A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.VOL 10, NO.1, WINTER 1994/95 ~.ISSN 1076-769X

"Corrections-Industrial Complex"Expands in u.s.

ons added at least 105,219 beds, anincrease of 13% from the 1992-93 totalsof 92,028 beds.

Some of the biggest names in finance

1ft",."Int Blank '85",,00 A.. Ami""" NY 11101r@J BODYARMOR (800)64S4443"lnNY.(516)842.3900

complex," cautions against the spread of asystem of crime control in which ethicalquestions are suppressed and efficient man­agement supplants justice.2

Will the economic motives of businessconflict with the objectives of providingdecent conditions of confinement? Willprison businesses maintain high occupancyrates even in the absence of demonstratedneed? And, as Malcolm Feeley asks, towhat extent does privatization expand andtransform the state's capacity to punish?3

That the United States is moving full steamahead to expand this system is unquestion­able. In 1980 the total state and federalsentenced inmate population was 329,821.At midyear 1994 that total had risen to1,012,851.4 The 1994 federal Crime Billprovides nearly $9 billion for state prisonconstruction. During FY 1993-94 state pris-

Features:• Stab protection - to 81.1

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• Slash protection f.chjevedwith space-age titanium.

• Blunttrauma protection­yOU'll barely feel the blows.

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The S.T.A.R. vest gives you a maximum rangeof motion for close confrontaUons.

I-_~"I Don't Get Stuck With Anything Less._.-.=0-

Ted Goins, a securitiesanalyst at Branch,Cabell & Co. in

Richmond, Va. spent aweekend last spring readingthrough every detail of thefederal Crime Bill andwatching the debate onC-Span. He then came upwith a list of "theme stocks of·the 90s."

Goins' highest recommenda­tion went to the Nashville-basedCorrections Corporation ofAmerica (CCA)-the nation'smost successful operator of pri­vate prisons-whose stock hadrecently hit an all-time high.CCA's chief financial officer wasquoted as saying that the CrimeBill was "very favorable to us."!

CCA's success is but one exampleof the profits to be made by a rapidly grow­ing constituency of architects, private prisonoperators, vendors, labor unions, develop­ers, financiers, and other entrepreneurs.Most recently, defense contractors, whohave been hyrt by cuts in military spending,have been searching for opportunities in thecorrections industry.

The combination of these lucrative busi­ness opportunities, political posturing, thewar on drugs, and deep social divisionswithin the United States have created a rapidexpansion of the "crime control industry."The buyers and sellers of prison goods andspace are lining up to cash in.

Critics warn, however, that the econOlnicinterests of industry will always be on theside of oversupply of prison space ratherthan undersupply, establishing an extraordi­narily strong force for expansion.Renowned Norwegian criminologist NilsChristie, one of the most outspoken criticsof the emerging "corrections industrial

have become involved: Goldman Sachs &Co., Prudential Insurance Co. of America,Smith Barney Shearson Inc. and MerrillLynch & Co. Many of the companies workto underwrite prison construction withprivate, tax-exempt bonds which requireno voter approval.

A Shoppers' GuidePrivate companies are now available

to provide consulting, personnel manage­ment, architecture and building design,vocational assessment, medical services,drug detection, transportation, food serviceand management to state prison systems.Other businesses have been formed to sellspecialized products such as body armor,closed circuit television systems, mechanicaland electronic locks, perimeter security andmotion detection systems, tamper-prooffurniture, fencing, flame-retardant bedding,heavy duty furniture, shatter proof plasticpanels, plastic bunks, tamper-proof fast­eners, and clog proof waste-disposal sys­tems. One company sells high-security firesprinklers designed so that inmates cannothang themselves.

Aquick look through the advertisementsin any issue of Corrections Today, the ACA'sglossy magazine, reveals a certain talent forwordplay:• Coastal Correctional Healthcare, Inc.:

Put a Lock on Healthcare Problems. Arecorrectional healthcareproblems onthe loose in yourfacility? Let usput thecuffi on them. "

• Santana (plastic toilet compartments):"Igot 10years, but Santana is in herefor life!"

• AT&T: Strike Three!3-way call detectsystem stopsyour inmatesfrom gettingout. And it'sproven 93% effective. "

• Point Blank BodyArmor: "Someinmates would love to stab, slash,pound, punch and burn you. But they,.won'tgetpastyour S. TA.R. (Special .TacticalAnti-Riot Vest).

The lobbying power of these companies;especially defense contractors with lobbyistsin Washington and long-term relationshipson Capitol Hill, distorts the dialogue thatshould be taking place about the effective­ness of incarceration as a policy and drownsmore reasonable voices.

"We're not going to be able to lock upeveryone," said Bobbie 1. Huskey, presidentof the ACA. "The absence of a noticeablereduction in adult crime rates as incar­ceration rates have climbed raises seriousquestions about the efficacy of America'ssentencing policies."5

Yes, In My Back YardFor many years prison officials faced the

"NIMBY" problem: when communitiesheard about plans for a new prison, theoutcry was "Not In My Back Yard!" Timeshave changed.

"Communities started looking for anykind of economic growth," says Bill Patrickof the Federal Bureau of Prisons. "Theystarted realizing we were a recession-

proof, environmentally clean, attractive,safe industry.,,6

Financially strapped communities are nowbegging for prisons to be built in their backyards. Town leaders in Coleman, Florida,the former "Cabbage Capital of the world,"population 854, lobbied aggressively for anew Bureau of Prisons site. The new prisonis now partially completed.

In Texas, some communities have offeredfree memberships in local country clubs totop officials of any prison that comes totown. Dick Lewis., spokesman for thestate jail divisioQ Of the Department ofCorrections, said, "Fifteen years ago, if youwanted to place a prison in a locale, youwould have major opposition. Now the turn­around is 180 degrees. They are seekingthese prison units. The local media calls itthe prison derby."l

Braham, Minnesota is trying to purchaseabout 300 acres to donate the land to thestate for an $80 million, 800-bed, closecustody prison. (The BOP requires that landfor a prison be donated by the state.)James Bruton, the state's deputy commis­sioner for institutions, said he couldunderstand why small towns like Brahamseek the prison for economic salvation.But he worries about the long run. "We can-

"Remember, we're notjust making money. We're buildingprisons. "

2 WINTER 1995

Editor: Jan ElvinEditorial Asst.: Jenni GainsboroughRegular Contributors: John Boston,

Russ ImmarigeonAlvin 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

The National Prison Proiect is a tax-exempt foundation­funded project of the AClU Foundotion which seeks tostrengthen ond protect the rights of odult ond juvenileoffenders; to improve overall conditions in correctionalfacilities by using existing administrative, legislative andjudicial channels; and to develop alternatives toincarceration.The reprinting of JOURNAL moteriol is encouroged withthe stipulation that the Notional Prison Proiect JOURNALbe credited with the reprint, ond that a copy of the reprintbe sent to the editor.The JOURNAL is scheduled for publicotion quorterly bythe National Prison Proiect. Materials and suggestionsare welcome.

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 JOURNAL

-

rI"I!IIIIIIi

not build ourselves out of the crime prob­lem," says Bruton. "Every state that's tried ithas failed miserably. You'll never see areduction in the crime rate by buildingmore prisons. What you're going to find outis that you can't afford to operate whatyou've built."

PrivatizationCornell Cox, a private firm in Houston,

entered the California market by bUying thestate's largest private prison firm, EclecticCommunications, Inc. Cornell Cox isbacked by Wall Street investment housesDillon, Reed & Co. and Charterhouse. Since1988, Eclectic has received contracts worthmore than $50 million. The former owner,Arthur McDonald, sold the company formore than $10 million, according to the LosAngeles Times. "Crime pays. I hate sayingthat, but it really does," said McDonald fromretirement in South Dakota.8

The two largest companies in the field areCorrections Corporation of America (CCA)and Wackenhut Corrections Corporation.CCA recently entered the inmate transporta­tion business by purchasing TransCorAmerica. "One of TransCor's biggest expens­es is overnight housing of prisoners ontranscontinental routes," said DoctorCrants, CCA chairman and chief executiveofficer. "CCA's network of facilities willgive TransCor ready access to quality,secure beds, while CCA will gain incremen­tal occupancy."

Tennessee's $60 million contract withCCA is currently under review by thestate legislature.

CCA has come under fire from govern­ment audits in Texas of two of their privatelyrun prisons. The 1990 report disclosed that"inexperienced" prison employees had usedexcessive force on inmates. Additionally,inmates were not getting the services whichwere requlred under the state contracts andintended to help inmates return to society.9

Another U!]favorable report was issued bythe Prison Officers' Association in the UnitedKingdom in 1987, alleging cruelty toinmates at the CCA facility at Silverdale andabhorrent conditions. 10

As of now, fewer than 2% of the nation'sprisoners are incarcerated in private facili­ties, but the new Republican crime bill present­ly before Congress will add $10 billion forprison construction, some ofwhich will go toprivate prisons.

State spendingAccording to a survey of 47 states for

Fiscal Year 1994-95, the average DOC budgetis around $507 million per system, upfrom an average of $447 million per systemin :IT 93-94.

THE NATIONAL PRISON PROJECT JOURNAL

Six states have a corrections operatingbudget of over one billion dollars.California's tops the list with a budget ofover $3.6 billion. Here are some examplesof what that has meant for Californians:• In the last ten years the DOC's share of

the State's General Fund rose from 3.9%."to 8.2% while higher education's share"declined from 14.4% to 9.3%.

• The multi-billion dollar prison and so­called crime control expansion wiQ forcecuts in education, job training, youthcounseling and other social services, thevery programs that address the rootcauses of crime;

• The Los Angeles District Attorney's Officesays that three out of four offenders whoget life sentences under Proposition 184("Three Strikes You're Out") will benon-violent offenders, at a cost of $48billion over 20 years for Los Angeles'prisoners alone.

• Based on information provided by theDOC, increases in California's prison pop­ulation will result in additional state oper­ating costs of about $200 million in 1995­96, and will grow by several hundred mil­lion each year until the full impact is real­ized in about 32 years. By the year 2003,the additional costs will reach about $3billion, and will grow to about $6 billionannually by the year 2026. The DOC pre­dicts that it will incur one-time costs of

about $20 billion over the next 32 yearsto construct new facilities.

ConnectionsCorrections has traditionally operated

without political advantage, but can nowbenefit from the lobbying skills of manyprivate providers.

"An urge for expansion is built intoindustrial thinking," says Dr. Christie.But the prison industry is one with particu­lar advantage because it provides "weaponsfor what is o~n seen as a permanent waragainst crime,'The crime control industryis like rabbits in Australia or wild minkin Norway-there are so few naturalenemies around."

With the boom have come lobbyists whohave an economic interest in keeping sen­tences harsh and long, so that prison popu­lations continue to soar.J1 Thus, we see asystem developing where the deprivation ofliberty is powered in large part by the profitmotive. Christie warns, "You get private lob­bying for prisons and you get private capitalinterested in building more prisons, inexpanding that system...The industry has nointerest in its own abolition." •

Jan Elvin is the editor ofthe NPP Journal.

Continued on nextpage

WINTER 1995 3

PRJ Members Confer on UNPrison Standards

from page 3

1Paulette Thomas, "Making Crime Pay," TheWall Streetjournal, May 12, 1994, p. AI.

2 Nils Christie, Crime ControlAs Industry:Towards Gulags, Western Style, London andNew York: Routledge, 1993.

3 Malcolm M. Feeley, The Privatization ofPrisons in Historical Perspective, CriminalJustice Research Bulletin. Sam Houston StateUniversity 1991, vo1.6 No.2 pp.l-lO.

4Bureau ofJustice Statistics, U.S. DepartmentofJustice.

5Criminaljustice Newsletter, Vo1.26, No.1,Jan.3, 1995, p.5.

6Meddis and Sharp, "Prison Business is aBlockbuster," USA Today, Dec. 13,1994, p. lOA

7Edward Walsh, "Strapped Small Towns Try toLock Up Prisons," The Washington Post,December 24, 1994, pA3.

8 Dan Morain, "Privately Operated Prisons aPotential Growth Industry," LosAngeles Times,October 19, 1994, p. A15.

9Mike Ward, "Private prisons faulted on ser­vices, discipline," TheAustinAmerican­Statesman, Wednesday, May 16,1990.

10 "The State and Use of Prisons in Englandand Wales," Written Evidence to the Inquiry ofthe Home Affairs Select Committee of the Houseof Commons, February 1987.

11 "Politicians who support prison construc­tion receive money from one of the biggest ben­eficiaries-the California Correctional PeaceOfficers Association," from the LosAngelesTimes, Oct. 16, 1994. The union gave morethan $900,000 to Governor Pete Wilson's 1990run for governor.

,'This is not, in fact, a very populartheme." With classic Dutch under­statement Winnie Sorgdrager, the

Netherlands Minister ofJustice, introducedthe major conference on prison standardsheld in The Hague last November by PenalReform International (PR!), and funded byher government.

PRl members from five continentsdescribed a world where standards for pris­oners, and penal reform in general, areindeed very low on the public agenda. Weheard a dispiriting picture of rising crime,outstripped only by rising fear of crime, ofpublic and political pressure towards more

4 WINTER 1995

"Crime pays. I hate-ArthurMcDonaldafter selling the c

"There's no biggthan the correction-State Senator;

"Prison constructi-Jim Hawthorne,

"Americans' fear ofcomplex, an infrastrucstate and local dollars."-The Wall Street;

"The [prison induindustrial complex'war, there is luc .ofWall Street unand developers."-PeterPringle

"I already sestate like Texas w-RodRyan, rep. "We try to keep-Melissa Cranefinancing team.

"Corrections hasconsultants, lobbyiindustry. Like any speits empire growing."-Texas Comptroprison system as ((

''What can I say, i-Larry Solomoersfood topriso

imprisonment, set against tight budget con­straints. Above all, of the proven ineffective­ness of treating prisoners badly as a way ofreducing crime. "Today's convict is tomor­row's ex-convict," Professor Monika Platekof Warsaw University summed up. "The bet­ter we treat prisoners, the safer is society."

Hence the main task of the conference: toprepare a manual that would update the1955 United Nations Standard MinimumRules (SMRs) for the Treatment ofPrisoners. The rules are in many respectsbadly out of date-drawn up before equalopportunities, or drugs or AIDS.Nevertheless, international penal reformers

(including senior UN officials) are con­vinced that a new set of rules would getnowhere today. Indeed, UN member stateswould not agree to new SMRs laying downeven the 1955 standards. (As one partici­pant pointed out, about half the membercountries of the UN today use torture.)

During three days' hard committee work,three points in particular became clear.First, despite vast differences in wealth andculture, basic prison standards should beuniversal. Participants from the developingworld did not want adjustments down­wards, they wanted firm principles as alever in the struggle to raise standards.Second, prisons are a reflection of howmuch the world is shrinking. Participantsfrom western countries stress the growingproportion of their prison population whoare foreign nationals. Immigrationdetainees-asylum seekers in particular-

Continued on page 16

THE NATIONAL PRISON PROJECT JOURNAL

.... ~~'1iII6£-'lIIlII!r~-lIIIlll'-_.lIlIE' 11

Status Report: State Prisons andThe Courts January 1, 1995

Pending Litigation11 jurisdictions: California, Colorado,

Connecticut, Georgia, Montana, Nebraska,New York, North Carolina, Ohio, Utah,Vermont.

.\!'

Formerly Under Court Order or ConsentDecree or Currently Released from ActiveSupervision ofthe Court

7 jurisdictions: Alabama, Arkansas, Georgia,Oklahoma, Oregon, Tennessee, Wyoming.

Major Institution(s) in the State/Jurisdiction Currently Under CourtOrder or Consent Decree

33 jurisdictions: Arizona, California,Colorado, Connecticut, Florida, Hawaii,Idaho, Illinois, Indiana, Iowa, Kansas,Kentucky, Louisiana, Maine, Maryland,Massachusetts, Michigan, Missouri, Nevada,New Hampshire, New York, North Carolina,Ohio, Oklahoma, Oregon, Pennsylvania,South Dakota, Utah, Virginia, Washington,West Virginia, Wisconsin, District ofColumbia.

I,II

SUMMARYThirty-nine states plus the District of

Columbia, Puerto Rico, and the VirginIslands are under court order or consentdecree to limit population and/or improveconditions in either the entire state systemor its major facilities. Thirty-three jurisdic­tions are under court order for overcrowd­ing or conditions in at least one of theirmajor prison facilities, while nine jurisdic­tions are under court order covering theirentire system. Only three states have neverbeen involved in major litigation challengingovercrowding or conditions in their prisons.The following list gives the current status ofeach state.

Note: There is some overlap between thesecond and fourth categories because, insome states, one or more facilities areunder court order while other facilities inthat state are presently being challenged(e.g., Illinois). Also, Oklahoma is listed inboth the second and third categoriesbecause the McAlester facility is still underthe court order entered in Battle v.Anderson but is no longer under activecourt supervision.

Entire Prison System Under CourtOrder or Consent Decree

9 jurisdictions: Alaska, Delaware,Mississippi, New Mexico, Rhode Island,South Carolina, Texas, Puerto Rico, V)tginIslands.

/-'

Special Masters/Monitors/MediatorsAppointed (present and past)

24 jurisdictions: Alabama, Alaska,. Arizona, Arkansas, California, Florida,

Georgia, Hawaii, Idaho, Illinois, Kansas,Louisiana, Mi~higan, Nevada, New Mexico,New York, Ohio, Pennsylvania, RhodeIsland, Tennessee, Texas, Washington,District of Columbia, Puerto Rico.

Prison Systems or Major FacilitiesUnder Court Order and Cited forContempt (present and past)

8 jurisdictions: Alabama, Michigan,Mississippi, Rhode Island, Texas, Virginia,District of Columbia, Puerto Rico.

Not Involved (to date) in Overcrowdingor Conditions Litigation

3 jurisdictions: Minnesota, New Jersey,North Dakota.

Thefull Status Report, with details on 'the litigation in each state, will be sentto Journal subscribers under separatecover. For non-subscribers thefull StatusReport is availablefor $5prepaidfromthe NPp, 1875 ConnecticutAvenue,Suite 410, Washington, DC20009.

THE NATIONAL PRISON PROJECT JOURNAL

'."-,:< .~:.. ,. ,-.~..... '~- ... ---

WINTER 1995 5

A PROJECT OF THE AMERICAN CIVil LIBERTIES UNION FOUNDATION, INC.VOL 10, NO.1, WINTER 1994/95 • ISSN;J076-769X

1

Highlights of MostImportant CasesHabeas Corpus/Exhaustionof Remedies

During the 1993-94 term, the Supreme Courtfinally addressed a long-standing ambiguity in therelationship between 42 U.S.C. §1983 and the fed­eral habeas corpus statutes in cases where prison­ers seek relief related to the fact or duration oftheir imprisonment. In Heck v. Humphrey, 114S.Ct. 2364 (1994), the Court definitively clarifiedthe matter for prisoners who allege that theircriminal convictions or sentences are defective.However, the waters remain murky for prisonerschallenging disciplinary, parole, or other adminis­trative decisions affecting the time they must serve.

Heck addressed what one commentator hascalled "the Preiser puzzle." Schwartz, "ThePreiser Puzzle: Continued Frustrating ConflictBetween the Civil Rights and Habeas CorpusRemedies for State Prisoners," 37 DePaulL.Rev.85 (1988). In Preiser v. Rodriguez, 411 U.S. 475(1973), the plaintiffs brought suit under §1983 toget back "good time" (time off for good behavior)that had been taken from them in prison discipli­nary proceedings. The Court ruled that when astate prisoner challenges "the very fact or durationof his physical imp}jsonment, and the relief heseeks is a determination that he is entitled toimmediate release or a speedier release from thatimprisonment, his sole remedy is awrit of habeascorpus." 411 U.S. at 500. The Court reasoned thatchallenges to custody represent the "core ofhabeas corpus," 411 U.S. at 487, and that allow­ing such challenges under §1983 would let pris­oners evade the statutory mandate of exhaustionof state judicial remedies. See 28 U.S.C.§2254(b).

The scope of the Preiser holding has been asource of persistent controversy. Preiser explicitlystated that a prisoner seeking damages "is attack­ing something other than tlle fact or length of hisconfinement, and he is seeking something otherthan immediate or more speedy release;" accord­ingly, damage actions do not require prior

6 WINTER 1995

exhaustion of state remedies. 411 U.S. at 494. ThefollOwing year, in Wolffv. McDonnell, 418 U.S.539 (1974), a §1983 suit alleging that prison dis­ciplinary proceedings denied due process, theCourt held, "Preiser expressly contemplated thatclaims properly brought under §1983 could goforward while actual restoration of good timecredits is sought in state proceedings," and thatthe plaintiffs could also obtain a federal courtdeclaratory judgment addressing the adequacy ofthe procedures used and an injunction prospec­tively enjoining invalid regulations. 418 U.S. at554-55. The Court added, "One would anticipatethat normal principles of resjudicata wouldapply in such circumstances." Id. at n. 12.

It is this distinction among remedies that setsup the "Preiser puzzle." If Wolffand Preisermean what they say, then a litigant can get a rulingon the merits of an action that affects his or herrelease date, along with damages, aprospectiveinjunction, or a declaratory judgment. The litigantcan then go back into state court armed with thefederal court judgment and demand the restora­tion oflost good time, rescinded parole date, etc.,clainling resjudicata or collateral estoppel orboth. Insofar as Preiser was about federalism,this procedure-which would reduce the statecourts to a "me too" role-does not seem toserve its concerns. Even if the federal judgmentis not preclusive in state court, the potentialresult is highly unsatisfactory: contradictoryjudgments in different courts concerning thesame subject matter.

In cases involving criminal convictions or sen­tences, federal courts have consistently refused tohear suru claims, regardless of the relief sought,unless the litigant has previously exhausted statejudicial remedies. See, e.g.,Johnson v. State ofTexas, 878 F.2d 904, 906 (5th Cir. 1989) (dam­age claim for speedy trial violation and the use ofperjured testimony in a criminal proceeding maynot be pursued without exhaustion of state reme­dies); Hadley v. Werner, 753 F.2d 514,516 (6thCir. 1985) (a federal court should not make a rul­ing on a §1983 damage claim which might implythat a state conviction was illegal). In cases involv­ing administrative decisions-discipline, parole,release date calculation-there has been a spec­trum of approaches, discussed below.

Heck arose from a criminal conviction. The

plaintiff sought damages, but not release, based onallegations that the defendants (county prosecu­tors and a state police investigator) had engagedin an "unreasonable" and "arbitrary" investiga­tion, destroyed exculpatory evidence, and used anunlawful voice identification procedure at trial.The court of appeals had held that the claim wasbarred by Preiser.·It had gone on to hold that thecase should be dismissed, rather than stayed,pending the exhaustion of state judicial remedies.The appeals courts were in conflict on this point,which is important because a dismissed claim canbecome time-barred during the state exhaustionprocess. See, e.g., Young v. Kenny, 907 F.2d at878 (9th Cir. 1990); Prather v. Norman, 901F.2d 915,919 (11th Cir. 1990).

The Court did not directly resolve this proce­dural issue. Rather, it held that Mr. Heck had noclaim cognizable under §1983. Because §1983creates a "species of tort liability," the Courtlooked to the law of malicious prosecution. TheCourt deemed this the common-law tort mostnearly analogous to the plaintiffs claims because·it "permits damages for confinement imposedpursuant to legal process." The Court noted thatan element of that tort is termination of the priorcriminal proceeding in favor of the accused. 114S.Ct. at 2371. Adopting this tort rule, it held thatthe plaintiff would not have a cognizable claimunless and until he got his conviction reversed,which can only be done through exhaustion ofstate judicial remedies with subsequent resort tofederal habeas corpus if necessary.

This holding does away with the "Preiser puz­zle" for claims involving convictions and sen­tences. It also makes the stay versus dismissalquestion a non-issue: if the claim does not accrueuntil the conviction is reversed, the statute of limi­tations cannot run during the exhaustion process.114 S.Ct. at 2373-74. Heck also resolved anydoubt-not that any existed-about prisoners'inability to get around the exhaustion requirementby seeking other forms of relief against their crim­inal convictions or sentences.

The Preiser rule, however, is not limited tocriminal judgments; it also applies to administra­tive actions such as prison disciplinary proceed­ings, parole decisions, and the calculation ofrelease dates. For prison litigators, the importantquestion is what application the malicious prose-

THE NATIONAL PRISON PROJECT JOURNAL

.cution analogy may have for such administrativematters-especially disciplinary proceedings.

The answer should be "none." The tort of mali­cious prosecution was traditionally limited to judi­cial proceedings, which prison disciplinary hear­ings are not. Some states maintain this "courts­only" rule. See Greer v. DeRobertis, 568 F.Supp.1370, 1376 (N.D.I1L 1983) (holding that prisondisciplinary proceedings cannot support a mali­cious prosecution suit under 1llinois law);Kerpelman v. Bricker, 329 A.2d 423,427-28(Md.Ct. Special Appeals 1974). Other states per­mit some malicious prosecution claims based onadministrative proceedings. Even these states havegenerally done so in instances, such as profession­allicensing and discipline proceedings, that weremuch more like judicial proceedings than is aprison disciplinary hearing. See, e.g., Toft v.Ketchum, 113 A.2d 671,673-74 (N.]. 1955)(ethics and grievance committee proceedingagainst attorney); Kauffman v. A.H Robins Co.,448 S.W.2d 400, 403 (Tenn. 1969) (license revo­cation proceeding before state board of pharmacywith to subpoena witnesses and administer oaths).

Research reveals only one decision addressingdirectly and in any detail whether a maliciousprosecution claim can arise from a prison disci­plinary hearing. In Treacy v. State, 131 Misc.2d849,501 N.Y.S.2d 1005 (N.Y.Ct.C!. 1986), ajj'don othergrounds sub nom. Arteaga v. State, 72N.Y.2d 212,532 N.Y.S.2d 57,527 N.E.2d 1194(N.Y. 1988), the court held that New York's ruleallowing claims for malicious prosecution inadministrative proceedings applied only to pro­ceedings "which provide for a 'hearing and trial ofthe issues on evidence and testimony under oath,with the right of cross examination' ...."Aprisondisciplinary hearing "is not a full-scale adversarialhearing" because it is governed only by the mini­mal requirements of Wolffv. McDonnell, withouta right to confrontation or the assistance of coun­sel and with only a qualified right to call witnesses.501 N.Y.S.2d at 1006. Therefore Treacy held nomalicious prosecution claim could lie.

More fundamentally, a malicious prosecutionclaim is completely different in concept and struc­ture from a dis.ciplinary due process claim.Malicious prosecution claims are brought againstthe complainant in the case, not the court or othertribunal that hears it. They are based on the lackof probable cause for making the charges, not onviolations of procedural rights. W. Page Keeton etal., Prosser and Keeton on The Law ofTorts §119(5th ed. 1984). By contrast, a claim that the com­plainant falsely or baselessly filed disciplinarycharges is exactly what federal courts will not hearin connection with prison discipline. See, e.g.,Sprouse v. Babcock, 870 F.2d 450, 452 (8th Cir.1989); Freeman v. Rideout, 808 F.2d 949,951­53 (2d Cir. 1986), cert. denied, 485 U.S. 982(1988). Viable disciplinary due process claimsare brought against the disciplinary hearing officeror committee members, and they allege that theseofficials failed to follow the procedures required

THE NATIONAL PRISON PROJECT JOURNAL

by due process in deciding the case againstthe prisoner.

Nothing in Heck is to the contrary. Heck's dis­cussion of malicious prosecution focuses explicitlyon criminal convictions and sentences, with nosuggestion that it is intended to govern disciplinaryproceedings or other administrative matters-/;'which were, after all, not before the Court. .

Although Heck makes Preiser and Wolffirr¢le­vant to cases challenging criminal judgments, theCourt did revisit these decisions in passing.Unforttmately, its comments, which are almostcertainlydicta, do little to clarifyPreiser's appli­cation to administrative actions.

Before Heck, some courts held, or simplyassumed, that Wolffpermitted them to grant anyrelief not directly affecting a prisoner's release orparole date. l Others held that no relief could begranted under §1983 if it would require a rulingon whether good time was properly taken, parolewas properly revoked or denied, etc.2 One varia­tion of the latter approach permits prisoners toobtain rulings under §1983 requiring officials tofollow proper procedures in connection withfuture proceedings concerning their good time,parole, etc., because such rulings do not directlyentitle the prisoner to earlier release.3Amorerestrictive view of this substance/procedure dis­tinction holds that no relief can be granted under§1983 based on a challenge to an individual pris­oner's hearing affecting her release date; only"broad-based attacks on general rules and proce­dures" can be heard without exhaustion of stateremedies, and even a "broad-based attack" maybe barred if it would resolve issues that wouldautomatically entitle the prisoner to release.4

Another appeals court similarly held that §1983may not be used to decide an "underlying issue,"even one of a general nature, that would indirectlyentitle the prisoner to immediate or earlierrelease.s

Heck does little to narrow this diversity of views.The Court wrote:

...Petitioner contends that [theplaintiffiin Wolff were authorized] to recover damagesmeasured by the actual loss ofgood time. Wethink not. In light ofthe earlier languagecharacterizing the claim as one of"damagesfor the deprivation ofcivil rights, "ratherthan damagesfor the deprivation ofgood­time credits, we think that thispassage rec­ognizeda §1983 claimfor using the wrongprocedures, notfor reaching the wrong result(i.e., denyinggood-time credits). Nor is thereany indication in the opinion, or any reasonto believe, that using the wrongproceduresnecessarily vitiated the denial ofgood-timecredits. Thus, the claim at issue in Wolff didnot call into question the lawfulness oftheplaintiffs continuing confinement. ..

Thus, the questionposed by §1983 damageclaims that do call into question the lawful­ness ofconviction or confinement remainsopen....

114 S.Ct. at 2370.This passage continues to obscure the question

whether Preiser's application turns on the remedysought or the claim presented. The distinctionbetween "damages for the deprivation of civilrights" and "damages for the deprivation of good­time credits" is largely specious as a practical mat­ter, as is the distinction between "a §1983 claimfor using the wrong procedures" and one "forreaching the wrong result (i.e., denying good-timecredits)." Damages are awarded for the actualloss to the plaintiff, monetary or otherwise, andnot for the abstfact value of constitutional rights.Memphis Community SchoolDistrict v.Stachura, 477 U.S. 299, 310 (I986).In proce­dural due process cases, the plaintiffs loss cannotbe assessed without determining whether the samepenalty, or any penalty, would have been assessedafter a procedurally correct hearing. See Carey v.Piphus, 435 U.S. 247, 261-67 (I978).1f "reach­ing the wrong result" is excluded from the dam­ages calculation, the damage remedy is trivialized;if it is not, it is difficult to know what the abovequoted passage from Heck could mean.

Heck's statement that "there is [no] indicationin the [Wo{ff] opinion, or any reason to believe,that using the wrong procedures necessarily vitiat­ed the denial of good-time credits" simultaneouslyraises and begs the same question: whether the ­Preiser rule is invoked by the legal claim assertedor by the remedy sought. Under Carey and itsprogeny, the district court is obliged to find as afact whether using the wrong procedures causedthe improper imposition of a penalty. It is precise­ly this kind of determination that is barred byexisting case law in some federal circuits. Heck'ssubsequent reference to "call[ing] into questionthe lawfulness of the plaintiffs continuing confine­ment" also clarifies nothing. There are several lev­els of specificity at which the lawfulness of a penal­ty such as good time deprivation can beassessed-a ruling that good time was improperlytaken, that it was taken in a defective proceeding,or that it was taken in a system that follows defec­tive rules or procedures. These distinctions corre­spond to the varying interpretations ofPreiser inthe lower courts.

Not surprisingly, the lower courts havealready begun to disagree about Preiser as inter­preted byHeck, along the same lines as theirpre-Heck conflict.

In Whitman v. Ventetuolo, 25 F.3d 1037(Table), 1994 WL 246063 (1st Cir.,]une 7, 1994)(per curiam), a prisoner alleged that he had beenimproperly excluded from a blood donor programthat would have yielded good time credits. Thecourt held that all his claims for relief, and not justthose bearing directly on his release date, werebarred because adjudicating them "would invari­ably require a federal court to address the ques­tion of the constitutionality of state procedures uti­lized to determine eligibility for the blood donorprogram." This holding is consistent with theviews of Preiser expressed in Serio v. Members of

WINTER 1995 7

Dear Prison Project...Louisiana State Board ofPardons and Offett v.Solem, cited in notes 4 and 5.

The plaintiffs in Best v. Kelley, _ F.3d_,1994 WI. 558377 (D.C.Cir., Oct. 14, 1994), chal­lenged the tennination of a drug treatment pro­gram through which they had expected to earngood time credits. The appeals court upheld thedismissal of their claim for denial of good time,but it held that the Preiser/Heck rationale did notsupport the dismissal of the other claims, such asthe claim for deprivation of the drug treatmentitself-even though adjudication of these claimswould require a federal court to address the con­stitutionality of the program's tennination, thequestion which also underlies the good timeclaim. This holding is consistent with the view ofPreiser expressed in Thomas v. George StateBoardofPardons andParoles, cited in note 3.

Thus, the Preiser puzzle has now become thePreiser/Heck puzzle. The most pressing questionfor prisoner advocates will be whether disciplinaryproceedings involving loss of good time in addi­tion to other sanctions are subject to the Preiserrule. The circuits are presently in disagreement onthis point, compare Sisk v. CSO Branch, 974 F.2d116, 118 (9th Cir. 1992) and Viens v. Daniels,871 F.2d 1328, 1333-34 (7th Cir. 1989) withBressman v. Farrier, 900 F.2d 1305, 1306-07(8th Cir. 1990), cert. denied, 111 S.Ct. 1090(1991), and Heck does not resolve their conflict.

Suicide PreventionlDeliberateIndifference

In Farmer v. Brennan, 114 S.Ct. 1970 (1994),a case about protection from inmate-inmateassault, the Supreme Court significantly clarifiedits prior rulings concerning the EighthAmendment deliberate indifference standard.Randall C. Berg of the FloridaJustice Institute inMiami has pointed out that Farmer appears tooverrule a major prop of existing law concerningjail and prison suicides.

Most federal courts have adopted some versionof the rule that "a finding of deliberate indiffer­ence requires that officials have notice of the suici­dal tendency of the individual whose rights are atissue in order to be-held liable for the suicide ofthat individual." Tittle v.jifferson CountyCommission, 10 F.3d 1535, 1539 (11th Cir.1994) (en banc) (emphasis in original). InTittle, the panel opinion held that a history of sui­cides from horizontal bars in jail cells, with nocorrective action by jail officials, created a triablefactual issue of deliberate indifference regardlessof their knowledge of individuals' suicidal tenden­cies. 966 F.2d 606,612 (11th Cir. 1992) ("It istrue that prison officials are not required to builda Suicide-proof jail. By the same token, however,they cannot equip each cell with anoose.") Theen banc court rejected this theory of liability.

In Farmer, the Court explicitly rejected thenotion that prison officials must have notice of thedanger to a particular individual to be held liable.

8 WINTER 1995

Dear Prison Project:I am currently out on parole, and the

parole boat'd has recently informed methat I have violated the conditions of myparole atld that the board will take"appropliate action." Do I have any pro"tection against the board revoking myparole?

Parole Pending

Dear Parole Pending:Revocation of parole requires two hear­

ings: (1) a preliminary heating to deter­mine whether there is probable cause orreasonable grounds to believe that theparolee has violated the terms of parole;and (2) a final hearing to decide any con­tested facts and to determine whetherrevocation is warranted. Morrissey v.Bl'ewer, 408 U.S. 471, 480-82, 92 S.Ct.2593 (1971)

The preliminary hearing is held beforea detached and neutral body at or nearthe place of the alleged violation. At thepreliminary hearing, you are minimallyentitled to (1) awritten notice of thealleged violations; (2) disclosure of theevidence against you; (3) an opportunityto be heard by the board in person; and,(4) a written decision containing the factsand reasoning for a finding of probablecause. You have the right to confront andquestion those who have presented infor­mation against you unless the hearingofficer decides that the witness would besubject to a risk of harm if his identity isrevealed.

At the final hearing, you are also guar­anteed (1) the right to present witnesses

The question under the Eighth Amendmentis whetherprison officials, acting with delib­erate indifference, eJ<posedaprisoner to asufficiently substantial "risk ofserious dam­age to hisfuture health, "...and it does notmatter whether the risk comesfi'Om a singlesource or multiple sources, any more than itmatters whether aprisonerfaces an excessiverisk ofattackfor reasonspersonal to him orbecause allprisoners in his situationfacesuch a risk.

114 S.Ct. at 1982 (citation omitted).Since tlle lisk of plison suicide, like exposure to

communicable disease, unsafe dlinking water,exposed \viling, deficient firefighting measures,and the lisk of assault, are all aspects of plisonofficials' general duty to provide "reasonable safe­ty," see Helling v. McKinney, 113 S.Ct. 2475,

2480-81 (1993), there is no apparent reason whysuicide lisks should be treated any differently fromlisks of assault by others in applying the deliberateindifference standard. Farmer strongly suggeststhat the restrictive individual-specific rule of the jailsuicide cases is history, and that jail officials areunder a general duty to protect all plisoners-notjust those already identified as suicide-prone­from unreasonable lisks of suicide.

I See, e.g., Sisk v. Gsa Branch, 974 F.2d 116, 118(9th Cir. 1992); Clark v. State ofGeorgia Pardons andParoles Board, 915 F.2d 636,6308-39 (llth Cir. 1990)(claim for damages for parole denial based on unconsti­tutional grounds and for an injunction barring futureconsideration of those grounds could be heard under §1983 since the plaintiff did not seek release); Smith v.Maschner, 899 F.2d 940, 951 (lOth Cir. 1990) (claim

THE NATIONAL PRISON PROJECT JOURNAL

for good time was subject to habeas exhaustion require­ment, but damage claim about same disciplinary pro­ceeding could go forward under §1983); Viens v.Daniels, 871 F.2d 1328, 1333-34 (7th Cir. 1989) (if"significant sanctions" other than loss of good time areimposed, the prisoner may resort to §1983 withoutexhaustion).

2 See, e.g., Sheppard v. State o/la. Board a/Parole,873 F.2d 761,762 (5th Cir. 1989) (Preiser rulebarred prisoner whose parole was revoked from chal­lenging the constitutionality of a parole revocation statuteeven though he sought only damages and a declaratoryjudgment).

30ffett v. Solem, 823 F.2d 1256, 1258-60 (8th Cir.

1987) (barring §1983 challenge to good time statute);accord, Bressman v. Farrier, 900 F.2d 1305, 1306-07(8th Cir. 1990) (holding that O.ffett rule bars all federalcourt challenges to disciplinary proceedings in whichgood time was taken, regardless of the relief sought) ,cert. denied, 111 S.Ct. 1090 (I991).

4Serio v. Members a/Louisiana State Board0/Pardons, 821 F.2d 1112, 1118-19 (5th Cir. 1987).

50.ffettV. Solem, 823 F.2d 1256, 1258-60 (8th Cir.

1987) (barring §1983 challenge to good time statute);accord, Bressman v. Farrier, 900 F.2d 1305, 1306-07(8th Cir. 1990) (holding that O.ffett rule bars all federalcourt challenges to disciplinary proceedings in whichgood time was taken, regardless of the relief sought),cert. denied, 111 S.Ct. 1090 (1991).

Other CasesWorth Notingu.s. COURT OF APPEALS

Suicide PreventionHare v. City ofCorinth, Miss" 22 F.3d 612 (5th

Cir. 1994). The defendants were not entitled tosummary judgment on qualified immunity groundsin a jail suicide case in which the record was"replete with evidence that the custodial officersknew or should have known of Tina Hare's vulner­ability to suicide" (615) yet they placed her in acell in which she could not be seen or reached bythe trustee or dispatcher on duty and then left herhanging for an ipdeterminate time.

Classification-RacelProcedurai DueProcess-Disciplinary Proceedings

B!t«;k v. Lane, 22 F.3d 1395 (7th Cir. 1994).The plaintiff filed a complaint of racial discrimina­tion. He had previously filed an administrativecomplaint with the Office of Civil RightsCompliance of the Department ofJustice, whichsustained his complaint and led to a resolutionagreement concerning job discrimination. After sixyears of proceedings, including a trip to theappeals court, the defendants defaulted in answer­ing the amended complaint, and the court deniedtheir motion to vacate the default four months later.The magistrate judge held ahearing on damagesand awarded $50 after dismissing substantial partsof the complaint for failing to state a claim.

THE NATIONAL PRISON PROJECT JOURNAL

The plaintiff's claim of denial of due process indisciplinary proceedings should not have beendismissed. His claim that he was repeatedly sub­jected to false and unjustified disciplinary chargesamounts to the claim that they were unsupportedby "some evidence." .

The plaintiff's allegations of false disciplinary";charges stated a substantive due process claim. At1402: "Issuing false and unjustified disciplinari"charges can amount to aviolation of substantivedue process if the charges were in retaliation forthe exercise of a constitutional right." At 1402 n.11: The court explicitly rejects the view that suchallegations do not state a constitutional claim ifWolffis complied with and there is some evi­dence. "The fact that Black alleges retaliation forthe exercise of a constitutional right .. .is a decisivedistinction" from prior authority.

Procedural Due Process-DisciplinaryProceedings

Walker v. Bates, 23 F.3d 652 (2d Cir. 1994). Aprisoner whose disciplinary conviction wasadministratively reversed after he had served twomonths of punitive segregation was not barredfrom pursuing a claim for denial of due process.At 658-59:

The rule is that onceprison officialsdeprive an inmate ofhis constitutionalpro­cedural rights at a disciplinary hearing andtheprisoner commences to serve apunitivesentence imposedat the conclusion ofthehearing, theprison official responsibleforthe dueprocess deprivation must respond indamages, absent the successful interpositionofa qualified immunity defense.

Procedural Due Process-DisciplinaryProceedings

Mays v. Mahoney, 23 F.3d 660 (2d Cir. 1994).The administrative reversal of the plaintiff's disci­plinary conviction did not cure any due processviolations at his hearing.

Access to CourtsHolloway v. Hornsby, 23 F.3d 944 (5th Cir.

1994). At 946:It is very important to our treasuredsys­

tem ofjustice that our courts be open to any­one with a case or controversypresenting ajusticiable claim. Ready access to our courtsystem, including access by those who areincarcerated, is recognized as a valuableconstitutional right, one to be carefullyguarded Complaints about the validity ofincarceration or the treatment accordedinmates are entitled to timely and meaning­ful consideration.

Dental CareKinney v. Kalfus, 25 F.3d 633 (8th Cir. 1994).

The plaintiff alleged that he complained of variousdental problems, and the dentist first extracted thewrong tooth and then refused to deal with his sub-

sequent complaints of pain, difficulty eating, andbleeding gums.

These allegations raised a disputed issue ofmaterial fact. The plaintiff conceded that removingthe wrong tooth did not violate the Constitution,but the allegation that the dentist refused repeatedrequests for treatment for two and a half weeksand then refused to see the plaintiff again afterlearning he had filed a malpractice action.

Law Libraries and Law BooksClayton v. Tansy, 26 F.3d 980 (lOth Cir.

1993). The plaiiitiff, convicted in Oklahoma andtransferred to Ne\v Mexico pursuant to theInterstate Corrections Compact, sued New Mexicoofficials for denying him Oklahoma legal materi­als. At 982: "In the context of denial of accessclaims, the general rule imposes upon the sendingstate authorities the responsibility for ensuringtheir prisoners incarcerated in sister state facilitiesare afforded access to state courts." The courtrejects dicta from another circuit indicating thatthe receiving jurisdiction shares the responsibility,since in that case the prisoner was transferred to afederal prison. The district court properly deniedpermission to amend, since the only defendantwho could have saved his case is an Oklahomaofficial not subject to service of process in NewMexico. The plaintiff must pursue his case againstthe proper defendant in the proper venue.

Pre-Trial Detainees/AIDSlPrivacyA.LA. v. West Valley City, 26 F.3d 989 (lOth

Cir. 1994). The plaintiff was arrested for passing abad check; the arresting officer found apiece ofpaper in his wallet indicating (erroneously) thathe was mv positive, and told his sister, his house­mates, and at least one other witness about it. Theofficer had no basis to believe that the plaintiffengaged in sexual activity or N drug use with thesepeople. He also told the jailer, though there wasno basis to believe the plaintiff had done anythingto put anyone else at risk. As a result, his friendsand family shunned him and refused to visit him;he suffered harassment and discriminatory treat­ment in jail; he was treated for depression as aresult of these events.At 990:

There is no dispute that confidential med­ical information is entitledto constitutionalprivacyprotection.... We believe...that theactual validity ofthe HIVtest results discov­ered in Plaintiffs wallet is entirely irrelevantto whether he has a reasonable expectationofprivacy in the results, or whether he suffered an "injury infact" as a result oftheunlawfuldisclosures. [Citations omitted]

Pre-Trial Detainees/Use of ForceBrothers v. Klevenhagen, 28 F.3d 452 (5th Cir.

1994). The Due Process Clause, rather than theFourth Amendment, governs a claim based on apolice shooting of aperson escaping from custodydUring transportation from one holding cell to

WINTER 1995 9

another. At 457: "Once an individual has beenarrested and is placed into police custody, andsurely after the arresting officer has transferred theindividual to a jail cell, the individual becomes apretrial detainee, protected against excessive forceby the Due Process Clause." Otherwise escapeeswould receive more protection than detainees whopeacefully remained in their cells. (The dissentargues that this view is inconsistent with theextended duration of Fourth Amendment protec­tions acknowledged inAlbright v. Oliver, 114 S.Ct.807 (1994).)

Under the due process standard-which in theFifth Circuit is identical to the Eighth Amendmentstandard-the shooting was not unlawful.

Non-English LanguageslPublicationsKikumura v. Turner, 28 F.3d 592 (7th Cir.

1994). Federal prison officials denied the plaintiffincoming books, magazines, newspapers andletters on the ground that they "could be detri­mental to the security, good order and disciplineof the institution" because they were "printedin Japanese and, therefore, can not [sic] bemonitored or reviewed by institution staff."The relevant regulations mentioned publicationswritten in code but not those written in non­English languages. Prison officials made noattempt to try to find a translator or otherwisescreen the material until the plaintiff sued; thenthey found an employee in another prison whowas profiCient in Japanese.

The defendants were entitled to qualified immu­nity. There is only one case in point (Ramos v.Lamm) , it is from another circuit, and theSupreme Court has relaxed the relevant legal stan­dard anyway.

In general, voluntary cessation of allegedlyillegal conduct does not moot a case. The burdenof proving mootness, which is on the defendant,is a heavy one. When the defendants are publicofficials, ''we place greater stock in their acts ofself-correction, as long as they appear genuine."(597, internal quotes and citation omitted).Here, where the defendants' policies "have appar­ently ebbed and flowed throughout the course ofthe litigation," the g.overnment failed to meet itsburden of proof.

The court frames the question ''whether theprison's alleged defacto policy of summarilyrejecting foreign language publications withoutmaking any effort to translate or screen suchmaterial is constitutionally permissible." (597,footnote omitted) The court notes thatThornburgh v. Abbott emphasized the individual­ized nature of the determination in upholding fed­eral censorship practices, and there were no par­ticularized findings in these cases.

Federal Officials and Prisons/UseofForce

Munzv. Michael, 28 F.3d 795 (8th Cir. 1994).Astate prisoner released to federal marshals pur­suant to awrit ofhabeas corpus ad testifican-

10 WINTER 1995

dum was a convict subject to the EighthAmendment and not a pre-trial detainee.

Allegations that the plaintiff was beaten whilerestrained and then beaten again while in apadded cell raised a triable factual issue despitethe fact that he had been convicted in a jury trial ofdestroying government property based on hisdestruction of the inside of the patrol car, andinjuries limited to rib contusions. The defendants .. 'were not entitled to qualified immunity based on,these allegations.

PsychotropicMedications/Administrative Segregation

Walkerv. Shansky, 28 F.3d 666 (7th Cir.1994). The defendants were entitled to qualifiedimmunity from the plaintiff's due process claims ofinvoluntary administration of Haldol because theseclaims were not suffiCiently well defined beforeWashington v. Harper. They were not entitled toqualified immunity from the Eighth Amendmentclaim, since the deliberate indifference standardapplicable to medical care cases was well estab­lished. However, the use of Haldol did not violatethe Eighth Amendment in light of the plaintiff's vio­lent and uncooperative behavior and the defendantdoctor's behavior. Ifhe had presented evidencefrom a medical profeSSional disputing the diagno­sis, or if he had disputed the facts on which thedefendant doctor based his medical opinion, theremight have been a factual issue sufficient to with­stand summary judgment.

Prolonged administrative segregation may vio­late the Eighth Amendment. "Whether such con­finement does in fact violate the EighthAmendment depends on the duration and natureof the segregation and the existence of feasiblealternatives." The plaintiff's claim of ten plus "sev­eral" months, combined with allegations that hewas denied exercise, that sometimes he had nowater for aweek, and he was physically abusedraised a triable issue of fact.

Procedural Due Process­Classification/AdministrativeSegregation

Mackey v. Dyke, 29 F.3d 1086 (6th Cir. 1994).The plaintiff remained in administrative segrega­tion for 117 days after a recommendation that hebe released to general population, in part becauseoflack of bed space.

Michigan regulations create a liberty interest inbeing released from segregation when the justifi­cation has expired, either because the inmate is"cleared" of the original reason, or because theprisoner's behavior and attitude has changed.Lack of bed space would constitute a defense; ifthere was sufficient bed space, the court mustdetermine whether the failure to release the plain­tiff was the result of ''willful and wanton behavior."(1092) The defendants are not entitled to quali­fied immunity because Hewitt v. Helms and SixthCircuit precedent clearly established the "particu­larized" right "not to be arbitrarily kept in admin-

istrative segregation for 117 days afterthe reason for [the] original confinementthere expired." (1094)

AppealOliverv. Commissioner ofMass. Dept. of

Corrections, 30 F.3d 270 (1st Cir. 1994). Theplaintiff's notice of appeal was late. He alleged thathe left it in his cell door for prison officials tomail, although he was aware that only certified,registered, insured, COD or express mail was offi­cially recorded. At 272: "By failing to take advan­tage of the prison mMlog system, Oliver under­mined the 'bright-lin~ rule' rationale on which theSupreme Court inHouston relied and made itmore difficult for this court to 'avoid uncertaintyand chicanery.' ..." (Citation omitted) The courtdoes not hold that the plaintiff is not entitled to thebenefit of the Houston rule, but concludes that thedistrict court's finding that he failed to submit atimely notice of appeal was not clearly erroneous.

Use ofForceMclaurin v. Prater, 30 F.3d 982 (8th Cir.

1994). The plaintiff was hit in the face by an offi­cer who was accusing him of stealing anotherinmate's cigarettes. The district court correctlyfound an Eighth Amendment violation; no forcewas needed since the officer was not acting to pro­tect himself or others or to serve any legitimatepenological interest, and the officer acted solelyand purposely to harm the plaintiff. The plaintiff"suffered pain, which is a sufficient injury to allowfor recovery for an Eighth Amendment violation."(984)

Plaintiff's counsel orally moved to include statelaw claims of assault, battery and outrage on theday of trial, and the district court declined after thetrial to entertain them because they were notraised by amended complaint. This reason doesnot fall within the four bases for declining supple­mental jurisdiction in 28 U.S.C. § 1367, and thecourt had discretion to permit an amendment toconform to the evidence; the case is remanded fora ruling on that request.

Women]eldness v. Pearce, 30 F.3d 1220 (9th Cir.

1994). Title IX of the Education Amendments of1972, which prohibits gender discrimination ineducational programs receiving federal funding,applies to prisons. So do the regulations of theDepartment of Health and Human Services imple­menting the statute.

The language of the statute suggests that thestandard is one of "equality" and not "parity."However, it does not require gender-integratedclasses in prisons. At 1229:

Strict one{or-one identity ofclasses maynot be required by the regulations. But theremust be reasonable opportunitiesfor similarstudies at the women'sprison andwomenmust have an equal opportunity topartici­pate in educationalprograms....

THE NATIONAL PRISON PROJECT JOURNAL

It may not be necessary to offer as manyclasses in a small women'sprison as in thelarger men'sprisons. But the number ofclasses offeredshouldat least beproportion­ate, notjust to the total number ofinmates,but to the number ofinmates desiring totake educationalprograms. And the inmatesmust be made aware ofthe opportunityforparticipation in variousprograms beforetheir interests can be assessed. In order togive women "equal opportunity, " there mayneed to be a higher number ofcoursesofferedso that women have comparable vari­ety in course selection."Penological necessity" is not a defense to Title

IX; it is "just one concern to be considered in howthe equality principles of Title IX are to be appliedin prison." (1230) Efficiency and cost effective­ness are not valid security concerns; they are costand management concerns.

Paying men but not women for vocationaltraining participation violated Title IX. Theabsence of a discriminatory motive did not makethis a non-discriminatory policy; it amounted todisparate treatment, not a neutral policy withdisparate impact.

Procedural, Jurisdictional andLitigation Questions

Caldwell v. Amend, 30 F.3d 1199 (9th Cir.1994). The plaintiff's motion for judgmentnotwithstanding the verdict was subject to theHouston "prison mailbox" rule that it was timelyfiled if delivered to prison authorities for mailingwithin the relevant time limit. The prisoner'ssworn declaration that he did so, while not neces­sarily sufficient to prove the date of filing, shifts theburden to the opposing party to produce evidenceto the contrary such as a legal mailbox log or adate-stamped envelope. The fact that the plaintiffdid not use the more expensive certified mail pro­cedure did not matter, since he utilized the pris­on's legal mail procedure.

DISTRICT COURTS

Pre-Trial De.taineeslfelephonesGeorge v. Carusone, 849 F.Supp. 159

(D.Conn. 1994). At apolice station, nearly allincoming and outgoing calls were taped. Anarrestee's claim under the Omnibus Crime Controland Safe Streets Act of 1968 was not barred byexpress or implied consent because there was noevidence that he knew of the recording. The con­versations were "intercepted" for purposes of thestatute when they were taped, not when or if theywere listened to. The exception for recording by alaw enforcement agent "in the ordinary course ofhis duties" does not apply where the recording isdone surreptitiously.

Procedural Due Process-DisciplinaryProceedings

Nix v. Evatt, 850 F.Supp. 455 (D.S.C. 1994).

THE NATIONAL PRISON PROJECT JOURNAL

The plaintiff was charged with possession of anexcessive amount of money and canteen items and

.asked to call witnesses including his cellmate, whoallegedly would have testified that some of theseitems were his. He said he asked his assignedassistant (an inmate) to procure the witnesses, buthe failed to do so, and when he asked at the hear";­ing, the hearing officer said such requests must be.in writing-a requirement both he and the assis~

tant said they had not been informed about.At 458:

... [T]his courtfinds that it is clear thatonce aprisoner isplaced in administrativesegregation, he is then incapable ofinter­viewing or obtaining statementsfrom poten­tial witnesses. Thus, this court concludes thatat the time ofplaintiffs hearing there was aclearly established constitutional right to sufficiently competent representation when aprisoner in administrative segregation isfac­ing a disciplinary hearing.

Use ofForce/Searches-Person­Arrestees/Pre-Trial DetaineeslHygiene

Huffman v. Fiola, 850 F.Supp. 833 (N.D.Cal.1994). The plaintiff's complaint of sexual assaultin a booking cell in the guise of a search stated aconstitutional claim under the Fourth Amendment.Jail personnel who watched and refused to stopthe alleged assault could be held liable under thedeliberate indifference standard.

At 837: "Under ordinary circumstances denialof a shower for three days would not be action­able. However, due to the nature of the Plaintiff'sallegations and Defendants alleged knowledge ofthe sexual assault, the denial reaches the level of acognizable claim in this case."

Allegations that the plaintiff was hog-tied, herhead was bashed against awell, and an officerstomped on her bare feet stated use of forceclaims. The court previously stated that this casewas being decided under the Due Process Clause.

At 838: "Even where one has no entitlement toa benefit, one cannot be deprived of it in retalia­tion for the exercise of constitutional rights. "Allegations that the plaintiff was denied a showerbecause she reported the assault and had her barefeet stomped on because she said she was going tofile suit stated constitutional claims.

WomenILegal Assistance ProgramsGlover v.johnson, 850 F.Supp. 592 (E.D.Mich.

1994). Prison officials unilaterally reduced fund­ing to Prison Legal Services of Michigan, whichprovides legal assistance to women inmates pur­suant to a prior court order, and excludedparental rights matters from PLS' services contraryto that order, after the Sixth Circuit Knop decisionholding that the right of court access did notextend to parental rights matters in a case involv­ing male inmates. This court had previously deter­mined that women inmates, because of their back­grounds, were entitled to the assistance of attor­neys (though not necessarily representation in

court), and not just law libraries, because theydo not have male inmates' "history of 'self-help'in the law."

The court holds the defendants in contempt andgrants apreliminary injunction requiring the con­tinuation of services consistently with prior orders.

The court holds that women inmates are consti­tutionally entitled to continuation of the relevantlegal services; the Knop decision did not addressthe equal protection violation previously found forwomen inmates. At 596: "Equal protection is notthe same as identical treatment, for identical treat­ment may indeed'result in very unequal protec­tion." (Citation onlitted) The court then proceedsto find that BOlfnds requires assistance of attor­neys for women inmates because of the structureof the probate, juvenile and circuit courts and theinformal procedures required to get a hearing inthem as well as the prisoners' lack of access to thetelephone. The court also concludes under theMatthews v. Eldridge test that due processrequires legal assistance in parental rights matters.At 600: "The structure of the various courts as wellas the regulations of the Department constitute abarrier to the plaintiff class' exercise of a funda­mental right."

ReligionRust v. Clarke, 851 F.Supp. 377 (D.Neb.

1994). The plaintiffs are devotees of "Asatru,"which they say is an "Icelandic word/term for theancient religion of the Teutonic people ofNorthern Europe ...also known as 'Odinism' or'Troth.'" They claimed unequal treatment withrespect to other religious groups.

The Religious Freedom Restoration Act "wasspecifically intended to apply to state prisons (andother institutions of state and federal government)and in the prison context was designed to overrulethe Supreme Court's decision in O'Lone v. EstateofShabazz..." (380) Since the defendants' sum­mary judgment motion is addressed primalily tothe O'Lone standard rather than the RFRA, thecourt denies the motion without actually address­ing the merits.

The RFRA "does not appear to have waived the[Eleventh Amendment] immUnity of the states,either.... While Congress could abrogate theimmunity of the states, it must express itself with­out equivocation, and it has not done so here."(This is completely wrong. The statute says thatplaintiffs can sue "Governments" including "aState, or a subdivision of a state." How unequivo­cal can you get?)

The individual defendants are entitled to quali­fied immunity.

At 378 n. 1: "Defendants do question whethercertain practices are necessarily apart of theAsatru religion. In the future, Plaintiffs would bewell advised to document why Plaintiffs believe aparticular practice is part of the Asatru religion,such as by referring to published theology texts orsimilar objective sources." This is blatantly wrong.See Thomas v. Review Board, 450 U.S. 707, 715-

WINTER 1995 11

16, 101 S.Ct. 1425 (1981) (religious freedom "isnot limited to beliefs which are shared by all of themembers of a religious sect"); Thacker v. Dixon,784 F.Supp. 286, 295 (E.D.N.C. 1991) ("Except inthe most extreme cases, a court must confine itselfto a determination of whether the practice in ques­tion has a basis in religious beliefas the individ­ual sees if') (emphasis supplied), affd, 953 F.2d639 (4th Cir. 1992).

Attorneys' FeesKersh v. BoardofCounty Commissioners of

Natrona County, 851 F.Supp. 1541 (D.Wyo.1994). plaintiffs' counsel's efforts in connectionwith a successful contempt motion "constitutedreasonable post-judgment work that was necessaryto secure the improvements anticipated by the1990 ConsentDecree." (1543) In addition, theywere prevailing parties in the contempt motion.

Plaintiffs' attorney is awarded fees at the rate inhis community (Denver) rather than the site of thelitigation (Casper, Wyoming), since there is noindication that any Wyoming attorney has ever fileda "totality of conditions" case or would considerdoing so. In addition, expertise in the field of litiga­tion was necessary, and it was reasonable for thisattorney to handle the contempt motion given thathe had obtained the underlying consent decree.

Access to CourtslLegaiAssistance Programs

Carperv. Deland, 851 F.Supp. 1506 (D. Utah1994). Utah provides legal assistance to prisonersby contract with local attorneys; there are no lawlibraries and inmates are not allowed assistancefrom "writ writers." The contract was changed toeliminate general legal assistance in civil mattersand to restrict the services to writs ofhabeas cor­pus and challenges to conditions of confinement.The court previously granted a preliminary injunc­tion to the named plaintiffs and to several addi­tional prisoners. Aclass was certified of "all cur­rent and future inmates in the Utah prison systemwho seek to exercise certain legal rights." (1510­11) The court here grants summary judgment tothe plaintiffs and issues an injunction.At 1517-18:

...Ifdefendants are correct that increasedlegal services will result in a decrease in edu­cationalandotherprograms, that is unfortu­nate. However, the court is unpersuaded bydefendants' argument that budgetary consid­erationsjustify limiting the scope oftheirduty to the levelprovidedunder the currentcontract.

While it is true that economicfactors maybe considered in determining the methodused toprovide meaningfulaccess to thecourts, the cost ofprotecting the right ofaccess cannot be used tojustify its denial...[citations omitted]

..Althoughproviding suchprograms is alegitimatepenologicalobjective, defendantsmay not choose toprovide them at the

12 WINTER 1995

expense ofa constitutional right.Furthermore, the decision whether tofundsuchprograms is a questionfor the legisla­ture, notfor the court.The right of court access extends to the purSuit

or defense of actions to adjust family relationships,including initial papers opposing the termination /,.of parental rights, including a request for theappointment of counsel, and preparing petitions :.for divorce or the initial response to divorce pe~­

tion. It does not extend to enforcement or con­tempt or modification proceedings in divorcecases. Assistance in adopting a prisoner's spouse'schildren is not required.

Workers' compensation claims are included inthe right of court access. Although the tribunal isadministrative, "such proceedings are judicial innature and provide the only means by which aneligible inmate may obtain worker's compensationbenefits." (1523)

Religion/StandingScarpino v. Grosshiem, 852 F.Supp. 798 (S.D.

Iowa 1994). The Iowa Civil Liberties Union hastaxpayer standing to challenge the prison system's"The Other Way" program, a twelve-step rehabili­tation program alleged to violate the EstablishmentClause.

The claim of aprisoner who had been releasedfrom the institution and then reincarcerated is notmoot because given the twelve to sixteen-weekduration of the program, it is "capable of repeti­tion yet evading review." The claim of aprisoneron parole is moot.

The court distinguishes earlier authority hold­ing that an M-type program was not religious onthe ground that this program not only refers toGod and a higher power, but also because itinvolves group prayer, individual pressure toaccept religion as the solution to addiction, andthe use of religious video tapes.

Establishment Clause claims are not governedby the Turner reasonableness standard becausethey involve the insistence that public money can­not be spent to support religion rather than anassertion of inmates' rights to do something.Under Lemon v. Kurtzman, prison officials couldhave believed that this program did not violate theEstablishment Clause, and they are entitled toqualified immunity from damages.

HygienelNegHgence, DeliberateIndifference and Intent

Masonoffv. DuBois, 853 F.Supp. 26 (D.Mass.1994). The plaintiffs complained that they did nothave access to toilets in their cells; when they didnot have access to a bathroom area, they had touse portable chemical toilets and a pitcher ofwater. Official policy was that the bathroom area

. was supposed to be opened at any time onrequest, but there was evidence that these orderswere not followed by all officers with respect toall inmates.At 29:

Having a sanitaryplace to dispose ofone's

bodily waste is one such "minimal civilizedmeasure oflife'S necessities. "...

Theplaintiffs havepresentedevidence thatsome inmates have been barredfrom theshanty-the oneplace at the entireprisonwhich hasflush toilets available to inmates.These inmates, when they are out oftheircells, are left with noplace to deposit theirbodily waste. The Constitution does notper­mitprison offiCials toforce inmates toundergo such indignities.

The plaintiffs have thus shown a likelihood ofsuccess on the question of whether they havemet the objective 'requirement of an EighthAmendment claim. However, there is notpresently enough evidence to support afindingof deliberate indifference, in the absence of ashowing that the defendants had actual knowl­edge of the violations. At 29:

The representations made in affidavits andotherwise in connection with thepresentmotion are sufficient, however, toput thedefendants on notice that SuperintendentBissonette's order toprovidefull access to theshanty is not being diligently carriedout. Thecourt will take into consideration, in anyfuture motionfor injunctive reliefregardingaccess to the shanty, that the defendants havehadsuch notice.

Grievances and ComplaintsAbout Prison

Hines v. Gomez, 853 F.Supp. 329 (N.D.Cal.1994). At 331: "... [F]iling an inmate appeal [Le.,grievance] falls within the plaintiff's first amend­ment right to petition the government for redressof grievances."

Searches-Person-ConvictsCastillo v. Gardner, 854 F.Supp. 724 (E.D.

Wash. 1994). Conducting digital rectal probeswithout "cause predicate" is not reasonably relat­ed to legitimate penological goals and is unconsti­tutional under Turner. However, the defendantsare entitled to qualified immunity on this claim.

Religion-PracticeslInjunctiveRelief-Preliminary

Campos v. Coughlin, 854 F.Supp. 194 (S.D.N.Y.1994). State prison officials are preliminarilyenjoined from prohibiting plaintiffs from wearingtheir Santeria beads under their clothing or placingbeads on their non-publicly displayed shrines.

Apreliminary injunction is appropriate. At 204:"Ordinarily, violations ofFirstAmendment rights arerecognized as constituting an irreparable injury."The balance of hardships favors plaintiffs, since theyhave no other way of practicing their religiousbeliefs, but the defendants have other ways ofpro­tecting security besides burdening the plaintiffs' reli­gious practice.

The Religious Freedom Restoration Act appliesto prisoners and displaces the O'Lone/furner rea­sonable relationship standard for prisoners' reli-

THE NATIONAL PRISON PROJECT JOURNAL'

Court~Decides Landmark Class Action Casein Favor of Pelican Bay Prisoners

gious claims in favor of a compelling interesVieastrestrictive means standard. Security is a com­pelling interest. At 207: "However, defendantscannot merely brandish the words 'security' and'safety' and expect that their actions will automati­cally be deemed constitutionally permissible con­duct." The court defers to defendants' assessmentof the prison gang situation and the role of beadsas gang identifiers, but notes that this argumentfails to address why the beads cannot be wornunder clothing. At 208: "I am troubled by defen­dants' complete rejection of plaintiffs' proposalbased on what defendants speculatively describeas an 'enforcement problem.''' These enforcementproblems are the same for Santeria beads as forcrosses and crucifixes, which are allowed. Thedefendants also failed to show that gangs haveactually used Santeria beads or that gang beadsresemble Santeria beads. The fact that Santeriabeads might be used in this fashion sometime inthe future is "pure speculation," which cannot jus­tify burdening the plaintiffs' constitutional rights."I am not required, on a motion for preliminaryinjunction, to indulge DOCS' whims and anxietiesabout prospective hypothetical situations." (209)

The court reaches the same conclusions underthe O'LonelI'urner test. There is no rational rela­tionship between prohibiting wearing beadsunderneath clothing and the purpose of minimiz.­ing gang affiliation and violence. The plaintiffshave no alternative to exercise this particular tenetof their religion. The impact of permitting wearingbeads under clothing will be "constitutionallyinsignificant," and this practice is an "obvious,easy alternative."

Use of ForceMessina v. Mazzeo, 854 F.Supp. n6 (E.D.N.Y.

1994). An allegation that all of the named policeofficers participated in excessive force was suffi­cient to state a claim. Discovery should determinethe exact role of each officer, and a motion forsummary judgment can be made based on lack ofpersonal involvement.

An allegation that the plaintiff was slapped by

OnJanuary 11, ChiefJudge TheltonHenderson of the U.S. DistrictCourt, Northern District of California

ruled substantially in favor of prisoners atPelican Bay State Prison in their classaction lawsuit against state prison officials(Madrid v. Gomez). The suit claimed thatconditions at the facility, the state's first"supermax" prison, violate prisoners'constitutional rights. 1

The judge, in his 345 page decision, wrote

THE NATIONAL PRISON PROJECT JOURNAL

police officers without any justification whilehandcuffed in a police car stated a claim forexcessive force under the Fourth Amendment.Summary judgment could not be granted based onthe lack of injury where the plaintiff had not hadthe opportunity to take discovery. The question isfor the jury if the plaintiff can establish "that forcewas used and some injury was sustained."

Pre-Trial DetaineeslFederal Officialsand PrisonslProcedural Due Process­Disciplinary Proceedings

Collazo-Leon v. u.s. Bureau ofPrisons, 855F.Supp. 530 (D.P.R. 1994). The petitioner wasconvicted at a disciplinary hearing of attemptedescape and offering a bribe to an officer; he wassentenced to a total of 90 days and loss of visitingand telephone privileges for six months.

Wolfish forbids the punishment of detainees.The Bureau of Prisons disciplinary regulations bytheir terms are intended to punish. In addition,"the severity of the sanction itself upon a pretrialdetainee charged with misconduct, as to whom noattempt is made to deal with his disciplinary prob­lem by means of less drastic actions, compel theconclusion that the purpose in segregating is topunish." (533) The court rejects the view that thepetitioner's pUnishment is necessary to provide foran orderly environment, since upon his release hewill present the same security hazard as when hewas placed in segregation.

The court grants the writ ofhabeas corpus andorders his discharge from segregation and restora­tion of his visiting and telephone privileges.

WomenlPrivacyGalvan v. Carothers, 855 F.Supp. 285

(D.Alaska 1994). The female plaintiff alleged thatshe was placed in an all-male wing and that shewas subjected to sexual harassment. The courtpreviously granted her a preliminary injunctionrequiring officials to find her alternative housing.

The plaintiffs claim meets the objective prongof Eighth Amendment analysis. At 291:

Defendants contend that there is no evi-

that "dry words on paper cannot adequatelycapture the senseless suffering and some­times wretched misery" caused by thedefendants. "In this landmark decision,Judge Henderson found that the CaliforniaDepartment of Corrections is operating inflagrant disregard of the U.S. Constitution,"said David Steurer, a partner in WilsonSonsini Goodrich & Rosati who tried thecase together with fellow partner SusanCreighton and attorneys Donald Specterand Steve Fama of the Prison Law Officein San Quentin.

dence regarding minimalstandards ofpriva­0' anddecen0'for a woman inmate. Thecourtfinds this statement to befantastic ....The courtfinds that minimalstandards ofprivaq anddecen0' include the right not tobe subject to sexualadvances, to use the toi­let without being observedby members oftheopposite sex, and to shower without beingviewed by members ofthe opposite sex.

There is sufficient evidence that the defen­dants knew or shouldhave known ofthepotential risks inherent in placing afemaleinmate in ait\all male maximum securityprison wing:'.: (292).(This opini.on antedates Farmer v. Brennan,

which held that "should have known" doesn't cutit under the Eighth Amendment.)

Federal Officials and PrisonsLloyd v. Corrections Corporation ofAmerica,

855 F.Supp. 221 (W.D.Tenn. 1994). Aprivateprison housing federal prisoners acted undercolor of federal law and not state law, and theplaintiffs complaint therefore must be construedas aBivens action and not a § 1983 claim.

Communication with Media/InjunctiveRelief-Preliminary

Pratt v. Rowland, 856 F.Supp. 565 (N.D.Cal._1994) .The plaintiff, a former Black Pantherleader, was transferred after agreeing to be inter­viewed by a television station and double celledimmediately after the interview was aired. Medicalevidence showed that various physical and psycho­logical afflictions he had were aggravated when hewas double celled, and prison officials had gener­ally acknowledged these.

The court concludes that the plaintiff was sub­jected to retaliation for being interviewed, basedon evidence that suggests an extremely incompe­tent cover-up, and grants a preliminary injunctionrequiring him to be single-celled.

Continued on page 17

The suit originated in 1991 after the U.S.District Court received more than 300 peti­tions from Pelican Bay prisoners allegingcivil rights violations during the first twoyears of the facility's existence. Apanel offederal judges referred the matter to the ProBono Committee of the San Francisco BarAssociation which asked Wilson SonsiniGoodrich & Rosati to investigate the case. Alawsuit originally filed on behalf of oneinmate eventually became a class action andtrial took place from September 17 throughDecember 15, 1993.

Ainong the constitutional violations foundbyJudge Henderson were a pattern ofexcessive guard brutality, a failure to provide

Continued on nextpage

WINTER 1995 13

Bill Seeks to Strip Courts ofPower in Prison Cases

pIe of this country that all people, even theleast deserving, are protected by theConstitution. The bill sets a dangerousprecedent for stripping civil rights fromthose in public disfavor. If this bill is suc­cessful in placing adult and juvenile prison­ers beyond the full protection of the laws,the path will be clear to target other groups,such as ethnic minorities, the mentally ill,and gay people, for similar treatment.

The bill is a dangerous assault on federalcourt power to remedy civil rights violations,and thereby runs afoul of the separation ofpowers doctrine, which the "Framers of our

from page 13minimal medical and mental health care,and confinement in conditions that arelikely to cause or increase psychosis inmany of the inmates in the prison's super­max facility. Pelican Bay's caging and hog­tying of prisoners, its routine resort to

'i lethal force, and its pattern of staff assaultson inmates caused Judge Henderson toconclude that the evidence "painted a pic­ture of a prison that all too often usesforce, not only in good faith efforts torestore and maintain order, but also for thevery purpose of i1¥licting punishment andpain." In concluding that the defendantshad failed to proVide minimal medical ormental health services, Judge Hendersonobserved that "some of defendants' com­ments, actions, and policies show such dis­regard for inmates' pain and suffering thatthey shock the conscience." With regard toconditions in the Security Housing Unit(SHU) section of the prison, JudgeHenderson wrote that "many, if not mostinmates in the SHU experience somedegree of psychological trauma in reactionto their extreme social isolation," and thatdefendants "cross the constitutional linewhen they force certain subgroups of theprison population, including the mentallyill, to endure the conditions in the SHU."

The court ordered the parties, under thesupervision of a court-appointed SpecialMaster, to negotiate a plan to make PelicanBay meet constitutional standards."The court's decision is absolutely cor­rect," said Donald Specter of the PrisonLaw Office. "Without an injunction tl1ere isno doubt that the brutality and lack of prop­er treatment would continue indefinitely."Judge Henderson could find "no serious orgenuine commitment" by the defendants to"remedying the constitutional violationsfound herein." •

IFor more details about the Pelican BayState Prison, see NPPJournalVol. 7, No.4,Fall 1992, "Isolation, Excessive Force Under Attackat California's Supermax" and "The MarionizationofAmerican Prisons"; and Vol. 8, No.2, Spring1993, "Pelican Bay-The Effects ofIsolation."

virtually without notice to the public. Asim­ilar bill has been introduced into the Senateas S. 400. The proponents of STOP are try­ing to rush the bill through Congress with­out debate because the "facts" upon whichit is based are bogus and the "solutions" itoffers are fraudulent.

The STOP bill violates the guiding princi-

For the Record• The American Correctional Association (ACA) believes the federal crime h'signed into law by President Clinton last September deserves a "mixed review" aceing to a statement to ACA members released in October. The ACA opposes mandatominimum sentencing, including "three-strikes-you're-out' because it believes that'not reasonable or cost-effective to keep such persons in prison until they die" andiconcerned about the "inevitable ptison crowding" the measure will cause. Overallbelieve the crime bill "places too much emphasis on incarceration as a solution tocrime". They also opposed the ending of Pell grants for prisoners.

The ACA supported the Family Unity Demonstration Project which authorizes gfor the establishment of community-based residential correctional facilities in whioffenders can live with their young children. ACA President Bobbie Huskeysaid ,are encouraged to see in the final bill a greater emphasis placed on children youthfamilies, because ACA believes that we will need to intervene early in the lives of thefamilies if we are ever going to reduce future crime". Unfortunately, it is these verypvisions that the crime bills introduced into the new session of Congress by theRepublican majority sets out to dismantle.

• Prison journalist and editor of the Angolite, Wilbert Rideau has become aspecorrespondent for the criticallyacclaimed "Fresh Air" series hosted by Terry GroNationalPublic Radio. Rideau and Angola Warden John Whitley view it as an educa.alprogram toletthe public knowwhat ptison life is really like. The first segmellt£es .on literacy and self-educationbehind bars. The payment which "Fresh Air" typicmakes to its freelance contributors will, at Rideau's suggestion, be made to theSpaceman Foundation, a non-profit foundation. Rideau's. childhood dream wastospaceman and he has dedicated the Foundation to the proposition "that allchil<it:eshould have.dreanls, should.be able to achieve them and become productive mernhof society. The child who has hopes and dreamsJor his future ,vill not end up inaprison cell~"

• Journalist Gary E.Goldhammer left hisnewspaper job.in California and set()across the United States to explore the facts, .emotions and politics surrounding sappunishment. Heinterviewed the people most affected by the death penalty - priS()on Death Row, their families, victim's families,. jailers·and advocates. He has publi~

these interviews and described his experiences in DeadEnd, a personal and compdiscovery of thecosts-human, social and financial-of our continued use of thi~

bariepunishment. DeadEnd can be obtained from Biddle. Publishing Company, PQ1305,#103, Brunswick, ME 04011, for $10.95 plus $2.00 shipping.

• Prison Information Service, Inc.. of Sioux Falls have distributed all theircopithe AboriginalHandbooks and the Bibliography ofSelected Prison· Cases andcfulfill anymore requests forthese books at the moment. They hope in time to rais~

ficient funds to reprintand send copies to everyone who is on their waiting list. Fqmore information, contact Roger Flittie at PrisonInformation Service, Inc., POHo:x:616,SiouxFaYs, SD 57101

Among the package of new federalcrime bills passed by the House ofRepresentatives is the Stop Turning

Out Prisoners Act ("STOP"), Title III of HR667. STOP is not part of the. "Contract WithAmerica," yet it was pushed through theJudiciary Committee and onto the floor ofthe House without hearing or testimony and

14 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL

Constitution viewed ... as the central guaran­tee of a just government," Freytag v.Commission, 111 S. Ct. 2631, 2634 (1991),and "a bulwark against tyranny," UnitedStatesv. Brown, 381 U.S. 437, 443 (1965).This bill works a gaping hole in that bulwark.

The lack of deliberation given to the billaccounts for the serious practical and consti­tutional problems with the legislation, whichare discussed in more detail below.

Section (b)(l), Termination ofProspective ReliefAfter2-Year Period: Thissection calls for judgments to terminate twoyears after issuance or two years after pas­sage of STOp, whichever is later, even whenconstitutional violations remain. For exam­ple, a court could not continue to enforce ajudgment even in the face of a continuingthreat to staff and prisoners. In institutionalreform cases, it typically takes years of effortby state officials and supervision by thecourt to fix the major problems that are thesubject of such litigation. Since the lawalready requires termination when constitu­tional requirements are met, Board ofEduc.v. Dowell, 111 S. Ct. 630, 637 (1991), theperverse effect of this section would be torequire termination when constitutional vio­lations persist.

This provision also violates the separationof powers doctrine. The Framers criticizedlegislative efforts to vacate judicial proceed­ings, suspend judicial actions, and annul ormodify judgments, see M.].C. Vile,Constitutionalism and the Separation ofPowers 153 (1967), and the ConstitutionalConvention rejected several proposals toallow legislative revision of judgments. 1M.Jensen, The Documentary History of theRatification of the Constitution 246-47(1976). In light of this historical back­ground, the Supreme Court has struckdown statutes that revise or suspend judg­ments. Hayburn's Case, 2 U.S. (2 Dall.)409 (1792); Chicago &Southern Air Lines,Inc. v. Waterman Steamship Corp., 333U.S. 103, 11~ (1948).

Section (b)(2), Immediate TerminationofProspective Relief. This section requiresthe termination of all settlement agreements("Consent Decrees") that were approvedwithout a finding of a constitutional or statu­tory violation. This would render almost allexisting Decrees void because, by theirnature, they are approved without such find­ings. Prison officials usually seek to operatetheir prisons in a safe and professionalmanner because they do not want to puttheir staff at risk of the riots that can resultfrom intolerable conditions. Acourt order isoften necessary to get the resources thatthey need to do this.

By legislative fiat, this bill would indis­criminately undo decrees that playa vital

THE NATIONAL PRISON PROJECT JOURNAL

role in protecting the health and safety ofprisoners and staff. Moreover, by preventingsettlements, this provision forces parties tocostly trials in all cases. Forbidding a statefrom entering into a settlement agreementencroaches on state autonomy and raisesserious federalism concerns. Furthermore('by requiring a lengthy trial in every case,'this section increases the burden on thefederal judiciary.

Section (a) (1), Limitations onProspective Relief This section limits thepower of the federal courts to grant relief inprison conditions cases. To the extent thatthis provision prevents a court from issuingemergency interim relief, such as a tempo­rary restraining order, it violates dueprocess. Cf Phillips v. Commissioner, 283U.S. 589, 596-97 (1931). If, for example,a prison is in imminent danger of a tubercu­losis outbreak, a court must retain the dis­cretion to issue an emergency order priorto a hearing.

Section (c)(2), Automatic Stay WhenMotion Pending: This section calls for anautomatic stay of decrees and judgmentsafter a defendant files a motion to modify orterminate, regardless of whether a constitu­tional violation is ongoing. In effect, thisprovision gives a defendant the temporarypower to overrule a federal court. An auto­matic stay also deprives a court of its tradi­tional power to balance the equities involvedin a stay application.

Section (e), SpecialMasters: This provi­sion requires courts to use Magistrates inplace of special masters. This usurps thepower of the judiciary in two ways. First, itabrogates Fed. R. Civ. Proc. 53, whichauthorizes courts to appoint special mas­ters. The Supreme Court, rather thanCongress, is empowered to modify theFederal Rules. 28 U.S.C. § 2072. Second,over and above the authority granted byRule 53, "there has always existed in thefederal courts an inherent authority toappoint masters." Kaufman, Masters in theFederal Courts: Rule53, 58 Colum. L.R.452,462 (1958).

Section (j), Attorney's Fees: This provi­sion modifies 42 U.S.C. § 1988 by chang­ing the standard for an attorney fee awardin prison conditions cases. The passageof sections 1983 and 1988 was motivatedby a commitment to the civil rights of allcitizens. Singling out one group for lesserprotection sets a dangerous precedentfor other groups that fall into disfavor.The bill also prevents a state from enteringinto a settlement that includes a fee award,forcing states to risk a far greater fee awardafter trial. In the name of states' rights,the bill actually limits the freedom of astate to determine its own best interests. •

Forfurther information contactjoanDolby, jan Elvin orjenni Gainsborough atthe National Prison Project oftheACLUat(202) 234-4830, Fax (202) 234-4890.

Text ofH.R. 667, Title III, "StopTurning Out Prisoners Act"Sec. 301. APPROPRIATE REMEDIES FORPRISON CONDITIONS.

(a) In General.-Section 3626 of title 18,United States Code, is amended to read asfollows: '\"Sec. 3626. Appropriate remedies withrespect to prison conditions

"(a) Requirements for Relief.-"(1) Limitations on prospectiverelief.-Prospective relief in a civilaction with respect to prison conditionsshall extend no further than necessaryto remove the conditions that are caus­ing the deprivation of the Federal rightsof individual plaintiffs in that civilaction. The court shall not grant or ap­prove any prospective relief unless thecourt finds that such relief is narrowlydrawn and the least intrusive means toremedy the violation of the Federalright. In determining the intrusiveness­of the relief, the court shall give sub­stantial weight to any adverse impact onpublic safety or the operation of a crim­inal justice system caused by the relief.

"(2) Prison population reductionrelief.-In any civil action with respectto prison conditions, the court shall notgrant or approve any relief whose pur­pose or effect is to reduce or limit theprison population, unless the plaintiffproves that crowding is the primarycause of the deprivation of the Federalright and no other relief will remedythat deprivation.

"(b) Termination of Relief.-"(1) Automatic termination of

prospective relief after 2-year period.­In any civil action with respect to prisonconditions, any prospective relief shallautomatically terminate 2years after thelater of-

"(A) the date the court found theviolation of a Federal right that wasthe basis for the relief; or"(B) the date of the enactment of theStop Turning Out Prisoners Act.

"(2) Immediate termination ofprospective relief.-In any civil actionwith respect to prison conditions, adefendant or intervenor shall beentitled to the immediate terminationof any prospective relief, if that reliefwas approved or granted in the absenceof a finding by the court that prison

Continued on nextpage

WINTER 1995 15

jrompage15conditions violated a Federal right.

"(c) Procedure for Motions AffectingProspectiveRelieE---

"(1) Generally.---The court shallpromptly rule on any motion tomodify or terminate prospectiverelief in a civil action with respectto prison conditions.

"(2) Automatic stay.---Any prospec­tive relief subject to a pending motionshall be automatically stayed duringthe period---

"(A) beginning on the 30th day aftersuch motion is filed, in the case of amotion made under subsection (b);and"(B) beginning on the 180th dayafter such motion is filed, in thecase of a motion made under anyother law;

and ending on the date the court entersa final order ruling on that motion.

jrompage4

were singled out as a group lacking anyappropriate protection. Third, the over­whelming threat to decent prison standardsis overcrowding.

The revised rules now go back to the UNfor consideration. What was particularly fas­cinating at the meeting was the opportunity(in the gaps between the committee work)to learn how two traditional leaders in theworld incarceration competition--- Russiaand South Africa---are reacting to the uni­versal penal dilemma. Their divergent pathsdemonstrate vividly how prisons are boththe product and the barometer of a coun-

16 WINTER 1995

"(d) Standing.---Any Federal, State, orlocal official or unit of government---

"(1) whose jurisdiction or functionincludes the prosecution or custodyof persons in a prison subject to; or"(2) who otherwise is or may beaffected by;

any relief whose purpose or effect is toreduce or limit the prison population shallhave standing to oppose the imposition orcontinuation in effect of that relief andmay intervene in any proceeding relatingto that relief. Standing shall be liberallyconferred under this subsection so asto effectuate the remedial purposes ofthis section."(e) Special Masters.---In any civil actionin a Federal court with respect to prisonconditions, any special master or monitorshall be a United States magistrate and shallmake proposed findings on the record oncomplicated factual issues submitted to thatspecial master or monitor by the court, but

try's civic health.At the last PRI general meeting three years

ago, a former dissident, Valery Abramkin,described a situation of appalling hardship.But he felt the underlying trend was towardsimprovement. At The Hague last November,however, he and other gave details that showthis trend in reversal.

Public anger and fear of crime in Russiahave contributed to delaying both the newpenal code and the new code of criminalprocedure. Long and undifferentiated sen­tences remain in force for many everydayoffenses, and prisoners have no effectiveprotection or redress against abuses.

shall have no other function. The partiesmay not by consent extend the function ofa special master beyond that permittedunder this subsection."(f) Attorney's Fees.---No attorney's feeunder section 722 of the Revised Statutesof the United States (42 U.S.C. 1988) maybe granted to a plaintiff in a civil actionwith respect to prison conditions except tothe extent such fee is---

"(1) directly and reasonably incurredin proving an actual violation of theplaintiff's Fedeil;ll rights; and"(2) proportionally related to theextent the plaintiff obtains courtordered relief for that violation."

"(g) Definition.---As used in this section--­"(1) the term 'prison' means anyFederal, State, or local facility thatincarcerates or detains juveniles oradults accused of, convicted of, sen­tenced for, or adjudicated delinquentfor, violations of criminal law;"(2) the term 'relief' means all reliefin any form which may be granted orapproved by the court, and includesconsent decrees and settlements agree­ments; and"(3) the term 'prospective relief'means all relief other than compen­satory monetary damages."

(b) Application of Amendment.---Section3626 of title 18, U.S. Code, as amendedby this section, shall apply with respect toall relief (as defined in such section)whether such relief was originally grantedor approved before, on, or after the dateof the date of the enactment of this Act.

(c) Clerical Amendment.---Thetable of sections at the beginning ofthe subchapter Cof chapter 229 of title 18,United States Code, is amended by striking"crowding" and inserting "conditions." •

Ayesha Khan is a staffattorney with TheNational Prison Project.

Human rights guarantees in the new Russianconstitution (1993) are not, in reality,implemented. The PRI members fromMoscow said they repeatedly receivedletters from prisoners describing beatingsto extract confessions dUring the pretrialinvestigation period. Contact with theoutside world, including with lawyers,is higWy restricted.

Overcrowding is again rocketing.Official figures put the prison population at886,000---proportionately 530 per 100,000population. (Unofficial estimates are farhigher.) No one who has visited the mainurban prisons for pretrial detainees leaves

THE NATIONAL PRISON PROJECT JOURNAL

any doubt that ghastly conditions have goteven more ghastly (See the NPPJournal,Vol. 8, No.2, Spring 1993). Abramkin saidthat dormitories which had been over­crowded in Stalin's days with 80 occupantsnow held 140. He had seen prisoners withskin ulcers "like an apple." In the distantcolonies for convicts, food was in short sup­ply. TB was increasing again.

But the Russian prison authorities-who allow westerners access to theirprisons-readily admit they have problems.One official was an active participant atthe conference.

The status of the participants who camefrom South Africa is an indicator of thepolitical priority given by this country topenal reform. The Minister of CorrectionalServices, Mr. Sipo MZimela, was there;also the Commissioner, the chief administra­tor of correctional services, General].].Bruyn, who as a young prison guard hadworked on Robbin Island. He told me,"President Mandela is a man who alwayscommanded respect."

South Africa is facing the worldwide penalcrisis in acute form. The public-black aswell as white-demands a stop to a plagueof crime. But prisoners are deeply disillu­sioned that a flat six-months' amnesty didnot bring them all immediate release. Theprison population remains high ­proportionally third after the RussianFederation and the US with a rate of about350 per 100,000. Immense changes arenevertheless underway.

In February 1995 the constitution comesup for debate and, according to a seniorSouth African academic at the conference,the expectation is that the death penalty will

frompage 13

NON-PRISON CASES

Personal Iqvolvement and SupervisoryLiability

Maldonado-Denis v. Castillo-Rodriguez,23 E3d 576 (Ist Cir. 1994). At 581-82:

Although a superior officer cannotbe heldvicariously liable under 42u.S.C. §1983 on a respondeat superiortheory, ... he may befound liableunder §1983 on the basis ofhis ownacts or admissions....

One way in which a supervisor'sbehavior may come within this ruleis byformulating apolicy, or engagingin a custom, that leads to the chal­lenged occurrence....Thus, even ifa supervisor lacks actual knowledgeofcensurable conduct, he may beliablefor theforeseeable consequences

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be abolished. Reforms had already startedbefore last year's elections: no executionshad been carried out since 1989; solitaryconfinement, corporal pUnishment andreduction of diet had all been banned.Aseparate penal approach for juveniles hasnow been drafted. But full racial integrationof a justice system designed and run by .whites is causing great tensions.

From the United States, there were neitherpoliticians nor prison administrators. ..As Alvin Bronstein, Executive Director of theNational Prison Project, pointed out: "U.S.officials don't come to this sort ofmeeting."Bronstein's description of "hot-racking"to be introduced in Mississippi to accom­modate more prisoners, and the state'sban on all possessions that might makeprison tolerable, confirmed fellow PRImembers' feeling that the U.S. is not themodel to follow. As Bronstein summedup: "The U.S. is marching firmly into the19th century."

Penal Reform International celebrated itsfifth birthday in The Hague. It now has over300 members in 75 countries. It is helpinglocal non-governmental organizations setup programs in East Europe and sub­Saharan Africa and-funding allowing­has plans in Asia and Latin America. It ismost of all an astonishing worldwide net­work of individuals who share a commit­ment to fairer and more humane penal jus­tice. Without PRI, many individuals wouldbe operating in total isolation. •

Jennifer Monahan is a Britishfree­lancejournalist and member ofPenalReform International.

ofsuch conduct ifhe would haveknown ofit butfor his deliberateindifference or willful blindness, andifhe had thepower and authority toalleviate it....

To succeedon a supervisory liabilityclaim, aplaintiffnot only must showdeliberate indifference or its equiva­lent, but also must affirmatively con­nect the supervisor's conduct to thesubordinate's violative act or omis­sion....This causation requirementcan be satisfiedeven ifthe supervisordid notparticipate directly in the con­duct that violateda citizen's rights;jorexample, a sufficient causal nexusmay befound ifthe supervisor knewoj, overtly or tacitly approved oj, orpurposely disregarded the conduct....Consequently, deliberate indifferenceto violations ofconstitutional rights

canforge the necessary linkagebetween the acts or omissions ofsupervisorypersonneland the miscon­duct oftheir subordinates....

A causal link may also beforged ifthere exists a known history ofwide­spread abuse sufficient to alert asupervisor to ongoing violations. WlJenthe supervisor is on notice andfails totake corrective action, say, by bettertraining or closer oversight, liabilitymay attach.

':.~

Pleading ....Tompkins v. Vickers, 26 E3d 603 (5th Cir.

1994). The court declines to adopt the D.C.Circuit's variation of the heightened pleading"that requires a plaintiff whose claim dependson the state of mind of a defendant to pleaddirect, rather than circumstantial, evidence ofthat state of mind.

MunicipalitiesChew v. Gates, 27 E3d 1432 (9th Cir.

1994). Aclaim against the mUnicipality basedon an allegedly unconstitutional policy doesnot tum on the lawfulness of the conduct ofthe mUnicipal employee involved.At 1445:

A city cannot escape liabilityfor theconsequences ofestablishedand ongo­ing departmentalpolicy regarding theuse offorce simply bypermitting suchbasicpolicy decisions to be made bylower level officials who are not ordi­narily consideredpolicymakers....[IJfthe city infact permitteddepart­mentalpolicy regarding the use ofcanineforce to be designed and imple­mentedat lower levels ofthe depart­ment, ajury could, iindshould, never­thelessfind that thepolicy constitutedan establishedmunicipal "custom orusage" regarding the use ofpolice dogsfor which the city is responsible.

... [MJunicipalliability could[alsoJ befound under the "deliberateindifference"formulation ofMonellliability. ... WlJere the city equips itspolice officers withpotentially danger­ous animals, andevidence is adducedthat those animals inflict injury ina significantpercentage ofthe casesin which they are used, afailure toadopt a departmentalpolicygoverningtheir use, or to implement rules orregulations regarding the constitu­tionallimits ofthat use, evidences a"deliberate indifference" to constitu­tional rights. •

John Boston is the director ofthePrisoners' Rights Project, LegalAidSociety ofNew York.

WINTER 1995 17

te

Thanksgiving Dinner in the HIV Isolation Unit, 1990

Segregation inAlabama

Alabama Revisited: SeparateBut Equal?

In 1988 the National Prison Project,along with the Southern Center forHuman Rights and local private lawyers,

brought a class action suit, Harris v.Thigpen, (now Onishea v. Herring) whichchallenged the Alabama Department ofCorrections' policy of mandatory testing andsegregation of HIV-positive prisoners. Sincethen the Eleventh Circuit Court of Appealsaffirmed the DistrictCourt's ruling to upholdboth policies, but remanded issues of pro­gramming and legal access. While awaitingthe latest decision we explore the experi­ences of three women housed in theMedical Isolation Unit (MIU) at]uliaThtwiler Prison for Women and one residentof Limestone Correctional Facility's MIU.

Small ChangesIn 1986 M.W. became the first HlV-posi­

tive prisoner isolated at Julia Thtwiler Prisonfor Women. HlV-positive prisoners duringthis period were housed on death row witha quarantine sticker, required to disinfecttelephone receivers after use and givenmeals served on paper plates. M.W. recallswaking up covered with maggots becausecorrectional staff refused to empty hergarbage. After 13"months M.W. was trans­ferred to administrative segregation with asmall group of newly diagnosed women.

During the next two years M.W. receivedaccess to segregated Adult Basic Education(ABE)/General Equivalency Diploma (GED)preparation and college courses. When shereturned in 1993 she found limited pro­gramming. GED preparation classes weresporadic, while college courses were nonex­istent. In commenting on the policy'simpact, M.W. says, "We do more time justbecause we're positive and can't receive thesame programs as general population."

B.C. entered Mill in 1987 and hasobserved changes through three periods ofincarceration. She recalls the medical staffgreeted her wearing masks and gloves and

being instructed she would haveto wear the same whenever sheleft Mill. Her daily life includedfew activities beyond watchingtelevision, crocheting or knit­ting. Reflecting on these daysE.C. remembers, "I felt like ananimal placed in a cage and justleft there."

Her second incarceration in1992 brought some changes,though. B.C. took college cours-es from an inmate tutor andattended some programs sepa­rate from general population.Since returning in 1994 B.C. hasparticipated in the SubstanceAbuse Program taught by aninmate tutor. By comparison,general population pnsonershave access to a residential sub­stance abuse program coordinatedby a certified counselor. In commentingon the need for drug treatment programsB.C. explains, "Drugs is the reason I cameback to the Unit. Instead of talking aboutmy problems I turned to drugs. Being in asubstance abuse program helps me to talkabout it."

Carrie White has experienced two verydifferent periods at Julia Thtwiler Prisonfor Women. During her first incarcerationin the mid-Seventies Ms. White participatedin a variety of programs from completingher GED and numerous college courses,to commercial sewing and bookkeeping.In addition to these accomplishments sheparticipated in furlough programs and wasemployed in a "downtown job" with theDepartment of Corrections. She remembersthat the current site of the Medical IsolationUnit once housed prisoners who worked inthe healthcare unit.

Upon returning to prison in 1993 Ms.White was placed in Mill after testing HlV­positive, a status she now shares with twosons incarcerated at Limestone CorrectionalFacility's Mill. Today Ms. White's daily rou­tine primarily consists of crocheting andcleaning up the MIU area. Her inquiriesregarding college courses all return to anexclusion based on her HlV-positive status.For future Mill prisoners Ms. White has onlyone desire, "I hope other women won't haveto go through what I'm going through.Sitting back here and deteriorating."

Transforming the AngerAlester Moore is serving his second

prison stint, one he hoped would providerehabilitation. Aformer bridge builder onceemployed by a large construction firm, Mr.Moore hoped to continue learning buildingtrades at Limestone Correctional Facility. Hesoon learned that being HIV-positive wasenough to be excluded from vocational andother programming including the InterstateCommerce Compact, which he inquiredabout in order to be transferred closer tohis family. Although a segregated draftingclass has recently been offered, other voca­tional programs continue to be denied.

Moore has channeled his dissatisfactioninto being a lay minister and serving ascoordinator of education for Citizens OnPrevention and Education (COPE), a pris­oner run HlV/AIDS program. Founded byUnit prisoner Matthew Coleman, COPEmembers provide a 12 week training pro­gram in HlV/AIDS education, conductmonthly seminars on HlV/AIDS issues, cor­respond with the families of prisoners andvisit sick prisoners in the infirmary. Mr.Moore says, "Being segregated and deniedequal programming takes the sentencingjudge's decision to another level. We're justasking DOC to open up the door. If theydon't open the door to programs it will justcause more problems." •

18 WINTER 1995 THE NATIONAL PRISON PROJECT JOURNAL

ACLUHandbook,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 right~

and responsibilities. Alsoavailable in Spanish. Samplecopies free. Bulk orders: 100copies/$25. 500 copies/$100.1,000 copies/$150 prepaid.

1990 AIDS in Prison_-,-_ Bibliography lists resources

on AIDS in prison that areavailable from the National PrisonP1'9ject and other sources,il)qluding corrections policies onAIDS, educational materials,medical and legal articles, andrecent AIDS studies. $5 prepaidfrom NPP.

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 mvinfection affects TB. Single copiesfree. Bulk orders: 100 copies/$25.500 copies/$100.1,000 copies/$150 prepaid.

Bibliography of Material on-----'---- Women in Prison

lists information on this subjectavailable from the National PrisonProject 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.

ublications

The National PrisonProject JOURNAL, $30/yr.$2/yr. to prisoners.

The Prisoners' AssistanceDirectory, the result of anational 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, pub­lished January 1993. Paperback,$30 prepaid from NPP.

The National Prison ProjectStatus Report lists by statethose presently under court order,or those which have pendinglitigation either involving theentire state prison system orthajor institutions within the state.Lists cases which deal withovercrowding and/or the totalconditions of confinement. (Nojails except District of Columbia.)Updated January 1994. $5 pre-

QTY. COST paid 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

THENATIONAL PRISON PROJECT JOURNAL WINTER 1995 19

The following are major developmentsin the National Prison Project's litiga­tion program since September 30,

1994. Further details of any of the listed casesmay be obtained by writing the Project.

Carty v. Farrelly-Agreement has beenreached in this lawsuit contesting conditionsof confinement at the CriminalJusticeComplex in St. Thomas, U.S. VIrgin Islands.The complaint filed inJune 1994 allegedsevere overcrowding, unconstitutional envi­ronmental and fire safety conditions andgrossly deficient medical and mental healthcare. The agreement, which has the sameforce as a court order, provides for improve­ments in all these areas, including limits onpopulation, improved and expanded medicalservices, with testing and treatment for tuber­culosis, and separate housing for mentally illprisoners. Prisoners will have recreation fortlrree hours daily with a maximum cell lock­in time of twelve hours daily. The agreementalso contains several important provisions formonitoring. The BOC is also prevented frominstituting another facility-wide lockdownwithout the court's permission.

Casey v. Lewis-This statewide classaction suit, filed on behalf ofArizona stateprisoners inJanuary 1990, challenges legalaccess, health care and asSignments to segre­gation. In November 1992, the court heldunconstitutional the state's policies restrictingprisoners' access to the courts. The NinthCircuit Court ofAppeals heard oral argument

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

Printed on Recycled Paper

20 WINTER 1995

in November and on December 27, in aunanimous decision, upheld the trial court'sruling that the Arizona Department ofCorrections denies prisoners access to thecourts. The ruling affirmed virtually all of thetrial court's order, and applies to all 15,000prisoners in the Arizona system. The order,however, will not be implemented until theSupreme Court decides whether to grantreview of the decision because in May 1994the Supreme Court, with four Justices dissent­ing, granted a stay of the trial court decision.

Knop v.johnson-involves fourMichigan prisons. The case was filed in 1984after the original comprehensive consentdecree reached by the Department ofJusticeand the state of Michigan in United States v.Michigan was replaced with a modified five­page, non-enforceable consent decree.The new lawsuit, Knop v. Johnson, raised thesame claims as U.S. v. Michigan as well assome additional ones. In 1992, the SixthCircuit affirmed the trial court's finding of adenial of access to the courts but remandedto the trial court to revise the remedy. In June1993 the defendants filed their legal accessplan which the plaintiffs opposed. In March1994 the district court held oral argument onthe plan. On December 22, 1994JudgeEnslen issued an order rejecting the defen­dants' plan and requiring them to implementa revised plan at the Michigan Reformatoryon a trial basis. After evaluation of the plan atthe Reformatory, it will be ordered imple­mented at all the Knop facilities.

Onishea v. Herring-(originally Harrisv. Thigpen) challenges the AlabamaDepartment of Corrections policy of testingall state prisoners for HIV, segregating allthose who test posit,ive and preventing themfrom taking part ilJ)Nork, educational, recre­ational and other programs available to non­segregated prisoners. The plaintiffs soughtrelief on various constitutional claims andunder §504 of the Rehabilitation Act. In 1991the Eleventh Circuit Court ofAppeals vacatedand remanded the dismissal of plaintiffs'§504 claim challenging this blanket exclu­sion, and the dismissal of the plaintiffs' legalaccess claims. Years of settlement discussionsfinally proved fruitless, and the issues wereretried before Judge Varner in November1994. We are waiting for the court's decision.

Sandin v. Conner-The NPP filed anamicus curiae brief on behalf of the respon­dent in this case before the Supreme Court.Conner, a Hawaii state prisoner, claimed thathe was punished with 30 days of solitary con­finement without an adequate due processhearing after allegedly resisting a strip­search. The Ninth Circuit Court ofAppeals,overturning the trial court's ruling in favor ofprison officials, held that the prisoner had aright not to be arbitrarily subjected to puni­tive segregation. The Supreme Court grantedprison officials' petition for certiorari fromthat decision. Oral argument is scheduled forFebruary 28, 1995.•

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