising of such issues has servedto garner the much needed pride anddignity so instrumental to success in therehabilitative process.•

Katy Baird, former law student intern atNPP. also contributed to this article.

severe and the federal court was onceagain asked by the National Prison Proj­ect to intervene.

History of the" CaseAfter an extended trial in August

1977, the United States District Courtin Rhode Island issued an opinion findingthe entire state prison system unconsti­tutional because of gross Eighth Amend­ment violations, and issued an extensiveremedial order. 2 Among other things,the order set forth detailed require­ments for inmate housing, environmentalhealth and safety conditions, inmateactivity, and medical and mental healthcare. The order also required the stateto house pre-trial detainees separatefrom sentenced prisoners and appointeda Special Master to oversee and monitorcompliance. By 1984, many of the facili­ties had come into compliance and thecourt relieved the Master of his dutiesbut expressed concern about the risingpopulation and its potential impact.

On November 19, 1984, after aseries of hearings, the court entered anorder which set forth further compli­ance requirements and reporting andcompliance deadlines, particularly withrespect to inmate programming, medicaland mental health services, and inmatehousing space at Medium and the ISC.

On June 24, 1985, the court reacti­vated the Special Master to conduct anassessment of the state's success inmeeting the terms of the November 19,1984 order. On July 22, 1985, theSpecial Master filed his Findings AndRecommendations which inter alia foundthat the defendants had not compliedwith certain important provisions of theNovember 19, 1984 order and thatalthough they had the plans andresources to comply with some of thoseprovisions, they clearly were unable todo so under the current compliancedeadlines.

On September 17, 1985, a statusconference was held in chambers. Thecourt considered the Findings AndRecommendations of the Special Masterand heard from the parties about thecurrent state of overcrowding and idle­ness at the Medium Security facility andthe Intake Service Center. The courtdetermined that an evidentiary hearing

-continued on next page.-------~'Palmigiana v. Garrahy, 443 F.5upp. 956 (D.R.I. 1977).

SUMMER 1986 5

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Ii

.

I,I

-continued from previous page.was necessary at the earliest possibletime to examine these issues and todetermine whether further remedialrelief was required to protect the con­stitutional rights of the plaintiffs as setforth in the earlier decrees of the court.An order was then entered setting thematter for trial beginning December 16,1985, and stating:

"The Court will take evidence onthe current state of overcrowding andidleness at the Medium Security Facility,including its protective custody popula­tion, and the Intake Service Center andthe impact of said conditions on thebasic housing, health, environmental andsafety standards which the defendantsare required to meet under the priororders of the Court."

Between September and Decemberof 1985, extensive discovery was con­ducted and experts in the fields of cor­rections, environmental health andsafety, medical and mental health caretoured the facilities and reviewed docu­ments. Depositions were taken of thestate's experts; pre-trial stipulations andbriefs were prepared and filed with thecourt.

Photo courtesy Rhode Island Department of Corrections.

"Old Max" as it looked in May of 1978. As a result of over seven yeors of National Prison Projectlitigation, conditions such as this have been eliminated.

The December 1985 TrialThe evidence at the three-day trial

clearly demonstrated two things: thedefendants were not in compliance withthe prior orders of the court; and theovercrowding at the two facilities had aserious and adverse impact on the basichousing, programming, health, environ­mental and safety standards which thedefendants were required to meet underthose orders. Every essential fact wasnot controverted by the defendants andmuch of the testimony of plaintiffs'experts was corroborated by the defen­dants' experts.

The Medium Security Facility, whichconsists primarily of dormitories withtwo small cellblocks, has a rated capacityof 180 inmates. Under prior courtorders, which established populationlimits for each dormitory, the capacitywas 222 inn"l'ates. At the time of thetrial, the population was close to 270inmates, with the most severe over­crowding in the protective custodydormitory where the population was at190% of the rated capacity and 160%of the limit established by the court.

The overcrowding was even moresevere at the ISC, where the 168 cellsare each designed to hold one inmate.The actual population had exceeded thedesign capacity by increasing percentagesfor the four years since the facilityopened in 1982. By November I, 1985,the population reached 347, over 200%of the design capacity. Each of the cellshad been refurnished with two metalbunks, one on top of another, and

6 SUMMER 1986

beginning in July 1985, as many as 39cells on one day were triple occu­pancy-the third inmate was required tosleep on a mattress on the floor. Thatarrangement left so little floor spacethat the two inmates on the bunks hadto step on the third inmate or his mat­tress in order to get to the open toiletin the cell. The detainees spent I9 to 20hours a day in their cells because of thelack of adequate day room and recrea­tion space and were required to eattheir meals in their cells. Many of themwere detained for very long periods oftime under these conditions.

The plaintiffs' experts testified thatthe overcrowding created tension,causing security problems and violence.They noted the high level of assaults,particularly at the ISC. All of theexperts agreed that the defendants werewholly out of compliance with the veryspecific provisions of the court's orderon programming and that the seriousproblem of idleness was even greaternow because of the current overcrowd­ing. At Medium there were only 160assigned jobs for a population of over260 and half of these jobs were porterassignments which barely occupied onehour a day. This was compounded bycompletely inadequate educational andvocational training opportunities for thenumbers of men housed in the facility.

At the ISC, the previous courtorders required the defendants to pro­vide meaningful programming for detain­ees, especially for those whose stay atthe facility exceeded 45 days. The evi-

dence clearly demonstrated that therewas even more idleness at this facility .than at Medium. At a time when thepopulation was over 300, there wereonly 82 assigned jobs, of which 57 wereporter assignments. On a particular dayin October 1985, there were 136inmates who had been incarcerated atthe ISC for 45 days or longer and therewere only 30 non-porter jobs available.There were no educational or vocationaltraining programs and recreation waspractically nonexistent because of thenumbers of inmates and lack of space.

The environmental health expertstestified that the defendants were clearlyout of compliance with the court's priororders and that the overcrowding atboth facilities had a negative impact on.public health and safety. They foundspecific violations in fire safety, plumb­ing, rodent infestation, electrical wiring,ventilation, sanitation, physical deteriora­tion in housing and kitchen areas. Theydiscovered a complete breakdown ofthe Central Kitchen which provides bulkfood for the entire prison system. Inaddition, the maintenance staff and its'ability to do either preventive or repairwork had been overwhelmed as a resultof the problems caused by the over­crowding.

Similarly, the medical and mentalhealth care experts found that thedefendants were wholly out of compli­ance with earlier court orders and thatthe current overcrowding detrimentallyaffected their ability to provide adequatebasic medical and mental health care

Supreme Court Briefsservices. They testified that seriousmedical needs of inmates were not beingadequately addressed and medical andmental health care services fell belowminimally accepted standards of care.Among other things, they found: defi­ciencies in initial medical screening andphysical examinations; a significant back­log of inmates waiting long periods oftime for their intake physical exam;serious shortages of physician, dental,mental health, pharmacy, clerical andnursing staff; inadequate emergency careand equipment; inadequate training ofstaff; inadequate policies, procedures,protocols and data collection; inadequatehousing, assessment and treatment ofmentally disturbed and suicidal inmates;and inadequate sick call system andfollow-up procedures.

At the conclusion of the trial, wemade an oral motion asking the court toimmediately enjoin the triple-ceiling atthe ISC in light of the uncontrovertedtestimony that this practice depriveddetainees of the minimum civilizedmeasure of life's necessities, violated allprior orders of the court, and violatedthe Fourteenth Amendment Due Proc­ess rights of pre-trial detainees. Thecourt granted the motion, subsequentlyentering a written order to that effectand directing the parties to file post-trialbriefs while taking the rest of the caseunder advisement.

Legal IssuesTwo separate legal arguments were

made by the NPP. Because all of theexisting orders of the court are finaljudgments and no motions to modifythese orders were made by the defen­dants, we first argued that these ordersare the law of the case and that thedefendants are precluded from relitigat­ing any of these issues. As in Hutto v.Finney, 437 U.S. 678 (1978), the courthere could look to see if past constitu­tional violations had been remedied,examine the conditions as a whole, whilehaving ample authority to fashion aremedy going beyond earlier orders tobring an ongoifilg present violation to ahalt.

Second, we argued that the twoSupreme Court decisions dealing withprison and jail overcrowding that havebeen decided since the original 1977decision in this case should not changethe outcome. In Bell v. Wolfish, 441U.S. 520 (1979), dealing with detainees,and Rhodes v. Chapman, 452 U.S. 337(1981), involving sentenced prisoners,the Supreme Court held that over­crowding per se (in both cases double­ceiling in new facilities designed for singleoccupancy) was not unconstitutional.The decisions in those cases are limitedto the facts of those cases where thecourt found that the overcrowding had

Mark Tushnet

So far in the 1985-86 term theSupreme Court has decided four caSesinvolving the rights of prisoners.Although lawyers will not find it difficultto work around the Court's denial ofprisoners' claims in the first three cases,the decisions will make it harder forprisoners who represent themselves toget trials in federal court on claims thattheir rights have been violated. Thesedecisions also send a signal to the lowerfederal courts, already being increasinglystaffed by Reagan appointees, that theyneed not listen to prisoners' claims withtoo much sympathy. The fourth case,which eliminated a defense available toprison officials in certain cases, was theonly one at all favorable to prisoners.

no impact on environmental health andsafety, idleness or medical care. Thus,unlike the present situation in RhodeIsland, there was no evidence that theconditions deprived inmates of the mini­mal civilized measure of life's necessities.

The OutcomeWe acknowledged that the court

had demonstrated remarkable patienceas it continually granted deadline exten­sions to the defendants and permittedthem to run their prison system with aminimum of judicial intervention.However, we believed that the time hadcome for the court to preserve theintegrity of its prior orders and preventongoing constitutional deprivations tothe plaintiffs.

We asked the court to imposetimely population limits on both facilities,with phased reductions, and to enjointhe defendants from exceeding thoselimits at the end of the relevant timeperiods. In addition, we asked that thedefendants be required to developspecific and timely plans for remedyingthe various deficiencies in programming,environmental health and safety, andmedical and mental health care and thatthese plans be fully implemented withincertain periods of time.

Finally, we asked that the SpecialMaster be directed to conduct semi­annual inspections and to preparereports indicating the defendants' com­pliance with each provision of the reme­dial order and defendants' plans. In con­ducting those inspections, we asked thatthe Master retain the services of expertsin the relevant fields to assist him, asappropriate, in evaluating compliance.

The May 12, 1986 opinion andorder of the court completely sustainedour position and granted all the relief werequested. It set population caps on

Daniels v. Williams, __ U.S.(1986),38 Cr.L. 3082 (1/22/86), andDavidson v. Cannon, __ U.S. __(1986),38 Cr.L. 3087 (1/22/86), were.decided on the same day because theCourt thought that they raised the samelegal issue. The question the Courtaddressed was whether someone's con­stitutional rights are violated when astate official negligently does somethingthat results in taking away a person'sproperty or liberty, thereby creating acause of action under the Federal CivilRights Act. Daniels was an ordinary slipand fall case, which happened to arise ina prison. Daniels was an inmate in a cityjail who slipped on a pillow that a deputy

-continued on next page.

Medium at 222 and the ISC at 168, withall cells required to be single occupancyand directed the defendants to achievethose limits within three and six monthsrespectively. The court also ordered thedefendants within 60 days to developplans for curing the constitutional inade­quacies in programming, environmentalhealth and safety, and medical and men- .tal health care, and gave them 120 daysto come into compliance. Finally, theSpecial Master was directed to inspectand report on compliance quarterly andwas given the authority to retainexperts to assist him.

The Lesson To Be LearnedThere are a number of lessons to

be learned from the long and difficulthistory of this case. Prison overcrowd­ing, unlike the neglect which led to theproblems in the I970s, is often notcapable of being controlled by prisonofficials themselves, despite their compe­tence and best intentions. If the legisla­tures and the courts keep sending themprisoners in increasing numbers withoutcorrespondingly increasing theirresources, there is little that a prisonofficial can do. It has been our experi­ence that a state or local jurisdiction willrarely respond to overcrowding prob­lems in the absence of a court order orconsent decree resulting from courtaction. They are aware of the problem,often know the solutions, but theirpolitical judgment tells them to do noth­ing unless forced to by the courts. Thecourts, and not the politicians, can thenbe accused of being soft on criminals.

This story illustrates the need inprison conditions litigation for eternalvigilance by counsel for the plaintiffsand the continued involvement of thecourt.•

SUMMER 1986 7

j

D.C. Pushes Panic Button in JailPopulation Crisis

-continued from previous page.had negligently left on the stairs. TheCourt unanimously agreed that Daniels'constitutional rights had been violatedbecause, according to the majority opin­ion by Justice Rehnquist, negligent actsby state officials are not the sort ofthing that the due process clause of theFourteenth Amendment was designed toguard against. He said that it would"trivialize the centuries-old principle" tohold that injury caused by negligentconduct violated the Constitution.

The Court's analysis may be difficultto reconcile with the language of theFourteenth Amendment-after all,before the accident Daniels had some­thing (his health) that he didn't haveafter it, so it looks like he has beendeprived of something, and the questionwould seem to be whether the state hadfollowed the appropriate procedures(due process) in putting Daniels in thatposition. But on the facts of the Daniels.case, it is hard to see that a special injus­tice was done to Daniels that demands aremedy based on the Constitution.

The facts in Davidson are moretroubling. Davidson was a prisoner in theNew Jersey State Prison who had beenthreatened by another prisoner. He senta note to the prison officials reportingthe threat. The note was sent to theappropriate official who received it butdid not read it or take any other action.Two days later the other prisonerattacked Davidson with a fork, breakingDavidson's nose and inflicting otherinjuries. The Court relied on Daniels andheld that, because Davidson alleged onlythat the prison officials had negligentlyfailed to act in response to his note, hisconstitutional rights were not violated.Justices Brennan, Blackmun, and Mar­shall, who concurred in Daniels dissentedhere, arguing that Davidson had allegedrecklessness by the prison officials, notmere negligence. Justice Blackmunargued in addition that because thestate, by placing him in prison, haddeprived Davidson of the ability todefend himself, it owed him a specialduty to respond to threats against hissafety. The dissent pointed out thatrecklessness or deliberate indifferencewas all that a prisoner needed to provethat denial of essential medical care vio­lated the Eighth Amendment ban oncruel and unusual punishment, and thatthe Due Process Clause providesbroader protection than the EighthAmendment.

The Court was sharply divided 5-4six weeks later in Whitley v. Albers, 54U.S.L.W. 4236 (3/4/86), which arosefrom a prison "riot" in Oregon. Albershad attempted to protect some elderlyprisoners from tear gas. Prison guardsbegan their assault on the cell blockwhile Albers was attempting to return

8 SUMMER 1986

Steven Ney

The District of Columbia's prisoncrisis continues. Recent developmentshighlight the chaos both inside theprisons and outside in the larger politicalarena where the issues are being fought.

In july 1985, Federal judge WilliamBryant imposed a permanent populationcap on the D.C. jail at 1,694. (SeeJOURNAL issue No.5, Fall 1985). Tomeet that cap the District entered intoa temporary agreement with the federalgovernment providing that all newly sen­tenced prisoners in the District wouldbe sent into the federal prison system.Utilizing that agreement the District wasable to reduce the jail population from ahigh of 2,600 to approximately 1,600by late 1985. By March 1986, the Fed­eral Bureau of Prisons had taken approx­imately 700 D.C. prisoners. A total of2,400 D.C. prisoners are now in thefederal system. These prisoners weresent hundreds and even thousands ofmiles from home; additional prisonerswere jammed into halfway houses andinto existing facilities at Lorton, Virginia.

to his cell, and get out of their way. Inthe confusion, the guards shot Albers inthe knee. justice O'Connor's opinionfor the Court held that, where guardswere attempting to resolve a prison dis­turbance by taking security measures,the guards should not be liable for theinjuries they inflict unless they usedunnecessary force to inflict pain wan­tonly. justice O'Connor emphasized thedeference the courts should give toactions taken in response to riotousinmates. The opinion then went on toassess the facts, and concluded thatAlbers had not provided sufficient evi­dence from which a finding of wantoninfliction of pain could be made. The dis­senters, in an opinion by justice Marshall,disagreed with some of justiceO'Connor's formulations of the relevantstandard, but did not fundamentally dis­agree with the approach she took to theconstitutional question. But they didchallenge the Court's assessment of thefacts that Albers had proved.

It has always been quite difficult torecover damages from prison officials incircumstances like those in Albers. Norneed any of the cases prevent trialsfrom occurring where attorneys allegethe appropriate degree of recklessnessor wantonness. The disagreementsbetween the justices over the interpre­tations of the facts in Davidson andAlbers show that careful attorneys

The federal government, however,exacted a high price from the Districtfor this temporary assistance: a commit­ment from D.C. Mayor Marion Barry tobuild yet another 700-800 bed prison inthe District. Although the federal gov­ernment offered to pick up the initialconstruction cdst, the far greater long­run cost of operating the prison wouldfall on the District's residents.

With the District already the prisoncapital of the country (With I, 100 per100,000, the nation's highest incarcera­tion rate for any state or city), the newprison would add one more facility forcaging black men (and perhaps women I).

I At the present time all women serving sentencesof more than one year are being sent into thefederal prison system from their homes in theDistrict, a result which has been harshly criticizedbut seems impervious to change, despite lawsuitsand recommendations from the U.S. Congress."Hearings on the Female Offender-I 979-80, "House Judiciary's Subcommittee on Courts, CivilLiberties, and the Administration of Justice. Seealso Cosgrove v. Smith, 697 F.2d 1125, 1126-7(D.C.Cir. 1983).

should be able to construct their claimsso that the cases will proceed beyondthe earliest, pleading stages. The effectson pro se litigants, who cannot beexpected to be so careful, will be moreserious.

In Cleavinger v. Saxner and Cain,__ U.S. __ (1985),54 U.S.L.W.4048 (12/ I0/85), the Court held thatprison officials who are members of adisciplinary hearing committee areentitled to a qualified immunity defense,rather than absolute immunity, whensued by prisoners for their actions ascommittee members. If the Court hadgranted absolute immunity to hearingofficers, such as that given to judges,they would have been immune fromdamage suits by prisoners under the CivilRights Act. Under qualified immunity, aprisoner can recover damages from ahearing officer if it can be proven thatofficers knew or should have knownthat they were engaged in constitution­ally prohibited activity.

Perhaps most important out of allthese cases is the lack of sympathy withwhich the Court read the records inDavidson and Albers. It will undoubtedlyencourage Reagan's appointees to thefederal district courts to be similarlyunsympathetic to prisoners' claims.•

Mark Tushnet is a Professor of Law atGeorgetown University Law Center.

Darrel Ellis - The Washington Post

Inmates arriving in buses were prevented fram entering the D. C. Jail far nearly three hours late ane night in March 1986. Their presence would haveforced the Jail over the court-imposed population ceiling.

-nI

-

In january 1986, the federal govern­ment terminated the agreement andrefused to take additional District pris­oners into the federal system. Thusbegan the real crisis within the Districtof Columbia as prisoners filled up all ofD.C. 's facilities not already under courtorder.

The Mayor hoped that his commit­ment to build a new prison would con­vince the federal government toreinstate its agreement to accept D.C.prisoners. It would also ensure smoothsailing for the Mayor's budget beforeSenator Arlen Specter, Chairman of theDistrict of Columbia Appropriations Sub­committee. But, as of this writing, nosuch arrangement had occurred.

Because most of the District'sprisons are under court order - the jail,the Central and Maximum Security Facili­ties and Youth ~enters I and II - theonly remaining institutions available forsecure incarceration were the prisons atOccoquan I, II and III in Virginia.

Each of those three prisons weredesigned to hold a total of approxi­mately 1,000 prisoners in open dormi­tories. By the end of April 1986, theOccoquan prisons were holding close to1,500, about 50% over capacity.Reports from inmates and newspaperaccounts indicate that there is a highlevel of tension and violence, and deplor­able living conditions. 2

During February and March the Dis-

2NPP is investigating these facilities, at inmaterequest, for possible court action.

trict engaged in a frantic effort to comeup with additional prison space. On sev­eral occasions the District even keptprisoners confined on buses outside thejail for periods of up to 10 hours.

In March, under the cover of dark­ness, the Corrections Department triedto transform an abandoned, dilapidatedpolice station located in the midst of agentrified residential neighborhood onCapitol Hill into a vest-pocket jail. Thefacility had been condemned by the Dis­trict's Fire Marshal as a firetrap, and wastotally unsuitable for housing. Finally,faced with community opposition, law­suits, and political pressure, the Districtdropped the plan.

The District also sent busloads ofprisoners to a private prison in Pennsyl­vania. That effort too was thwartedwhen the Attorney General of Penn­sylvania sued to enjoin the transfer, anda state judge ordered the buses turnedaround and sent back to the District ofColumbia.

Finally, at the end of March the Dis­trict created about 60 extra spaces forweekend prisoners by converting anabandoned cellblock in the basement ofthe old D.C. Superior Court into amakeshift jail.

In the eight months since thecourt's 1985 order, the District hasfailed to implement the alternatives toincarceration agreed upon in a stipulationsigned by the Mayor and approved bythe federal court in an effort to staveoff the ban on intake of additionalprisoners.

Reports filed with the District ofColumbia indicate that the District:

I. failed to increase half-way housecapacity despite a commitment to add400 additional beds;

2. failed to make timely paroledecisions before an inmate's paroleeligibility date; as a result inmates werebeing incarcerated past their eligibilitydates, increasing the overcrowding;

3. failed to take any effectiveaction to lobby on behalf of the Emer­gency Overcrowding Powers Act;

4. failed to implement in any sub­stantial way a Third Party CustodyProgram;

5. failed to classify the inmatepopulation to determine which prisonersneeded secure confinement and whichcould be placed in community-based pro­grams; the expert hired by the Districtof Columbia indicated that their owndata were incomplete, inaccurate andinconsistently collected.

Because of the combination of theDistrict's failure to implement basicalternatives to prisons which they hadagreed to, the shut off of the federalreservoir known as the Bureau of Pris­ons (itself approximately 45% overcapacity), and the continued aggressiveprosecution of drug cases by the U.S.Attorney's office, the rate of incarcera­tion in the District is continuing toclimb. And this persists despite a down­ward trend in reported crime in the Dis­trict for the third straight year.

The District still has no short-term-continued on next page.

SUMMER 1986 9

J

Hold Your Nose!

NPP Examines the Diet Loaf

Get "The Frugal Gourmet" on thephone. Do you have a little leftover dietloaf? Chop it up and throw it into yournext batch! What could be moreeconomical?

I'm mad with the possibilities. Theloaf is so versatile! So adaptable! So-sorectangular!

Nutritionist Wilson, who felt nofondness for the loaf, remarked thatfrom the loaf ingredients could be made"a meal of bean soup, fried liver, beefwith mashed potatoes, cabbage, andpudding. "

True, but think of all those dirtydishes. The diet loaf dirties no morethan one bowl and one pan.

Of course there is one drawback tothe loaf. In fact, perhaps it could becalled more than a drawback. It seemsthat prisoners aren't eating it. To quotethem, it's "smelly" and "tastes bad."Our nutrition expert found it "extreme­ly unappealing. I could not bring myself.to sample it, as I was fearful of becom­ing ill." Not a promising start for thediet loaf industry. And bear in mind,prisoners are fed the loaf 21 meals in arow. One prisoner refused to eat it andlost 15 pounds.

Perhaps we should send the diet loafback from whence it came (like to themulch pile?). Let's dirty a few more pansand get back to serving regular meals toinmates.•

7th Edition of Prisoners' AssistanceDirectory now available. See 1'.15.

There seems to be a new trendemerging in the kitchens of America'sprisons. Seems a prison just can't holdits head up anymore unless it bakes adiet loaf for its administrative segrega­tion prisoners.

We first encountered the loaf atArizona State Prison. Former NPP at­torney Claudia Wright described it as a"mass of chopped foods ... com­pressed, shaped into loaves, frozen, thenmicrowaved and presented as a meal .... "Attorney Urvashi Vaid, who tasted it,described it as "simply awful." Inmateswere served the diet loaf three times aday for seven days as punishment.

I was intrigued. Why a diet loaf? Iwondered. I know nutritionists have longrecommended that we eat three squaremeals a day, but is this what they meant?After all, if you're going to get literal,what about a prisoner's need for a well­balanced meal? Would it tie in somehowwith the Scales of justice? Should thesupper fit the crime? Exactly what rollwould justice serve here? (None, to in­mates on the loaf plan.)

Then it hit me. There was a themehere! Tell me, due to inadequate pro­gramming, what do most prisoners do allday? Why, they loaf! Those clever chefs.No doubt they also serve chili on chillydays. Nothing like a little kitchen humor.

Let's take a closer look at the loaf.Of course, our nutrition expert judyWilson already did, and described it as"a gray-brown color and lumpy in tex­ture" with "an offensive odor." But Imean let's really scrutinize it. I for onesee nothing but the brightest of futuresfor it. My prediction? The diet loaf willbe America's next big food trend.

You read it here first. Forget thegrilled tuna; say so long to tortellini. Theloaf is a no-muss, no-fuss meal; itfreezes beautifully, and heats up in ajiffy. You can eat it out of your hand,and, if you cook it too long, you canuse it as a doorstop. Can you say thesame thing about that messy pan ofjambalaya you made last week?

Creative cooks, take note! Dietloaves have been known to containeverything from ground swiss steak tolime gelatin-in the same loaf!

And what a boon it will be for thefrozen food industry. Can you imaginethe ads? "Diet loaf. It isn't just forprisoners anymore." Or, "A jug ofwine, a diet loaf and thee."

Betsy Bernat

.300 N. Zeeb Road, Ann Arbor, MI48I06 .

This Periodical is Indexed in .

The CtiminalJusticePeriodical IndexUniversity Microfilms International

--:continued from previous page.or long-term solution in sight. TheMayor has committed his administrationto building another prison in order tofoster a positive relationship with Sena­tor Specter's Appropriations Subcom­mittee, and with the justice Depart­ment, which might help the Mayor outtemporarily by taking additionalprisoners into the federal system. Thebuilding approach will not work and theMayor knows it. His own CorrectionalFacility Study Commission told him injanuary 1986, that if a new jailor prisonwere built it would be filled up in a mat­ter of months, or perhaps one year.The Mayor knows from bitter experi­ence that bUilding another jail will notwork. During the last six years hisadministration has built 2,000 additionalbeds at Lorton; yet, the system is stillmassively overcrowded.

Meanwhile, the problems continueto fester. On April 28, 1986, a rioterupted in Youth Center I at Lorton.The inmates ransacked portions of theadministration building and burned downa wing of the school bUilding. Only shot­gun-wielding guards could restore a sem­blance of order after shooting and injur­ing II inmates, one seriously.

In March, Mayor Barry was held incontempt of court for failing to complywith a long-standing court order at Lor­ton's Central Facility and the federalcourt threatened the appointment of aSpecial Master.

This seemingly never-ending saga ofthe D.C. prison crisis will continue untilthe District does some meaningful long­range planning and decides once and forall how many prisoners it must have,until it regards imprisonment as the lastchoice rather than the first, and until itcomes up with a comprehensiveapproach to this complex problem. Thesimple, but certainly not cheap, answerof more prisons has again been shownto be a bankrupt approach. Perhaps wewill learn the next time around.•

10 SUMMER 1986

...

TENN. REFORMS-continued from front page.

five to I I. Yet the new facilities wereovercrowded almost as soon as theyopened, and the crisis intensified. Afterhaving increased the prison budget bynearly 250% in only six years, the st'!tewas worse off than when its bUildingprogram started. Moreover, the rate ofgrowth in prison population had yet toreach its peak, since several years wouldpass before the consequences of stiffersentencing laws enacted in the early1970s were fully felt. By 1985, theSorcerer's Apprentice of harsher sen­tencing and parole policies was producinga net annual growth of 1,200 inmatesper year, an increase which would haverequired the state to bring on line a newmajor prison every five months, in­definitely into the future.

. . . the theme sounded by stateofficials was punitive, rather thanreformist.

Throughout the course of the statecourt litigation, the federal court hadabstained from considering prisoners'complaints regarding institutional condi­tions. As soon as it became clear thatthe state judiciary was unwilling tograpple with the problem, however, thefederal court responded promptly andforcefully. The U.S. District Court inNashville accepted jurisdiction of a num­ber of pro se complaints filed by pris­oners and appointed to represent themthe same counsel as those who hadhandled the state court litigation. In thesummer of 1982, after considering tensof thousands of pages of testimony anddocumentary evidence, the court issueda I68-page opinion declaring unconstitu­tional 10 of the state's II prisons.Grubbs v. Bradley, 552 F.Supp. 1052(M.D.Tenn. 1982). The court did notattempt to formulate its own remedy,showing the same restraint and the samehopes for responsible ·state leadershipwhich had pre¥iously led it to abstainduring the pendency of state proceed­ings. Instead, the court directed Gover­nor Lamar Alexander and TennesseeDepartment of Corrections officials tosubmit a plan within six months for thecorrection of the constitutional deficien­cies outlined in the court's ruling. Thecourt also called for a Special Master tooversee review of the state's plan. Afternegotiations between the parties, thecourt approved the appointment ofPatritk McManus, a former administra­tor of prison systems in Minnesota andKansas, as Special Master.

In January 1983, amid much politicalfanfare, the state unveiled a "Correc­tional Plan for the '80s" that purported

to respond to the court's mandate. Act­ing on the traditional political perceptionthat prison reform offers no politicaldividends, the theme sounded by stateofficials was punitive, rather thanreformist. More political rhetoric thansubstance, the plan promised to "putconvicts to work." But the court subse­quently found, and events confirmed,that the plan only worsened alreadywidespread idleness and violence in theprison system, by cutting out almost allof the existing meager educational pro­grams. Because of that and otherserious defects the court ultimatelyrejected the defendants' plan.

Meanwhile, the overcrowding crisisworsened. In October 1983, afterlengthy, intense negotiations, and media­tion by the Special Master, state officialsproposed a timetable for the gradualreduction of inmate populations at themost seriously overcrowded )nstitutions.The court issued an order ratifying thestate's plan with minor modifications.The order reqUired a reduction of a netof 50 inmates per month, until a totalnet reduction of approximately 1,200prisoners had been achieved. The statechose to enact an Emergency PowersAct (EPA) similar to that legislated inseveral other states, accelerating theparole eligibility dates of a limited poolof prisoners.

Although the population reductionprogram temporarily eased the over­crowding crisis, it still left unresolvedthe many other pervasive constitutionaldeficiencies which the Governor's planhad failed to address. In July 1984, againfollOWing intensive negotiations overseenby the Special Master, the court enteredan order to which the defendants hadtacitly consented, pressured by theirfear of the court's reaction to thestate's previous political posturing andfootdragging. Under the 1984 order,the state was required to hire outsideexperts to evaluate the system andmake recommendations regarding theformulation of an appropriate remedialplan. The evaluators' recommendationswere to be implemented by the state,unless it could show that they were notreasonably related to the accomplish­ment of their objectives, or unless thestate could come up with equally timelyalternatives that would be more cost­effective. The parties reached agree­ment regarding the selection of expertsto be hired, and these evaluators spentnearly a year developing exhaustivereports and recommendations, whichwere finally filed in July 1985.

The population problem (presumablysolved by the court's October 1983order of a timetable for phased popula­tion reductions at each of the prisons)flared into crisis again. For more than ayear, the population had declined as the

state implemented the court's timetable.By the spring of 1985, however, thepool of potential releases under theEmergency Powers Act had beenexhausted. Since the state had neveraddressed the sentencing laws which hadcaused the higher incarceration rates,once the EPA was exhausted populationagain began to balloon out of control. Inonly three mqnths the increase wipedout the gains in population reductionthat had been made over a period ofmore than a year. Crowding was againbecoming critical, particularly at severalof the state's mllst troubled institutions.

During this stressful time, there wasa change in judicial personnel. Judge L.Clure Morton, who had resided overthe case, went into semi-retirement, andthe case was reassigned to Judge ThomasA. Higgins, a recent Reagan appointeeto the District Court bench. Con­fronted with rapidly worsening prisonconditions and a request by the statethat it be relieved from the terms of theOctober 1983 court order, JudgeHiggins quickly mastered the voluminousrecord in the case. In June 1985, hegranted the state a temporary breatherby extending the population reductiontimetable. However, he tightened theterms of the Special Master's oversightof the state's compliance and signaledclearly that he would not toleratefurther deviations from the court'sorders.

Then, with a single stroke, thecourt remedied the situation in theintake facilities and radicallyaltered the political climate.

Coming quickly on the heels of theorder, riots broke out at six of thestate's institutions during a two-dayperiod in early July. The riots left oneprisoner dead and caused millions of dol­lars in damage. The Governor an"nounced that he would call the legisla­ture into special session in November onthe prison crisis. Prison officials pro­posed that the legislature fund a correc­tive plan which would have ignored manyof the outside evaluators' most criticalrecommendations, and which would havesidestepped the need for long-term'reform of state sentencing and releaseeligibility laws.

Against this political backdrop, con­ditions in the prisons continued toworsen, aggravated by the damage doneduring the July riots. The situation wasparticularly grave at the state's threereception centers, where unclassifiedinmates were crammed together,unsupervised, in makeshift dormitories.This greatly increased the number ofrapes and the general level of violence

-continued on next page.

SUMMER 1986 II

---------------------------------------------"'""'---...-------.----_....

An Expert Reflects on theChanging Face of PrisonLitigation

II

)1'I

-continued from previous page.In September, the plaintiffs filed a newrequest with the court for immediaterelief from these conditions. At thesame time the state reported to thecourt that it was simply unable tocontrol the population by any means,and would therefore be forced to vio­late the court's new deadline establishedin June (when the court had granted thestate's request for an extension oftime).

In spite of the crisis, a consensus infavor of reform appeared nowhere onthe political horizon. The Governor'sproposals, if adopted, would have com­mitted the state to continued noncom­pliance with the court's orders, andmany legislative leaders expressed adetermination to openly defy the court.

Improvement in conditions hasbeen dramatic, and continuedreform is promised.

Then, with a single stroke, thecourt remedied the situation in the .intake facilities and radically altered thepolitical climate. Ruling from the benchon October 23, 1985, at a hearing onthe plaintiffs' request for immediaterelief, the court enjoined the state fromadmitting any new prisoners into the sys­tem, effective immediately. The injunc­tion was to remain in effect until thepopulation of the intake facilities wasreduced to constitutionally mandatedlimits. On the other hand, the courtcontinued the pressure on the state toreform itself, by reaffirming the earlierdeadline requiring reduction of the otherprisons' populations to acceptable limitsby December 3 I .

Although the court's actionsprompted some public and officialresentment, there was widespreadawareness that the state had broughtthe crisis upon itself by failing to set itsown house in order. Most important,the action galvanized local judges, prose­cutors, jailers and police officials into apowerful 10bQY for prison reform. Thecourt's action put a cork in the prisonbottleneck, backing up the rest of thestate's criminal justice system. Popula­tion pressures on local jail and detentionfacilities forced the release on recogni­zance of many defendants and delayedtrials which might have resulted in theimposition of a prison sentence.

When the special session of thelegislature convened in early November,movement toward reform was spurredby these pressures from local officials.The specter of more court-imposedsanctions, should the state fail to meetthe December 3 I deadline for furtherpopulation reduction, provided greaterpressure. Guided to a great extent by a

12 SUMMER 1986

John Conrad

Prison litigation, as conducted bythe National Prison Project *, haschanged the landscape of Americanpenology beyond the recognition of anold-timer like myself. I have been proudto be an occasional small cog in theprocess that has brought to an end manyof the most disgraceful features of theAmerican criminal justice system as itwas managed in 1947, when I began mypenological career, and for many yearsthereafter. What I have to say in thesereflections should not be construed asadverse criticism of AI Bronstein, hisstaff, and their influence. We all have adebt of gratitude to them. The Project's-.york is a good cause for faith in thelegal profession, the survival of altruism,and the continuing benefits of the Bill ofRights.

Nevertheless, there is a lot more tobe done, and I think the National PrisonProject must get on with doing it. It was

'Editor's note: While other groups and individualsaround the country are litigating prison cases, theNPP is the only group engaged in systematicchallenges to prison conditions on a national scale.

well-staffed and well-led Special Commit­tee on Corrections, the month-long ses­sion proved to be extremely productive.A new overcrowding safety valve wasenacted to replace the bankrupt Emer­gency Powers Act. Legislators passed abill directing the closing of the troubled19th-century Tennessee State Prison andordering its replacement with two newprisons. Efforts to turn over part or allof the prison system to a private corpo­ration were rejected.

The Governor revised his remedialplan to conform with the recommenda­tions of the court's evaluators. Thelegislature funded the plan with an addi­tional first-year appropriation of $55million. The state created a sentencingcommission to study existing sentencinglaws and make recommendations fortheir overhaul, a major step towardlong-term population stability.

IneVitably, the court's order hasresulted in some jail overcrowding at thelocal level. To a surprising extent, how­ever, the criminal justice system hasresponded to the shutdown of prison

one thing to c1~an up the prisons of Ala­bama, one of tne most enjoyablereforms I have ever witnessed. It is quiteanother to think through and agitate forthe creation of a penal system thatmakes sense in late 20th centuryAmerica. In what follows, I want to usethe Alabama reforms as a case studywith a fairly happy ending, and then toconsider the implications for futureprison litigation. I shall conclude with awarning about some dismal omens onthe horizon which suggest a role forprison litigation in the public advocacy ofcommon sense in penology.

The Alabama CaseMy introduction to the National

Prison Project occurred in August 197~,

when AI Bronstein invited me to be anexpert witness in the case which wasthen designated James v. Wallace, nowmore generally known as Pugh v. Locke.It was my first experience as an expert,and to this day I am still nonplussedabout my role in that case. The condi­tions prevailing in the overcrowded Ala­bama prisons have been described else-

intake by diverting would-be jail inmatesto pre-trial release or probation pro­grams. The state succeeded in meetingthe deadline and is now slowly beginningto reopen intake at the prisons.Although the worst of the overcrowdinghas been corrected, pervasive constitu­tional deficiencies remain.

In spite of these continuing prob­lems, there is now a political, as well asjudicial, mandate for reform for Tennes­see's prison system, for the first timesince the convict leasing system wasabolished nearly a century ago. At atime when many question the proprietyor effectiveness of judicial interventionin such cases, the Tennessee experienceis an encouraging example of what canbe accomplished when a court, balancingrestraint with resolve, makes it clear toa state that the Constitution shall beobeyed.•

Gordon Bonnyman is a senior attorneywith Legal Services of Nashville and MiddleTennessee and has been a lead attorney inthe Tennessee prison case since its incep­tion in 1976.

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where and frequently, they were shownon national television, and they stillchallenge belief. The indifference andincompetence of an undermanned anduntrained staff shocked me almost asmuch as the filth, the vermin, the pre­vailing idleness, and, most of all, the gro­tesque crowding of three or four pris­oners into spaces where only one shouldbe. Some prisoners were aSSigned tospaces where no one should be. (Mem­orable example: the mattresses installedover the banks of urinals in the NorthDorm of Mount Meigs.) Prisoners whofailed to report on time for a workdetail were assigned to the infamous"doghouse," a special unventilated,unlighted facility in which eight menwere packed into one cell. On the otherhand, there was no supervision in thedormitories, which housed as many as250, or in cellblocks, in which the lockswere inoperative, thereby removing allrestraint on opportunities for sexualassault and other predations.

This was the bottom. In my time,no prison conditions in this countryapproached this level of unintendeddepravity.

What kind of expertise is needed topronounce on the unacceptability ofsuch conditions? Ted Gordon, a publichealth expert, discovered bed-bugs inthe clothing room, roaches in thekitchen, weevils in the flour, and ratseverywhere. Such findings require anexpert who knows where to look.Some of these fauna I could see formyself, but Gordon knew more abouttheir hiding places than I will ever know.No judge, certainly not the redoubtablejudge Frank johnson, who presided overJames v. Wallace, would ignore expertisesuch as this.

But what expertise is needed to findunacceptable the packing of 250 men ina 50-man dormitory, for 24 hours aday? Or the jamming of I50 men into50 cells that had been designed for singleoccupancy? I toured these places, testi­fied on what I had seen, and was grati­fied later on tQ learn that my testimonyhad established the unacceptability ofthese obViously unacceptable conditions.But any layman capable of counting num­bers into the hundreds and pacing offthe length and breadth of a dormitorycould have done as well as I.

In its wan attempt to defend theindefensible, the State of Alabama putno restrictions on my movements orobservations. I could go anywhere, talkto anyone, and examine any records Iwanted to see. That is the way it shouldbe, but state attorney generals nowthink they have learned a thing or twoto put people like me in a more difficultposition. Expert witnesses cannot bekept out of prison, but their move-

John Conrad

ments, observations, and inquiries can beclosely monitored by an accompanyinglawyer from the attorney general'soffice. The court order authorizing theexpert's visit can be drafted to restrictobservation to specified places andactivities, and to require that noquestions be asked of members of thestaff, even in the presence of theattorneys.

The benefits to the state of theseboundaries on inquiry are certainly imagi­nary. The expert can only guess thenature of the problems confronting theprison warden and will have no idea howor whether the warden and his staff planto tackle them.

But what expertise is needed tofind unacceptable the packing of250 men in a 50-man dormitory,for 24 hours a day?

The plaintiffs won the Alabama case.judge johnson laid down a comprehen­sive court order detailing changes thathad to be made to bring the Alabamaprisons into conformity with the EighthAmendment of the Constitution. Thatorder was appealed and modified in part,but movement toward reform began. Itis still going on.

This is not the place to recite thewell known history of the Alabamareforms. What I want to do now is tooutline a perspective on them fromwhich the prison litigator and future ex­pert witnesses can learn. In 1975, noneof us saw what the long run should be.In the short run, it was easy to agree

that the Alabama prisons had to be dras­tically changed. The "doghouse" at theDraper prison was demolished right afterjudge johnson issued his decree. The ag­ed and infirm prisoners at the institutionwere removed from the dangerousfiretrap in which they had been confin­ed. Most important, the decree requiredthat the population of the Alabamaprisons could not exceed their ratedcapacities, as established in a report sub­mitted to the court.

Overcrowding came to an end, butthe felonious co~duct of some Ala­bamians did not. The courts continuedto find men and women guilty of seriousoffenses, but on conviction they had tobe placed on waiting lists for admissionto the state prisons. While waiting, theywere held in the county jails, whichwere certainly no more salubrious thanthe prisons had been and which werebecoming equally overcrowded.

Meanwhile, under the supervision ofa citizens' committee appointed by judgejohnson and, with the realization thatthe federal court's jurisdiction wouldnot end until the prisons were in fullcompliance with the court's order,progress was being made. Dilapidatedold prisons were renovated, programsand industries were installed, and profes­sional staff developed.

In 1980 I was invited to revisit theAlabama prisons. I was pleasantly aston­ished by the changes that had been madein a fairly short time. The louts whopassed for prison guards and higher offi­cials in 1975 had been replaced by rea­sonably alert and obviously trained menand women; several good vocationalprograms were in operation; some reallive psychologists were on duty; andwardens and associate wardens had someadministrative talent. No one wouldwant to do time in an Alabama prison,but one would not expect to be con­tinuously terrified.

There was a nasty problem whichattracted the attention of john Carroll,attorney for the prisoner plaintiffs, andthe concern of judge Robert Varner,successor to judge johnson on the Fed­eral District bench. This was the con­tinued backlog of prisoners waiting inthe county jails for admission to thestate prisons. They accumulated to apeak of about 2,000 and it was becom­ing obvious that the' awful conditionsthat had prevailed in the prisons hadbeen shifted to the jails. In December1982, judge Varner issued a decree thatthis backlog be wiped out. To make surethat it would be done, he appointed an"implementation committee," consistingof M.R. Nachman and Ralph I. Knowles,two Alabama lawyers who had beendeeply involved in the original restruc-

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SUMMER 1986 13

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Successful prison litigation statesthe problem but does not solve it.

serious complaints had been drawn up bythe prisoners. Conditions were about asalleged, but what could be done? TheCalifornia prisons were all over­crowded-and still are. The court'sorder to make a drastic reduction in theSan Quentin population relieved the ter­rible local situation, but shifted the over­crowding to another prison outside thejurisdiction of the court.

It may be necessary to solve someprison problems piecemeal, but surelyconsideration should be given to theconsequences for the whole system. Inthe case of Calilornia, the solution toalmost any local prison problem will haverepercussions throughout the prison cir­cuit, and, sometimes, outside it. Thedilemma for the Department of Correc­tions, the litigators, the experts, and thecourt, is excruciating. Before the casecomes to trial, conferences should takeplace to clarify feasible alternatives tothe conditions which constitute thegravamen of the litigation.

We have come a long way from thealmost Manichean state of affairs thatconfronted judge johnson in 1975. Atthat time, experts were hardly neededto establish the ineqUity of Alabamaprison conditions. We still need the NPPand other prison litigators maybe asnever before, but they need more andbetter experts to conduct litigation thatwill contribute to human penology.

Successful prison litigation states theproblem but does not solve it. Thecourt usually retains jurisdiction until it issatisfied that the necessary changes havebeen made, but it cannot make thechanges itself. That must be done by thesystem's administrators, usually super­vised by a Special Master or a monitor.This arrangement inevitably causes a lot

. of pain. There is a division of authority,and in a prison with all the ambiguities ofauthority in a three tier set of roles, theauthority of the Special Master may be afourth and confusing factor in the powersystem. Both the warden's staff and theguards have authority, and the Masterprovides a new upward channel throughwhich grievances can and do flow.

Under these circumstances it isessential that from the outset roles bedefined as clearly as possible. The SpecialMaster should be limited to the supervi­sion of only those changes that thecourt has prescribed. He or she shouldabstain from any other intervention inthe system although useful recom­mendations should be welcomed by bothsides. If these understandings can beeffected from the beginning, problems

The aged and infirm prisoners .were removed from the dangerousfiretrap in which they had beenconfined.

how many officers should be on dutyduring a watch, what they should bedoing, where they should be stationedand how they should be trained andsupervised. Or how a classification sys­tem should be organized and conducted.Or what kinds of programs should beinstalled in the administrative and protec­tive segregation units.

There are general principles govern­ing these matters and many others, anyof which have to be adapted for ancientand obsolete structures which are still inuse as well as for the spanking newprisons designed for effective architec­tural control. The experts should befamiliar with the various standards forprison management, such as those estab­lished by the American CorrectionalAssociation, the Department of justice,and the American Bar Association. Theyshould not be expected to know every­thing. I don't know any prison officialswho would qualify as sanitarians, norshould anyone like me be expected topronounce on the adequacy of the medi­cal services. Prison experts are neededto say what ought to be done andwhether it is being done by the manage­ment of the prison in litigation.

No expert should take the witnessstand without a thorough tour of theprison about which he or she is totestify. I urge litigators not to com­promise on this matter even when nego­tiating a consent decree or court order.If the sole issue is the quality of life inthe Hole, the expert must see the restof the prison to have any basis for dis­cussing possible changes. The tourshould allow for freedom to talk withofficials about their perception of prob­lems and what should be done aboutthem. When conditions are as dreadfulas they were in Alabama in 1975, thenthe court needs to know whether thereis any potential for progressive change ifthe officials on duty are to remain incharge.

Statewide Perspective NeededThat brings me to another problem

that has bothered me in my attempts toplay the expert. Nearly all prisons in thiscountry are now units in a system ofprisons. For example, a couple of yearsago I was asked to be an expert witnessin litigation brought against the wardenof San Quentin-in a sense my almamater, where my penological careerbegan. Violence was endemic, the placewas grossly overcrowded, and a list of

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In my time, no prison conditions inthis country approached this levelof unintended depravity.

-continued from previous page.turing of the Department of Correc­tions; Dr. George Beto, Professor ofCriminal justice at the Sam HoustonState University in Texas; and myself, atthat time a Visiting Fellow at theNational Institute of justice in Washing­ton. Our committee has been in exis­tence ever since. Two developmentshave eliminated the backlog of prisonersin the county jails. Three large new pris­ons have been built, all of them close tostate of the art. That unfortunate neces­sity was imposed by the continuing rateof commitments. We may deplore thenumber of Alabamians who are sent toprison for property crimes, and thenumber who are sent to serve life termswithout possibility of parole, but if thecitizens require such severity in theadministration of justice, new prisonsthere must be.

The Role of the ExpertI now want to see what lessons we

can draw from this experience. First,consider the nature of penologicalexpertise. If experts are to be sum­moned for the litigation, their experi­ence must be comprehensive enough toknow what is wrong and to enable themto be authoritative on what can be doneand what ought to be done. That meansthat they must know such principles as

Fortunately, necessity may be themother of invention as well as of prisonconstruction. Making use of a conveni­ent ambiguity in the state law, Commis­sioner Freddie Smith designed and putinto effect a new program of earlyrelease for property offenders. Underits provision, prisoners might be releasedwithin six months of the original releasedate to take part in a program calledSupervised Intensive Restitution (SIR).They would be employed full time,accept daily visitation from a paroleofficer, pay any restitution that hadbeen ordered by the court, and pay anappropriate monthly fee for the privilegeof their early release. The program hasbeen under some influential attack by apolitically ambitious attorney general,but it now seems to be safe and accom­modates several hundred selected con­victs at any given time.

No state will preen itself on theexcellence of..its prisons, but the Ala­bama prisons are now a lot more decentand progressive than the prisons of anumber of much more affluent states Ihave visited in the course of my careeras an ..expert. "

14 SUMMER 1986

can be solved. If not, the changes thecourt has ordered will drag on foryears, and will be carried out in anatmosphere of resistance, if not outrighthostility.

Comments on the Future ofLitigation

At the outset, I said that the omensfor continued prison improvement arenot good. Prison sentences are longer,parole boards are becoming more cau­tious about release, costs of prison con­struction are rising, programs thatreduce prisoner idleness are being elimi­nated or drastically pruned, and thereseems to be much less public concernabout the condition of our prisons.

The National PrisonProject JOURNAL,$20/yr. $2/yr. to prisoners.Back issues, $1 ea.

The Prisoners' AssistanceDirectory, the result of anational survey, identifies anddescribes various organizationsand agencies that provide as­sistance to prisoners. Listsnational, state, and local or­ganizations and sources of as­sistance including legal, library,medical, educational, employ­ment and financial aid. NEW7th Edition, published April1986. Paperback:"$20 prepaidfrom NPP.

Offender Rights Litigation:Historical and Future De­velopments. A book chapterby Alvin J. Bronstein publishedin the Prisoners' RightsSourcebook (1980). Tracesthe history of the prisoners'rights movement and surveys

There are signs that the federal courtsare losing patience with prisoners' c1ass­action lawsuits. The dramatic abuses thatwere brought into court in Alabama andTexas, for example, are under correc­tion. The less striking inequities can beconsigned to. the attention of administra­tors, prisoner grievance systems, or tothe ombudsman, if any.

Does this mean that litigation isabout to go out of fashion? I certainlyhope not. The National Prison Projecthas accumulated a practical' expertise ofits own that the nation needs, perhapsas never before. Who else really knowshow to move a reluctant system intochange? Who else knows what changesare possible?

QTY. COST

the state of the law on variousprison issues (many case cita­tions). 24 pages, $2.50 prepaidfrom NPP.The National PrisonProject Status Report listsby state those presently undercourt order, or those whichhave pending litigation eitherinvolving the entire stateprison system or major insti­tutions within the state. Listsonly cases which deal withovercrowding and/or the totalconditions of confinement.(No jails except District ofColumbia). Periodicallyupdated. $3 prepaid fromNPP.Bibliography of Women inPrison Issues. A bibliographyof all the information on thissubject contained in our files.Includes information on abor­tion, behavior modification pro­grams, lists of other biblio­graphies, Bureau of Prisonpolicies affecting women inprison, juvenile girls, women injail, the problem of incarcer­ated mothers, health care, andgeneral articles and books. $5prepaid from NPP.

A Primer For Jail Litigatorsis a detailed manual with practi­cal suggestions for jail litigation.

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Many needed changes are beyondthe direct power of the courts to bringabout. If new prisons must be built, thelegislatures must vote the appropria­tions. If terms are too long, causingunnecessary crowding, the legislaturesmust modify penal codes. If parole poli­cies are unduly restrictive, pressuresmust be brought to bear for them toloosen up. Anc;l if an innovation like Ala­bama's SIR program will reduce crowd­ing, administrators will have to preparepublic opinion, organize the program,train the employees who will carry itout, and protect'it from foolishdecision-making. The National PrisonProject and other Iitigators can do none

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QTY. COST

It includes chapters on legalanalysis, the use of expert wit­nesses, class actions, attorneys'fees, enforcement, discovery,defenses' proof, remedies, andmany practical suggestions.Relevant case citations and cor­rectional standards. Ist edition,February 1984. 180 pages,paperback, $15 prepaid fromNPP.

The Jail Litigation StatusReport gives a state-by-statelisting of cases involVing jail con­ditions in both federal and statecourts. The Report coversunpublished opinions, consentdecrees and cases in progress aswell as published decisions. TheReport is the first nation-widecompilation of litigation involv­ing jails. It will be updated regu­larly by the National Jail Proj­ect. Ist Edition, published Sep­tember 1985. $15 prepaid fromNJP.

ACLU Handbook, TheRights of Prisoners. A guideto the legal rights of prisoners,pre-trial detainees, in question­and-answer format with case '" ,"""n,.' .....' .....

citations. Bantam Books, April1983. Paperback, $3.95 fromACLU, 132 West 43rd St.,New York, N.Y. 10036. Freeto prisoners.

Fill out and send with check payable toThe National Prison Project161 6 P Street, NWWashington, D.C. 20036

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SUMMER 1986 IS

111••11111The following are major develop­

ments in the Prison Project's litigationprogram since March 31, 1986. Furtherdetails of any of the listed cases may beobtained by writing the Project.

Abbott v• Richardson-This is thenational class action which challenges theFederal Bureau of Prisons' mail and liter­ature policies. The appeal was argued inJanuary before the D.C. Circuit.

Boudreau v. Wainwright-This caseinvolves the right of inmates in Floridato wear armbands protesting the execu­tion of John Spinkelink. Our objectionto the Magistrate's report grantingdefendants' motion for summary judg­ment was rejected, and we filed anappeal this quarter.

Jerry M. v. D.C.-This case deals withconditions in the District's juvenile facili­ties. In February we moved for a TROconcerning the unsafe housing of chil­dren in large dormitories in Cedar Knoll.The parties reached a stipulation pro­hibiting the number of children thatcould be placed in dorms and required ahigher ratio of staff to children.

Nelson v. Leeke-This case challengesterribly overcrowded conditions in SouthCarolina's major prisons. Due toextreme overcrowding and the resultingtriple-celling at three facilities, we requestedseveral actions by the court and thecourt-appointed monitor.

Palmigiano v. Garrahy-In the RhodeIsland state-wide prison case we received

an excellent opinion on May I2 holdingthat overcrowding had had an unconsti­tutional impact on various conditions attwo facilities. The court ordered pop­ulation caps, including single-ceiling at thenew Intake Center, and required thedefendants to develop plans to cure thedeficiencies in programming,environmental health and safety, andmedical and mental health care.

Ramos v. Lamm-This case challengesthe totality of conditions at theColorado State Penitentiary. On March27, we received a favorable opinionincreasing the fee award to $1,060,000(less the interim award of $282,000).On April 21, the state finally agreed tosettle the claim for $960,000, less theinterim award, With payment to be madein 30 days.

-continued from previous page.of these things, but they can help to seeto it that they are done when suchmeasures must be part of the solution.

A federal judge once remarked tome that when he was in law school hewondered why judges did not makemore use of their equity powers in thepublic interest. When at last he foundhimself on the bench, he soon found outthat these powers came with burdensthat fell on him alone. Neither theNational Prison Project nor anyone elsecan entirely remove these burdens fromthe judge's shoulders, but they can belightened. There is a lot more that hasto be done-judges, litigators, andexperts must get on with doing it,

Terry D. v. Rader-This action chal­lenges the conditions in six juvenile insti­tutions in Oklahoma. We filed motionsfor summary affirmance in the 10th Cir­cuit in order, to obtain the uncontestedportion of our fees and costs judgment.

u.s. v. Michigan/Knop v. Johnson­In U.S. v. Michigan, the court's inde­pendent expe~ issued a report findingsubtantial areas of defendants' non­compliance. The court ordered defen­dants to explain their failure to imple­ment their own mental health care planand ordered supplemental reliefregarding mental health services. InMay, the defendants were held in con­tempt on this issue. In Knop the plaintiffswon several discovery motions.

enlisting help from governors, adminis­trators, legislators, and the interestedpublic wherever litigation is notenough.•

john Conrad has done extensive aca­demic and consulting work in the field ofcriminal justice. He has served as projectdirector and member of the board ofdirectors of the American justice Institute.Mr. Conrad has held various positions inthe California Department of Correctionsduring his career. He has served as chief ofresearch of the U.S. Bureau of Prisons andchief of the Center for Crime Preventionand Rehabilitation of the National Institutefor Law Enforcement and Criminal justice,now the National Institute of justice.

National Prison ProjectAmerican Civil Liberties Union Foundation161 6 P Street, NW, Suite 340Washington, V.c. 20036(202) 331-0500

16 SUMMER 1986

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