A PROJECT OF THE AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.VOL. 8, NO.2, SPRING 1993 • ISSN ~748-2655

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Moscow Prison Conference Breaks New Groyud

Visitors were dismayed by conditions in the Russianprison beyond this gate. Their visit was part of theInternational Conference on Prison Reform in FormerTotalitarian Countries.

this was not a meeting that had ever hap­pened before.

The foreign participation was the result ofcollaboration with Penal ReformInternational (PRI), a non-governmentalorganization based in London (U.K.) whichhas individual members in over 40 coun­tries. Nearly 60 PRI members attended,mainly from West and East Europe, and therest came from the U.S.

Without the foreign "bait" the organizersalmost certainly would not have achievedtheir aim of assembling all the interested _parties together. The very title of the confer­ence, "Prison Reform in Former TotalitarianCountries," caused annoyance in theMinistry of the Interior. Not surprisingly,since many of the bureaucrats managing thecriminal justice system today are those whodid the same job under the old regime.

Given the mix of former dissidents on theone hand,and apparatchiki on the other,the tone was remarkably free of personalrecrimination. There was no vindictiveness,no point-scoring. The whole four days sawan intensely serious debate which ran virtu­ally non-stop and was still going full tilt atthe press conference on the fifth day. It wasessentially a Russian affair: the old-worldcourtesies of language (first name andpatronymic as the term of address) con­trasted oddly with the harsh testimony of

"You are the bait," Alex Petrovtold us as we came off the planeat Moscow. "By inviting foreign­ers to this conference, weenticed our own big names. Withyou here, our authoritiescouldn't refuse."

The strategy worked. TheRussian human rights activists,coordinated by the MoscowHelsinki Group, had got togetherministry officials and seniorprison administrators from allover the former USSR. They hadinvited doctors and advocateswith first-hand knowledge ofprison conditions, and acade­mics involved in legislativereform. Many of the organizersthemselves knew the Gulag fromthe inside, having served sen­tences as political prisoners inthe years before perestroika,and a number of their confer­ence guests shared the samebackground. This was not ameeting where officialdom wasgoing to get off lightly. Indeed,

and Poland, and West EuropeansfromFrance, Switzerland, Belgium, theNetherlands, Germany, Denmark, Swe­den, Norway and the United Kingdom. Ahandful camefrom the United States.Alvin] Bronstein, executive director ofthe National Prison Project, was one ofthe participants. He said, "In light oftheeconomic chaos in the Russianconfederation the impact ofthis confrr­ence on prison reform remains to beseen. However, the warmth and openness

ofthe Easterners and the manyfriendships that developed willresult in a continuing ex­change. "Afollowup conferencehas already been scheduledforMay 1993, in Kazakhstan. (Alsosee sidebar, p. 20.)

The International Conference onPrison Reform in Former Total­itarian Countries was held at a

conference center about 30 miles out­side ofMoscow from November 14-19,1992. Participants camefrom a numberofformer Soviet republics, from Russiato Kazakhstan. In addition, there wereEast Europeans from Croatia, Hungary

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This prisoner, shown in the segregation block of"Enterprise 136.2," a labor camp 70 km. north ofMoscow, requested segregation after stealing foodfrom other prisoners.

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Alvin J. Bronstein, Executive DirectorThe National Prison Project of theAmerican Civil Liberties Union Foundation1875 Connecticut Ave., NW, #410Washington, DC 20009(202) 234·4830 FAX (202) 234·4890

Editor: Jan ElvinEditorial Asst.: Betsy Bernat

place, the lawyer was not informed.Complaints were now possible under the law,but she knew of only two successful out­comes when a detainee had been released.

The NPP JOURNAL is available on 16mmmicrofilm, 35mm microfilm and 105mmmicrofiche from University MicrofilmsInternational, 300 North Zeeb Rd., AnnArbor, MI 48106-1346.

The National Prison Project is a tax-exempt foundation­funded project of the ACLU Foundation which seeks to

strengthen and protect the rights of adult and juvenile

offenders; to improve overall conditions in correctionalfacilities by using existing administrative, legislative andjudicial channels; and to develop alternatives to

incarceration.The reprinting of JOURNAL material is encouraged with

the stipulation that the National Prison Project JOURNALbe 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 Notional Prison Proiect. Materials ~nd suggestionsare welcome.

Prison VisitsVisits to prisons by members of the con­

ference confirmed these accounts. Membersof the party that went to one of Moscow'stwo large remand prisons were amazedthat they had been allowed to see suchappalling conditions.

The party I joirred went to a labor campnear Moscow for,}irst-time convicts.Physical conditions were spartan, anddysentery hit the camp last summer. But thediet was no less varied than in current lifeoutside. The colonel in charge (apere­stroika appointment) allowed us unre­stricted access to all parts of the camp,including the segregation block, whereRussian speakers were allowed to talk toprisoners. Another party visited a prisonfor women, and had great problems evenbeing allowed through the gates. Alotdepends on whomever is in charge on thespot, now that central power has less grip.

(con't. on page 20)

we've given you, push for themoney." What we are seeingare the mechanics of reform inaction.

The new code outlaws thedeprivation of food, clothing orbedding, or the cancellation of ,j'

visits, as prison punishments; it ".;guarantees freedom of con­science and religion; it permitsprisoners to send complaintsJoorganizations outside the ";,.prison administration; itincreases allowances of visitsand food parcels; it sets amini­mum wage and grants convictsaweek's leave offwork.

But the code has not suc­ceeded in abolishing compul­sory labor, the bedrock of thesystem both under commu­nism and before. The penalcolonies therefore remainessentially a means of forcedstate production. Evidencepresented at the conferenceshows that no one is spared.Women with small children,invalids, tuberculosis cases(11% of all prisoners), haveto put in their hours.

The convict in Russia iswell off compared with theprisoner awaiting trial. At theconference, former prisoners

and independent witnesses described howthe pretrial prisons, known as "investiga­tion wards," are so overcrowded that cellsdesigned for two hold up to seven.Prisoners have to take turns to lie down;lack of ventilation causes fainting. Sanitaryarrangements are a row of stinking holes.

The notorious Kresty prison in St.Petersburg was cited. Built for 3,000 [ed.note: other reports cite 1,000], it houses6-7,000. Amass hunger strike last Mayproduced no effect, except to have theactivists outside who publicized it threat­ened by the "special services" (KGB). Anapproach was made to the United Nations,who asked for more detailed information,which cannot be obtained because no onecan get in.

Perhaps the most horrific account camefrom an advocate who described the plight ofjuveniles. Marina Natanovna Rodman saidthat when she visited youngsters being heldin the investigation wards, she found themhungry, sick and terrorized. Under the cur­rent law, she said, a lawyer could visit adetainee after 24 hours. But the first day andnight were used to extract confessions, andteenagers often complained that they hadbeen beaten. When the trial finally took

20th century experience. We, the outsiders,had come in on one chapter of avery longstory.

Like everything in the former SovietUnion, the prison system exists now in ashifting no-man's land, between the oldorder and whatever new order may emerge.The cast of the conference rostrum was aliving demonstration of recent shifts. SergeiAdamovich Kovalev, in the chair on the firstmorning, is chairman of the Human RightsCommittee of the]ussian Supreme Sovietand an influential voice in drafting legisla­tion. Not so long ago he was in a labor campserving a political sentence.

Refonn CodeAreformed penitentiary code has been

introduced-it scraped through Parliamenton the third attempt lastJune. But given thelack of resources, asked the questioners onthe floor, how would it be implemented? Forinstance, how would prisoners exercise thenew right to make phone calls home, whenthe camps lack phones? Kovalev stressed thatit is essential to get the principle established,"to get it on paper, as a right." He turned totwo prison directors, also on the rostrum,and told them they must now "use the law

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2 SPRING 1993 . THE NATIONAL PRISON PROJECT JOURNAL

"Infamous Punishment":The Psychological Consequencesof Isolation

Bare concrete walls form an exercise "yard" at Pelican Bay where prisonersengage in solitary recreation. An opaque roof covers half the yard; the wirescreen which covers the other half provides prisoners with their only view ofopen sky.

prison grounds, which are covered insteadby gray gravel stones. This is no smallaccomplishment since the prison sits adja­cent to the Redwood National Forest andthe surrounding landscape is lush enoughto support some of the oldest living thingson earth. Yet here is where the CaliforniaDepartment of Corrections has chosen tocreate the most lifeless environment inits-or any-correctional system.

When prisoners do get out of their cellsfor "yard," they are released into a barrenconcrete encajiement that contains noexercise equipment, not even a ball. Theycannot see any of the surrounding land­scape because of the solid concrete wallsthat extend up some 20 feet around them.

Overhead, an opaque roof covers half theyard; the other half, although covered witha wire screen, provides prisoners withtheir only view of the open sky. When out­side conditions are not intolerablyinclement (the weather at Pelican Bayoften brings harsh cold and driving rain),prisoners may exercise in this concretecage for approximately an hour-and-a-halfa day. Their movements are monitored byvideo camera, watched by control officerson overhead television screens. In the con­trol booth, the televised images of severalinmates, each in separate exercise cages,show them walking around and around theperimeter of their concrete yards, like lab­oratory animals engaged in mindless andrepetitive activity.

Prisoners in these units endure anunprecedented degree of involuntary,

austere. Indeed, Pelican Bay's low, win­dowless, slate-gray exterior gives no hin~,

to outsiders that this is a place where "human beings live. But the barrennes~of

the prison's interior is what is most sflir­tling. On each visit to this prison I havebeen struck by the harsh, visual samenessand monotony of the physical design andthe layout of these units. Architects andcorrections officials have created living

environments that are devoid of socialstimulation. The atmosphere is antisepticand sterile; you search in vain for human­izing touches or physical traces thathuman activity takes place here. The"pods" where prisoners live are virtuallyidentical; there is little inside to marklocation or give prisoners a sense of place.

Prisoners who are housed inside theseunits are completely isolated from the nat­ural environment and from most of thenatural rhythms of life. SHU prisoners,whose housing units have no windows, getonly a glimpse of natural light. One prison­er captured the feeling created here whenhe told me, "When I first got here I feltlike I was underground." Prisoners atPelican Bay are not even permitted to seegrass, trees or shrubbery. Indeed, little ornone exists within the perimeters of the

Since the discovery of the asylum, pris­ons have been used to isolate inmatesfrom the outside world, and often

from each other. As most students of theAmerican penitentiary know, the first realprisons in the United States were charac­terized by the regimen of extreme isolationthat they imposed upon their prisoners.Although both the Auburn and Penn­sylvania models (which varied only in thedegree of isolation they imposed) eventu­ally were abandoned, in part because oftheir harmful effects upon prisoners,1

most prison systems have retained andemployed-however sparingly-someform of punitive solitary confinement. Yet,because of the technological spin that theyput on institlltional design and procedure,the new super-maximum security prisonsare unique in the modern history of Amer­ican corrections. These prisons representthe application of sophisticated, moderntechnology dedicated entirely to the task ofsocial control, and they isolate, regulate,and surveil more effectively than anythingthat has preceded them.

The NPPJOURNAL continues its in­depth coverage ofsupermaximum secu­rity prisons. In the Fall 1992 issue, weran an overview article, "The Marioni­zation ofAmerican Prisons, " and apiece on Barlin.nie, the Scottish equiva­lent ofour supermax. It operates in avery different mannerfrom its u.s.counterparts with very different results.A third article on California's PelicanBay State Prison, the most restrictiveprison in the country, focused on itssevere and restrictive confinement. Inthefollowing article, University ofCalifornia psychologist Craig Haneyexamines the psychological effects ofconfinement in prisons like Pelican Bay.

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The Pelican Bay SHUThe Security Housing Unit at California's

Pelican Bay State Prison is the prototypefor this marriage of technology and totalcontrol,2 The design of the SecurityHousing Unit-where well over a thou­sand prisoners are confined for periods ofsix months to several years-is starkly

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THE NATIONAL PRISON PROJECT JOURNAL SPRING 1993 3

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enforced idleness. Put simply: prisonershere have virtually nothing to do. Althoughprisoners who can afford them are permit­ted to have radios and small, regulation­size televisions in their cells, there is noactivity in which they may engage. Exceptfor the limited exercise I have describedand showers (three times a week), thereare no prison routines that regularly takethem out of their cells. All prisoners are"cell fed"-twice a day meals are placedon tray slots in the cell doors to be eatenby the prisoners inside. (Indeed, on myfirst tour of the institution one guard toldme that this was the only flaw in the designof the prison-that they had not figuredout a way to feed the prisoners "automati­cally," thus eliminating the need for anycontact with them.) Prisoners are not per­mitted to do work of any kind, and theyhave no opportunities for educational orvocational training. They are never permit­ted out on their tiers unless they are mov­ing to and from showers or yard, or beingescorted-in chains and accompanied bytwo baton-wielding correctional officersper inmate-to the law library or infir­mary outside the unit. Thus, with minorand insignificant exceptions, a prisoner'sentire life is lived within the parameters ofhis 80 square-foot cell, a space that is typi­cally shared with another prisoner whoselife is similarly circumscribed.

All movement within these units is tightlyregulated and controlled, and takes placeunder constant surveillance. Prisoners arepermitted to initiate little or no meaningfulbehavior of their own. When they go toshower or "yard," they do so at prescribedtimes and in a prescribed manner and theprocedure is elaborate. Guards must firstunlock the padlocks on the steel doors totheir cells. Once the guards have left thetier (they are never permitted on the tierwhen an unchained prisoner is out of hiscell), the control officer opens the celldoor by remote control. The prisoner mustappear naked atthe front of the controlbooth and submit to a routinized visualstrip search before going to yard and,afterwards, before returning to his cell.Some prisoners are embarrassed by thispublic display of nudity (which takes placenot only in front of control officers andother prisoners, but whomever else hap­pens to be in the open area around theoutside of the control booth.) As might beexpected, many inmates forego the privi­lege of taking "yard" because of the humil­iating procedures to which they must sub­mit and the draconian conditions underwhich they are required to exercise.Whenever prisoners are in the presence ofanother human being (except for those

4 SPRING 1993

who have cellmates), they are placed inchains, at both their waist and ankles.,'Indeed, they are chained even before the,.yare permitted to exit their cells. There arealso special holding cages in which pris,4:,oners are often left when they are beingmoved from one place to another.Prisoners are kept chained even duringtheir classification hearings. I witnessedone prisoner, who was apparently new tothe process, stumble as he attempted to sitdown at the start of his hearing. Becausehe was chained with his hands behind hisback, the correctional counselor had toinstruct him to "sit on the chair like it wasa horse"-unstable, with the back of thechair flush against his chest.

The cells themselves are designed so thata perforated metal screen, instead of adoor, covers the entrance to the cells. Thispermits open, around-the-clock surveil­lance whenever guards enter the tiers. Inaddition, television cameras have beenplaced at strategic locations inside the cell­blocks and elsewhere within the prison.

Because the individual "pods" are small(four cells on each of two floors), bothvisual and auditory surveillance are facili­tated. Speakers and microphones havebeen placed in each cell to permit contactwith control booth officers. Many prison­ers believe that the microphones are usedto monitor their conversations. There islittle or no personal privacy that prisonersmay maintain in these units.

Psychological ConsequencesThe overall level of longterm social

deprivation within these units is nearlytotal and, in many ways, represents thedestructive essence of this kind of confine­ment. Men in these units are deprived ofhuman contact, touch and affection foryears on end. They are denied the oppor­tunity for contact visits of any kind; evenattorneys and experts must interview themin visiting cells that prohibit contact. Theycannot embrace or shake hands, even withvisitors who have traveled long distancesto see them. Many of these prisoners havenot had visits from the outside world inyears. They are not permitted to makephone calls except for emergencies orother extraordinary circumstances. As oneprisoner told me: "Family and friends,after the years, they just start dropping off.Plus, the mail here is real irregular. We

can't even take pictures of ourselves" tosend to loved ones.3 Their isolation fromthe social world, a world to which most ofthem will return, could hardly be morecomplete.

The operational procedures employedwithin the units themselves insure thateven interactions with correctional staffoccur infrequently and on higWy distorted,unnatural terms. The institutional routinesare structured so that prisoners are withinclose proximity of staff only when they arebeing fed, visually searched through thewindow of thec.qintrol booth before goingto "yard," beit).gplaced in chains andescorted elsewhere within the institution.There is always a physical barrier ormechanical restraint between them andother human beings.

The only exceptions occur for prisonerswho are double-celled. Yet double-ceilingunder these conditions hardly constitutesnormal social contact. In fact, it is difficultto conceptualize a more strained and per­verse form of intense and intrusive socialinteraction. For many prisoners, this kindof forced, invasive contact becomes asource of conflict and pain. They arethrust into intimate, constant co-living with .another person-typically a total stranger-whose entire existence is similarly andunavoidably co-mingled with their own.Such pressurized contact can become theoccasion for explosive violence. It alsofails to provide any semblance of social"reality testing" that is intrinsic to humansocial existence.4

The psychological significance of thislevel of longterm social deprivation cannotbe overstated. The destructive conse­quences can only be understood in termsof the profound importance of social con­tact and social context in providing aninterpretive framework for all humanexperience, no matter how personal andseemingly private. Human identity forma­tion occurs by virtue of social contact withothers. As one SHU prisoner explained: "Iliked to be around people. I'm happy andI enjoy people. They take that away fromyou [here]. It's like we're dead. As theCatholics say, in purgatory. They've takenaway everything that might give a little pur­pose to your life." Moreover, when ourreality is not grounded in social context,the internal stimuli and beliefs that wegenerate are impossible to test against thereactions of others. For this reason, thefirst step in any program of extreme socialinfluence-ranging from police interroga-

, tion to indoctrination and "brainwash­ing"-is to isolate the intended targetsfrom others, and to create a context inwhich social reality testing is controlled by

THE NATIONAL PRISON PROJECT JOURNAL

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those who would shape their thoughts,beliefs, emotions, and behavior. Most peo­ple are so disoriented by the loss of socialcontext that they become highly malleable,unnaturally sensitive, and vulnerable to theinfluence of those who control the envi­ronment around them. Indeed, this may beits very purpose. As one SHU prisoner toldme: "You're going to be what the placewants you to be or you're going to benothing."

Longterm confinement under these con­ditions has several predictable psychologi­cal consequences. Although not everyonewill manifest negative psychological effectsto the same degree, and it is difficult tospecify the point in time at which thedestructive consequences will manifestthemselves, few escape unscathed. Thenorms of prison life require prisoners tostruggle to conceal weakness, to minimizeadmissions of psychic damage or pain. Itis part of a prisoner ethic in which pre­serving dignity and autonomy, and mini­mizing vulnerability, is highly valued. Thus,the early stages of these destructiveprocesses are often effectively concealed.They will not be apparent to untrained orcasual observers, nor will they be revealedto persons whom the prisoners do nottrust. But over time, the more damagingparts of adaptation to this kind of environ­ment begin to emerge and become moreobvious.5

The first adaptation derives from thetotality of control that is created inside aplace like Pelican Bay. Incarceration itselfmakes prisoners dependent to somedegree upon institutional routines to gUideand organize their behavior. However, thetotality of control imposed in a place likePelican Bay is extreme enough to producea qualitatively different adaptation.Eventually, many prisoners become entire­ly dependent upon the structure and rou­tines of the institution for the control oftheir behaviO,f. There are two related com­ponents to this adaptation. Some prisonersbecome dependent upon the institution tolimit their behavior. That is, because theirbehavior is so carefully and completelycircumscribed during their confinement inlockup, they begin to lose the ability to setlimits for themselves. Some report becom­ing uncomfortable with even smallamounts of freedom because they have lostthe sense of how to behave without theconstantly enforced restrictions, tightexternal structure, and totality of behav­ioral restraints.

Other prisoners suffer an opposite butrelated reaction, caused by the same set ofcircumstances. These prisoners lose theability to initiate behavior of any kind-

THE NATIONAL PRISON PROJECT JOURNAL

to organize their own lives around activityand purpose-because they have beenstripped of any opportunity to do so forsuch prolonged periods of time. Apathyand lethargy set in. They report being tiredall the time, despite the fact that they havebeen allowed to do nothing. They find it ':!"difficult to focus their attention, their ;,;minds wander, they cannot concentrate ororganize thoughts or actions in a coherentway. In extreme cases, a sense of prof9unddespair and hopelessness is created. ;';,.

The experience of total social isolationcan lead, paradoxically, to social with­drawal. That is, some prisoners in isola­tion draw further into themselves as a wayof adjusting to the deprivation of meaning­ful social contact imposed upon them.They become uncomfortable in the courseof the little social contact they are permit­ted. They take steps to avoid even that-byrefusing to go to "yard," refraining fromconversation with staff, discouraging anyvisits from family members or friends, andceasing correspondence with the outsideworld. They move from being starved forsocial contact to being frightened by it. Ofcourse, as they become increasingly unfa­miliar and uncomfortable with socialinteraction, they are further alienated fromothers and disoriented in their presence.

The absence of social contact and socialcontext creates an air of unreality to one'sexistence in these units. Some prisonersact out as a way of getting a reaction fromtheir environment, proving to themselvesthat they still exist, that they are still aliveand capable of eliciting a humanresponse-however hostile-from otherhuman beings. This is the context in whichseemingly irrational refusals of prisonersto "cuff up" take place-which occur inthe Pelican Bay SHU with some regularity,in spite of the knowledge that suchrefusals invariably result in brutal "cellextractions" in which they are physicallysubdued, struck with a large shield andspecial cell extraction baton, and likely tobe shot with a taser gun or wooden or rub­ber bullets before being placed in legirons and handcuffs.6

In some cases, another pattern emerges.The line between their own thoughtprocesses and the bizarre reality aroundthem becomes increasingly tenuous. Socialcontact grounds and anchors us; whenit isgone, there is nothing to take its place.Moreover, for some, the environmentaround them is so painful and so painfullyimpossible to make sense of, that they cre­ate their own reality, one seemingly"crazy" but easier for them to tolerate andmake sense of. Thus, they live in world offantasy instead of the world of control,

surveillance, and inhumanity that has beenimposed upon them by the explicit andconscious policies of the correctionalauthorities.

For others, the deprivations, the restric­tions, and the totality of control fills themwith intolerable levels of frustration.Combined with the complete absence ofactivity or meaningful outlets throughwhich they can vent this frustration, it canlead to outright anger and then to rage.This rage is a reaction against, not a justi­fication for, t~ir oppressive confinement.Such anger c~not be abated by intensify­ing the very..deprivations that have pro­duced it. They will fight against the systemthat they perceive only as haVing surround­ed and oppressed them. Some will lash out

violently against the people whom theyhold responsible for the frustration anddeprivation that fills their lives. Ultimately,the outward expression of this violent frus­tration is marked by its irrationality, pri­marily because of the way in which it leadsprisoners into courses of action that fur­ther insure their continued mistreatment.But the levels of deprivation are so pro­found, and the resulting frustration soimmediate and overwhelming, that forsome this lesson is unlikely ever to belearned. The pattern can only be brokenthrough drastic changes in the nature ofthe environment, changes that producemore habitable and less painful conditionsof confinement.

The magnitude and extremity of oppres­sive control that exists in these units helpsto explain another feature of confinementin the Pelican Bay SHU that, in myexperi­ence, is unique in modern American cor­rections. Prisoners there have repeatedlyvoiced fears of physical mistreatment andbrutality on a widespread and frequentbasis. They speak of physical intimidationand the fear of violence at the hands ofcorrectional officers. These concernsextend beyond the physical intimidationthat is structured into the design of theunits themselves-the totality of restraint,the presence of guards who are all clad inheavy flak jackets inside the units, the useof chains to move prisoners out of theircells, and the constant presence of controlofficers armed with assault rifles slungacross their chests as they monitor prison­ers within their housing units. Beyond thiS,

SPRING 1993 5

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prisoners speak of the frequency of "cellextractions" which they describe in fright­ening terms. Most have witnessed extrac­tions in which groups of correctional offi­cers (the previously described "cellextraction team") have entered prisoners'cells, fired wooden or rubber bullets andelectrical tasers at prisoners, forciblychained and removed them from theircells, sometimes for the slightest provoca­tion (such as the failure to return foodtrays on command). And many note thatthis mistreatment may be precipitated byprisoners whose obvious psychiatric prob­lems preclude them from conforming toSHU rules or responding to commandsissued by correctional officers.7 One pris­oner reported being constantly frightenedthat guards were going to hurt him. Theday I interviewed him, he told me that hehad been sure the correctional staff was"going to come get him." He stuck histoothbrush in the door of his cell so theycouldn't come inside. He vowed "to hangmyself or stop eating [and] starve todeath" in order to get out of the SHU.

I believe that the existence of such bru­tality can be attributed in part to the psy­chology of oppression that has been creat­ed in and around this prison. Correctionalstaff, themselves isolated from morediverse and conflicting points of view thatthey might encounter in more urban orcosmopolitan environments, have beenencouraged to create their own uniqueworldview at Pelican Bay. Nothing countersthe prefabricated ideology into which theystep at Pelican Bay, a prison that was des­ignated as a place for the "worst of theworst" even before the first prisoners everarrived. They work daily in an environmentwhose very structure powerfully conveysthe message that these prisoners are nothuman beings. There is no reciprocity totheir perverse and limited interactions withprisoners-who are always in cages orchains, seen tlu:ough screens or windowsor television cameras or protective hel­mets-and who are given no opportunitiesto act like human beings. Pelican Bay hasbecome a massive self-fulfilling prophecy.Violence is one mechanism with which toaccommodate to the fear inevitably gener­ated on both sides of the bars.

Psychiatric DisordersThe psychological consequences of liv­

ing in these units for long periods of timeare predictably destructive, and thepotential for these psychic stressors toprecipitate various forms of psychopath­ology is clear-cut. When prisoners whoare deprived of meaningful social contactbegin to shun all forms of interaction,

6 SPRING 1993

withdraw more deeply into themselvesand cease initiating social interaction,they are in pain and require psychiatricattention. They get little or none.8

Prisoners who have become uncomfort­able in the presence of others will beunable to adjust to housing in a mainlineprison population, not to mention freesociety. They are also at risk of develop­ing disabling, clinical psychiatric symp~.: .toms. Thus, numerous studies have ,',underscored the role of social isolation::·as a correlate of mental illness. Similarly,when prisoners become profoundlylethargic in the face of their monotonous,empty existence, the potential exists forthis lethargy to shade into despondencyand, finally, to clinical depression. Forothers who feel the frustration of thetotality of control more acutely, their frus­tration may become increasingly difficultto control and manage. Longterm prob­lems of impulse control may develop thatare psychiatric in nature.

This kind of environment is capable ofcreating clinical syndromes in even healthypersonalities, and can be psychologicallydestructive for anyone who enters andendures it for significant periods of time.However, prisoners who enter these placeswith pre-existing psychiatric disorders suf­fer more acutely. The psychic pain and vul­nerability that they bring into the lockupunit may grow and fester if unattended to.In the absence of psychiatric help, there isnothing to keep many of these prisonersfrom entering the abyss of psychosis.

Indeed, in the course of my interviewsat Pelican Bay, numerous prisoners spoketo me about their inability to handle thestress of SHU confinement. Some whoentered the unit with pre-existing prob­lems could perceive that they had gottenworse. Others had decompensated sobadly that they had no memory of ever hav­ing functioned well, or had little awarenessthat their present level of functioning wastenuous, fragile, and psychotic. More thana few expressed concerns about what theywould do when released-either from theSHU into mainline housing, or directly intofree society (as a number are). One pris­oner who was housed in the unit that isreserved for those who are maintained onpsychotropic medication told me that hewas sure that the guards in this unit wereputting poison in his food. He was con­cerned because when released (this year),he told me "I know I won't be able towork or be normal."

Many SHU prisoners also reported beingsuicidal or self-mutilating. Anumber ofthem showed me scars on their arms andnecks where they had attempted to cut

themselves. One prisoner told me matter­of-factly, "I've been slicing on my arms foryears, sometimes four times a day, just tosee the blood flow." One suicidal prisonerwho is also deaf reported being cellextracted because he was unable to hearthe correctional officers call count (or"show skin"-a procedure used so thatstaff knows a prisoner is in his cell). Henow sleeps on the floor of his cell "so thatthe officers can see my skin." Anotherprisoner, who has reported hearing voicesin the past and s~eing "little furry things,"has slashed his.:¢Tists on more than oneoccasion. Instead of being transferred to afacility where he could receive mentalhealth treatment-since obviously none isavailable at Pelican Bay-he has beenmoved back and forth between the VCUand SHU units. While in the VCU, he saw ademon who knew his name and frequentlyspoke to him. As I interviewed him, he toldme that the voices were cursing at him fortalking to me. In the course of our discus­sion, he was clearly distracted by thesevoices and, periodically, he laughed inap­propriately. One psychotic SHU prisonerannounced to me at the start of our inter­view that he was a "super power man"who could not only fly, but see throughsteel and hear things that were being saidabout him from great distances. He hadlived in a board-and-care home and beenmaintained on Thorazine before his incar­ceration. Although he had attempted sui­cide three times while at Pelican Bay, hewas confident that when he was placedback in the mainline he would not have toattempt to kill himself again-because he .thought he could convince his cellmate todo it for him. Another flagrantly psychoticSHU prisoner talked about a miniatureimplant that the Department of Correctionshad placed inside his head, connected totheir "main computer," which they wereusing to control him electronically, by pro~

gramming him to say and do things thatwould continually get him into trouble.When I asked him whether or not he hadseen any of the mental health staff, hebecame agitated and earnestly explained tome that his problem was medical-thecomputer implant inserted into his brain­not psychiatric. He offered to show me thepaperwork from a lawsuit he had rued protest­ing this unauthorized medical procedure.

When prison systems become seriouslyovercrowded---'as California's is (operat­ing now at more than 180% of capacity)­psychiatric resources become increasinglyscarce and disturbed prisoners are han­dled poorly, if at all. Often, behavior that iscaused primarily by psychiatric disfunctionresults in placement in punitive solitary

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confinement, where little or no psychiatricprecautions are taken to protect or treatthem. They are transferred from one suchpunitive isolation unit to another, in whathas been derisively labeled "bus therapy."9In fact, I have come to the conclusion thatthe Pelican Bay SHU has become a kind of"dumping ground" of last resort for manypsychiatrically disturbed prisoners whowere inappropriately housed and poorlytreated-because of their psychiatric dis­orders-in other SHU units. Because suchprisoners were unable to manage theirdisorders in these other units-in the faceof psychologically destructive conditionsof confinement and in the absence ofappropriate treatment-their continuedrules violations, whichin many cases werethe direct product of their psychiatricdis­orders, have resulted in their transfer toPelican Bay. Thus, their placement in thePelican Bay SHU is all the more inappro­priate because of the process by which theygot there. Their inability to adjust to theharsh conditions that prevailed at theseother units should disqualify them forplacement in this most harsh and destruc­tive environment, yet, the opposite appearsto be the case.

ConclusionsAlthough I have seen conditions else­

where that approximate those at thePelican Bay SHU, and have testified abouttheir harmful psychological effects, I havenever seen longterm social deprivation sototally and completely enforced. Neitherhave I seen prisoner movements so com­pletely regimented and controlled. Neverhave I seen the technology of social con­trol used to this degree to deprive captivehuman beings of the opportunity to initi­ate meaningful activity, nor have I seensuch an array of deliberate practicesdesigned for the sole purpose of prevent­ing prisoners from engaging in any sem­blance of normal social intercourse. Thetechnologic'al structure of this environ­ment adds to its impersonality andanonymity. Prisoners interact with theircaptors over microphones, in chains orthrough thick windows, peering into theshields that hide the faces of cell extrac­tion teams as they move in coordinatedviolence. It is axiomatic among those whostudy human behavior that social connect­edness and social support are the prereq­uisites to longterm social adjustment. Yet,persons who have been wrenched from ahuman community of any kind riskprofound and chronic alienation andasociality.

Acentury and a half ago, social com­mentators like Dickens and de Tocqueville

THE NATIONAL PRISON PROJECT JOURNAL

marveled at the willingness of Americansociety to incarcerate its least favored citi­zens in "despotic" places of solitary con­finement. 10 De Tocqueville understood thatcomplete isolation from others "producesa deeper effect on the soul of the convict,"an effect that he worried might prove disT

abling when the convict was released intofree society. Although he admired thepower that American penitentiaries wield­ed over prisoners, he did not have thetools to measure their longterm effects northe benefit of more than a hundred yearsof experience and humane intelligencethat has led us away from these destructiveinterventions. Ignoring all of this, placeslike Pelican Bay appear to have brought usfull circle. And then some. II

Craig Haney is aprofessor ofpsychologyand director oftheprogram in legal stud­ies at the University ofCalifornia at SantaCruz. He received a Ph.D. in Social Psy­chology andalD. degreefrom StanfordUniversity. He has studied and writtenextensively on the psychological efftcts ofliving and working in maximum securityprisons, as well as the backgrounds and.social histories ofpersons accused ofvio­lent crimes. Prof Haney has testified innumerous state andfederal courts aboutconditions ofconfinement.

1 In words it appears to have long since forgotten,the United States Supreme Court, more than a centu­ry ago, characterized solitary confinement as an'infamous punishment' and provided thisexplanation for its abandonment: '[E]xperiencedemonstrated that there were serious objections toit. Aconsiderable number of the prisoners fell, aftereven a short confinement, into a semi-fatuous con­dition, from which it was next to impossible toarouse them, and others became Violently insane;others still, committed suicide; while those whostood the ordeal better were not generallyreformed, and in most cases did not recover suffi­cient mental activity to be of any subsequent ser­vice' ... [I] tis \vithin the memory of many personsinterested in prison discipline that some 30 or 40years ago the whole subject attracted the generalpublic attention, and its main feature of solitaryconfinement was found to be too severe.' In reMedley, 134 U.S. 160, 168 (1890).2 Its predecessor, the federal prison at Marion,Illinois, is now more than 25 years old and a tech­nological generation behind Pelican Bay. Althoughmany of the same oppreSSive conditions and

restrictive procedures are approximated atMarion, these comments are focused on PelicanBay, where my observations and interviews aremore recent and where conditions are more severeand extreme. In addition to some of the descriptivecomments that follow, conditions at the PelicanBay SHU have been described in Elvin, J."Isolation, Excessive Force Under Attack atCalifornia's Supermax," NPPJOURNAL, Vol. 7, No.4, (1992), and White, 1. "Inside the Alcatraz of the'90s," California Lawyer 42-48 (1992). Theunique nature of this environment has also gener­ated some media attention. E.g., Hentoff, N.,"Buried Alive in American Prisons," TheWashington Po~t, January 9, 1993; Mintz, H., "IsPelican Bay Too~ough?" 182 The Recorder, p.1,September 19,-J991; Roemer, J "High-TechDeprivation,':..Sanjose Mercury News, June 7,1992; Ross, J "High-tech dungeon," The BayGuardian 15-17, (1992). The creation of such aunit in California is particularly unfortunate in lightof fully 20 years of federal litigation over conditionsof confinement in the "lockup" units in four of thestate's maximum security prisons (Deuel VocationalInstitution, Folsom, San Quentin, and Soledad). E.g.,Wright v. Enomoto, 462 F. Supp. 397 (N.D. Cal.1976). In a lengthy evidentiary hearing conductedbefore Judge Stanley Weigel, the state's attorneys andcorrections officials were present during expert testi­mony from numerous witnesses concerning theharmful effects of the punitive solitary confinementthey were imposing upon prisoners in these units.Except for some disagreement offered up byDepartmeut of Corrections employees, this testimonywent unanswered and unrebutted. Toussaint v.Rushen, 553 F. Supp. 1365 (N.D. Cal. 1983), affdin part Toussaint v. Yockey, 722 F.2d 1490 (9thCir. 1984). Only a few years after this hearing, andwhile a federal monitor was still in place to overseethe conditions in these other units, the Department ofCorrections began construction of Pelican Bay. Inapparent deliberate indifference to this extensiverecord, and seemingly without seeking any outsideopinions on the psychological consequences of hous­ing prisoners in a unit like the one they intended tocreate or engaging in public debate over the wisdomof such a project, they proceeded to commit over$200 million in state funds to construct a prisonwhose conditions were in many ways worse thanthose at the other prisons, whose harmful effect hadbeen litigated over the preceding decade.3 Most corrections experts understand the signifi­cance of maintaining social connectedness andsocial ties for longterm adjustment, in and out ofprison. See, e.g., Schafer, N. "Prison Visiting: Is ItTime to Review the Rules?" Federal Probation 25-30(1989). This simple lesson has been completelyignored at Pelican Bay.4 Indeed, in my opinion, double-ceiling in SecurityHousing Units like those at Pelican Bay constitutes aclear form of overcrowding. As such, it can beexpected to produce its own, independently harmfuleffects, as the literature on the negative conse­quences of overcrowding attests.5 Although not extensive, the literature on the nega­tive psychological effects of solitary confinement andrelated situations is useful in interpreting contempo­rary observations and interview data from prisonersplaced in punitive isolation like Pelican Bay. See,e.g., Heron, W. "The Pathology of Boredom,"Scientific American, 196 (1957); Burney, C."Solitary Confinement," London: Macmillan(1961); Cormier, B., & Wiiliams, P. "Excessive

(con't. on page 21)

SPRING 1993 7

A PROJECT OF THE AMERICAN CIVllllBERTIE~ UNION FOUNDATION, INC.VOl. 8, NO.2, SPRING 1993 • ISSN 0748-2655

Highlights of MostImportant Cases

The due process theory of "liberty interests"created by statute or regulation has by nowsurpassed Eleventh Amendment interpretationas the most obscure legal doctrine commonlyencountered by prison litigators. Severalrecent cases illustrate the clear contradictionsemerging from the murk in the interpretationof the liberty interests doctrine-contradic­tions that find their source in the decisions ofthe United States Supreme Court.

The origins of the problem are easy tostate. Once upon a time, due process lawlooked simple. A"grievous loss" could onlybe imposed in a manner consistent with "fun­damental fairness." SeeJoint Anti-FascistRefugee Committee v. McGrath, 341 U.S.123, 161 (1951) (Frankfurter, J., concur­ring). However, the civil rights revolution ofthe late 1960s and early 1970s resulted in ahuge increase in citizens' challenges to gov­ernment action. Not surprisingly, thesedemands from below prompted a search forlimits among society's power-holders, includ­ing the courts. Insofar as the challenges tookthe form of litigation alleging the denial ofdue process, the judicial search for limitsfocused on the language of the Due ProcessClause, which applies only to deprivations of"life, liberty, or property." The definition ofthese terms has preoccupied the courts fortwo decades.

The first big step in the domestication ofdue process involved property. Auniversityprofessor argued that his job constitutedproperty and that his discharge without pro­cedural protections deprived him of thatproperty without due process. The SupremeCourt rej ected his claim, stating:

To have aproperty interest in abenefit, aperson clearly must havemore than an abstract need or desirefor it. He must have more than a uni­lateral expectation ofit. He must,

8 SPRING 1993

instead, have a legitimate claim ofentitlement to it. It is apurpose oftheancient institution ofproperty to pro­tect those claims upon which peoplerely in their daily lives, reliance thatmust not be arbitrarily undermined.

Board ofRegents v. Roth, 408 U.S. 564, 577(1972). This formulation relied heavily onthe Court's earlier decision in Goldberg v.Kelly, 397 U.S. 254, 262 and n.8 (1970), thatwelfare benefits were protected by dueprocess because they were "a matter of statu­tory entitlement" for persons eligible toreceive them, and therefore amounted toproperty.

Two years later the Court was presentedwith the question whether prisoners are enti­tled to due process in disciplinary proceed­ings involVing the deprivation of statutorygood time. It held:

... [Tlhe State having created theright to good time and itselfrecog­nizing that its deprivation is a sanc­tion authorizedfor major miscon­duct, the prisoner's interest has realsubstance and is sufficientlyembraced within Fourteenth Amend­ment 'liberty' to entitle him to thoseminimum procedures appropriateunder the circumstances....

This analysis as to liberty parallelsthe accepted due process analysis asto property....

Wolffv. McDonnell, 418 U.S. 539, 557 (1974).For prisoners, this focus on state-created

rights very quickly became a near-exclusivefocus. In Meachum v. Fano, 427 U.S. 215(1976), the Court refused to apply dueprocess protections to transfers between pris­ons of different security levels. In doing so itbroadly rejected the notion of degrees of pro­tected liberty within the context of penal con­finement, holding that a criminal conviction"sufficiently extinguishers] the [prisoner's]liberty interest to empower the State toconfine him in any of its prisons" andto subject the prisoner to any treatment thatis "within the normal limits or range of cus­tody which the conviction has authorizedthe State to impose." 427 U.S. at 224-25(emphasis in original).

"In Hewitt v. H.elms, 459 U.S. 460 (1983),the Court held thii placement in administra­tive segregation; Jike transfer, implicates noliberty interest of prisoners unless such aninterest is created by statute or regulation. Italso articulated a method for determiningwhether statutes and regulations have createda liberty interest: "the repeated use of explic­itly mandatory language in connection withrequiring specific substantive predicatesdemands a conclusion that the State has cre­ated a protected liberty interest." 459 U.S. at472. "Substantive predicates" are standardsor conditions that are used by officials inmaking decisions. Language is "mandatory" ifit links a particular outcome or decision with _a substantive predicate in a way that limits thediscretion of the decision-maker.

In Hewitt, the "substantive predicates"consisted of regulatory provisions authorizingadministrative segregation only to serve "theneed for control" or in case of "the threat ofa serious disturbance." The regulations pro­vided that segregation "may" be imposedunder those circumstances, a phrase theCourt reasonably interpreted as meaning thatsegregation "will not occur absent [the] sub­stantive predicates...." 459 U.S. at 471-72 andn.6 (emphasis supplied). Citing this require­ment as well as certain procedural require­ments of the regulations, the Court stated thatPennsylvania had "used language of anunmistakably mandatory character." Id.

So far, clear enough, whatever one maythink of this abstract and mechanical gloss ona "broad and majestic" word like "liberty."Board ofRegents v. Roth, 408 U.S. at 571.The fog rolled in several years later withKentucky Dept. ofCorrections v. Thompson,490 U.S. 454 (1989), which presented thequestion whether state prison visiting regula­tions created a liberty interest in avoiding thesuspension of visits. The Court held that theydid not. Although the regulations containedsubstantive predicates stating the circum­stances that justify excluding visitors, theCourt found that they lacked the necessarymandatory language. The regulations "stopshort of requiring that a particular result is tobe reached upon a finding that the substantivepredicates are met.. ..Visitors may be exclud-

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ed if they fall within one of the described cat­egories, ...but they need not be. Nor need vis­itors fall within one of the described cate­gories in order to be excluded." 490 u.s. at464 (emphasis in original).

On its face, Thompson appears irreconcil­able with Hewitt v. Helms, in which the rele­vant regulation provided that inmates "may"be placed in administrative segregation ifofficials found that one of the required sub­stantive predicates was present, and Vitek v.Jones, 445 U.S. 480, 483 n.l (1980), whichfound a liberty interest in a statute providingthat a prisoner "may" be transferred to amental hospital if certain medical findingshave been made. Justice Marshall, dissentingin Thompson, squarely stated, "If the use ofthe word 'may' could not defeat a libertyinterest in Hewitt or Vitek, I fail to see howit could do so here." 490 u.s. at 475.

The restrictions in Hewitt and Vitek can bedescribed as "one-way" limits on discretion,since they forbid the liberty deprivation if thesubstantive predicates are absent, but do notrequire it if they are present. By contrast,Thompson's "need not" language suggests onits face that a "two-way" limit on discretion isrequired to create a liberty interest. That is,either the presence or the absence of thesubstantive predicates must dictate the actiontaken by the official.

This reading of Thompson amounts to asignificant narrowing of the due processrights both of prisoners and of nonprisonerswho rely on statutes or regulations for theirclaim of a liberty interest. Under this view,statutes or regulations not only must limitofficials' discretion; they must eliminate itentirely.

This is exactly the position taken by somecourts. In Russ v. Young, 895 F.2d 1149,1153 (7th Cir. 1990), the court held that reg­ulations prOViding that a prisoner "may" beplaced in "temporary lockup" only if one offive specified conditions is found to exist didnot create a liberty interest, despite the closesimilarity of. the regulations to those inHewitt. Similarly, in Burgin v. Nix, 899 F.2d733, 734-35 (8th Cir. 1990) (per curiam), aregulation provided that "incorrigible"inmates could be served sacked meals "insome cases" with the warden's approval. Thedefinition of "incorrigible" is rather explicit,and the plain import of the regulation is thatsacked meals will not be served to inmateswho do not fit the definition. Again, despitethe parallel to Hewitt, the regulation washeld not to create a liberty interest.

Other courts have rejected this view andreaffirmed that a one-way limit on discretioncan create a liberty interest. In Smith v.Shettle, 946 F.2d 1250 (7th Cir. 1991), anadministrative segregation case, Judge Posnerreferred to Thompson's discussion of

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mandatory language as "dicta," and dis­missed the conclusion of Russ v. Young as a"suggestion" that "a statute which permitsbut does not require administrative segrega­tion or some other deprivation" fails to cre­ate a liberty interest. Judge Posner declared:

It... makes no difference... that the ,'j

statute does not require but only per- ,~;

mits segregation-most statutes leavediscretion to the persons charged w;iththeir enforcement rather than com­manding them to enforce the statd~to the hilt-this is the famous "prose­cutorial discretion.... "

946 F.2d at 1253 (emphasis in original).Judge Posner's view was echoed in

Mendoza v. Blodgett, 960 F.2d 1425 (9thCir. 1992), cert. denied, 113 S.Ct. 1005 and113 S.Ct. 1027 (1993). There, the courtaddressed a prison procedure called "FecesWatch" (no doubt a prized assignment amongcorrectional staff), and found a liberty inter­est in regulations authorizing it only upon adetermination that there is reasonable suspi­cion that the prisoner is secreting contra­band. The court stated:

The defendants mistakenly focusupon the question whether the super­intendent has discretion not to placeaprisoner on dry cell watch eventhough he may have reasonable sus­picion that the prisoner has secretedcontraband. The relevant question iswhether the superintendent has dis­cretion to fail to follow dry cell watchprocedures once he determines toplace aprisoner on a watch.

960 F.2d at 1429 (emphasis in original).Although Kentucky Dept. ofCorrections v.Thompson was cited in the opinion, thecourt did not directly address the view thatThompson requires a two-way limit on dis­cretion in order for a liberty interest to berecognized.

The most explicit review of the tensionbetween Thompson and Hewitt v. Helmsappears in Layton v. Brewer, 953 F.2d 839(3rd Cir. 1992), which finds a liberty interestin regulations governing placement in theManagement Control Units of the New Jerseyprison system. As in Mendoza, the defendantsargued that under Thompson, the existenceof discretion not to impose a liberty depriva­tion if the substantive predicates are foundprecludes a finding of a liberty interest.

The Layton court, unlike Mendoza orSmith v. Shettle, addressed the Thompsonlanguage directly. As noted above, Thompsonstates that the regulations:

stop short ofrequiring that a par­ticular result is to be reached upon afinding that the substantive predi­cates are met.... Visitors may beexcluded if they fall within one of

the described categories, ...but theyneed not be. Nor need visitors fallwithin one ofthe described cate­gories in order to be excluded.

490 U.S. at 464 (emphasis in original).It is the second of these sentences-the

one containing the "need not" language­that supports the defendants' argument that·the existence of any discretion defeats a lib­erty interest. However, Layton focusesinstead on the third sentence, and it statesthat the key to the Thompson holding is thatthe Kentucky~egulations permitted exclusionof visitors b~d on the listed reasons "'butnot limitedJb' them." 953 F.2d 848. That is,if a statute or regulation lists substantivepredicates, but does not make them theexclusive basis for the liberty deprivation atissue, it does not limit officials' discretionsufficiently to create a liberty interest.Accord, Kellas v. Lane, 923 F.2d 492,495and n.2 (7th Cir. 1990) (criteria that "amongother factors, may" justify segregation did notcreate a liberty interest).

Having declared this issue of exclusivity tobe the focus of the Thompson holding, theLayton court turned to the issue of one-wayversus two-way limits on dis~retion. It stated,"Some language in Thompson can arguablybe read to suggest that to create a libertyinterest the statute must not only provide forsubstantive predicates which must be met inorder for the deprivation to occur, but thatonce they are met, the outcome must then bemandated so as to eliminate all official dis­cretion." 953 F.2d at 848-49. However, itasserted that Thompson's requirement thatthe statute or regulation must "mandat[e] theoutcome to be reached" if the substantivepredicates exist means only "that the statutesmust force the decision-maker to use the list­ed criteria as the only reasons for depriVingthe prisoner of the liberty interest in ques­tion." 953 F.2d at 849.

This interpretation robs Thompson's "neednot" language of any significance, ordinarilyan unsatisfactory result. But the court pointsout that Thompson contains other languagesupporting the Hewitt approach of "deter­mining whether an inmate may [not 'must']be deprived of the particular interest in ques­tion." Layton, 953 !,,-2d at 849 n.15, citingThompson, 490 U.S. at 464 n.4. Moreover,any other interpretation requires an evenmore unsatisfactory result: the conclusionthat Thompson silently overruled Hewitt v.Helms and Vitek v. Jones while citing bothwith apparent approval.

This clear conflict among circuits in theinterpretation of an important Supreme Courtdecision must ultimately be resolved by theSupreme Court itself. However, no resolutionis in sight; the Court denied certiorari inMendoza v. Blodgett.

SPRING 1993 9

There is an even more fundamental contra­diction in the liberty interest doctrine.

The statutes and regulations discussed upto this point have been those that limit officialdiscretion in a contingent fashion---,.-"if X... ,then Y," as one court put it. Smith v. Shettle,946 F.2d at 1253. If a liberty interest is foundto exist, the task of due process analysis is todetermine what measures are necessary toensure a fair and reliable decision as to theexistence of "X." However, in many statutesand regulations, official discretion is limitedin absolute, rather than contingent, language.In Shettle's terms, such regulations require"Y, period." In Hewitt's language, they have"mandatory language" but no "substantivepredicates."

For example, in Domegan v. Fair, 859 F.2d1059 (1st Cir. 1988), state regulations pro­vided that segregated inmates "shall" be pro­vided with regular meals, electricity, andwater. No exceptions were allowed. The courtheld that the regulation created a libertyinterest in avoiding having one's electricity orwater turned off and in receiving the samemeals as other prisoners. There is now asmall family of cases finding liberty interestsin such noncontingent statutes and regula­tions. See, e.g. ,jackson v. Cain, 864 F.2d1235, 1250-51 (5th Cir. 1989) (limit onpunitive segregation time); Williams v. Lane,85 f F.2d 867, 880-81 (7th Cir. 1988) (regu­lationsproviding for equal housing and pro­gram opportunities for protective custodyinmates), cert. denied, 488 U.S. 1047(1989); Madden v. Kemna, 739 F.Supp.1358, 1363 (W.D.Mo. 1990) (regulationrequiring "substantial equality" of privilegesfor protective custody inmates); Nicoletti v.Brown, 740 F.Supp. 1268, 1284-85(N.D.Ohio 1987) (statutory standards forinstitutions for the developmentally disabled);and Morgan v. District ofColumbia, 647F.Supp. 694, 697 (D.D.C. 1986) (limit on seg­regation time).

The results of these cases are absolutelyconsistent with tb,.e founding axiom of the lib­erty interest doctrine: that limits on officialdiscretion give rise to a "legitimate claim ofentitlement" of the kind "upon which peoplerely in their daily lives," Board ofRegents v.Roth, 408 U.S. at 561-a concept conceivedin property but qUickly extended to liberty.Woljfv. McDonnell, 418 U.S. at 557. Thesolidest of all limits on discretion is the onethat removes discretion entirely by forbiddingofficials to deprive an individual of an interestunder any circumstances.

At least one court has vigorously rejectedthe approach of Domegan and similar cases.In Meis v. Gunter, 906 F.2d 364 (8th Cir.1990), the plaintiff argued that a statute pro­viding that prisoners shall be informed ofprison rules and policies created a liberty

10 SPRING 1993

interest in being provided on request withthose rules and policies. The court responded:

... [T]his is not the kind ofstatestatute that would create a libertyinterest as that term has come to beused in Fourteenth Amendmentjuris­prudence. The terms liberty interestandproperty interest are used in thecontext ofprocedural-dueprocess­claims.... The statute quoted abovecertainly uses mandatory language,but it does not create a certain rightor entitlement subject to specifiedfactual findings....Instead, the statestatute required unconditionally thatinformation with respect to the pro­grams in question be given to allcommittedpersons....

This is the language ofsubstance,notprocedure, and the concepts ofliberty andproperty interests are, aswe have noted, useful solely in thecontext ofprocedural dueprocess.... [To hold otherwise] wouldbe holding, in effect, every statestatute which imposes a mandatoryduty, or creates a legal right, is con­stitutional in nature, and the viola­tion ofevery such statute would be aviolation ofthe Due Process Clauseofthe Fourteenth Amendment. Thisis emphatically not the law....

906 F.2d at 348.Meis's claim that the concepts of liberty

and property interest are "useful solely in thecontext of procedural due process" trivializesthe labor the Supreme Court has put intodeveloping them. They clearly are not flags ofanalytical convenience to be raised and low­ered at will. Rather, they reflect a systematiceffort to define the central terms in the DueProcess Clause. Liberty and property do notchange their natures depending on whetherthe plaintiff is asserting a procedural or asubstantive claim, DeTomaso v. McGinnis,970 F.2d 211,213-14 (7th Cir. 1992);Nicoletti v. Brown, 740 F.Supp. at 1284-86,and their'basic definitions cannot be invokedfor one purpose and then abandoned whenthey lead to unsettling conclusions.

Yet Meis correctly recognizes the pitfalls ofacknowledging noncontingent liberty inter­ests. If there is no contingency, there is noth­ing to have a hearing about, and the usualinquiry as to the "process due" is irrelevant.What, then, does due process require? Theonly logical answer is that it requires compli­ance with the statute or regulation.

This result, as Meis recognizes, amounts tosaying that violations of state law are ipsofacto violations of the federal Constitutionand that due process categorically reqUiresofficial agencies to follow their own regula­tions. See Nicoletti v. Brown, 740 F.Supp. at

1286-87 (official's failure to perform amandatory, nondiscretionary duty is arbitraryand denies substantive due process). Bothpropositions fly in the face of two decades ofeffort by the Supreme Court to restrict thescope of constitutionally protected interestsand to distinguish sharply between the inter­ests protected by the federal Constitution andby state law. See, e.g., United States v.Caceres, 440 U.S. 741, 752-53 (1979)(restricting due process claims based onagency departures from regulations); Paul v.Davis, 424 U.S. 6~, 701 (1976) (cautioningthat the Constitutio.n must not become a "fontof tort law"). Bqfthey are difficult to refutewithout also repudiating or ignoring the mostbasic foundation of the liberty interest doctrine.

Other CasesWorth Notingu.s. COURT OF APPEALS

Access to Courts~uveniles

John L. v. Adams, 969 F.2d 228 (6th Cir.1992). The right of access to courts has itssources in the Due Process Clause, the EqualProtection Clause, the Privileges andImmunities Clause, and the First Amendmentright to petition for a redress of grievances(231-32). The right extends to incarceratedjuveniles. Despite the different treatment ofadults and juveniles in the criminal justicesystem, "the stigma of being found to haveviolated the law and the resulting incarcera­tion are the key similarities between juvenilesand adults that make it logical for juveniles tobe entitled to the right of access to courts."(233)

The court "read[s] Bounds as extendingthe right of access only to civil rights actionsthat are related to prisoners' incarceration"(234), and defendants may limit their reim­bursement of contract attorneys accordingly.Nor must the state affirmatively assist prison­ers with claims concerning state law educa­tion and treatment issues. With respect tostate law civil actions, defendants need notprovide "affirmative assistance" but need onlyrefrain from imposing barriers or impedi­ments to court access (235-37).

Protection from Inmate AssaultSwofford v. Mandrell, 969 F.2d 547 (7th

Cir. 1992). The plaintiff was arrested foraggravated sexual assault and placed in a jailholding cell with other inmates, who beathim, urinated on him, and sodomized himwith a broom handle. No one responded tohis screams for help for eight hours.

At 549:

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The due process clause protectspretrial detainees from deliberateexposure to violence andfrom thefailure to protect when prison offi­cials learn ofa strong likelihood thata prisoner will be assaulted. ... Ourrecent decisions have held that a dueprocess violation requires "deliber­ate indifference" to or "reckless dis­regard" ofthe detainee's right to beprotectedfrom harm.: ..A detaineemust show that the state actor knewofthe risk or "that the risk ofvio­lence was so substantial orpervasivethat the defendants' knowledge couldbe inferred." [Citations omitted]

The plaintiff's allegations state a claim. At549:

... The facts themselves-includingthe failure to inspect the cellfor overeight hours despite Swofford'sscreams, the accessibility ofamakeshift weapon in the cell and theplacement ofSwofford into a crowdedand dangerous population, given thecharge against him-are indeed quiteshocking, and couldgive rise to aninference ofknowledge on the part ofthe defendant.

Assuming it was necessary to plead thedefendant's state of mind, the allegation thatthe sheriff "had to know" of the danger wassufficient. Violations of state jail standardsand internal and state tool control regula­tions, though they may not have denied dueprocess themselves, support a conclusion ofrecklessness or deliberate indifference.

The fact that the plaintiff had not previouslyreported being attacked or threatened did notdefeat the claim. At 551: "... [W]hen prisonofficials themselves actively and knowingly(or recklessly) place a detainee in a particu­lar situation that is dangerous, then such areport becomes superfluous."

Procedural Due Process­Disciplinar¥ Proceedings,Administrative Segregation

Brown-El v. Delo, 969 F.2d 644 (8th Cir.1992). The plaintiff was convicted of severalminor disciplinary violations; two monthslater, after no further misconduct, he wasplaced in administrative segregation basedonly on the disciplinary violations. Thissequence of events supported an inferencethat he was segregated improperly for puni­tive reasons without a Wo(ffhearing.

Appointment of CounselRayes v. Johnson, 969 F.2d 700 (8th Cir.

1992). The plaintiff's court-appointed attor­ney withdrew with permission; the court gavethe plaintiff 60 days to retain a lawyer, whichhe was unable to do; the district court

THE NATIONAL PRISON PROJECT JOURNAL

refused his two requests for substitute coun­sel. This refusal was an abuse of discretion.The plaintiff, as an "adjustment center"inmate, lacked ready access to a law library,did not understand his rights to obtainrecords and to seek discovery; he was unabl~

to articulate his claims against all defendani~;the case turned on conflicting testimony. The'plaintiff had also attempted unsuccessfully toretain an attorney.

Procedural Due Process- .;,.Disciplinary ProceedingsQualified Immunity

Zavaro v. Coughlin, 970 F.2d 1148 (2ndCir. 1992). The plaintiff was convicted of par­ticipating in a violent disturbance based onreports that "every inmate in the messhall"participated and on confidential informationthat was not corroborated in any fashion. Thedistrict court granted summary judgment forthe plaintiff against the hearing officer basedon the lack of any reliable evidence to sup­port the conviction.

The statements that "every inmate" in agroup of 100 participated, coming from offi­cers who were being assaulted at the time,are so "blatantly implausible" that they do notconstitute "soine evidence" of a particularinmate's guilt.

Federal Officials and Prisons!Searches-Person-Arrestees!Qualified Immunity

Act UP! Portland v. Bagley, 971 F.2d 298(9th Cir. 1992). The plaintiffs were arrestedat a demonstration and strip searched by U.S.Marshals. The district court denied the defen­dants' motion for summary judgment basedon qualified immunity.

The district court correctly understoodthat it was clearly established that reason­able suspicion of contraband is required inorder to justify strip searching arresteesaccused of minor offenses, and that stripsearches must be conducted in a reasonablemanner that respects arrestees' privacyinterests. However, the district court shouldalso have determined whether a reasonableofficer could have believed his conduct wasproper under this established law. Previouscases holding that this question is for thejury were overruled by the Supreme Court inHunter v. Bryant.

Suicide PreventionlPersonalInvolvement and Supervisory Liability

Gordon v. Kidd, 971 F.2d 1087 (4th Cir.1992). The decedent Was arrested, drunk,after threatening to kill himself and thenthreatening police officers. He had a historyof alcohol abuse, mental illness, and depres­sion. He hanged himself in jail that night.

It is clearly established that the deliberate

indifference standard applies to jail suicidecases; that under the standard officials arenot liable unless they had prior knowledge ofthe prisoner's suicidal tendenCies; and thatthere is no duty to screen detainees for suici­dal tendencies without such knowledge.

An officer who was told of the suicide riskbut failed to make a note of it, call the jailnurse to screen the decedent, or tell anyoneelse about the risk, could be found deliber­ately indifferent. The officer was not entitledto qualified immunity since the law was clear­ly established ihd there were no extraordi­nary circumsra,nces justifying a belief that hisconduct was.-legal.

Grievances and Complaintsabout Prison

Wolfel v. Morris, 972 F.2d 712 (8th Cir.1992). The plaintiffs were disciplined for cir­culating a petition under a rule prohibitinggroup organizing activities without priorapproval by prison authorities.

The group organizing rule was vague asapplied to the plaintiffs, since prisoners hadpreViously been allowed to circulate petitions.Although the degree of specificity required inprison regulations is less than that requiredin other contexts, these plaintiffs did not havefair warning that their actions were prohibit­ed.

The district court's order expunging the disci­plinary convictions is affirmed. However, defen­dants are entitled to qualified immunity fromdamages. They were relying on published andfacially valid regulations, and the court cannotsay that no reasonable official could havethought that the regulation was properlyapplied.

Use of ForcelEvidentiary QuestionsRobinson v. City ofSt. Charles, Mo., 972

F.2d 974 (8th Cir. 1992). Police officers' per­sonnel files were not admissible in a use offorce case to show that they acted maliciouslyand sadistically because the Fourth Amendmentstandard is one of objective reasonablenessand their state of mind is not relevant.

Qualified ImmunityRainey v. Conerley, 973 F.2d 321 (4th Cir.

1992). The defendant officer was not entitledto qualified immunity in a use of force case.Although the question is whether a reason­able officer could have believed his conductwas lawful based on his perception of thefacts, this defendant's testimony was generallyinconsistent with his argument as to what hisperceptions were.

It was reversible error for the trial judge torefuse to ask members of the jury panel "whetherthey would tend to credit the testimony of a lawenforcement official over that of a prisoner, sim­ply because of their respective positions." (325)

SPRING 1993 11

Suicide Prevention/MunicipalitiesRhyne v. Henderson County, 973 F.2d 386

(5th Cif. 1992). The mother of a detaineewho committed suicide in jail had standing torecover for her own injuries arising from herson's wrongful death. State law providing forsuch claims is incorporated into §1983 by§1988. There is a conflict among circuits onthis point.

At 391:...Pre-trial detainees m'e entitled to

agreater degree ofmedical care thanconvicted inmates. They must be pro­vided with "reasonable medical care,unless the failure to supply it is rea­sonably related to a legitimate govern­mental objective." (Citation omitted]

Heating and VentilationGordon v. Faber, 973 F.2d 686 (8th Cir.

1992). Prisoners who were reqUired to gooutside into exercise pens during sub-freez­ing, windy weather, for periods of an hour toan hour and 45 minutes, while their livingquarters were searched, and who weredenied hats and gloves even though thesewere readily available, were found to havebeen subjected to "extreme" deprivationsthrough deliberate indifference, therebyestablishing both elements of their EighthAmendment claim. These findings were notclearly erroneous.

Summary JudgmentlUse ofForcelProtection from InmateAssaultlPro Se Litigation

Northingtonv.Jackson, 973 F.2d 1518(lOth Cir. 1992). The Tenth Circuit's proce­dure for determining whether pro se prison­ers' complaints are frivolous, under whichprison officials' report and investigation istreated as an affidavit, is not intended toresolve material factual issues; the report'sfindings are not to be accepted if the prisonerpresents conflicting evidence. The same rulesapply to a telephonic hearing. The courtshould not have dismissed the case based ona telephonic hearing without complying withthe notice and response requirements of thesummary judgment rule.

An allegation that jail officials put a gun tothe plaintiff's head while he was on his way tohis work release assignment, threatened tokill him, and returned him to the jail andforced him to entrap another member of thejail staff was not fantastic or delusional. Thefact that the plaintiff may have engaged inother fantastic or delusional behavior duringa telephonic conference (I.e., trying to com­municate with a ghost) does not render hislegal claim frivolous, The allegation that a

. defendant put a gun to his head and threat­ened to kill him stated an Eighth Amendmentclaim for excessive force; such conduct "is

12 SPRING 1993

not per se de minimis and...the ensuing psy­chological injury may constitute pain underthe Eighth Amendment excessive force stan­dard." (l524)

MunicipalitiesWalker v. City ofNew York, 974 F.2d 295

(2nd Cif. 1992). At 297-98:... (W]e discern three requirements

that must be met before a munici­pality'sfailure to train or superviseconstitutes deliberate indifferenceto the constitutional rights ofciti­zens. First, the plaintiffmust showthat a policymaker knows "to amoral certainty" that her employeeswill confront a given situation....

Second, the plaintiffmust showthat the situation eitherpresents theemployee with a difficult choice ofthe sort that training or supervisionwill make less difficult or that thereis a history ofemployees mishan­dling the situation....

Finally, the plaintiffmust showthat the wrong choice by the cityemployee willfrequently cause thedeprivation ofa citizen's constitu­tional rights....

Hazardous Substances andConditions

Hunt v. Reynolds, 974 F.2d 734 (6th Cif.1992). At 735:

The circuits are in accord thatmere exposure to EnvironmentalTobacco Smoke ("ETS"), withoutmore, does not constitute a depriva­tion ofaprisoner's EighthAmendment rights.... However, thosecircuits that have addressed thequestion have accepted the possibili­ty that aprisoner may be able toshow a medical need to be placedwith a non-smoking cellmate that issufficiently serious to implicate theEighth Amendment.

At 736: "Thus we will adhere to the position,adopted by every circuit to address the issue,that the Eighth Amendment's objective com­ponent is violated by forcing a prisoner witha serious medical need for a smoke-free envi­ronment to share his cell with an inmate whosmokes." The district court should considerwhether the plaintiffs in this case (one ofwhom has pulmonary disease, heart disease,and a peptic ulcer) have such needs.

Pro Se Litigation/Medical Care­Standards of Liability-DeliberateIndifference/Service of Process

McGuckin v. Smith, 974 F.2d 1050 (9thCif. 1992). The plaintiff should have beenallowed to amend a complaint that named

one defendant only in the caption, since therewere allegations of deliberate indifference by"the entire medical department" (whichincluded this defendant) and specific allega­tions against the defendant were contained inthe plaintiff's response to the summary judg­ment motion. Pro se complaints may not bedismissed for failure to state a claim withoutgiving the plaintiff notice of the deficienciesand an opportunity to amend.

The district court should not have dis­missed a claim against a defendant whosename was misspell~d on the ground that "nosuch person exists)' He clearly existed, anattorney appeared on his behalf, and apro seprisoner's inability to spell his name correct­ly should not lead to dismissal. The plaintiff

.should have been provided an opportunity toremedy this defect in the complaint also.

The plaintiff showed "good cause" for fail­ing to serve the misspelled defendant within120 days. Simple negligence ordinarily is notan excuse, but apro se litigant should beprovided more latitude-"especialry whenthat litigant is incarcerated" (l058, emphasissupplied). The court also notes that theplaintiff provided detailed instructions for ser­vice, that prison officials or the Marshals wereat fault, and that the defendant was represent­ed by counsel and suffered no prejudice.

At 1059-60:A "serious" medical need exists if

the failure to treat aprisoner's con­dition could result in further Signifi­cant injury or the "unnecessary andwanton infliction ofpain." .... Theexistence ofan injury that a reason­able doctor orpatient wouldfindimportant and worthy ofcomment ortreatment; the presence ofa medicalcondition that significantly affectsan individual's daily activities; orthe existence ofchronic and sub­stantialpain are examples ofindica­tions that aprisoner has a "serious"needfor medical treatment.

Apainful back condition treatable by surgeryconstituted a serious medical need.

At 1060: "A defendant must purposefullyignore or fail to respond to a prisoner's painor possible medical need in order for delib­erate indifference to be established." Aclaimof "mere delay of surgery" does not amountto deliberate indifference unless the denialwas "harmful." However, "substantial" harmis not necessary.

Psychotropic MedicationsFelce v. Fiedler, 974 F.2d 1484 (7th Cir.

1992). The plaintiff was paroled on the con­dition that he submit to monthly injections ofProlixin.

The plaintiff had a liberty interest based onthe Constitution in avoiding the unwanted

THE NATIONAL PRISON PROJECT JOURNAL

administration of antipsychotic drugs. Healso had a constitutionally based liberty inter­est in staying on parole and a state law basedliberty interest in being released on parole.His liberty interest in avoiding unwantedmedication is "essentially the same" as thatenjoyed by prisoners.

After an extensive analysis under Mathewsv. Eldridge, the court concludes that theWisconsin procedure, which heavily empha­sizes the judgment of the individual paroleagent and does not "subject [the decision] toindependent medical evaluation," does notmeet due process requirements. The courtremands for the entry of a suitable injunction.

Correspondence-Legal and OfficialReneer v. Sewell, 975 F.2d 258 (6th Cir.

1992). The plaintiff's allegation that items ofhis legal mail were read, rather than simplybeing inspected for contraband, in retaliationfor his prior complaints against a prison staffmember, made out a First Amendment claim.The court emphasizes the fact that such read­ing is prohibited by state regulation withoutexplaining how that fact fits into the constitu­tional analysis. (The case can be read as sug­gesting that lower-level prison officials can­not rely on a supposed penological interestdisclaimed by their superiors.)

Equal ProtectionAlbright v. Oliver, 975 F.2d 343 (7th Cir.

1992). Equal protection is violated only by dis­crimination based on membership in a classand not by random governmental incompetence.

Hazardous Conditions andSubstances/lnjunctive Relief

Burton v.Armontrout, 975 F.2d 543 (8thCir. 1992). The plaintiffs alleged that theywere involved in a large-scale cleanup ofsewage and prison officials failed to warnthem that the sewage was contaminated withthe HIV virus and other infectious diseases. Ajury found for the defendants.

The court PtVperly granted an injunctionrequiring defendants to supply protectiveclothing and masks and to post warnings.Although equitable relief must be consistentwith the jury findings, a general verdict of nodamages did not preclude injunctive reliefbecause it did not clearly establish the factualbases for denial of relief. The court was enti­tled to take additional evidence not heard bythe jUry concerning prison officials' continu­ing failure to remedy the problem in consid­ering injunctive relief.

Religion-Practices-DietJDeferenceBass v. Coughlin, 976 F.2d 99 (2nd Cir.

1992) (per curiam). At 99:At least as early as 1975, it was

established thatprison officials must

THE NATIONAL PRISON PROJECT JOURNAL

provide a prisoner with a diet that isconsistent with his religious scru­pIes....Kahane has never been over­ruled and remains the law.... Theprinciple it established was notplaced in any reasonable doubt byintervening Supreme Court rulingsin [O'Lone and Turner], that prisonofficials need meet less exacting .'(standards when aprisoner's interest~ ­in marrying, or attending religious ",ceremonies, or maintaining the ;.~,:length ofhis hair is to be balancedagainst interests ofrehabilitationandprison security.

In Forma PauperisMoore v. Mabus, 976 F.2d 268 (5th Cir.

1992). The plaintiffs' claims concerning theinadequacy of medical treatment for HIV-pos­Hive inmates and unjustified denial of privi­leges to them should not have been dismissedas frivolous. The court observes in dictum:"Wilson [v. Seiter] does not require a'smoking gun' in order to find deliberateindifference." (271)

One plaintiff's claims regarding loss of hisprivacy rights were appropriately dismissedbased on the court's prior rejection of hismotion for a preliminary injunction; his claimabout segregation is rejected because "theidentification and segregation of HIV-positiveprisoners obviously serves a legitimate peno­logical interest." (271, footnote omitted)

The district court should promptly appointcounsel because of the complexity, scope,and need for resources and expert testimonypresented by this case.

Procedural Due Process­Disciplinary Proceedings

Hamilton v. a'Lemy , 976 F.2d 341 (7thCir. 1992). The plaintiff was found guilty ofpossessing contraband based on the findingof weapons in a vent to which a total of 32prisoners had access. His three cellmateswere also charged, but not inmates in anadjacent cell. The disposition stated that pris­oners are "responsible for whatever is foundin the cell."

At 345: "The ticket, together with construc­tive possession, is 'some evidence' ofHamilton's guilt." The court concedes that if32 inmates had access to the vent, yielding a3.1%chance the plaintiff was guilty, the"some evidence" rule would not be met.However, the plaintiff did not say that heheard the weapons being thrown in the ventby other inmates or that 32 inmates hadaccess to the vent, and the court doubts thatthe disciplinary board members knew theengineering of the vents. Therefore, from thecommittee's point of view, considering theplaintiff and his cellmates, there was a 25%

chance of his guilt, which meets the "someevidence" standard.

Judge Posner, dissenting, says it wasabsolutely clear that the plaintiff told thedisciplinary committee that eight inmates hadaccess to the vent, yielding a known probabil­ity of guilt of 12.5%. At 347: "That is not myidea of 'some evidence,' ...unless purely col­lective guilt is deemed to satisfy due process-which in prison circumstances it mightbe, ...but the defendants do not defend the dis­ciplinary committee's action on that ground."

'\·1

DISTRICT CO-VRTS

Use of ForcelMunicipalitiesBerry v. City ofPhillipsburg, Kan., 796

F.Supp. 1400 (D.Kan. 1992). Evidence thatthe mayor had told the City Council that thepolice chief had a history of failure to super­vise adequately and of personally usingexcessive force, and that the Council mem­bers told him they did not care, supported aclaim of municipal liability for his misuse offorce, as did evidence that the police chiefhimself was the city's "policymaker" withrespect to arrests.

Pre-Trial DetaineeslModificationofjudgments!Closing of Facilities!Mental Health

Inmates ofAllegheny County jail v. Wecht,797 F.Supp. 425 (W.D.Pa. 1992). The agreeddeadline for closing an antiquated and uncon­stitutional jail is extended to correspond tothe schedule for completing a new jail.

The court increases the population cap to10 less than the Single-celled capacity of the632-cell jail, based on improvements in condi­tions and services and a decrease in the num­ber of "down cells," and contingent on themaintenance of the present level of staffingand the expansion of the counselling staff.

The court approves defendants' plan for an"intensive case management" program in thejail, i.e., a program of providing services toinmates in the general population, ratherthan their previous plan for construction of aseparate mental health facility. The court"believe[s] that the deinstitutionalization phi­losophy in the mental health field constitutesa significant change in treatment prescribedfor the mentally ill." This "significantchange" entitles the defendants to considera­tion under the Rufo standard. Since no onedisputes that the proposed program meets orexceeds constitutional minima, the modifica­tion is justified.

Defendants are to be permitted to use finemoney accumulated for previous judgmentviolations to implement the new mentalhealth program, with monitoring by thecourt's jail monitor.

The court states its belief that this 16-year-

SPRING 1993 13

old case is "progressing toward resolution."However, it keeps the monetary sanctions forviolation of the new population cap in place.

Modification ofJudgments~udicialDisengagement

Patterson v. Newspaper andMailDeliverers' Union, 797 F.Supp. 1174(S.D.N.Y. 1992). At 1179: "Before exercisingits power to modify or vacate a judicialdecree, a court must be convinced by theparty seeking relief that the purposes of thelitigation as incorporated into the decree havebeen fully achieved." Dowell and Rufo areapplied to a consent decree in a Title VIIemployment discrimination case. The exceed­ing of the goal of 25% minority representa­tion for a period of seven months leads thecourt to conclude that the decree's purposeshave been achieved and that the enforcementstructure of the consent decree "is now anunnecessary and expensive relic, and ought tobe retired." (1180) The court also cites lan­guage in the decree itself suggesting that itwas intended to terminate at some point.After 18 years, the decree is vacated in itsentirety.

The court declines to hold an evidentiaryhearing on the plaintiffs' contentions that dis­criminatory actions have continued and willcontinue, and reiterates its prior holding thatif the plaintiffs think that the consent decreewas insufficient to end discrimination, theymust bring a new lawsuit rather than seekmodification of this judgment.

Civil Rights of InstitutionalizedPersons Act

United States v. State ofTennessee, 798F.Supp. 483 (W.D.Tenn. 1992). There is nominimum number of affected residentsrequired to support an action by1he federalgovernment under the Civil Rights ofInstitutionalized Persons Act. Aclaim underthe Individuals with Disabilities Education Actis permitted to go forward under CRIPA.

The fact that the institution is certified asan Intermediate Care Facility for the MentallyRetarded under the Social Security Act doesnot establish a presumption of constitutionalconditions. At 489:

Certification does notguaranteethat constitutional minima exist. SeeLelsz v. Kavanagh, 673 F.Supp. 828,841 (N.D. Tex. 1987) ("Surveyorsexamine whether policies andpro­grams exist, not whether those poli­cies orprograms result in adequatecare"). Additionally, facilities withserious deficiencies are allowed toprovide a "plan ofcorrection" andmaintain their certification. Thus,certification is not equivalent to alegalpresumption ofconstitutional

·14 SPRING 1993

conditions, although it may providesome evidence on that point.

Heating and Ventilation/ClothingGordon v. Faber, 800 F.Supp. 793

(N.D.Iowa 1991), remandedfor additionalfindings, 963 F.2d 187 (8th Cir. 1992), onremand, 800 F.Supp. 797 (N.D.Iowa), afj'd,973 F.2d 686 (8th Cir. 1992). The plaintiffswere forced to exercise for several hourswithout hats or gloves in sub-freezing weath;,er, even though some of them did not wish togo out and hats and gloves were readily avail­able. They claimed no long-term injury.

This treatment violated the EighthAmendment. At 796: "Adequate clothing isone of the necessities of life of which prisonofficials cannot deprive an inmate....Prisonofficials violate the Constitution if they pro­vide inmates with clothing that is 'patentlyinsufficient to protect [them] from the coldin the winter months.'" The court does notbelieve testimony that this was done becauseof concerns for contraband, and even if thiswere true, the concerns would be unfoundedin this situation.

Heating and Ventilation/Clothing!Cruel and Unusual Punishment

Gordon v. Faber, 800 F.Supp. 797(N.D.Iowa), afj'd, 973 F.2d 686 (8th Cir.1992). The appeals court remanded for clari­fication of the disti:ict court's findings as towhether the objective component of theEighth Amendment had been established bythe plaintiffs.

The court concludes that the deprivationwas "extreme" because of the length of timethat the inmates were subjected to extremeweather conditions without minimal protec­tion, the defendants' knowledge of the condi­tions (the officer on duty had thick glovesand a thick hat), and the plaintiffs' descrip­tion of pain and numbness. The duration ischaracterized as "over one hour." (800)

The deprivation in this case was withoutlegitimate penological justification, "which isrelevant to the determination of whether theobjective standard has been violated." (800)

Religion-Practices-DietBass v. Coughlin, 800 F.Supp. 1066

(N.D.N.Y. 1991), afj'd, 976 F.2d 98 (2nd Cir.1992). The plaintiff alleged that he was notprOVided with a kosher diet for about 15months at Clinton Correctional Facility. (Theprison prOVides a "Cold Alternative Diet" butonly for prisoners preViously enrolled in thekosher diet program at Green Haven.)

The defendants are not entitled to summaryjudgment despite their claim that the plaintiffcould have bought his own food (which hesaid he couldn't afford) or eaten only thekosher items in the regular diet (which he

said weren't marked). The right of observantJews to a nutritionally adequate kosher diethas been established since Kahane v. Carlson(2nd Cir. 1975), which has not been over­ruled. The change in the governing constitu­tional standard in Turner v. Safley did not"dis-establish" this rule. At 1071: "When theCourt of Appeals announces a principle of lawfor this circuit, it remains the law until thecase is overruled or reversed. DOCS officialsshould not be entitled to speculate as to howthe Court of Appeals would rule if faced withthe question again:f

,)Use of ForcelDamages-Punitive

King v. Macri, 800 F.Supp. 1157 (S.D.N.Y.1992). The court precluded plaintiff's coun­sel from inquiring into officers' prior disci­plinary histories, but defendants' counsel'sinquiries of two of the officers, who had notbeen disciplined, "opened the door" forplaintiff's counsel to argue to the jury thatthere was a reason the question was notasked of the third officer.

The failure to award compensatory dam­ages is not dispositive of the question whetherthe plaintiff suffered a constitutional violationand does not preclude the award of punitivedamages.

Acompensatory award of $75,000 for twomonths' wrongful incarceration is not exces­sive. Awards of punitive damages of $75,000for excessive force against one defendant and$75,000, $50,000 and $75,000 for excessiveforce, false arrest and malicious prosecutionagainst the other were not excessive.Defendants' failure to introduce evidence oftheir earning power or resources precludestheir argument that damages should bereduced as disproportionate to them.

The verdict need not be set aside eventhough it may have been affected by "passionand emotion" resulting from the Rodney Kingverdict and its sequelae because this verdictwas supported by substantial evidence andthe Los Angeles riots may legitimately havealtered community perceptions in this area.

Staffing-SexiSearches-Person­Prisoners

Canedy v. Boardman, 801 F.Supp. 254(W.D.Wis. 1992). Astrip search of a maleprisoner supervised by a female officer didnot violate the Fourth Amendment. This courtrejects the numerous prior cases holding thatthe Fourth Amendment permits only inadver­tent, infrequent or random observations ofnude prisoners by opposite-sex staff on theground that prisoners' privacy interests areoutweighed by the equal employment rights ofprison staff. Gender cannot be a bona fideoccupational qualification under Title VII forthis purpose.

THE NATIONAL PRISON PROJECT JOURNAL

• The treatment of seriis "appalling,'; according toDistrictJudge Carl Muecke in P

Ruling in Casey v. Lewis, a clbehalf of all Arizona prisonersdeficiencies in the prison menate indifference to inmates'sthe inmates' constitutionunusual punishment arePrison Project of the ArneWashington, D.C. and attoUnion brought the ease for

Muecke rejected prisoncies were a result of budgeof staff and programming isfrom the Legislatureis not aviolations," he wrote.

Arizona prison officialsalfemale prisoners by failingvices comparable to those

Muecke also found thatsystems were unconstitutiHowever, he found, the'cials to make numerous i·constitutional by the ticannot be assured thatthe new programs," Mueperiodic reports on the stasystems.

"It's a victory for basicH. Adams, Jr. "A sentendeath or needless suffetal health care."

• The Death Penalty Ireport on the costs of the d

In Forma PauperisMwphy v.Jones, 801 F.Supp. 283 (E.D.Mo.

1992). Pursua.qt to local rule, a plaintiffgranted in forma pauperis was required tonotify the court of any substantial change inhis financial status. Dismissal is one of severalpossible sanctions for noncompliance, butgiven the ambiguity in the local rule and theplaintiff's eventual compliance, it is too harsha penalty here. The court may revoke IFP sta­tus if the evidence shows that "plaintiff's eco­nomic situation is no longer a significant bar­rier to maintaining the action." (289) Severalcourts have found that revocation of IFP statusis retroactive, requiring the litigant to pay theentire filing fee plus all other costs accrued.The court rejects this "payor dismiss" view,at least as applied to a litigant whose financialsituation improves after filing, since the IFPstatute permits dismissal only if the affidavit of

THE NATIONAL PRISON PROJECT JOURNAL

poverty is "untrue." The court also rejectsother decisions' analogy to proceedings underthe Criminal Justice Act. Finally, there is noreason to require retroactive payments in thiscase, since the previously paid partial filingfee of $13 served the purpose of deterringfrivolous complaints.

Class Actions-Settlement of Actions/Judicial Disengagement/Crowding

Diaz v. Romer, 801 F.Supp. 405 (D.Colo.1992). Defendants were ordered to post noticeof a class action settlement and a copy of theproposed agreement in every living unit andlaw library of each affected prison. The courtmakes factual findings concerning complianceand the adequacy of notice. The court alsonotes that class counsel met with class mem­bers, discussed the settlement at length, andobtained changes in the agreements to reflect

of a single death pe, making capital purisonmentwithout.allevel, and thus

end toward limitinFor more informati'on Center, 1606 20th9. 2021347-2531.

son Project announcesners'A~sis!ance.pi11orgamzatlOns W;'Pcilies including,tegalport, visitatioft; and adups focusing on theS, women, juvenilesge Directory is avaiPrison Project, 18720009. (Note to prisots from the Directory

concerns raised in these meetings (410).At 407:

".. .[T]he fact that the agreementsreached do not address each andevery issue raised in the Complaintor Motion for Contempt does not inand ofitselfgive cause to questionthe fairness ofthe agreements or theprocess involved in reaching them. "

One of the agreements amounts to a finalresolution of Ramos v. Lamm. At 408:

In return for the immediate dissolu­tion ofallprevious orders ofthe Courtin this action, and the withdrawal ofplaintiffs'pending (contemptmotion], defendants have agreed tomake capital improvements and toundertake other steps, most notablystaffing increases, at the affectedpris­ons.... Except for the limitedpurpose

SPRING 1993 15

ofenforcing the terms ofthe settle­ment agreement, this case will beclosed in its entireZv and the Court'sjurisdiction over theparties will end.

The agreements contain a "two-year period ofcompliance," which is not explained but pre­sumably limits all the terms of the agreement.

Class members objected to the removal ofpopulation caps that would prohibit double­bunking and the failure to eliminate it whereit eXists, but the court finds that with theincrease in staff, and given the adequacy ofother conditions, it is not unconstitutional.The court also approves provisions involvingmedical and mental health care, sex offendertreatment programs, and food service.

Procedural Due Process-.Administrative Segregation!Protective Custody

Banks v. Fauver, 801 F.Supp. 1422

(D.N.]. 1992). The plaintiff was placed inprotective custody based on an anonymoustip that his life was in danger and that hewas involved in drug trafficking as well asthe charge that his wife had tried to smugglemoney to him.

New Jersey regulations create a libertyinterest in staying out of protective custody(1428- 30). They define protective custodyas confinement to a secure unit "in order toprovide protection to the inmate from injuryor harm actually threatened or reasonablybelieved to exist"; this phrase constitutesthe regulation's substantive predicates. Thisdefinition, combined with language requir­ing the superintendent to review the reasonsfor PC placement "to determine whether ...there is a reasonable basis to conclude thatthe inmate is in need of Protective Custody,"and the requirement that the initial place­ment decision be supported by evidence and

reasons related to the PC definition, consti­tutes mandatory language.

FEDERAL RULES

Use of ForcelDiscoveryCastle v.fallah, 142 F.R.D. 618 (E.D.Va.

1982). At 620: "... [P]ro se litigants are enti­tled to the use of discovery procedures incivil cases on the same terms as litigants rep­resented by counsel."

The plaintiff was entitled to discover factualmaterial in prison teports of incidents; if theycontain deliberati,,~ material, defendants maysubmit them for.consideration of redactionwithin 20 days. III

john Boston is the director ofthePrisoners' Rights Project, LegalAidSociety ofNew York. He regularly con­tributes this column to the NPPJOURNAL.

"Dear Prison'Project..."The National Prison Project l' over500 letters each

weekfrom p1'isoners. Many oft tel'S include legal ques-tions which, unfortunately, we have neither the time nOt' thestaffto answer individually. In order to giveprisoners someofthe information requested, we have begun an "advice" col-umn, a sort of"DearAbbY"for . rs on legal questions.This issue's 'DearAbby" isjoe

Dear Prison Project:I am currently litigating a Secti complaint in the fed-

eral court. In response to my the defendants arguethat my claims should be dismecause they are barred bythe doctrine(s) of res judicata and/or collateral estoppel. I amconfused because, from my understanding, these doctrinesappear to be the same. What am I missing?

Confused

Dear Confused:The legal doctrines of res judicata and collateral estoppel

are not synonymous. Each has a distinct application. Theyappear to be the same because both doctrines are proceduralmechanisms designed, and used, to preclude claims (barreview). Both serve the same underlying principle of issuepreclusion: Le., stop repeated litigation of issues by the sameparties.

If the lawsuit you filed contains issues where there hasalready been a "judgment on the merits by a court of competentjurisdiction in a prior lawsuit involving the same parties ortheir agents," then res judicata may apply. The application ofres judicata requires that certain defined conditions exit: (1)there must have been a prior judgment on the melits; (2) thejudgment must come from a court with competent jurisdiction;(3) the suit must involve the same patties or agents; and (4)

16 SPRING 1993

the suit must stem from the same causeconditions do n t then you shoulddoes not apply to yo case.

Collateral estoppel promotes a distinct asunderlying principle: you cannot ni-litigaissues that were actually litigated and deinvolving you iN' ctive of whethwas previousl In otherthat res judi lies, and yotqualify as th ause of actio ,not apply to .But, your samcluded under t ctrine of collater.dants can show that your underlying fare the saine as those previously decided a

As with res judicata, certain conditionscollateral estoppelcan be applied to pCollateral estoppel should not appwas based on: (1) a "full and fair oppoan issue previously decided but the rullnecessary to th sion in the prior cimpossible to ine what was litigat

.prior action, then collateral estoppel shoburden of proof rests with the defendantswas not litigated and deCided. It is importshow the court ur claims are not tconditions ou bove.

THE NATIONAL PRISON PROJECT JOURNAL

Is Legal Punishment Right? The Answer is No.

The official and stated purpose ofCanada's criminal justice system isto punish. In fact, Canada's most

recent policy proposal clearly names"retribution" as the aim of our criminallaw. Punishment is endorsed as "arequirement of justice" simply because itis seen as "a fitting response to wrong­doing."

No one questions whether it is "right"to retain legal punishment in the face ofoverwhelming evidence that our punish­ment-based criminal justice system hasnot only failed but has had a destructiveeffect. The 1987 Canadian SentencingCommission reported 952 pages of suchevidence, but still endorsed punishment.The Commissioners called it a solution"of despair, not of hope," but necessaryso that criminals would get what theydeserve. This way of thinking has becomeso formalized that it is referred to as thetheory of "just deserts."1

Proponents of the theory claim thatlegal punishment can be justified if thepurpose is censure and blame, and whenthis is what an offender "deserves." Inthis view, punishment is requiredbecause of its role in expressing disap­proval of misconduct.

According to the theory of just deserts,punishment serves two intertwined pur­poses: deterrence and denunciation. It isin order to serve the dual purposes thatthe criminal sanction must have twoessential features-the imposition ofpainfUl consequences and a message ofcondemnation.

Commonly Accepted EthicalConsiderations and Constraints

Following rs a checklist of some of thecritical issues identified in the literatureand Canadian official policy documents:

Proportionality: Punishment is sup­posed to comport with the seriousness ofthe crime, Le., it must be deserved.

Parsimony or use 0/restraint: State­inflicted suffering should be kept to theminimum needed to achieve the purposeof intervention.

Preventive effect: The use of some­thing so intrusive as the criminal law andlegal punishment can only be "right" ifits use can be justified by some preven­tive effect. Often referred to as "theKantian injunction," this requires that nooffender be made to suffer harsh punish-

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ment merely in order to alter the behav­iour of others.

Censure: The punishment must expressmoral condemnation, disapproval, and '\'blame. ./~;

The overall magnitude o/the penalty,scale must be just: .

There should be limits to how disap­proval may be expressed, particularlyupper limits.

Seriously wrongful conduct: Law pro­fessor Andrew von Hirsch's whole justifi­cation for making legal punishment"right" takes for granted, he says, that itwould only apply to serious violations ofothers' rights.

Economic conditions in society mustbe just: This is the biggest caveat of all.Just deserts in an unjust society may notbe possible. Von Hirsch notes that all hisassumptions-about wrongfulness of thecriminal conduct and the culpability ofthe actors who engage in it-could bequestioned "in situations of sufficientsocial and economic deprivation." Agrowing literature also draws attention togender and race.

Collateral burden o/punishmentmust not overwhelm: The burden mustnot be so large as to overcome thedesert-based case that makes punish­ment "right."

These are the ethical considerationsaccepted today as criteria for ensuringthat legal punishment is right. They alsorepresent a scathing indictment of cur­rent sentencing practices in Canada andthe U.S., and probably around the world.At the least, a radical downscaling ofpenalties is required even to pay lip ser­vice to the ethics of just deserts.

So much depends on what von Hirschcalls "one's moral assumptions, politicalideology, and values about which reason­able people can disagree." The fatal flawin the theory of just deserts is that it is anabstract construction.

The logic of punishment will inevitablybreed injustice in an unjust society and,for this and several other reasons, pun­ishment is not "right." Some of the pur­poses for which punishment has beenused are important. I do not for a minutesuggest that we should do nothing aboutcrime. Of course, denunciation, protec­tion and proportionality are important.What is in question here is the assump­tion that punishment is the only meansof doing these things. It is not the bestmeans, nor is it necessary. It is not rightbecause it does so much harm.

If it can be shown that a system of pun­ishment cannot deliver on the promisesthat have justified it, and is unable toconform to the ethical standards agreedupon as necessary constraints on actionsby the state, then we can reasonablybegin to consider that legal punishmentmay not be right.

We must reflect on how the theorybehind punishlnent is based on an out­dated underst,inding of the world; it isbased on re~soning that just does notmake sense: Finally, and this will ringtrue to anyone with any experience of thecourts, the kind of adversarial proce­dures it has led us to gives no one asense that what is done is either satisfy­ing or right.

ASet of Outdated AssumptionsThe reality of justice and our beliefs

about justice are no longer the same inthis society.

An overwhelming body of findings fromthe fields of social and modern physicalsciences has shown that the imbalance ofpower and wealth in our society has ledto inequities. These inequities have beenrationalized by those who have the powerto produce our ideological theories­theories that define what is "right."

Within existing social contexts, manypeople are left at the mercy of the socialethic of the dominant group-thosewith the power to define for everyonewhich interests are valuable, whoseinterests are valuable, and what rightsare valuable. Degrees of "blameworthi­ness" become very difficult to judgegiven the imbalance of power andwealth. Assigning proportional ratings isnot possible and the end result is thejustification of the oppression of onegroup by another.

Those whom punishment might deterfrom acts defined as "criminal" do notshare a common context of symbolicunderstanding with the dominant group.In fact, according to reviews of the mostcurrent communications research byworld-class academics like ThomasMathiesen, the preventive message ofpunishment lands in a context of inter­pretation such that "the signal is noteffective, and the message not under­stood as the sender has meant it.,,2 Thosewhom the message is intended to determost often are already alienated from thedominant group. Mathiesen says, "Thesignal is not interpreted as a [threat ofa]deterrent sanction or of an educational

SPRING 1993 17 j

.ip

message. Rather, it is for example inter­preted as more oppression, more moral­izing and more rejection."

On the other hand, those who share acommon context of symbolic understand­ing with the dominant group sending outthe deterrent message are already, forother reasons, safely placed on the"right" side of the line. "Put briefly andin bold relief," says Mathiesen, "generalprevention functions in relation to thosewho do not 'need' it. In relation to thosewho do 'need' it, it does not function."

The power of the dominant group toassert that their perception justifieslegal punishment can lead to scapegoat­ing of those with whom there is not therelationship, bond or shared meaningthat can otherwise be called upon toabsorb conflicts of interest. Conflict withthe order imposed (on the basis of theirdefinitions) is no longer seen as the nat­ural conflict of desires between equals,but as the "crime" or "sin" or "flaw" ofthe other. "I am afraid of you" becomes"you are dangerous." "I find it hard thatyou are different from me" becomes"there's something wrong with you; youmust change or leave." "I don't under­stand why you are not trying to be theway I think you should be" becomes"you are unremorseful, unrepentant,uncooperative."

There is no doubt that crime cannot goignored. But our criminal justice systemis profoundly beside the point when itcomes to dealing with crime. If ourresponse is to truly help us build astronger community-which is the goalespoused in "just deserts"-it cannot bebased on a punishment strategy.

Is Punishment Right?Proportionality

In light of contemporary knowledge,the very determination of proportionalityis an obsolete Itotion. Tragically, howev­er, within this "decontextualized" model,the labelling of a behaviour as "criminaloffence" produces a kind of reification ofit and triggers a process that then takeson a life of its own. Indeed, conductlabelled as "crime" includes, in vonHirsch's own estimation, behaviours thatdo not constitute violations seriousenough to warrant the intervention of theState at all. With the label "criminaloffence" applied, individual behaviour isno longer addressed with its idiosyncrat­ic human features. Abstract categories of"crime" and "time" are compared with­out regard for context or content, in slav­ish adherence to the demands of propor­tionality. The principle of parsimony is

18 SPRING 1993

.h:J•

never applied. The convention has been: ;"determined by the dominant group and isnow cast in stone.

Time after time, rationales justifyimposing greater punishment than the"mitigating individual circumstances"warrant. This is done to set an exampleand "send out a message" to people withso little status in the dominant group thatthey have neither the credibility nor theresources to challenge it. It also serves tomake an example of the "non-disadvan­taged" person who falls from gracethrough some deviant act and must besacrificed to show that the principle of"just deserts" plays no favourites.

Contemporary societies are complex,impersonal, multicultural and non-com­munal. Legislators and judges administerjustice within this context in a turbulentatmosphere of court backlogs and poli­tics. They face a situation where, by leg­islative edict, every behaviour that canpotentially be labelled "offence" alsocarries the potential for a prison sen­tence. In such a context, what Mathiesencalls the "action function" of imprison­ment makes it the quickest, most observ­able sign thatsomething is being doneabout crime.

The high collateral costs of this out­come, both financial and human, serveultimately the interests of no one at all,save perhaps the industry that has grownup around it.

The inescapable conclusion: punish­ment cannot be proportional and there­fore cannot be justified.

The Prevention RequirementThe evidence that deterrent effect can­

not stand up to scrutiny is overwhelming.What all the literature boils down to isthis: the premise that punishment has apreventive or deterrent effect is based onsheer assumption that fear of unpleasantconsequences is a highly motivating fac­tor in most walks of life. Empiricalknowledge, says von Hirsch, about theactual deterrent impact of penalties isnot conclusive, and Mathiesen's compre­hensive review of the research corrobo­rates this. Yet this unsubstantiated belief

in punishment's preventive effect stillprevails as its lingering justification. Theburden of proof is placed on those whowould cast doubt on it.

There are solid grounds for the claimthat punishment, if it "works" at all, can­not be justified as either the primarymeans of preventing crime, the mostimportant means, or the most effectivemeans for doing so.

The Requirements ofLogicFrom whence cames, then, this strange

belief in criminahlaw as a kind of penalmagic, as if violence could produce non­violence? Punishment is, by definition,the deliberate infliction of suffering; it isjustified violence.

The logic of punishment cannot hold.To aim to punish and re-integrate offend­ers at the same time are contradictoryobjectives-as in to walk and stand still,to speak and remain silent. But this verylogic of "just deserts" now forms thebasis of Canada's most current policyproposals for the acceptable aim of itscriminal law! Retribution or violenceclings to our criminal law as aninevitable reply to an earlier violence. Atbest, it is prophylaxis. At worst, it is acrime like the rest.

Mathiesen points out that punishment'sattempt to communicate a preventivemessage is rendered ineffectual by sever­al distorting factors. The assumption of apreventive effect does not take intoaccount how punishment is experiencedby those on whom it is most likely to beimposed. Some social pressure or threatmay make people conform but, beyond acertain point (and this point is well sur­passed by contemporary criminal justicepractice), the punishment is experiencedas an injustice, a rejection, a scapegoat­ing. Ultimately a counter-cultureemerges, as opposed to conformance tothe dominant culture, because it is notfelt by those most often punished thatsuccessfully refraining from certain con­duct is all that is required to successfullyeliminate the risk of alienation from thedominant group.

Repercussions ofan Adversarial SystemThe legal system spawned by the logic

of punishment is, of necessity, adversarialand, as a result, is actually destructive ofsome of justice's most cherished objec­tives: the shared sense of what is rightand wrong, the holding to account forwrongdoing, the affirming of the impor­tance of the rights of the person injured,the sense of proportionality to the gravityof the misconduct, and the prevention of

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further harm. Today, the legal industryturns the search for justice into a gameof technicalities played between lawyersin court. The central focus is that a lawhas been broken. The message overridesthe victim's priorities and considerations,as well as any other rational concern forprotection, rehabilitation, and ultimatehealing of,the relationship with the victimor the community. The entire symbolicmessage of denunciation and moral con­demnation must be carried by the lengthof prison sentence that is broadcast inheadlines to the rest of the community.

Justice as Punishment: The FinalDemise of a Paradigm

The hold that the punishment modelmaintains on our collective psyche isirrational. Fed by abstract stereotypes, itremains blissfully unchallenged.

There are other ways of looking at thekinds of problematic situations that getcriminalized, as feminists3 and othercriminologists have begun to point out.Problematic situations can be handled ina wide variety of much more civilizedways than today-as aboriginal legalcritics are rediscovering. 4

Denunciation is, in fact, an importantpositive goal, as is the right to protec­tion. But its inevitable association withpunitiveness makes for unresolvablephilosophical contradictions within aframework where one must mitigateagainst the consequences of a systemwhose intent is also to remove certainrights and liberties for the express pur­pose of inflicting pain as punishment.

When a way of thinking, based onunquestioned "common sense," begins tolimit our ability to interpret and use newinformation and insights, it is usually asign that a "paradigm" has been domi­nating our thinking and that a change inparadigm is probably close at hand.Since our p~radigms can blind us to newpossibilities, the ability to examine andchallenge them to break the old and cre­ate the new becomes important to ourhuman journey.

The ultimate contribution of Andrewvon Hirsch, then, to the contemporaryphilosophic endeavour around justicetheory, is to have finally broken the pun­ishment paradigm of justice, by an analy­sis of its logic that unmasks its utterunworkability.

Creating a New Paradigm forDoing Justice

Today we can no longer ignore that thedevelopment of a just, peaceful, and safesociety is a process that is forever ongo-

THE NATIONAL PRISON PROJECT JOURNAL

ing. Justice cannot be built on exclu­sivism, absolutism, or intolerance.Neither can it be built on vague liberalslogans or pious programs, a softhumanism which does not want to recog­nize evil and face it. We can only remindourselves of how we want to be liVing')'together and, guided by those values,';;within a framework of good and evil"t'understand what needs to be done, with,all the truthtelling needed. We need'a

,,,,,'1.

new "paradigm" for doing justice thatcan help us build community, not furtherdestroy it.

We must end the apparent logic ofreturning evil for evil, renounce the ideaof retribution and those forms of conductwhich have always appeared natural andlegitimate. If we are to escape from vio­lence, if we are to live together in peace,we must overcome the spirit of rancourand vengeance. To avoid punishment andblame, however, usually means to sharein the suffering, finding the humancapacity to bear pain and overcome it.Conflict, crime and evil will never beeliminated: it is how we deal with themthat must be changed.

New perspectives will take shape if wehave the courage to see that the emperorhas no clothes. Skepticism towards thesystem must be honestly voiced as itemerges, by top level decision-makers,by personnel engaged in practice at thegrass-roots, by professional associationsand pressure groups outside the system,and by the community at large.

New measures could be introducedwhich can better satisfy aspirations andneeds. "Pre-emptive deterrence" couldbe emphasized, rather than interventionby punishment after the event. Effortscould focus more closely on the harmdone to people-rather than on the"law" that has been broken. Care for thevictim could become central to the sys­tem, rather than concentrating servicesexclUSively on blaming and fixing individ­ual offenders. The peace-making functionof the law could be developed, with pro­cedures for solVing more conflicts in thecommunity.

The notion of "punishment" could bereplaced by "liability" of an offender for agiven offence. The least onerous measures

should be chosen in accordance with the"response-ability" of the offender.

Some separation from society may beneeded, but not for the purpose of pun­ishment. Some non-violent alternativeform of "moral expression" may beneeded-rituals, for example-toexpress denunciation and release inhealthy ways the vengeful feelings andretributive emotion-but without feedingthe cycle of violence. Ultimately, somestrictly coercive measures bordering onpunishment 1lJ.ay have to be invoked­but only as aJast resort.

This by npmeans implies that societyshould not"protect itself or censurewrongdoing. Denunciation and disap­proval are important human responses towrongdoing. But it is a fallacy to believethat the response must be punitive.

The concept of "deserved punishment"is deeply entrenched, reaching back intobiblical tradition. It was originallyintended as a limiting principle (nomore than an eye for an eye), restrictingwhat could be done to tangibly acknowl­edge the harm done. What has nowgrown up around it is the infliction ofpain and the satisfaction of revenge. In_light of contemporary knowledge and sci­entific evidence, this cannot be anacceptable foundation for any govern­ment's criminal justice policy.•

Lorraine Berzins has a Masters ofSocial Work from McGill University.She has worked within the criminaljustice system as a classification offi­cer, program consultant and the firstCoordinator ofthe Female OffenderProgram at the Department oftheSolicitor General in Canada. Berzinshas recently worked with the ChurchCouncil onJustice and Corrections inthe areas ofjustice reform, family vio­lence and women in the justice system.

1 The writings of law professor Andrew von Hirschhave been particularly influential in narrowingdown and spelling out this theory as a credible rea­son for allowing punishment by the state, See par­ticularly his article, "Proportionality in Philosophyof Punishment: From 'Why Punish?' to 'HowMuch?'" Criminal Law Forum, and InternationalJournal, VoU, No,2 (1990),2 Mathiesen, Prison on Trial: A CriticalAssessment, London, (1990).3 Ed. note see M. Kay Harris, "Exploring theConnections Between Feminism and]ustice," NPPJOURNAL, No.13, Fall 1987.4 Von Hirsch mentions the analogy of penance ritu­als. Penance rituals could prOVide alternatives forthe "moral discourse" needed, the communicationof judgment and feeling, the need for reflection onthe moral quality of certain behaviour, the recogni­tion of the seriousness of the harm done, and thevalUing of certain rights.

SPRING 1993 19

~:

(con 'to ji'Om page 2)

The authorities had tried to restrict ourprison visits to foreigners only. We insistedthat the Russians be allowed in, too. Therelationship between the ministry officialsand small penal reform groups who areRussia's only independent watchdogs isinevitably ambivalent. The activists' work inpublicizing abuses is embarrassing to offi­cials. On the other hand, their knowledgeabout penal issues has had a role to play inframing legislation. At least one advocacygroup, the Prison Centre in Moscow, becameinvolved last year in peace-making inside thepenal colonies, when a spate of strikes andriots threatened widespread bloodshed. TheCentre's founder, Valery Fedorovich Abram­kin, a former prisoner and unremitting evan­gelist for reform, is a particularly tenaciousthorn in the side of the authorities. TheMinistry has banned him from making furthervisits to the camps, but without total success.

Abramkin and his practical right-handman, Petrov (who met us at the airport),have in recent years travelled outsideRussia, and seen prisons in the West. Theyare well aware that prosperous capitaliststates do not necessarily treat their prison-

"Some people h

During the conference,that visited the remandare his recollections:

"The facility was built in thedungeon. Designed for 1,000,visit. This included men, wojuveniles, all kept in separateently no limit on the time 0

four years pre-trial, that is,eight months ifyou're justwords, you can be held focharges are filed. The dirplace is so crowded that ppeople have tQ"sleep while70 men in a 40-man cell.(which looked more like aers. The bunks are right ueven one inch of space besleeping platforms, one robunks on top of them, withbetween the bunks and the

"The director gave us thetioned that it was not followeWith a population of over 5,workshops that would accoation is on the roof in a bget one hour each day inwas apparent that prisonetakes so long to get there

20 SPRING 1993

ers well. But they are the exception. Mostof the participants at the Moscow confer­ence have not travelled abroad. Withoutdirect experience of the West, there per­sists a widespread belief that capitalismcan get prisons right. The visitingWesterners had little success persuadingeither the Russians or the many other ex­Soviet nationalities of the fundamental factthat locking people up is a negative anddamaging act, and that imprisonment inany country perpetuates crime.

Comparisons with U.S.In one key respect, the former Soviet

Union compares favorably with the UnitedStates. In the ex-USSR, widespreadamnesties for political and non-violentprisoners in 1987-88 reduced the prisonpopulation by more than a third. Theresult is that the U.S. proportionate rate ofimprisonment, 455 per 100,000, is muchhigher than the rate in the former USSR,350 per 100,000 according to official fig­ures. (Both sets are for 1990-91,)

But the numbers in prison in the formerSoviet Union are rising again. As everywhere,the penal problem starts and finishes in the

ep while others part of a group

Moscow. Here

erally a Victorianthe day of our

population) andon. There is appar­

be held three toged, but only six tostigation. In othere any formaloned that thep in turns. Some

going to show us, the 40-man cell

held 70 prison-r; there is notlike two largeanother row of.'ngaround

d then men-of the crowding.had arts and crafts

outdoor recre­are supposed ton the crowding, itoof because ito many of them.

world outside. Sharply rising crime is lead­ing to public demand for tougher andtougher penalties. The pattern is all toofamiliar. The law-its content and its appli­cation-is what remains fundamentally dif­ferent in the states which for three genera­tions were under Soviet communist rule.

The Russian criminal code, though.~. amended, has yet to receive the root-and­

branch overhaul that would bring it in linewith western norms. Little meaningful dis­tinction is made between minor delin­quency and dangetous crime. The key dif­ference in sentencing is between firstoffenders-first. time caught-and all therest. Sentences for relatively minor offens­es remain remarkably long. The pretrialinvestigation by a public prosecutor fol­lows the inquisitorial system used inWestern Europe, which is unfamiliar toAnglo-Saxon countries with an adversarialsystem. But it is not accompanied by anyeffective legal protection for the detainee;no provision for bail, no limit imposed onthe length of time a prisoner awaits trial.Juries have yet to be introduced into thecourtroom. And after conviction, legalredress for inhumane treatment in custody

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does not exist. This is a system inheritedby the now independent republics.

There appears to be no systematicmethod of reversing wrongful conviction.We heard of men and women convictedfor offenses, such as doing private busi­ness, which were crimes against the Stateunder communism. They are no longercrimes, but, according to accounts at theconference, people serving long sentencesfor such activities remain in the camps.With the outbreak of ethnic wars in sever­al republics, the "crime" of being a con­scientious objector has also reappeared,resulting in imprisonment for those refus­ing to join up.

The law operates against a backdrop ofeconomic collapse, vertiginous inflation,and top-level political combat betweenreformers and old guard. It operates withmany of the judges from the old days stillin office, trained to protect the state, notthe individual. It operates, above all, in amoral vacuum. Corruption at every level isrife. We heard of examples at the confer­ence, and even witnessed one when apoliceman stopped a driver taking us intoMoscow and accused him of a number ofinfractions until he handed over 800rubles. On this occasion, the presence offoreigners made no difference.

Death PenaltyWith the rule of law seen to be absent,

public faith in harsh punishment is well-

(con't. from page 7)Deprivation of Liberty," 11 Canadian PsychiatricAssociationjournal470-484 (1966); Scott, G., &Gendreau, P. "Psychiatric Implications of SensoryDeprivation in a Maximum Security Prison," 12Canadian Psychiatric Associationjournal 337-341(1969); Cohen, S., & Taylor, L., Psychological Sur­vival, Harnondsworth: Penguin (1972); Grassian, S.,"Psychopathological Effects of Solitary Confinement,"140Americanjournal ofPsychiatry 1450-1454(1983); Jackson';' M. Prisoners ofIsolation: SolitaryConfinement in Canada, Toronto: University ofToronto Press (1983); Grassian, S. & Friedman, N.,"Effects of Sensory Deprivation in Psychiatric Seclusionand Solitary Confinement," 8 Internationaljournal ofLaw andPsychiatry 49-65 (1986); Slater, R. "Psychi­atric Intervention in an Atmosphere ofTerror," 7Americanjournal ofForensic Psychiatry 6-12(1986); Brodsky, S. & Scogin, F., "Inmates in Protec­tive Custody: First Data on Emotional Effects," 1Forensic Reports 267-280 (1988); and Cooke, D."Containing Violent Prisoners: An Analysis of theBarlinnie Special Unit," 29 Britishjournal ofCriminology 129-143 (1989).6 This description of cell extraction practices is cor­roborated not only by numerous prisoner accounts ofthe process but also by explicit Department of Cor­rections procedures. Once a decision has been madeto "extract" a prisoner from his cell, this is how thefive-man cell extraction team proceeds: the first mem-

THE NATIONAL PRISON PROJECT JOURNAL

nigh unshakable. Apoll quoted at the con­ferenceindicates that 75% of Russians arein favor of capital punishment, and 30%want it expanded. One speaker at the con­ference felt that research into the effects ofcapital punishment needed to be under- .taken-to which Alvin J. Bronstein [exee~

utive director] of the NPP replied this ,;;would be "like researching whether.~'

Buchenwald was a success."The death penalty is not applied as}e­

quently as it was under the old regiII)'~,but recorded executions in the formerSoviet Union have been about 90 annuallyin recent years (compared to 30 annuallyin the U.S.). Abizarre debate took placeabout the method of execution, andspeakers asked a senior ministry officialwhy the body could not be returned to thefamily. They received the chilling non­answer that the prison custom was crema­tion, "so there might be excesses becauseof different cultural ways [among thepopulation] of disposing of the body."

The debate ended with a suggestionfrom Alvin Bronstein, which received sup­port, that there should be a resolutionagainst the death penalty. The chairman,an eminent Russian writer, said hecouldn't be sure how to frame such a res­olution. The discussion resumed. By theend of the day, no one seemed clearwhether such a resolution did or did notexist. (Throughout the conference, com­mitment was rivalled only by chaos.)

ber of the team is to enter the cell carrying a largeshield, which is used to push the prisoner back into acorner of the cell; the second member follows closely,wielding a special cell extraction baton, which is usedto strike the inmate on the upper part of his body sothat he will raise his arms in self-protection; thusunsteadied, the inmate is pulled off balance by anoth­er member of the team whose job is to place leg ironsaround his ankles; once downed, a fourth member ofthe team places him in handcuffs; the fifth memberstands ready to fire a taser gun or rifle that shootswooden or rubber bullets at the resistant inmate.7 One of the basic principles of any unit premised ondomination and punitive control-as the Pelican BaySecurity Housing Unit is-is that a worse, more puni­tive and degrading place always must be created inorder to pUnish those prisoners who still commit ruleinfractions. At Pelican Bay, that place is termed the"Violence Control Unit" (which the prisoners refer toas "Bedrock"). From my observations and interviews,some of the most psychiatrically disturbed prisonersare kept in the VCU. Prisoners in this unit are notpermitted televisions or radios, and they are the onlyones chained and escorted to the door of the outsideexercise cage (despite the fact that no prisoner ismore than four cells away from this door). In addi­tion, there are plexiglas coverings on the entire out­side facing of the VCU cells, which results in a signifi­cant distortion of vision into and out of the cell itself.Indeed, because of the bright light reflected off this

The Future of ReformGiven the nightmarish problems faced

by the ex-USSR, is there anything that canbe done by outsiders to further theunpopular cause of penal reform? Inrelation to the scale of the task, notmuch. It was clear at the conference thatRussia and her neighbors are not goingto leap-frog the mistakes we in the Westhave made over the past century. Theproblem is not primarily one of money;it is a question of mentality. WhatWesterners can offer-and what thereformers in:.j.ussia want-is know-how:organizatiQJi,~l, technical, and, if precise­ly targeted, material.

But most of all, vigilance. The Russianauthorities pay far more heed to foreignopinion than they do to their own citizens.Former political prisoners have taken upthe cause of everyday prisoners, and ofeveryday people, in their fight to make thesystem more humane. There may nolonger be political prisoners in Russia(though no one could swear to that), butthe need for constant reminders to thosein power that people in the West arewatching has not diminished. As ValeryAbramkin told us: "We need your supportjust as much now as when we ourselveswere in prison." •

Jennifer Monahan is a British.freelancejournalist and member ofPenalReformInternational.

Plexiglas covering, I found it difficult to see clearlyinto any of the upper-level VCU cells I observed, oreven to look clearly into the faces of prisoners whowere standing right in front of me on the other side ofthis plexiglas shield. Inside, the perception of con­finement is intensified because of this added barrierplaced on the front of each cell.S In the first several years of its operation, PelicanBay State Prison had one fulltime mental health staffmember, and not a single Ph.D. psychologist or psy­chiatrist, to administer to the needs of the entireprison population, which included over 1,000 SHUprisoners, as well as over 2,000 prisoners in thegeneral population of the prison. Although the size ofthe mental health staff has been increased somewhatin recent years, it is still the case that no advancescreening is done by mental health staff on prisonersadmitted to the SHUs to determine pre-existing psy­chiatric disorders or suicide risk, and no regularmonitoring is performed by mental health staff toassess the negative psychological consequences ofexposure to this toxic environment.9 Cf. Toch, H., "The Disturbed Disruptive Inmate:Where Does the Bus Stop?" 10journalofPsychiatryand Law 327-350, (1982).10 Dickens, C., American Notes for GeneralCirculation. London: Chapman and Hall (1842);Beaumont, G., & de Tocqueville, A., On the Peniten­tiary System in the United States and Its Applica­tion in France, Montclair, N.j., (1833; 1976).

SPRING 1993 21

IDS Updat_e _

Mike Flashner, a peer educator at the Pondville (MAl Correctional Center, wouldlike to see a national peer education organization.

"Teaching other inmatesabout HIV/AIDS is notan easy task."

-Dee Farmer, FCI, Springfield

Peer educators have often been the onlysource of education and advocacy inprison around HIV/AIDS issues. Three

peer educators tell, in their own words,about their struggles and accomplishments:

Dee Farmer-FCI Springfield, MissouriThere is little literature evaluating the

effectiveness of HIV/AIDS peer educators.But many believe inmates are best quali­fied to educate other inmates aboutHIV/AIDS. Most prison officials are per­ceived as judgmental in their AIDS educa­tion programs. Instead many inmates, likemyself, have filled in and sometimes takenover the prison AIDS education program.

Teaching other inmates about HIV/AIDSis not an easy task. In educating fellowinmates we are asking them to change theway they engage in sexual activity and druguse; or with the absence of condoms andclean needles, to abandon these activitiescompletely. It is not easy to ask inmates todo this, because sexual activity and druguse can be a comfort in the lonely and iso­lated prison environment.

Our message has to be that though givingup these activities may be emotionally diffi­cult now, not to do so can be a lot worse inthe long run. Beyond AIDS education wemust begin to network. I do my part bymailing AIDS literature to inmates through­out the country and writing articles forAIDS magazines and prison publications.

Here, at the Federal Prison MedicalCenter my mission is to show inmates howto live positively with AIDS. WhenHIV/AIDS inmates arrive here they arelonely and scared. On the terminally illward I witness AIDS patients being fedintravenously, unable to walk, barelybreathing, and just hanging on to a threadof life. No matter how often I visit the wardI am always overwhelmed with a deepsense of sadness. I feel compelled to tell

22 SPRING 1993

everyone that AIDS can be a killer. Protectand take care of yourself, because a prisonhospital is one of the worst places to be.

Cruz Salgado-Wallkill CorrectionalFacility, New York

It hasn't been easy, trudging through thisstruggle, but after the death of a good friendfive years ago, I decided to pick up the ban­ner of peer support. You see, my frienddied of pneumocystis carinii pneumonia(PCP). Since then, I've coordinated supportgroups, taught AIDS prevention education,conducted seminars, chaired the Prisonersfor AIDS Counseling & Education group,and I am now a certified peer (AIDS) coun­selor. In the process, I've also seen how theAIDS crisis in prison has affected fellowprisoners. Although there has been someimprovement, the overall quality of treat­ment for prisoners with HIV/AIDS continuesto crawl at a snail's pace.

Hopes that things will improve in '93seem bleak. Out of the quagmire threeissues emerge that need action: 1) theslow process for release under the MedicalParole Law; 2) the need for dischargeplanning to include housing and supportservices for parolees; and 3) developingconduits for providing food and clothing toprisoners with HIV/AIDS. Anyone withinsights is urged to contact the AIDS inPrison Project at (212) 254-5700.

In the meantime, I invite all prisoners tounite against AIDS and help calm the echo­ing scream of frustration, despair and fearof our fellow prisoners with AIDS.

Mike Flashner-Pondville CorrectionalCenter, Massachusetts

The AIDS Education Awareness Programat NCCI Gardner wants to start a nation­wide Peer AIDS Education Organizationand encourages all peer AIDS educators toparticipate in forming a network for bettermedical care for HIV/AIDS and terminallyill prisoners.

The time is long overdue for peer educa­tors to be heard nationwide. This organiza­tion would give every peer run educationprogram a voice in Congress and the WhiteHouse. The United States Supreme Courthas ruled that prisoners have the right toadequate health care in prison. As peereducators, we know government actionmust be taken to meet these standards.

We all must take exception to statementsfrom prison officials who say "they're going .to pass away in prison anyway." We say 95%of HIV/AIDS-infected prisoners did not getsentenced to death and we must look atalternatives to see this doesn't become acommon practice in our nation's prisons. II

Jackie Walker is the Project's AIDS infor­mation coordinator.

THE NATIONAL PRISON PROJECT JOURNAL

ublications

QTY. COST

QTY. COST

1990 AIDS in Prison_---1-_ Bibliography lists resources

on AIDS in prison that areavailable from the National PrisonPr(i,ject and other sources,in(}iuding corrections policies onMDS, educational materials,medical and legal articles, andrecent AIDS studies. $5 prepaidfrom NPP.

ACLU Handbook, TheRights of Prisoners. Guide tothe legal rights of prisoners,parolees, pre-trial detainees, etc.,in question-and-answer form.Contains citations. $7.95; $5 forprisoners. ACLU Dept. L, P.O. Box794, Medford, NY 11763.

(orderfromACLU)

AIDS in Prisons: The Facts_----"--_ for Inmates and Officers is

a simply written educational toolfor prisoners, corrections staff,and AIDS service providers. Thebooklet answers in an easy-to­read format commonly askedquestions concerning themeaning of AIDS, the medicaltreatment available, legal rights.and responsibilities. Alsoavailable in Spanish. Samplecopies free. Bulk orders: 100copies/$25. 500 copies/$100.1,000 copies/$150 prepaid.

QTY. COST

1B: The Facts for Inmates_-----'-__ and Officers answers

commonly-asked questions abouttuberculosis (TB) in a simplequestion-and-answer format.Discusses what tuberculosis is,how it is contracted, its symp­toms, treatment and how HIVinfection affects TB. Single copiesfree. Bulk orders: 100 copies/$25.500 copies/$100.1,000 copies/$150 prepaid.

Bibliography of Material 011_----L__ Women in Prison

lists information on this subi~ct

available from the National EiisonProject and other sourcesconcerning health care, drugtreatment, incarcerated mothers,juveniles, legislation, parole, thedeath penalty, sex discrimination,race and more. 35 pages. $5prepaid from NPP.

_---'----_ APrimer for Jail Litigatorsis a detailed manual with practicalsuggestions for jail litigation. Itincludes chapters on legal analy­sis, the use of expert witnesses,class actions, attorneys' fees,enforcement, discovery, defenses'proof, remedies, and many practi­cal suggestions. Relevant casecitations and correctional stan­dards. 1st Edition, February 1984.180 pages, paperback. (Note: Thisis not a "jailhouse lawyers" manu­al.) $20 prepaid from NPP.

The National Prison Project----'----- Status Report lists by state

those presently under court order,or those which have pendinglitigation either involving theentire state prison system orm"ajor institutions within the state.Lists cases which deal withovercrowding and/or the totalconditions of confinement. (Nojails except District of Columbia.)Updated January 1993. $5 prepaidfrom NPP.

The National PrisonProject JOURNAL, $30/yr.$21yr. to prisoners.

The Prisoners' Assistance_---L__ Directory, the result of a

national survey, identifies anddescribes various organizations andagencies that provide assistanceto prisoners. Lists national, state,and local organizations andsources of assistance includinglegal, AIDS, family support, andex-offender aid. 10th Edition, pub­lishedJanuary 1993. Paperback,$30 prepaid from NPP.

Fill out and send with check payable to: Name _

The National Prison Project1875 Connecticut Ave., NW #410Washington, D.C. 20009

Address _

City, State, ZIP _

THE NATIONAL PRISON PROJECT JOURNAL SPRING 1993 23

Roe v. Meachum-This case was filedon February 24, 1993 by the NationalPrison Project and the Connecticut CivilLiberties Union on behalf of all prisonershoused in the Bridgeport (CT) CommunityCorrectional Center. Plaintiffs claim thatdeficiencies in the mental health care sys­tem amount to a violation of prisoners'constitutional and statutory rights.

u.s. v. MichiganIKnop v. Johnson­This is a state-wide Michigan prison con­ditions case. In Knop, the Supreme Courtdenied plaintiffs' petition for certiorari ona racial slurs issue on March 8. On March4, the trial court ordered the defendants tosubmit a compliance plan for legal accessby June, 1993.

On January 29, the district court released ,,' Island prisons. In February, the Governor'sfrom federal court supervision three state. . new Commission to Avoid Future Prisonprisons that had achieved compliance with.; Overcrowding proposed legislation to holdcourt-ordered reforms. However, serious;.~(. the prisoner population at certain agreed-problems remain at the state penitentiary, to limits. The packY.ge calls for use of

alternatives such ~ intensive supervision,halfway houses MU drug treatment pro­grams, night and weekend court to expe­dite arraignments, and the creation of acommittee to supervise population levels.

Hamilton v. Morial challenges over­crowding and conditions at the OrleansParish Prison; the municipal jail for theCity of New Orleans. The judge recentlyordered defendants to discontinue theirpolicy of charging prisoners for over-the­counter medications. In addition, plain­tiffs' attorneys convinced defendants todrop their policy of charging prisoners acopayment for sick call.

Palmigiano v. Sundlun challengesovercrowding and conditions in the Rhode

Hadix v. Johnson-The NationalPrison Project appears in the medical andmental health care portion of this casewhich concerns conditions of confinementat the State Prison of Southern Michigan inJackson. Following evidentiary hearings inMarch, the court ordered relief in severalareas, including staffing and tuberculosiscontrol.

Casey v. Lewis, filed on behalf ofArizona state prisoners, challenges legalaccess, health care and practices sur­rounding assignments to segregation. OnMarch 19, the district court declared themental health care system unconstitution­al, rejecting the state's claim that budgetconstraints made deficiencies unavoid­able. The court found that medical anddental care had been unconstitutional atthe time of filing. Due to improvementsmade since the filing of the case, the courtfound that medical and dental care werecurrently constitutional, but ordered thestate to submit periodic status reports onthese areas. On April 6, the court ruledthat the state's failure to make facilitiesaccessible to mobility impaired prisonersviolated the Constitution.

Duran v. King challenges crowdingand conditions in New Mexico's prisons.

The following are major develop­ments in the Prison Project's litiga­tion program since January 15,

1993. Further details of any of the listedcases may be obtained by writing theProject.

National Prison ProjectAmerican Civil Liberties Union Foundation1875 Connecticut Ave., NW, #410Washington, D.C. 20009(202) 234-4830

Nonprofit Org.U.S. Postage

PAIDWashington D.C.Permit No. 5248

Printed on Recycled Paper

24 SPRING 1993 THE NATIONAL PRISON PROJECT JOURNAL