INSIDE ...
• Case Law Report
Recent Court Decisions
Reviewed

p. 9

• Privatization
Prison Medical Care Contracts
p. 5
Examined
• AIDS Column

States Re-evaluate Policies, Many
Modify............
p. 18

NUMBER 22, WINTER 1990

ISSN 0748-2655

Support Grows for New Trial

Doubts Raised In Virginia
Death Row Prisoner Case
jan Elvin
Capital punishment: the ultimate, the irrevocable penalty. At least 23 people
are believed to have been wrongfully
executed in this country since the turn
of the century, according to an article
published two years ago in the Stanford

Law Review.
Doubts abound regarding the use of
the death penalty, its morality, its constitutionality, and its fairness. But surely
there is one thing upon which all people
will agree: for the state, operating under
"color of law," to take the life of an innocent man or woman, would be a monstrous thing which would ill serve the
cause of justice.
In the case of joseph Michael Giarratano, an innocent man may well be executed, unless the Commonwealth of Virginia reverses its rush towards "finality."
Giarratano is now on Virginia's death
row, having confessed to a crime he
does not remel;l1ber committing, and to
which no physical evidence links him.

moved out around February I, then visited the home a few nights later. He
awakened from a drug and alcohol-induced blackout to discover their dead
bodies. Although Giarratano had no '
memory of having committed the
crimes, in his daze and panic he thought
he must have, and fled to Jacksonville,
Florida.
"While on the bus," he recently recalled, "I remember feeling like I was
going out of my mind. By the time I got
off the bus in jacksonville I had decided I

...4
must have murifered Toni (Barbara) and
Michelle, and turned myself in."
In the following days, Mr. Giarratano
gave five separate, contradictory confessions to police. The confessions are divergent even as to matters such as who
was killed and why, and are also inconsistent with all of the physical evidence.
The state's own psychiatrist testified
that Giarratano lacked actual memory of
the crime, and had "confabulated," or
made up, the details of his confession.
Mr. Giarratano remembers, "They
asked me if I had killed Toni and Michelle, and why. Apparently I gave them
the same statement that I had given to
the jacksonville officer. They told me
that it could not have happened like
that. After further questioning, the Norfolk detective told me that Toni had
been murdered after Michelle, and that
Michelle had been raped; and that my
statement to the Jacksonville officer
could not be right.... After going back
and forth several minutes the detective
began asking me, 'Could it have hap- continued on next page

New evidence has been uncovered in 32-year-old Joe Giarratano's case which could prove his innocence, but so far the Attorney General's office in Virginia has refused to grant a new trial.

Background
Ten years ago joseph Giarratano, then
22 years old, pleaded gUilty to a rape
and the double murder of Barbara Kline
and her teenage daughter in Norfolk,
Virginia. A drug addict and alcoholic, Mr.
Giarratano suffered from frequent blackouts, delusions and hallucinations. A victim of serious child abuse, he was addicted to drugs by age II, and first
attempted suicide at age 15.
joe Giarratano had lived with the
Klines for most of january 1979. He

jan Elvin is editor

of the NPP JOURNAL.
A PROJECT OF THE AMERICAN CIVIL. LIBERTIES UNION FOUNDATION, INC.

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la.
He twice attempted to hang himself
in his hospital detention cell. He waived
a trial by jury, and in August of 1979 he
was convicted at a bench trial which
lasted less than a day. He wanted to be
executed.
"I was convinced," says Joe Giarratano, "that I was evil and had to be punished for what I did. I couldn't sleep, I
couldn't keep food down and all I
wanted to do was die."

Here are excerpts from the editorial pages of newspapers all over Virginia, calling for Attorney General
Mary Sue Terry to grant a retrial:

arulptptr

~tar·1E,*pnntnt

•

The Culpeper Star-Exponent: "As a
newspaper serving the needs of citizens of this state, it is our responsibility to join this groundswell of support
and ask that the Commonwealth of
Virginia grant Joe Giarratano a new
trial based on all the evidence now
available."

...

Potomacflu
• The Potomac News: "It is difficult
to believe that anyone could be sure
beyond a reasonable doubt that
Joseph Giarratano committed the
crimes for which he is scheduled to
die.... Unless Ms. Terry gets to the
truth of this matter, the execution of
Joseph Giarratano will not be justice-it will be murder."
• The Daily Progress: "The honorable thing for the Commonwealth to
do is to quickly move forward with a
new trial. The state's loss of face in
2

WINTER 1990

The Case Against Giarratano
Evidence against him, despite the
confessions, was so scant that the state
offered him a plea bargain of simple life.
He refused-still believing he was
gUilty-and chose instead to rely on an
insanity defense for which he had no evidence, against counsel's advice.
Giarratano's lawyer at trial told the
court his client was competent to stand
trial, thereby waiving the issue for all future proceedings. The same lawyer failed

reversing its rigid position is ludicrously insignificant in comparison to
the execution of a possibly innocent
man."
• Northern Virginia Daily: "The attorney general's office seems less
concerned about justice for Joseph
Giarratano than with folloWing its
procedures for handling appeals of
capital cases."

iirbmon~ itimt~.~tttcb
• James J. Kilpatrick, syndicated columnist: "I have read the record in the
case of Joe Giarratano, and I don't
know. I simply don't know. But I
can't see that any useful public purpose would be served by sending him
to the chair.... I am a neutral observer, not known to be soft on
crime, and 1am filled with reasonable
doubt."
• Esther and Franklin Schmidt, writing in the "Point of View" Section of
The Charlottesville Daily Progress, "Justice demands a new and fair trial for
Joseph Giarratano. All of the evidence
in his case must be considered. It is
not too late to avert the execution
of an innocent man by
procedure." •

ctlon stage. Snook became increasingly
convinced that Giarratano had not been
competent in the original proceedings.
His client's despair continued unabated
over the next several years, and Snook
maintained a constant effort to persuade
him to keep fighting in the courts. Giarratano was nearly executed in 1980
after firing his lawyer and dropping his
appeals; a stay was granted nonetheless.
In 1983, he once again demanded that all
appeals be dropped, coming within hours
of execution before alloWing his attorney to file an appeal on his behalf.
It was at this low point that Mr. Giar~
ratano began to receive counseling
(from outside the prison) and, as a result, decided to fight for his life. For the
first time, he began to reveal the terrible abuse he had suffered as a child, and
how drugs and alcohol had become a
way to escape from his brutal homelife.

A Phoenix from the Ashes
After a number of years on death
THE

J

OF THE

L

NATIONAL PRISON PROJECT
Editor: Jan Elvin
Editorial Asst.: Betsy Bernat
Alvin J. Bronstein, Executive Director
The National Prison Project of the
American Civil Liberties Union Foundation
1616 P Street, N.W.
Washington, D.C. 20036
(202) 331·0500
The National Prison Project is a taX-exempt foundationfunded project of the ACLU Foundation which seeks to strengthen
and protect the rights of adult and juvenile offenders; to improve
overall conditions in correctional facilities by using eXisting administrative. legislative and judicial channels; and to develop al-

ternatives to incarceration.
The reprinting of JOURNAL material is encouraged with the
stipulation that the National Prison Project JOURNAL be credited
with the reprint, and that a copy of the reprint be sent to the
editor.
The JOURNAL is scheduled for publication quarterly by the
National Prison Project. Materials and suggestions are welcome.
The National Prison ProjeetJOURNAL is designed by lames
True. Inc.

Giarratano's case has generated a movement of
citizens, organizations and members of the press
rallying for a new trial. Supporters have set up a
billboard and distributed bumperstickers. Thousands of petitions have been signed asking the
Attorney General of Virginia to grant Joseph Giarratano a new trial.

:orrec:ticmal Center.
ch,LilelngE!d the state of Virginia on
the
of the conditions of
confinement in the maximum security facility, including death row. Giarratano
served as one of the named plaintiffs in
that suit. Elizabeth Alexander, lead attorney for the NPP on the Brown case,
says, "Joe is a model named plaintiff, invaluable in assisting us in explaining legal
options to other prisoners. I'm always
impressed with his comprehensive understanding of legal and tactical issues."
Mr. Giarratano has written and filed
successful petitions on behalf of several
-continued on next poge

Bishop Walter
Sullivan of the Catholic Diocese of
Richmond: "I've
seen Joe grow and
change a lot over
the years-he's very
caring and concerned for others.
There's such a cloud
Bishop Sullivan
of uncertainty surrounding his trial and conviction that
Joe deserves another chance."
Toni V. Bair, regional administrator
for the Virginia Department of Corrections, aQd former warden of the
Mecklenburg Correctional Center,
where Giarratano is held:
"Joe is exceedingly bright, articulate, charismatic, and he is always
honest. He is self-taught. You can
hardly clasSify him as a 'typical' inmate. He is capable of saying, 'I respect you but I disagree,' in a rational
way. My philosophy has always been
to give inmates a rationale for what I
do, yet Joe has on occasion been able
to convince me to take another
route. He acts like an adult. He has
been involved in some things I wish
he hadn't been-like several escape
attempts, but then if I were in his

shoes, I am sure I would have tried
the same thing. And I have never
heard him make threats against, or
talk about hurting, anyone on my
staff.
"The number one reason the death
penalty needs to be abolished, over
and above the other reasons, is that
we have, in this country, put to death
innocent people. No way can we justify that. You can't, then, just say, excuse me, I'm sorry I did that. If Joe is
innocent, to execute him would be a
travesty, not only for Virginia, but for
the nation. Based on what I have
read, what I have been told, there
are enough questions about his gUilt
that I don't see how they can fail to
give him a new trial. I hope they look
at it again, for all our sakes."
Stephen H. Sachs,
former attorney
general of Maryland,
former United
States attorney for
Maryland, and currently a partner at
Wilmer, Cutler &
Pickering, became
.~ acquainted with Joe
Stephen H. Sachs
Giarratano during
his involvement with the Murray v.

Giarratano case: "I have written a letter to the attorney general of Virginia, Mary Sue Terry, asking her to
rethink her position because I believe
there is sufficient ambigUity as to his
gUilt. I say this from the perspective
of a former attorney general who has
argued, in the past, for the constitutionality of Maryland's death penalty.
"Joe is also a remarkable human
being," says Sachs. "As odd as it may
sound, he is a good man. It's just a
fact."
Dorothea B. Morefield, a Virginia
resident whose son was murdered,
along with four co-workers, in a fastfood restaurant in 1976, and whose
diplomat husband was held hostage in
Iran for 444 days: "Why wasn't it obvious that Uoe] was totally incompetent to stand trial? The system
failed-it failed Joe and it failed the
two women who died in that apartment. And if Joe Giarratano is
executed it will have failed us all.
'Tough on crime' seems to be everyone's favorite slogan. Will Virginia kill
Joe Giarratano without knowing if he
is innocent? Those who seek the public trust, those who ask us to vote to
allow them to lead us MUST answer
that question." •
WINTER 1990 3

_ _ _ _ _ _ _ _ _ _ _ _---.J

Newly Discovered Evidence
In 1987, joe's attorneys received;a
large donation, enabling them to cOl'lduct
a thorough re-investigation. Since. Mr.
Giarratano is indigent he previously had
no such funds available to him. The reinvestigation qUickly brought questions
to light about the reliability of the sundry confessions. The first four confessions, they learned, were inconsistent
with every significant detail of the crime.
The fifth confession was made two days
£ later to the Norfolk, Virginia police after
%they had, by their own testimony, disf cussed the facts of the case with the accf: cused. On re-examination of available
~ records, autopsy reports, forensic evi~ dence, and interviews with previously
1;- unavailable witnesses, the lawyers dis~ covered that:
cf:
I. Barbara Kline's stab wounds were
typical of a right-handed person assault"Joe lives his life with integrity," says Gerald T.
ing from behind. Giarratano is leftZerkin, a Richmond attorney who is defending
handed and has a documented neurologiGiarratano, "in an environment designed to
prevent him from doing just that."
cal deficit on his right side.
2. In the autopsy report on the strangulation, the medical examiner first concluded that the cause of Michelle Kline's
-continued from previous page
death was strangulation by ligature. (ligprisoners on death row who had no atature requires tying or binding.) Twenty
torney. His most far-reaching case was
Murray v. Giarratano, a class action which days later he changed his conclusion to
allow for a manual strangulation. In all
traveled all the way to the Supreme
other respects the reports were identiCourt of the United States. In Giarratano, he argued that meaningful access to cal. The only event intervening between
the courts in Virginia required that quali- medical examiner's two reports was the
last confession, in which Mr. Giarratano
fied legal counsel be appointed to represaid he had used his hands. His attorneys
sent death row prisoners during postnow know, from an independent patholconviction appeals. joe Giarratano filed
ogist, that the strangulation was not
that lawsuit to assist others on death
manual.
row, including a prisoner who was
3. Spermatozoa found in the rape vicnearly executed before an attorney was
found at theiast minute to obtain a stay. tim was not identified as that of Mr.
Giarratano.
4. Never mentioned at trial were: fin"This is a new Joe who's come
gerprints found in the apartment which
did not match either the victims' or the
out of the ashes like a
accused's; a driver's license found which
phoenix."
belonged to another man; and the initial
police theory, based on the physical evidence, that the killer was right-handed.
He has become a student not only of
5. A single hair among 10 found near
the law, but of literature, justice and huthe victim was consistent with that of
man rights. The bookshelf in his cell
Mr. Giarratano, but it was not identified
holds works by Dostoevski, Ghandi, Caas his, nor was it even tested against the
mus, Aristotle, Goethe, and Strunk &
victim's own hair (the single hair is
White's The Elements of Style.
hardly significant given that Mr. GiarraAccording to Marie Deans, executive
director of the Virginia Coalition on jails tano lived in the apartment).
and Prisons, "The man they convicted is
6. There is evidence of fraud in the
presentence investigation report. The
long since dead and gone. This is a new
4

WINTER 1990

,
c aimed a history of violence. That
has been proven to be false; the real picture reveals that the violence in his life
originated from his mother towards him,
and his resulting violence towards himself. The pros~fution's most damaging
documents and! exhibits offered at sentencing were?either misrepresented by
the prosecution or forged by others.

Giarratano gave five separate,
contradictory confessions to
police.
7. Drops of blood were found on Mr.
Giarratano's boots. Crime-scene photos
were introduced to the court showing
bloody shoe prints, creating the impression that his boots made the prints. The
state's forensic expert has stated in a
sworn affidavit, however, that tests she
performed at the time eliminated that·
possibility. In addition, the blood on Mr.
Giarratano's boot was type 0, the same
as that of the strangulation victim. Blood
from the stabbing victim was never
typed; the state claimed that it was too
decomposed to be typed. Experts, including the state's own forensic expert,
now dispute that claim.
An affidavit from the arresting officer
now states that Mr. Giarratano had no
blood, bruises, or scratches on him at
time of arrest, offering further evidence
that the blood on the boots did not
come from the crime scene.
8. New evidence demonstrates that
Mr. Giarratano was unable to adequately
assist his counsel due to his mental
incompetence.
9. Evidence strongly suggests the
identity of another person who knew
the victims well, and who had a history
of sexually abusing women (including
rape of young girls) as well as other
types of violence.
10. A videotape of the crime scene
that was introduced into evidence has
now disappeared from the court file.
In short, the only probative evidence
the Commonwealth had against joseph
Giarratano were the five confessions. As
conservative syndicated columnist james
j. Kilpatrick pointed out, "Without these
the Commonwealth had no case. The
confessions were sharply contradictory
in important respects, suggesting that
the accused yielded to police
persuasion."

Current Status
Lawyers for Mr. Giarratano have
asked the Virginia attorney general's office to allow them to see the forensic
file, the police investigation file, pictures
of the crime scene, and a box of physical
evidence they have located. Without the
Attorney General's approval, they are
unable to see any of that material. She
has so far refused. It is now known that
many items from the crime scene as well
as joe Giarratano's personal belongings
were never tested or examined.
Unfortunately, it is very possible that
no court will ever consider the merits of
Mr. Giarratano's claims of competence,
let alone innocence. Virginia, unlike
every other death penalty state, does
not make exceptions to its contemporaneous objection or other procedural default rules, even in death cases. Such
rules prevent issues from being raised
which were not raised at the original
trial. It is not even clear that Virginia has
any procedure by which newly discovered evidence can be presented to a
court. The Attorney General consistently relies on these procedural rules to
prevent consideration of valid legal
claims, and most likely will rely on them
to prevent consideration of Mr. Giarratano's claims of innocence and governmental misconduct.
Giarratano's lawyers filed a 30-page
Motion for Relief from judgment detailing all these matters. In the Motion, they
stated, "In fact, petitioner has used great
diligence in attempting to develop the
facts presented herein. Unfortunately,
the investigation has required the efforts
of private investigators in both Florida
and Virginia and the retention of experts
to analyze some of that evidence. . ..
None of this was possible without substantial financial resources, which were
only first available to petitioner for the
Norfolk investigation in late October of
1988. Only then could petitioner begin
to put together the puzzle, step by step,
that has resulted in the discreditation of
the entire case against petitioner. The
fact that petitioner, had he earlier had
the resources presently available to him,
might have discovered some of this evidence, does not mean that his Rule
60(b) motion should be denied."
The U.S. District Court denied the
Motion, saying that Giarratano's attorneys were guilty of not exercising due
diligence, in that they should have found
and presented this evidence within a
year of the trial.
"At some point," wrote the court,
"litigation must end."
In October 1989 the Fourth Circuit
Court of Appeals heard oral argument
on the habeas corpus and Rule 60(b)
claims. Giarratano argued that: I) he had

Can Contract Care Cure Prison
Health Ailments?
Elizabeth Alexander

§,

,;;t

One of the favorite ideas of the Reagartr
years was that social problems could bf"
solved by turning over public govern::(~· "
mental functions to the private ente~1
prise system, and prisons were consid~
ered among the prime candidates· (or
privatization. While the vogue forprivatization of prisons has somewhat diminished, it has made real inroads in the
provision of prison medical services. Indeed, several prison systems, including
Alabama, Delaware, Georgia, and Kansas,
now have their prison medical care entirely provided by contract with private
care providers.
On the one hand, those favoring contracting medical services argue that such
services are more likely to provide adequate care than traditional prison health
care, which has a dismal reputation and
has been isolated from community standards. In addition, contracting medical
care has the serendipitous benefit of underlining the separation between medical
and custody functions, so that custody
staff may be less able to interfere with
medical judgment.
On the other hand, privatization of
prison medical care raises some of the
same issues that are raised by prison privatization generally. Will prisoners'

Elizabeth Alexander is chief staff counsel

of the National Prison Project.

been incompetent to stand trial, 2) the
prosecution's introduction of Giarratano's self-incriminating testimony during
the sentencing phase of the trial violated
his Fifth Amendment rights, 3) there
were not enough aggravating circumstances to sustain a capital sentence and,
finally, the "sentencer" wrongfully used
mitigating evidence as aggravating evidence. The Court of Appeals upheld the
district court's denial of relief on each of
these counts, determining that the district court had applied the correct standards of review and had operated within
its discretion.

The Pursuit of Justice
Those of us who have come to know
joe Giarratano care for him very much.
He is kind, thoughtful, and intelligent.
Mr. Giarratano and his attorneys
deserve a chance to present the new
evidence in his case. Giarratano has
talented and dedicated attorneys who,
thanks to the financial support of a Ger-

•

Will prisoners' rights to adequate
services be compromised by the
profit motive?

rights to adeq1l''M.e services be compromised by the profit motive? Certainly
the experience so far with general
prison privatization experiments is not,
on the whole, encouraging. I

Legal Liability
Another concern is that privatization
will confuse the issue of legal liability for
constitutionally inadequate care. Will
both the governmental unit and the private contractor be liable if constitutional
rights are violated? Indeed, there is
some evidence that at least some of the
interest in contracting out medical care
has been generated by the hope that th~
governmental unit could avoid legal liability by so doing. A 1986 study of con-continued on next page
I See Note, "Inmate Rights and the Privatization of
Prisons," 86 Columbia Law Review 1475, 1498-1499
( 1986); see also Levine, "Private Prison Planned on
Toxic Waste Site," NPP JOURNAL, No.5, Fall,
(1985), p. 10; and Elvin, "Private Prison Plans
Dropped by Buckingham," NPP JOURNAL, No.6,
Winter, (1985), p. II.

man citizen, are taking his case as far as
they are able. He now has only the U.S.
Supreme Court left in which to seek relief. If denied in the Supreme Court, his
execution could be scheduled by early
1990. Then we may never know
whether joseph Giarratano is innocent
or guilty. And if we do find out, it may
be too late. II
Editor's Note: If you agree that joseph
Giarratano should be granted a new
trial, write to the Virginia officials with
the power to do that:
Attorney General Mary Sue Terry
State Capitol· Bldg.
Richmond, VA 23219
The Hon. Douglas Wilder
State Capitol
Richmond, VA 23219
It is important to make your views
known-now-to Attorney General
Terry and Governor Wilder. Time may
be running out for joseph Giarratano.
WINTER 1990

5

-continued from previous page

tract medical care in Maryland, commissioned by the Maryland legislature,
concluded that the apparent motive for
switching to contract medical care was
to attempt to avoid state liability for inadequate care. Significantly, the study
also severely criticized the performance
of the contract health system. 2

•

Contract health providers continue
to merit close scrutiny.

The concern that departments of correction might be persuaded to contract
out medical care in order to deprive
prisoners of a legal remedy for constitutionally inadequate medical care was substantially alleviated by the Supreme
Court decision West v. Atkins. 3 In that
case, the Supreme Court held that medical care providers, whether direct government employees or operating under
contract, are subject to suit in federal
court for medical care that fails to meet
constitutional standards. West is an important case because it removes the
temptation for a state or other governmental unit to shift to contract medical
care providers for the illegitimate purpose of attempting to avoid legal responsibility for inadequate medical care.
Quality of Care

The resolution of the legal issue in
West allows a focus on the fundamental
issue: Are contractual medical care providers likely to be better or worse than
health care programs operated directly
by a department of corrections? There is
no clear-cut answer to this question, and
even those who oppose total privatization of prisons do not issue blanket condemnations of contract medical care for
prisoners. For example, the resolution of
the American Bar Association supporting
a moratorium on prison privatization
specifically ~empted privatization of
specific services, including medical services, offered to prisoners. 4 Similarly, the
American Civil Liberties Union's opposition to prison privatization mentions
only the "delegation of control and custody of prisoners to private entities."s
Some contract medical care providers
have been the subject of litigation charging inadequate medical care. The Na2NKC Management, Evaluation of the State of Maryland's Medical Services Program for Inmates, (November, 1986), pp. 3-5, 19,32,99, III.
3108 S.Ct. 2250 (1988).
'See Robbins, The Legal Dimensions of Private Incarceration, (American Bar Association, 1988), p. iv.
sSee Policy Guide of the American Civil Liberties
Union, Policy #243, p. 309.

6

WINTER 1990

Contract medical care for prisoners is more widely accepted than other privatization efforts.

tional Prison Project has twice been involved with litigation challenging the
quality of the health care provided by
state-wide contract providers. In Delaware, the state defendants settled a totality of conditions lawsuit in a consent
decree that, among other provisions,
provided for major increases in medical
staffing and services. 6 In Alabama, the
National Prison Project is currently challenging the contract care provider's
treatment of HIV-positive prisoners. 7
However, the term contract care
provider encompasses a wide range of
organizations. Some of the organizations
involved in contract medical care are
nonprofit medical groups. For example,
Montefiore Hospital, a nonprofit hospital
"Dickerson v. Castle, c.A. No. 10256 (Delaware
Chancery Court).

7Harris v. Thigpen, 87-V-1109-N (M.D. Ala.)

in New York City, provides medical
care for the Riker's Island Jail under contract. The medical care is accredited by
the Joint Commission on Accreditation
of Health Organizations aCAHO), the
same organization that accredits community hospitals. It is virtually the only
prison health care program to be so accredited, and the Montefiore program is
widely considered among the very best
in correctional medicine.
Professional Opinions Vary

Beyond the special case of the nonprofit medical care providers who contract for prison or jail health care, Dr.
Ronald Shansky, medical director for the
Illinois Department of Corrections, identifies three attitudes common among
those who favor contracting medical
care: I) a hope that civil service rules
and governmental bureaucracies, which

J!

interfere with patient care and often
hinder recruitment, can be circumvented
by contracting out work; 2) a belief that
governmental bureaucracy is intrinsically
bad; and 3) a hope that money can be
saved by turning to private enterprise.
Dr. Shansky suggests that the first
reason is a realistic concern. In some jurisdictions, civil service limits upon salaries for doctors and other skilled medical
staff undermine staff recruitment and retention efforts. Dr. Shansky also believes, however, that the assumption
that money will be saved is frequently
not justified. If costs are reduced, it is
because the quality of care has been
compromised, not because of intrinsic
efficiencies in private medical care
providers.
Nancy Dubler, an expert in legal issues related to correctional health care,
agrees with Dr. Shansky's analysis. She is
particularly troubled because the contract care providers with which she is
familiar have been unwilling to open
their books for public scrutiny. Without
such scrutiny, she is skeptical that profits
result from economic efficiencies rather
than reductions in the quality and quantity of services. On the other hand, she
applauds Dr. Shansky's success in Illinois
in offering model health care through a
judicious combination of public employee
and specific, limited health care contracts. She argues that his success proves
that contracts can increase flexibility and
can be used to produce quality health
care as long as the contract is carefully
drawn and monitored.
At the November 1989, National
Conference on Correctional Health
Care, health care consultant Robert
McGuirk also noted both potential advantages and disadvantages from contracting out medical care. He argues
that, in fact, in-house medical care is potentially less expensive than contractual
medical care, although contracting out
medical care can improve risk management. Because contracts for medical care
typically provide for increased payments
if prisoner pOR,ulations increase, contract
care providers may also be better able
to respond to skyrocketing overcrowding than in-house medical programs contained by yearly budgets. At the same
time, McGuirk points out that it is critically important to protect against potential corporate instability among potential
contractors.
Dr. B.J. Anno, of the Commission on
Correctional Health Care, which accredits prison and jail health care facilities, offers another perspective. Approximately one quarter to one third of the
facilities that the Commission is requested to evaluate are contract care
providers. She believes that this is a significantly higher percentage than the

Status Report: State Prisons
and The Courts
Compiled by Julia Cade, National Prison
Project, January 1990

~
.~',

Forty-one states (plus D.C., Puerto """
Rico and the Virgin Islands) are under /t
court order or consent decree to limjf"
population and/or improve conditions,,:ln
either the entire state system or mal¢J'
facilities. (Thirty-three states are under
court order or consent decree for overcrowding and conditions while eight
states are under court order or consent
decree for conditions only). Only five
states have never been involved in some
type of litigation challenging overcrowding and/or conditions in their prisons.
The following list spells out the status of
each state's involvement.
*Asterisks indicate states/jurisdictions
where the ACLU has been involved in
the litigation.
I. Alabama:* The entire state
prison system was under court order
dealing with total conditions and overcrowding. Pugh v. Locke, 406 F.Supp. 318
(M.D. Ala. 1976), aff'd in substance,

Julia Cade is a paralegal and public information assistant at the Prison Project.
overall percentage of correctional health
care provided under contract. This fact
tends to support the argument in favor
of contract providers because, as Dr.
Anno notes, "we tend not to see the
bad systems" in the accreditation process. The Commission is neutral on the
issue, and she believes that contract care
providers are, overall, as good as the
other health care providers that the
Commission reviews.

•

But too often, the existence of appropriate policies on paper may not
translate into quality health care.

All of this suggests that people interested in quality health care in prisons
and jails should not adopt a position of
inflexible opposition to contract health
care providers. Under the right circumstances, when bureaucratic rigidity
would otherwise interfere with the delivery of health care, and when the public entity keeps a close eye on contract
provisions and performance, contract
health care prOViders can help produce
quality health care.

Safeguards Can Be Built In
McGuirk suggests that if a faCility

Newman v. Alabama, 559 F.2d 283 (5th
Cir. 1977), cert. denied, 98 S.Ct. 3057
(1978); Receiver appointed, 466 F.Supp.
628 (M.D. Ala. 1979). The district court
entered an order establishing a four-person committee
monitor compliance
with previous o~ders (1/ I3/83). In December 1984, .district court relinquished
active supervision after agreement of
substantial compliance by the parties.
The court dismissed the case in December 1988.
2. Alaska:* The entire state prison
system is under a consent decree and a
court order dealing with overcrowding
and total conditions of confinement.
Cleary v. Smith, No. 3AN-81-5274 (Superior Court for the State of Alaska,
3rd Jud.Dist., March 3, 1986). A partial
settlement was obtained in October
1989. The court appointed a monitor
for two years as part of the settlement.
3. Arizona:* The state penitentiary
is being operated under a series of court
orders and consent decrees dealing with

,0

.

- continued on next page

chooses to provide medical care by contract, it is critical that appropriate safeguards be built into the contract. Among
other protections, the facility must require the contractor to file a performance bond and to achieve accreditation.
In addition, the facility must develop a
contract termination strategy and policy,
appoint a contract monitor, and limit the
contract to a reasonable period of time.
Contract health care prOViders continue to merit close scrutiny. In comparison to a prison that offers no organized
health care, contract prOViders tend to
put basic protocols and organization in
place. They generally use only licensed
staff, and at least develop a paper plan
for the delivery of health care. But too
often, the existence of appropriate policies on paper may not translate into
quality health care. As happens with traditional prison health care, too often the
only criteria for filling physician positions
will be that the candidate is licensed and
still breathing. No matter how good a
contract care system, or any other system, looks on paper, it must be evaluated in practice, particularly as it responds to medically difficult cases, before
we can determine that it prOVides adequate health care. liliiii

WINTER 1990

7

." ~.

~

"N\'{ CDfff.l \~COLO!,,,
- continued from previous page

overcrowding, classification, and other
conditions. Orders, August 1977-1979,
Harris v. Cardwell, CA. No. 75-185
PHX-CAM (D. Ariz.). A special maximum security unit was operating under a
consent decree with an appointed monitor. Black v. Ricketts, CA. No. 84-1 I I
PHX-CAM, consent decree, December
12, 1985. The maximum security unit
was found to be in full compliance with
the consent decree and the case was dismissed in February 1988.
4. Arkansas:* The entire state
prison system was under court order
dealing with total conditions. Finney v.
Arkansas Board of Corrections, 505 F.2d
194 (8th Cir. 1974). Special Master appointed, Finney v. Mabry, 458 F.Supp.
720 (E.D. Ark. 1978); on compliance,
546 F.Supp. 628. After a finding of full
compliance, the federal court relinqUished jurisdiction in August 1982.
5. California:* The state penitentiary at San Quentin is under court order on overcrowding and conditions.
Wilson v. Deukmejian, # I03454 Superior
Court, Marin County (Aug. 5, 1983).
Order includes requirement that a Special Master be appointed. Decision overturned on appeal. The segregation units
at San Quentin, Folsom, Soledad and
8 WINTER 1990

~

.

GEr tAt AAt\CW ~WltRU"

Deuel are under court order because of
overcrowding and conditions. Toussaint
v. Rushen, 553 F.Supp. 1365, affd in part,
722 F.2d 1490 (9th Cir. 1984). Also see
Toussaint v. McCarthy, 597 F.Supp. 1388
(N.D. Cal. 1984), entering permanent
relief. Later opinion at 80 I F.2d 1080,
40 Cr.L. 2066 (9th Cir. 1986). Two
units at Soledad (Central and North)
were held to be unconstitutional but the
injunction was stayed pending appeal. In
re Daily and In re Rock (Sup. Ct. Monterey). Decision overturned on appeal.
The California Men's Colony is under a
court order establishing population limits. Dohner v. McCarthy, 635 F.Supp. 408
(CD. Cal. 1985). The California Institute
for Men Reception Centers are operating under a settlement agreement providing for improved sanitation, classification, legal access and other conditions.
Boyden v. Rowland, CV-86-1989-HLH. In
addition, there is pending litigation at
the California Medical Facility, San Luis
Obispo, and the Women's Prison at
Frontera.
6. Colorado:* The state maximum
security penitentiary is under court order on total conditions and overcrowding. Ramos v. Lamm, 485 F.Supp. 122 (D.
Col. 1979), affd in part and remanded,
639 F.2d 559 (10th Cir. 9/25/80), cert.

denied, 101 S.Ct. 1259 (1981), on remand, 520 F.Supp. 1059 (D. Col. 1981).
Since the last reported opinion the parties have reached a series of six different
consent decrees during the compliance
stage. The various decrees were directed toward general conditions and
specific areas, such as legal access, double bunking, treatment of HIV prisoners.
7. Connecticut:* The Hartford
Correctional Center operated by the
state is under court order dealing with
overcrowding and some conditions. Lareau v. Manson, 507 F.Supp. I 177 (D.
Conn. 1980), affd, 651 F.2d 96 (2nd Cir.
1981). Additional facilities under consent
decree: Bridgeport Correctional Center,
Mawhinney v. Manson, #B78-251 (D.
Conn. 1982), and New Haven Correctional Center, Andrews v. Manson,
#N81-20 (D. Conn. 1982), Morgan
Street Correctional Center, Union Avenue Correctional Center. There is pending overcrowding litigation at Somers,
Bartkus v. Manson, Civ. No. H-80-506,
and at the Montville Correctional Center, Foss v. Lopes. Niantic Women's
Prison is under a court order, West v.
Manson, #H-83-366 (D. Conn. 10/3/84).
8. Delaware:* All major Delaware
prisons are now under a consent decree
- continued on page fourteen

o

o

o

IIIGIRIGHTS OF MOST
IMPORTANT CAsES
Introduction
Despite ten years of Supreme Court decisions
favoring prison officials, grossly deficient conditions will still result in massive intervention by
federal courts. That is the message of several recent district court decisions.
In Tillery v. Owens, 719 F.Supp. 1256
(W.D.Pa. 1989), the court described the State
Correctional Institution at Pittsburgh as unconstitutional in "nearly every aspect" and as an
"overcrowded, unsanitary, and understaffed fire
trap." (1259) It held that double ceiling in cells
of 56 and 39 square feet is unconstitutional, and
that even single ceiling in them is unconstitutional for prisoners serving long sentences under
conditions that included inadequate ventilation,
lighting, sanitation, and showers; lock-in times of
13 to 22 hours a day; inadequate single cells to
accommodate inmates with medical, psychological, or emotional problems; and no prospect of
improvement without court intervention. Prison
officials were directed to devise a plan to replace the substandard housing areas within a reasonable time and meanwhile, to prOVide enough
staff to utilize several tiers that had been left vacant, aggravating crowding elsewhere. The court
observed, "This will undoubtedly mean a reduction in SCIP inmates at least during the renovation." (1274)
The court also found that the prison's failure
to provide for inmates' physical safety violated
the Eighth Amendment. The risk of inmate assault was found unconstitutional, and prison offi.cials displayed deliberate indifference in failing
to search inmates leaVing the industries building,
where weapons were commonly made, to provide adequate staffing (no more than one to 100
in housing areas), and to monitor shower areas,
and in permitting different classifications (including protective custody and disciplinary segregation) to shower and exercise together. The court
reached this conclusion although the number of
official reports of violence was not enormous
(69 to 138 assaults and 30 to 65 disciplinary
charges for assault a year in a population of
1800); it conduded that the actual number was
much larger, with many inmates failing to report
assaults at all or telling medical personnel that
they had been hurt accidentally or did not know
how they were injured. The court also held that
there was an unconstitutional risk of fire caused
by the absence of fire barriers, fife alarms, stand
pipes, smoke alarms, sprinklers, or smoke exhaust systems, combined with the high concentration of combustibles, the large numbers of inmates, and the small numbers of guards at the
prison. In the court's view, it need not wait for a
"major tragedy caused by fire" to order these
conditions remedied.
The court also condemned the prison's inadequate medical care, citing intake physical examinations conducted in wee minutes by a physician known among the inmates as "Doctor No
Touch"; inflfmary rounds that took no more than

a minute per patient, involved no inquiry into
symptoms, were not recorded and did not include psychiatric patients; "cursory" sick call, or
sick call conducted under conditions where "the
noise level prevents the doctor from informing
himself of the inmates' complaints"; and delays
of up to a year in the provision of dental ser- •
vices. The fundamental deficiency in medical ~:
care was inadequate staffing, which the court'i;~
held constituted deliberate indifference in its.@':
Prison officials were directed to "consider" hif- ,
ing one full-time physician and three registefed
nurses immediately, to "retire" the inmate"records clerk and replace him with at least one' civilian, and to employ a full-time medical,director
to deal with quality assurance, record-keeping,
evaluation of services, protocols, inservice education, and budgetary matters. They were required to provide dermatological and cardiological services. Medications were to be dispensed
only by licensed physicians and nurses. Defendants are "expect[edl" to devise an AIDS protocol.
"When prison officials have refused even to recognize that such a problem exists, the court is
well within its province to intervene." (1309)
The court found the prison's mental health
services equally inadequate, citing evidence of
delays in responding to requests for psychiatric
consultations, inadequate record-keeping that restricts treatment and follow- up care, the use of
professionals' time to do clerical work, and the
failure to provide adequate staff. In addition, the
defendants' failure to "maintain an environment
conducive to treatment of serious mental illness"
was unconstitutional. Specifically, the court held
that the Constitution requires establishment of a
separate unit for the severely mentally ill rather
than leaving them in general population; their irrational behavior "increase[s] tension for psychologically normal inmates" and "invites retaliation
from impatient and stronger inmates." (1303)
The court also condemned psychiatric isolation
cells that smelled so bad that it did not inspect
them during its tour of the prison; these cells
may only be used if food is removed promptly
after meals, the inmates are showered "as often
as acceptable standards of hygiene dictate" and
the cells are washed daily or more often.
The court directed the submission of an overall remedial plan by defendants, but some improvements were required immediately. Amonitor is to be appointed at the defendants'
expense. The court also observed, in words that
will no doubt haunt it later, "Having spent much
of the last 13 years dealing with the Allegheny
County Jail, we are not inclined to want to supervise SCIP for the next 13 years." (1309)
The orders that are effective immediately are
being appealed.
In Inmates of Occoquan v. Barry, 717 F.Supp.
854 (D.D.C. 1989), the court adhered to its finding of an Eighth Amendment violation at part of
the District of Columbia's Lorton Correctional
Complex and directed the defendants to submit
a remedial plan. The court cited filthy conditions, defective plumbing, "nonexistent" ventilation, exposed electrical wiring, and multiple fife
safety deficiencies. With respect to sanitation, it
observed, "No human being should be required
to frequent bathrooms with slime oozing down
the walls, stalactites hanging from the ceiling,
thick soap scum on the walls and floors, and
sewer water dripping into toilets." It rejected

lAw
=Kf

NATIONAL PRISON PROJECT

By John B~on, a staff attorney at the
Prisoners' }Jights Project, Legal Aid
SoCIety of New York

prison officials' efforts to blame these conditions
on inmates' failure to apply "elbow grease."
"Without cleaning supplies, proper plumbing
maintenance and adequate bathroom facilities,
inmates are without recourse." (866-67) In the
area of personal safety, the court found that
housing protective custody inmates in the same
housing areas as punitive segregation inmates violated the Eighth Amendment; it also required
documentation of asbestos removal in certain
housing units before they are renovated.
Medical and mental health care at Occoquan
also were found unconstitutional. The court condemned the failure to reliably screen new inmates for syphilis, tuberculosis, and mental
health problems; lack of a follow-up system for'
inmates with chronic diseases, especially diabetes; delays of months for appointments at specialty clinics; incomplete, lost and disorganized
medical records; sick call procedures that permitted Medical Technical Assistants to diagnose
and to dispense medications without proper supervision; lack of medical and mental health
staffing; and delays in dental treatment. The
court also forbade the housing of inmates with
mental health problems in the administrative/punitive segregation area.
The court directed prison officials to submit a
remedial plan. However, it held that because of
prior rulings by the Court of Appeals, it would
not impose a population cap, despite its view
that overcrowding was the cause of the problems at Occoquan. It did not say what it would
do if the problems prove insoluble without a
population cap.
Conditions in the grossly overcrowded Fulton
County (Georgia) Jail, already subject to a consent judgment, were found to violate the Eighth
Amendment in Fambro v. Fulton County, Ga.,
713 F.Supp. 1426 (N.D.Ga. 1989). There were
400 people sleeping on the floor, resulting in inadequate surveillance and breakdowns in classification. The court also cited backlogs of intake
screening examinations that subjected inmates to
a "substantial hazard for the unnecessary transmission of serious or lethal communicable diseases"; wee-day waits for medication that
placed inmates like diabetics and epileptics "in
risk of serious bodily injury or death by the
shortcomings of the medical delivery system";
delays of Wee weeks or more in provision of
dental services; disorganized and incomplete
medical records; food prepared in unsanitary surroundings; and' inmates' "being required to live
and sleep in and around seeping sewerage and in
WINTER 1990

9

warm dark places which are not regularly and
adequately cleaned, lit or ventilated."
This court did not stay its remedial hand. Noting that a population cap had already been set
and fines of $10,000 to $40,000 a day for years
had already been imposed without success, the
Sheriff was directed first to comply with the cap
by releasing those held for more than 120 days,
then misdemeanants, then felons, in order of
length of confinement. The local courts were
given a limited veto power over the release of
individuals whom they consider particularly
inappropriate.
In another county jail case, the court was so
appalled by the "dangerous, squalid and scandalous conditions" of confinement that it rejected a
proposed settlement because much of the relief
would be postponed for two or three months. In
Rogers v. Etowah County, 717 F.Supp. 778
(N.D.Ala. 1989), the court had conducted a hearing on a motion for a preliminary injunction before the settlement discussions; it directed the
defendants to show cause why the proposed settlement (which included a population cap)
should not be implemented immediately as an
order of the court. In the jail, numerous defective cell locks had been replaced by chains and
padlocks that would have to be unlocked by
hand in case of fire; there was so little staff that
the inmates had to notify jailers of emergencies
like suicide attempts or medical problems by
banging on pipes; inmates were confined to their
cells 24 hours a day; some cells were quadruple
bunked with many inmates sleeping on the floor;
sanitation, light, heating and ventilation were all
grossly deficient.

Clothing
The basic right to clothing has become less
basic in two recent Eighth Circuit decisions. In
Green v. Baron, 879 F.2d 305 (8th Cir. 1989),
the plaintiff was committed to a psychiatric facility, apparently because he was deemed incompetent to stand trial. Because he was "argumentative, defiant, and basically ungovernable," he was
placed for several weeks in a behavior modification program in which he had to "earn" a blanket, mattress, and hot meals, and was deprived of
all clothing except his underwear when he was
in his cell.
Ajury exonerated the defendant officials but
the trial court entered judgment notwithstanding
the verdict. In effect, it held that the deprivation
of clothing was unconstitutional as a matter of
law. The appellate oourt ruled that the case was
not so simple (at 309): "We recognize that generally governmental authorities cannot deny
basic human necessities to persons in custody.
... [T]his court has not adopted an unconditional
prohibition against deprivations of necessities.
Rather, we consider several factors in determining the constitutionality of deprivations, including the degree and duration of the deprivations,
the reason for the deprivations, and other surrounding circumstances."
Here, the court held, making the plaintiff competent to participate in his trial was a legitimate
objective. Other "factors" and "surrounding circumstances" included the fact that the defendants had tried all other options first; medical
personnel had designed and implemented the
program; the plaintiff was not endangered; his
cell was kept warm; he was not deprived of bed10 WINTER 1990

tablished by 1980. It relied on the 1979
ding for long; he had access to toilet, shower
Supreme Court decision in Bell v. Wolfish,
and meals. In addition, at a new trial to be conwhich upheld a restriction on hardcover books
ducted pursuant to the appellate decision, the
lower court was told it should admit evidence of
only because prisoners were permitted to obtain
them from their publishers. At 446: "The broad
the plaintiffs condition before and after the
teachings of Wolfish and of Kincaid [v. Rusk]
treatment.
In Rodgers v. Thomas, 879 F.2d 380 (8th Cir.
~, are that the courts must be protective of the
1989), there was no pretense of a mental health
~ First Amendment rights of pretrial detainees. Derationale. The plaintiff was charged with a disci- ' \ fendants did not balance those rights with its
[sic] policy of preventing smuggled contraband."
plinary offense and placed in an isolation cell,
stripped to his underwear, for five days before
(Citations omitted.)
his disciplinary hearing. The plaintiff "was not a}>'
Disabled
security risk, displayed no suicidal tendency, ani1~
An Arizona federal court has taken a step tohad not exhibited uncontrollable behavior," and~
ward clarifying priso~officials' obligations under
the deprivation of clothing "served no justifiaple
the federal Rehabilitation Act. In Bonner v. Aripenological objective and was a punitive meazona Dept. of Corre'llions, 714 F.Supp. 420, 425sure." However, the court held that this treat26 (D.Ariz. 1989), the plaintiff-deaf, mute, and
ment was not cruel and unusual punishment besuffering from a progressive vision loss-sought
cause the other conditions of confinement were
the services of a qualified interpreter, alleging
humane and sanitary and the plaintiff "fail[ed] to
that unskilled inmate interpreters and a telecompresent evidence of pain." (385)
munications device provided by the prison did
not permit him to communicate adequately. The
Publications
court held that prison officials were subject to a
Afederal appeals court has upheld prison offistiff standard of proof: to show that there was no
cials' denial to a prisoner of a membership applidiscrimination, and therefore no Rehabilitation
cation and a membership bulletin from the
Act violation, they would have to show that the
North American ManIBoy Love Association. Harplaintiff could "effectively communicate without
per v. Wallingford, 877 F.2d 728 (9th Cir.
the use of a qualified interpreter, and adequate
1989), appears to be the first major applicacommunication is achieved through use of the
tion of the Supreme Court's 1989 decision in
telecommunications device and inmate interpretThornburgh v. Abbott setting constitutional staners." (423)
dards for prison literature censorship. The court
The court also ruled in the plaintiffs favor on
was careful to note the limits of its holding,
the question whether the Civil Rights Restorastating that "our focus is whether the receipt of
tion Act should be applied retroactively. The
NAMBLA material by the petitioner poses a
Civil Rights Restoration Act established the printhreat of violence, a security threat to the prison,
ciple that there need be no "nexus" between
or a threat to another legitimate penological infederal funding and the particular state program
terest. Merely advocating homosexual activity is
in which discrimination is alleged in order to
not a sufficient basis for a ban." (733) In ruling
prove a violation of statutes like the Rehabilitafor prison officials, the court cited the superintion Act. As long as the government agency intendent's affidavit stating that the materials in
volved receives any federal funds, it is required
question could lead to violence by and against
to avoid discrimination in all of its activities, and
recipients and could impair the rehabilitation of
this principle applies to all cases pending when
some prisoners. The plaintiff, by contrast, was
the Restoration Act was passed.
"unable to effectively raise an issue of fact about
Afederal appeals court has held that a pristhe security threat posed by the material." (The
oner suffering from a correctable disability is enplaintiff was proceeding pro se and it appears
titled to have it corrected. In effect, the decision
that his response was perfunctory.)
Similarly, the Fifth Circuit has upheld the demeans that a "substantial disability" is a serious
nial to a prisoner of The Satanic Bible, The Samedical need for purposes of applying the contanic Book ofRituals, and a Satanic medallion.
stitutional deliberate indifference standard to
In McCorkle v. johnson, 881 F.2d 993 (11th Cir.
prison medical care. The plaintiff injohnson v.
1989), the court did not write its own opinion,
Bowers, 884 F.2d 1053 (8th Cir. 1989), susmerely adopting the district court opinion,
tained a partial disability of his arm in a 1978
which was decided before Abbott. The lower
stabbing incident. Corrective surgery was recomcourt cited "the violence inherent in Satan wormended in 1980. The court refused to disturb a
ship" and "the potential disorder that it might
jury verdict denying damages to the plaintiff, but
cause within the prison." Satanic rituals involve
directed the trial court to enter an injunction rewrist-slashing, blood-drinking, and cannibalism,
quiring the surgery to be done "forthwith." The
not to mention the sacrifice of female virgins
prison doctor had recommended surgery, the
(preferably Christian) and the use of candles
denial of it would result in a permanent handimade from the fat of unbaptized infants.
cap, and the nine-year delay since the original
Prison officials may still be held liable in damrecommendation suggested deliberate indifferages for overly broad restrictions on reading maence. The court was not impressed by the arguterial, according to jackson v. Elrod, 881 F.2d
ment that the surgery was classified medically as
441 (7th Cir. 1989). In that case, a long-term
"elective." That label "does not abrogate the
pre-trial detainee was denied the right to receive
prison's duty, or power, to promptly provide
hardcover books, even from the publisher, even
necessary medical treatment for prisoners....
though he had no other source for literature adThe record indicates that Johnson suffers subdressing his alcohol problem, and even though
stantial disability from this injUry which oche had offered to accept the books with the covcurred in a prison setting. No sufficient reason
ers removed. The court held that this action vioexists at this time for further delaying surgical
lated constitutional rights that were clearly escorrection."

OTHER CASES WORTH
NOTING
U.S. SUPREME COURT
Protection from Inmate Assault/Cruel and
Unusual Punishment
Dudley v. Stubbs, 489 US. _, 103 L.Ed.2d 230
(1989) (O'Connor, J" dissenting from denial of certiorari). The Whitley v. Albers standard of "wanton
and sadistic infliction of pain" should have been applied to a case in which prison guards stood by and
watched a prisoner being assaulted by a gang of
other prisoners since a split-second decision had to
be made and a single door stood between armed assailants and the prison arsenal and offices. At 234:
"Application of the deliberate indifference standard
in a setting like this one essentially renders prison
officials strictly liable for putting the security of the
prison and the lives of all its inhabitants before the
physical security of one inmate."

Attorneys' Fees
Texas State Teachers Association v. Garland Independent School District, 489 US._, 103
L.Ed.2d 866 (1989). At 877: A"prevailing" civil
rights plaintiff for attorneys' fees purposes is one
who has "succeeded on 'any significant issue in litigation which achieve[d] some of the benefit the parties sought in bringing suit'.... [T]he plaintiff must
be able to point to a resolution of the dispute which
changes the legal relationship between itself and the
defendant. ... Where the plaintiff's success on a legal claim can be characterized as purely technical or
de minimis, a district court would be justified in
concluding that even the 'generous formulation' we
adopt today has not been satisfied."

MunicipalitiesfProtection from Inmate
Assault
DeShaney v. Winnebago County Department of
Social Services, 489 US._, 103 L.Ed.2d 249
(1989). At 261: "... [W]hen the State takes a person
into its custody and holds him there against his will,
the Constitution imposes upon it a corresponding
duty to assume some responsibility for his safety
and general well-being.... The rationale for this
principle is simple enough: when the State by the affirmative exercise of its power so restrains an individual's liberty thatit renders him unable to care for
himself, and at the same time fails to provide for his
basic human needs-e.g., food, clothing, shelter,
medical care, and reasonable safety-it transgresses
the substantive limits on state action set by the
Eighth Amendment and the Due Process Clause....
The affirmative duty to protect arises not from the
State's knowledge of the individual's predicament or
from its expressions of intent to help him, but from
the limitation which it has imposed on his freedom
to act on his own behalf."

Municipalities/Staffing- Training

... Only where a failure to train reflects a 'deliberate' or 'conscious' choice by a municipality-a 'policy' as defined by our prior cases-can a city be liable for such a failure under §1983." This standard is
met when "in light of the duties assigned to specific
officers or employees the need for more or different
training is so obvious, and the inadequacy so likely
to result in the violation of constitutional rights, that
the policymakers of the city can reasonably be said
to have been deliberately indifferent to the need."
(427)

Use of Force

}"-

Graham v. Connor, 490 US._, 104 L.Ed.2d 4~

(1989). An excessive force claim arising "in the i t
context of an arrest or investigatory stop of a free
citizen [is] most properly characterized as one invoking the protections of the Fourth Amendment.
... Because the Fourth Amendment provides an explicit textual source of constitutional protection
against this sort of physically intrusive governmental
conduct, that Amendment, not the more generalized
notion of 'substantive due process,' must be the
guide for analyzing these claims." (454-55)
At n. 10: the question of whether the Fourth
Amendment continues to apply into the period of
pre-trial detention is reserved, but it is clear that
substantive due process protects detainees from excessive force amounting to punishment. Claims of
convicts are to be adjudicated under the Eighth
Amendment.
Reasonableness in an excessive force case is an
objective inquiry: "the question is whether the officers' actions are 'objectively reasonable' in light of
the facts and circumstances confronting them, without regard to their underlying intent or motivation."
(456) The johnson v. Glick test, "which requires
consideration of whether the individual officers
acted in 'good faith' or 'maliciously and sadistically
for the very purpose of causing harm,' is incompatible with a proper Fourth Amendment analysis."
At 457: "Differing standards under the Fourth and
Eighth Amendments are hardly surprising: the terms
'cruel' and 'punishment' clearly suggest some inquiry into subjective state of mind, whereas the
term 'unreasonable' does not."

Publications
Thornburgh v. Abbott, 490 US._, 104 L.Ed.2d
459 (1989). Censorship of publications sent to prisoners is governed by the Turner v. Safley "reasonably related" standard rather than the Procunier v.
Martinez requirement of narrow tailoring. Procunier is now limited to outgoing mail sent by prisoners to civilian correspondents. The former distinction between the rights of outsiders and the rights
of prisoners is rejected. At 473: "We adopt the
Turner standard in this case with confidence that ...
a reasonableness standard is not toothless."
Aregulation prohibiting publications that are "determined detrimental to the security, good order, or
discipline of the institution or ... might facilitate
criminal activity" is not unconstitutional.
The "all or nothing" rule is upheld because it is
reasonable to fear that tearing out rejected portions
would create more discontent than censoring the
whole publication. The administrative inconvenience of item censorship is also a factor to be
considered.

Canton v. Harris, 489 US._, 103 L.Ed.2d 412

Procedural Due Process-Visiting

(1989). At 426-27: "We hold today that the inadequacy of police training may serve as the basis for
§1983 liability only where the failure to train
amounts to deliberate indifference to the rights of
persons with whom the police come into contact.

Kentucky Department of Corrections v. Thompson, 490 U.S._, 104 L.Ed.2d 506 (1989). At 515:
"The denial of prison access to a particular visitor 'is
well within the terms of confinement ordinarily
contemplated by a prison sentence,' ... and there-

fore is not independently protected by the Due
Process Clause."
At 516: "Stated simply, 'a State creates a protected
liberty interest by placing substantive limitations on
official discretion.' [Citation omitted.] AState may
do this in a number of ways. Neither the drafting of
regulations nor their interpretation can be reduced
to an exact science. Our past decisions suggest,
however, that the most common manner in which a
State creates a liberty interest is by establishing 'substantive predicates' to govern official decision-making, ... and, further, by mandating the outcome to
be reached upon a finding that the relevant criteria
have been met."

Statutes of Limitayons
Hardin v. Straub,~ US._, 104 L.Ed.2d 582

(1989). Astate tolling statute that permitted imprisoned persons one year after their release to bring
otherwise time-barred actions should have been applied by a federal court under §1983 along with the
state limitations period itself At 588: "Courts thus
should not unravel state limitations rules unless
their full application would defeat the goals of the
federal statute at issue." The Court rejects the lower
court's theory that rehabilitative concerns require
the quick resolution of disputes.

State Officials and Agencies/Attorneys'
Fees and Costs
Missouri v.Jenkins, 491 U.S._, 105 L.Ed.2d 229
(1989). §1988 attorneys' fees against states are not
barred by the Eleventh Amendment, not just because Congress so intended, but also because the
Eleventh Amendment does not apply at all to an
award of attorneys' fees ancillary to a grant of prospective relief. Nor does the Eleventh Amendment
bar enhancement of a fee award to compensate for
delay in payment. The Court rejects the analogy to
the bar on interest awards against the federal government absent a waiver of sovereign immunity,
which has been applied to bar enhancement of fee
awards in cases against federal agencies.
Law clerk and paralegal time should be compensated at market rates if these costs are not already
reflected in the attorneys' billing rates.

Law Libraries and Law Books/
Appointment of CounsellAdministrative
Segregation- Death Row
Murray v. Giarratano, 492 US. _, 106 L.Ed.2d 1
(1989). Prisoners under death sentence were not
entitled to the appointment of counsel to pursue
state court postconviction remedies. The district
court had found that providing law libraries was not
enough because of the limited time those prisoners
had to prepare and present their petitions, the complexity of the work, and the emotional effects of a
pending death sentence, and had directed actual
representation by attorneys.
The Court holds that this is inconsistent with its
1987 holding in Pennsylvania v. Finley, which limits Bounds v. Smith and not vice versa. Right to
counsel questions must be determined by "categorical holdings" and not by "factual" findings that
could yield different rules in different states.
The plaintiffs' contention that they are denied adequate and timely access to law libraries can, if true,
be remedied "without any need to enlarge the holding of Bounds."
This decision leaves in limbo the numerous holdings that for some prisoners (e.g. illiterates) and under some circumstances (e.g. no physical access to
the library) a law library is not enough and some
trained legal assistance short of actual representation by attorneys is required. See, e.g., Smith v.
WINTER 1990

II

J

"I

plaintiff had preViously filed a similar suit that had
been dismissed. New evidence of the dangers of tobacco smoke did not lift the bar of res judicata. But
this decision does not "foreclos[e] in perpetuity"
the plaintiffs ability to litigate this claim. "Changing
mores" may eventually permit the matter to be reexamined despite the earlier decision.

the reasonable provisions of that legislation....
[The] restrictions are reasonably related to the valid
goals of rehabilitation, restitution and assessing
against inmates at least the partial cost of prosecuting any future litigation." Equal protection was not
denied; all prisoners are treated the same.

U.S. COURT OF APPEAlS

Medical Care

Religion-Services Within Institution/
Religion- Practices-Diet/
Federal Officials and Prisons
Garza v. Carlson, 877 F.2d 14 (8th Cir. 1989).

Blankenship v. Kerr County, Texas, 878 F.2d 893
(5th Cir. 1989). An allegation that an arrestee
known to be an epileptic was placed in an unpadded cell, where he had a seizure and injured him- .; i
self, stated a deliberate indifference claim' the fact !'~
that jail personnel called a doctor for advice did rib1
justify summary judgment.

Siddiqi v. Leak, 880 F.2d 904 (7th Cir. 1989). The
Cook County Jail did not offer Muslim services for
some period of time because of confusion and disputes about whether the American Muslim Mission
or the Muslim Community Center should represent
all Muslims. (There were nine recognized Christian
groups at the jail. App.(lfently it did not occur to
anyone in power that ?here could legitimately be
two Muslim groups)¥.:1
Ajury verdict for .the defendants on the plaintiffS'
First Amendment claim was supported by evidence
that the Chaplaincy Council was not biased and by
the reasonableness of having a screening mechanism .
for religious organizations.

Bounds, 813 F.2d 1299, 1302 (4th Cir. 1987);
Reutcker v. Dahm, 707 F.Supp. 1121, 1130 (D.Neb.
1988); Hadix v. Johnson, 694 F.Supp. 259, 291-93
(E.D.Mich. 1988).

The prohibition of the Jewish plaintiff, a high-security segregated prisoner, from participating in a
minyan, did not violate the Constitution.
The plaintiffs rights were not violated by classifying him as a hunger striker rather than a religious
faster where he was not actually force-fed. At 17:
"In any event, preservation of prisoners' health is
certainly a legitimate objective, and prison officials
may take reasonable steps to accomplish this goal.
Garza's rights under the Constitution were not violated by the threat of receiving involuntary nourishment." (Emphasis supplied.)

Access to Courts-Law Libraries and Law
Books
Blake v. Berman, 877 F.2d 145 (1st Cir. 1989). A
Massachusetts prisoner held in a Kansas federal
prison was not denied access to courts by his lack
of access to Massachusetts legal materials. The jUry
verdict is upheld on the ground that the plaintiff
had access to assistance from the Kansas Defender
Project and the jury could have found that the
plaintiff was turned down because he was not specific enough about the nature of his problem. The
fact that the Defender Project did not grant every
request for assistance did not make it inadequate. At
146: "The law ... does not forbid 'screening,' nor
does case law hold, or suggest, that the presence of
'screening' automatically transforms a constitutionally adequate program of legal assistance into a program that fails to pass muster. In our view, everything depends upon the kind of screening that is at
issue." (Emphasis in original.)
The Defender Project's director said that they
screened out frivolous cases and nothing in the record suggests that these decisions were erroneous or
not made in good faith.

Pre-Trial Detainees/CorrespondenceNon-Legal/Suicide Prevention
United States v. Brown, 878 F.2d 222 (8th Cir.
1989). Ajailer did not violate a detainee's rights by
seiZing (i.e., readin~ an outgoing letter. The detainee's repeated references to suicide and a psychiatrist's report to similar effect justified the seizure in
the interests of the detainee's safety.
Outgoing mail may be seized based on "reasonable justification"; it is not clear whether this justification must be determined case by case or whether
jailers' "legitimate governmental interest in prisoner
safety" permits reading of all outgoing mail. The
court rejects the notion that mail seizures must be
done only pursuant to written policy; any "established practice" will do.

EnvironmentlProtection from Harm/Cruel
and Unusual Punishment/ResJudicata
Wilson v. Lynaugh, 878 F.2d 846 (5th Cir. 1989).
The doctrine of res judicata required dismissal of a
claim that exposure to environmental tobacco
smoke violated the Eighth Amendment where the
12

WINTER 1990

Pre-Trial Detainees/Qualified Immunity/
Attorney ConsultationlTelephones/Law
Library and Law Books
]ohnson-El v. Schoemehl, 878 F.2d 1043 (8th Cir.
1989). To defeat qualified immunity, it is not necessary for "the specific acts of [prison] officials [to] be
particularly proscribed by decisions rendered by
this Circuit or another court with direct jurisdiction
over the institution." That is because "[p]rison condition litigation has become quite common in the
last thirty years. The questions presented are usually
similar, and frequently do not involve academic or
otherwise inaccessible analysis. For this reason, we
are less inclined to feel that the applicable law in
this area is a mystery, even to laymen."
Atelephone system that allowed one chance to
call an attorney every two weeks under excessively
noisy conditions and that counted a call as made
where the attorney was not reached was "patently
inadequate."
One hour twice a week is "obViously inadequate
to research most legal claims." (1053) Threats to
withdraw law library access in retaliation for filing
grievances constituted punishment of detainees; in
combination with inadequate access to counsel, it
denied due process.

Procedural Due Process-Administrative
Segregation/Classification-Administrative
Segregation- High Security/Recreation
Knight v. Armontrout, 878 F.2d 1093 (8th Cir.
1989). Missouri regulations governing placement in
administrative segregation create a liberty interest.
Plaintiffs were not denied due process by the lack of
personal appearances at their periodic review.
Athirteen-day deprivation of recreation did not
violate the Constitution.
Athirteen-day holdover in punitive segregation
did not deny due process where the plaintiffS received substantially the same privileges they would
have received in administrative segregation.

Procedural Due Process-Property
Rochon v. Louisiana State Penitentiary Inmate
Account, 880 F.2d 845 (5th Cir. 1989). Louisiana
law prOVides that half of prison wages are paid into
the prisoner's personal account for discretionary use
and the other half is paid into a savings account and
can only be disbursed for education, court costs,
victim repayment, or the purchase of state or federal bonds, with the remainder turned over on release. The statute is not unconstitutional as applied
to a prisoner serving life without parole.
At 846: "Prisoners have no constitutional right to
be paid for work performed in prison.... [The
plaintiff] receives incentive wages solely because of
the state statutory scheme. Thus, the nature of his
property interest in those funds may be defined by

Religion-Services Within Institution

Law Libraries and Law Books/Inmate
Legal Assistance
Taylor v. List, 880 F.2d 1040 (9th Cir. 1989). The
plaintiff had elected to represent himself in a criminal proceeding. This court had earlier held that "the
offer of court-appointed counsel satisfies the Government's ... obligation to proVide meaningful access to the courts." Here, they distinguish that case
away and hold, "[T]he right to self-representation
necessarily includes and is premised upon the right
of the defendant to prepare a defense." (1047)
Evidence that prison officials not only denied the
segregated plaintiff personal access to witnesses and
the law library, but also denied him access to the
law clerks who were helping him pursuant to a state
court order (resulting in his inability to obtain law
books), denied the clerks access to Witnesses, and
prevented a prison psychiatrist from testifying for
him created a material issue as to denial of the
plaintiffs right to self-representation.
The fact that the plaintiff filed papers in court did
not show he had adequate access to law books; his
papers were almost completely devoid of case
citations.

Unsentenced Prisoners and Convicts
Held In]ails/Crowding
In re Clements, 881 F.2d 145 (5th Cir. 1989).
County officials, defendants in the jail conditions
case Alberti v. Klevenhagen, tried to join state officials in Alberti because state ready inmates were
backed up in the Harris County jail as a result of orders in the state prison conditions case Ruiz v. Estelle. The state officials petitioned for mandamus to
get the third-party complaint transferred to the Ruiz
v. Estelle court.
Mandamus is granted requiring the transfer to
the Ruiz judge of "so much of the remedy portion"
of the third-party action "as seeks to enjoin them to
receive or take prisoners into IDC confinement (or
to otherwise take action in the operation or management of IDC-operated confinement facilities)."
(153) Mandamus is denied as to the Alberti plaintiffS' request for a jail population cap and other
crowding relief and for additional staffing, and is
also denied as to the liability phase of the Alberti
third-party complaint. "Conditions in the Harris
County jail are matters within the special knowledge and competence of the Alberti court, but not
the Ruiz court." (153-54)
In deciding the merits, the Alberti court will have
first to determine whether the jail inmates' rights
are being violated, "and then whether, and if so to

what extent and in what respect, the third-party defendants are legally responsible for such violations
under 42 U.S.c. §1983." (154) This determination
will be affected by the legal status of IDC and its
relation to Harris County prisoners but not conditions in IDC prisons, the constraints of the Ruiz decree or effects on that decree of orders requiring
the transfer of inmates.

Statutes of Limitations
Bell v. Cooper, 881 F.2d 257 (6th Cir. 1989). A
state statute that tolled the limitations period while
the plaintiff was incarcerated should be applied in
federal court.

False Imprisonment/Good Time
Bergen v. Spaulding, 881 F.2d 719 (9th Cir.
1989). The plaintiff was held more than 20 days
past his good time release date without a hearing.
State statutes and court decisions created an entitlement to good time. Where the warden had notified
the Board of Prison Terms and Paroles of the proper
date but they failed to act, due process was denied.
The delay was related to a disciplinary proceeding
in which the plaintiff was cleared that was at first
not properly recorded; however, the Board had the
correct information in time to act.

Transportation to Courts/Pro Se Litigation
Hernandez v. Whiting, 881 F.2d 768 (9th Cir.
1989). At 770: "... [I]mprisonment suspends the
plaintiffs usual right to be personally present at judicial proceedings brought by himself or on his behalf." But the district court should not have dismissed the case for failure to prosecute when the
plaintiff-known to be incarcerated-did not show
up in court for a conference or trial. The trial court
should consider "less harsh alternatives," e.g., "a
bench trial in the prison, should the parties waive a
jury; trial by depositions, despite this approach's
weakness on credibility issues; postponement of trial
until the prisoner's release, if scheduled to occur
within a reasonable time; and compelling the prisoner's presence through an ad testificandum writ."
(771)

Habeas Corpus
Thomas v. Georgia State Board ofPardons and
Paroles, 881 F.2d 1082 (11th Cir. 1989). Acomplaint that the state parole board engaged in racially
and economically discriminatory practices was properly brought under §1983 and need not be pursued
via habeas corpus after exhaustion of state remedies
insofar as it did not challenge the denial of his parole, but the procedure by which parole decisions
are made.

Judicial and ~rosecutorial Immunity/
Protection from Assault/Municipalities/
False Imprisonment
Thompson v. Duke, 882 F.2d 1180 (7th Cir.
1989). The jailed plaintiff was acqUitted of criminal
charges but was not given an immediate parole
revocation hearing; three days later he 'was assaulted
by another inmate.
Parole officials are protected by absolute quasijudicial immunity from liability based on their failure to conduct a prompt hearing; scheduling is a judicial rather than an administrative function.
Jail officials had a duty only to determine the facial validity of the warrant under which the plaintiff
was held and not to investigate his claims of innocence or to take any action after his acqUittal.
The county coulQ not be held liable for inadequate training of employees because the jail and
county Department of Corrections are solely under

the control of the Sheriff, an independently elected
official who answers only to the electorate.

DISTRICT COURTS
Heating and VentilationlMedical Care- ?~
Qualifications of PersonnellMunicipalitia,
"~-!"".

Brock v. Warren County, Tenn., 713 F.Supp. 23~/

(E.D.Tenn. 1989). Aprisoner died in jail of heavy
prostration in an unventilated cell that reachedi$:J
temperature of 110 degrees during the day. Th~:
lack of ventilation had been called to the attenfi'on
of the sheriff and the County Commission.The li
Commission had told the sheriff there was no
money for jail improvements. Their conduct in
housing the decedent in the cell violated the Eighth
Amendment, as did their failure to provide even
minimal medical training to the jail staff.

Statutes of Limitations
Bianchi v. Kincheloe, 714 F.Supp. 443 (E.D.Wash.
1989). State tolling provisions applicable to prisoners are applicable in federal court §1983 actions.
Astate tolling statute applicable to prisoners serving
life sentences with the possibility of parole is applied by this federal court to a prisoner serving life
without parole on equal protection grounds.

Heating and VentilationlVerbal Abuse
Wright v. Santoro, 714 F.Supp. 665 (S.D.N.Y.
1989). Racial slurs do not violate the Constitution.
The right to adequate heating was not violated
where inmates disputed whether the housing unit
was too hot or too cold and the Superintendent left
it up to the inmate "Honor Committee."

Women/Childbirth and AbortionlFederal
Officials and Prisons/Mootness
Gibson v. Matthews, 715 F.Supp. 181 (E.D.Ky.
1989). Individual capacity claims may be pursued
against federal officials for the denial of an abortion.
However, this plaintiffs Fifth Amendment due process claim was dismissed because she alleged, at
most, inadequate medical treatment not sinking to
the level of gross negligence. The Eighth Amendment claim failed for the same reason; the doctor
used his "professional medical judgment. ..."

Mental Health Care/Punitive Segregation/
Class Actions/Personal Involvement and
Supervisory Liability
Langley v. Coughlin, 715 F.Supp. 522 (S.D.N.Y.
1988), appeal dismissed, 888 F.2d 252 (2d Cir.
1989). The plaintiffs, punitive segregation inmates at
a women's prison, alleged that the placement of
mentally ill prisoners in segregation and their subsequent inadequate treatment violates their right to
medical care and resulted in conditions of confinemerit that violated the rights of the non-mentally ill.
The fact that the plaintiffs presented evidence as
to only 18 of 250 class members did not justify
summary judgment for the other 232 in a class damage action based on segregation unit conditions.
Class action treatment was appropriate for damage
claims based on conditions of confinement, since
the factual questions concerning the conditions and
the legal questions of their constitutionality and the
defendants' entitlement to qualified immunity predominated over individualized questions of injury.
Once conditions are proved, damages can be
awarded on a per diem basis. Medical care claims
are not susceptible to standardized damage awards.
However, class treatment was justified by the exten-

sive common fact issues concerning the medical
care system, the close relationship of the medical
claims to the conditions claims, and the fact that the
proof of the indiVidual claims would consist largely
of psychiatric expert testimony that could best be
managed at a single trial.
Evidence that the presence of mentally deranged
inmates subjected the other inmates to noise, filth,
fires, assault and the fear of assault, the sight and
sound of self-mutilation and other "seeming demented activity" raised a triable question of Eighth
Amendment violation.
Evidence that the Commissioner "was aware
of the general and continuing problems of mental health care in SHU at Bedford Hills," that he
failed to see that?1care was proVided for the
chronically mellt.1tlly ill, and that he was explicitly placed on n8tice by the filing of this and
other lawsuits,preciuded summary judgment for
the Commissioner. The Deputy Superintendent
was not entitled to summary judgment where
she was aware of the challenged conditions, had
some authority over them, but limited her efforts
to one inmate.

VisitinglTemporary Release
Isaraphanich v. Coughlin, 716 F.Supp. 119
(S.D.N.Y. 1989). The denial of temporary release
based on an Immigration and Naturalization Service
detainer did not deny equal protection because it
was rationally related to the danger of escape. The
denial of participation in the Family Reunion Program (i.e., trailer visits) did not deny equal protection either because the risk of escape justified a
higher security classification that in turn disqualified
the plaintiff from the program.

Childbirth and AbortionlPrivacyNisiting!
Federal Officials and Prisons/Injunctive
Relief- PreliminarylExhaustion of
RemedieslWomen
Berrios-Berrios v. Thornburgh, 716 F.Supp. 987
(E.D.Ky. 1989). The plaintiff was entitled to a preliminary injunction permitting her to breast-feed
during regular visiting hours in a visiting room
where bottle-feeding was permitted. The government put forth no justification for prohibiting it. She
was not entitled to an injunction requiring the
prison to arrange for her to express and refrigerate
her milk and deliver it to the child's caretaker. In a
nOO-inmate women's prison, meeting all such requests would be a "costly and monumental task,"
would require inspection for contraband, and would
subject the defendants to negligence claims in the
event of spoilage.
At 99: "Finally, the court must conclude that it
will be a very sad day in America when allowing a
mother to breast-feed her infant disserves the public
interest."
The plaintiff, who sought to breast-feed her newborn child, was not required to exhaust administrative remedies because of the urgency of the claim.

Pre-Trial Detainees/Crowding!
Modification ofJudgments
Monmouth County Correctional Institution Inmates v. Lanzaro, 717 F.Supp. 268 (D.N.]. 1989).
The court modifies its prior jail population orders to
clarify that it never meant to limit individual housing units, but only the overall population, and it
never intended to abrogate prior agreements prohibiting double bunking.
An interlocutory order is not subject to the strict
Rule 60 standards for modification; the modification
need only be "consonant with equity."
WINTER 1990

13

Status Report
-continued from page eight

;:1
<:i

filed in state court on issues of overcrowding, totality of conditions and access to the courts. Dickerson v. Castle,
CA. No. 10256 (November 22, 1988).
9. Florida: The entire state prison
system is under court order dealing with
overcrowding. Costello v. Wainwright,
397 F.Supp. 20 (M.D. Fla. 1975), affd,
525 F.2d 1239 and 553 F.2d 506 (5th
Cir. 1977). See also 489 F.Supp. 1100
(M.D. Fla. 1980), settlement on overcrowding approved. A Special Master
has been appointed. Additional consent
decrees have been entered covering
health care, food service, urethane mattresses and fire safety. On 12/17/87 a
consent decree was entered permanently enjoining the medical care system;
it is significant that the state consented
to the Eighth Amendment violation.
10. Georgia: The state penitentiary
at Reidsville is under court order on total conditions and overcrowding. A Special Master was appointed in June 1979.
Guthrie v. Evans, CA. No. 3068 (S.D.
Ga.). A number of other facilities are under challenge.
II. Hawaii:* The men's prison
(O.CCC) in Honolulu and the women's prison on Oahu are under court order resulting from a consent decree in a
totality of conditions suit. Spear v. Ariyoshi, Civ. No. 84-1 104 (D. Hawaii). Order entered June 1985 and monitors
have been appointed. Consent decree
amended in January 1986.
12. Idaho:* The women's prison is
under a consent decree on conditions.
Witke v. Crowl, Civ. No. 82-3078 (D.
Id.), with an appointed monitor. The
men's Idaho Correctional State Institution is under a court order on conditions. Balla v. Idaho State Bd. of Correction, 595 F.Supp. 1558 (D. Id. 1984).
13. IlIinois:* The state penitentiary
at Menard is under court order on total
conditions and overcrowding. The Special Master was discharged after four
years. There bas been substantial compliance with the decree; however, the injunction remains in force. Lightfoot v.
Walker, 486 F.Supp. 504 (S.D. III. 2/19/
80). The state penitentiary at Pontiac
was under a court order enjoining double-ceiling and dealing with overcrowding. Smith v. Fairman, 548 F.Supp. 186
(CD. III. 1981), rev., 690 F.2d 122 (7th
Cir. 1982) (no proof of violence or long
periods in cell). Litigation is pending at
other institutions. There is a pending
equal protection case at DWight Correctional Center, the women's prison.
Moorhead v. Lane, #86-2020 (CD. 111.).
14. Indiana:* The state prison at
Pendleton was found unconstitutional on
total conditions and overcrowding.
14 WINTER 1990

French v. Owens, 538 F.Supp. 910 (S.D.
Ind. 1982), affd in pertinent part, 777
F.2d 1250 (7th Cir. 1985), cert. denied,
U.S. (1986). The state penitentiary at
Michigan City is under a court order on
overcrowding and other conditions.
Hendrix v. Faulkner, 535 F.Supp. 435
;',
(W.O. Ind. 1981), affd sub nom Wellmatt,
v. Faulkner, 715 F.2d 269 (7th Cir.
>-';
1983), cert. denied, 104 S.Ct. 3587 /:'1'
(1984). The state prison at Westvilleicl.s'
under consent decree on overcrowding
and conditions. Anderson v. Orr, CA:;/~o.
S83-048I (N.D. Ind., case filed 1983;'
NPP joined 1987). A comprehensi\te settlement was reached March 31, 1989.
15. Iowa: The state penitentiary is
under court order on overcrowding and
a variety of conditions. Watson v. Ray,
CA. No. 78-106-0 I, 90 F.R.D. 143 (S.D.
la. 1981).
16. Kansas: The state penitentiary
is under a consent decree on total conditions. Arney V. Bennett, No. 77-31 32
(D. Kan. 1980). The case was reopened
in January 1988 and culminated in a consent decree in April 1989. Temporary
injunctive relief was sought and obtained.
Included in the decree is that all the old
facilities and any new construction are
required to meet ACA and NCHC standards. The mental health issues are being
litigated.
17. Kentucky:* The state penitentiary and reformatory are under court
order by virtue of a consent decree on
overcrowding and some conditions. Kendrick V. Bland, 541 F.Supp. 21 (W.D. Ky.
1981 ) (consent decree entered). On appeal, the court of appeals affirmed virtually all of the district court's orders,
740 F.2d 432 (6th Cir. 1984). The women's state prison is under court order on
a variety of conditions. Canterino v. Wilson, 546 F.Supp. 174 (W.O. Ky. 1982),
and 564 F.Supp. 71 I (W.D. Ky. 1983).
18. Louisiana: The state penitentiary is under court order dealing with
overcrowding and a variety of conditions. Williams V. Edwards, 547 F.2d 1206
(5th Cir. 1977). In mid-1989 a federal
judge sua sponte reopened the case and
has initiated a state criminal probe into
several matters and a Department of
Justice probe into medical care. A temporary Special Master has been appointed and has submitted a report.
Also, the Fifth Circuit consolidated all
jail cases under one federal judge;
monthly population reports are submitted to the judge for monitoring.
19. Maine:* The state penitentiary
was challenged on overcrowding and a
variety of conditions. The trial court
granted relief only as to restraint cells
and otherwise dismissed the complaint.
Lovell v. Brennan, 566 F.Supp. 672 (D.
Maine 1983), affd, 728 F.2d 560 (1st
Cir. 1984).

20. Maryland:* A medium and the
maximum security prisons were both
declared unconstitutionally overcrowded.
johnson V. Levine, 450 F.Supp. 648 (D.
Md. 1978), Nelson V. Col/ins, 455 F.Supp.
727 (D. Md. 1978), affd, 588 F.2d I378
(4th Cir. 1978), on remand, _ F.Supp. ---'-(D. Md. 1/5/81), rev. and remanded, 659
F.2d 420 (4th Cir. 1981)(en bane). A
settlement agreement and consent decree were subsequently entered in both
cases. johnson V. Levine, now johnson V.
Galley, was consolidated with Washington v. Keller, nC\w Washington v. Tinney,
479 F.Supp. 5l>~ (D. Md. 1979), and another settlern&!t agreement and supplement to the settlement agreement were
entered in October 1987 and February
1988, respectively.
21. Massachusetts: The maximum
security unit at the state prison in Walpole is being challenged on total conditions. Blake v. Hall, CA. 78-3051-T (D.
Mass.). A decision for the prison officials
was affirmed in part and reversed in part
and remanded, 668 F.2d 52 (I st Cir.
1981). Consent decrees prohibiting prisoners sleeping on the floor are in effect
at MCI Concord, jacobs V. Fair, #8681758 (Suffolk Co.), and MCI Walpole
Nolan v. Fair, #84-1360 (Norfolk Co.).
These actions were brought in state
court.
22. Michigan:* The women's prison
is under court order. Glover v. johnson,
478 F.Supp. 1075 (E.D. Mich. 1979); further order entered, 510 F.Supp. 1019
( 1981). In Glover, the Department of
Corrections was found in contempt for
lack of compliance (9/14/89) and is to be
fined $5,000/day if it does not devise a
compliance plan by mid-January 1990 regarding educational and vocational programs equal to those offered males. Four
men's prisons Uackson, Marquette, Michigan Reformatory and Riverside) are under consent decree on overcrowding
and other conditions, U.S. v. Michigan,
No. G84-63, and under court order on
issues not covered by consent decree in
Knop v. johnson, 685 F.Supp. 636 (W.O.
Mich. 1988). Part of Knop is on appeal.
A monitor was appointed. The Central
Complex of Jackson is under a consent
decree on the same conditions. Hadix v.
Milliken, C.A. 80-73581 (E.D. Mich.
5/13/85).
23. Minnesota: The state has kept
overcrowding in abeyance through use
of sentencing gUidelines which take the
number of available prison beds into account. Also, individual facilities and the
Department of Corrections have been
responsive to the complaints raised by
advocates for prisoners.
24. Mississippi: The entire state
prison system is under court order dealing with overcrowding and total conditions. Gates v. Collier, 50 I F.2d 1291

(5th Cir. 1974).
25. Missouri:* The state penitentiary is under court order on overcrowding and some conditions. Burks v.
Teasdale, 603 F.2d 59 (8th Cir. 1979),
on remand, 27 Cr.L. 2335 (W.D. Mo.
5/23/80). In 1982 a separate order was
entered on medical issues.
26. Montana: As a sparsely populated state, Montana's prison population
has been small" The prison population is
now increasing and problems are occurring in the system.
27. Nebraska: No cases have been
filed dealing with overcrowding; however, there is an equal protection and
conditions case involving the Nebraska
Center for Women at York. Klinger v.

Nebraska Dept.

of Correctional Services,

C.V. 88-L-399.
28. Nevada:* The state penitentiary is under court order on overcrowding and total conditions. Craig v.
Hocker, c.A. No. R-2662 BRT (D. Nev.)
(consent decree entered 7/18/80). The
new addition to the state penitentiary is
under court order on total conditions.
Phillips v. Bryan, CVR-77-221-ECR (D.

Nev.) (consent decree entered July
1983). Both cases have been consolidated with a new consent decree entered May 19, 1988. A monitor has been
appointed.
29. New Hampshire:* The state
penitentiary is under court order dealing
with total conditions and overcrowding.
Laaman v. Helgemoe, 437 F.Supp. 269
(D. N.H. 1977). An action is pending for
contempt on certain portions toward
the end of the year. Also, the state is
seeking to modify the order based on
changes in the law.
30. New Jersey: For years the
state has been able to stave off massive
overcrowding in the prisons by mandating that county jails take the overflow
from the state system. Most of the 21
county jails are under court order. Now
state prisoners are backing up into municipal lock-ups.
31. New Mexico:* The entire system is under court order on overcrowding and total conditions. Duran v. Apodaca, c.A. No. 77-72I-C (D.N.M.)
(consent decree entered 8/ I/80). Special
Master appointed June 1983. The district

court's refusal to vacate the consent decree, 678 F.Supp. 839 (D.N.M. 1988),
was affirmed by the Tenth Circuit,
_ F.2d _ (10th Cir. 1989), Nos. 89204 I and 88- 1442.
32. New York: While no statewide comprehensive lawsuits have been
brought, numerous prison facilities are
under court order and injunctive relief
has been obtained for the following
egregious conditions and practices: medical care (Bedford Hills and Green Haven); dental care (Bedford Hills); fire
safety (Bedford Hills); segregation conditions (Green Haven, Sing-Sing, Fishkill,
Bedford Hills, Woodbourne and Taconic); protective custody conditions
(Green Haven); mental health care for
segregation prisoners (Attica, Bedford
Hills). Cases are pending at Auburn, Attica, Clinton, Great Meadow, Sing-Sing.
Also, major disturbances at Attica
(1971) and Sing-Sing (1983) were both
related to crowded conditions, lack of
programming, and racial hostility, among
other things. The New York system has
had a phenomenal bUilding program and
- continued on next page
WINTER 1990

b

15

- continued from previous page

has thus far kept one step ahead of massive overcrowding in the prisons. However, many major county jails are under
court order for overcrowding, as is the
New York City system.
33. North Carolina:* In September 1985, a consent judgment was entered covering overcrowding, staffing,
programming, and medical services in
the I 3 units of the state system's South
Piedmont area. Hubert v. Ward, C-C-80414-M (W.D.N.C.). Compliance has
been reached and the case is in a dormant stage; the court no longer has active supervision. A lawsuit was filed covering conditions and crowding at the
Craggy Unit outside of Asheville, N.C.
Epps v. Martin, A-C-86-162 (W.D.N.C.).
Consent decree entered August 1987. A
new prison has been completed and
Craggy has been closed. Settlement was
reached in Small v. Martin, 85-987-CRT
(E.D.N.C.), in December 1988, covering
the remaining 49 road camps on overcrowding and conditions. Mutz v. Johnson
settled out of court, covering adequacy
of mental health at the women's prison.
Consent decree in Stacker v. Stephenson
on overcrowding and general conditions
at Caledonia Farm; population cap imposed; emphasis on security issues and
reducing violence. Pending cases on overcrowding and conditions at Odom
Farm, Barnet v. Allsbrook, and Harnett
Correctional Center, Bass v. Stephenson.
34. North Dakota: No cases have
vercrowding or

16

WINTER 1990

being operated under a consent decree
on various conditions, Boyd v. Denton,
c.A. 78-1 054A (N.D. Ohio 6/83), and
the prison should be closed in 1990. .
36. Oklahoma:* The state penitentiary is under court order on total
conditions and the entire state prison
system is under court order on overcrowding. Battle v. Anderson, 564 F.2d
388 (10th Cir. 1979). The district
court's decision to retain jurisdiction to
insure continued compliance was uph~d,
708 F.2d 1523 (10th Cir. 1983). The,.@istrict court relinquished jurisdiction . in
mid-I 984 and that decision is on appeal.
All original compliance orders are still in
effect, although the court has ended active supervision. The facility remains under permanent injunction. This was recently tested, unsuccessfully, when the
state asked to vacate or amend the original order so as to renovate closed housing due to overcrowding. The court determined that the order is in effect and
would not amend because circumstances
have not changed.
37. Oregon: The state penitentiary
was under a court order on overcrowding. Capps v. Atiyeh, 495 F.Supp. 802 (D.
Ore. 1980), appeal pending (9th Cir.),
stay granted, 101 S.Ct. 829 (1981). On
remand, the district court determined
there were no Eighth Amendment violations, but there were constitutional
deficiencies in medical care, fire safety,
and milk pasteurization process at the
prison dai farm. 559 F.Sup . 894 (D.
Or

931 (M.D. Pa. 1986). Most ofthe claims
have been settled and voluntarily dismissed; the asbestos claim is pending and
plaintiffs are monitoring the abatement
schedule. The state prison at Graterford
is being challenged on total conditions,
Hassine v. Jeffes. An appeal is pending on
the denial of class claims. The state
prison at Pittsburgh is under court order
to devise a plan dealing with double-ceIling; there are also medical and mental
health issues. A monitor is to be appointed. Tillery v. Owens, _ F.Supp. _
(W.D. Pa. 198~.
39. RhodeJsland:* The entire state
system is undef' court order on overcrowding and total conditions. Palmigiano v. DiPrete, 443 F.Supp. 956 (D.R.1.
1977). A Special Master was appOinted
in September 1977. New population
caps were imposed by order in June
1986. Various contempt orders have
been entered. The First Circuit affirmed
the trial court's opinions and orders of
October 21, 1988 (contempt) and April
6, 1989 (sanctions) in all respects on August 21, 1989. The trial court ordered
the fines to be used to create a bail fund
to release low-bail detainees. Palmigiano
v. DiPrete, 710 F.Supp. 875 (D.R.1. 1989).
40. South Carolina:* The state
penitentiary is being challenged on over-'
crowding and conditions. Mattison v. So.
Car. Bd. of Corrections, c.A. No. 76- 3 18.
The entire prison system is under a consent decree on overcrowding and conditions. Plyler v. Evatt, c.A. No. 82-876-0
( 1/8/85). Release order .
986 was affirmed b
. tor has b
Dakot
ux Falls is un el' co
orty of conditions. Cody v.

I

I

Hillard, 599 F.Supp. 1025 (D.S.D. 1984).
Overcrowding order reversed on double-ceiling, 830 F.2d 912 (8th Cir. 1987).
42. Tennessee:* The entire system
is under court order for overcrowding
and conditions. Grubbs v. Bradley, 552
F.Supp. 1052 (M.D. Tenn. 1982). Population ordered reduced and a Special Master was appointed (December 1982).
Court enjoined new intake because of
failure to comply with population reduction orders. Order, 10/25/85. On October 4, 1989, the Sixth Circuit consolidated numerous local jail overcrowding
cases regarding the presence of state
prisoners in the jails into Grubbs. Roberts
v. Tenn. DOC and Carver v. Knox Co.
Sheriff, _ F.2d _ (6th Cir. 1989). A
Special Master is to be selected to monitor the jails; population caps have been
recommended. The Tennessee State
Prison in Nashville is under court order
to be closed.
43. Texas: The entire state prison
system has been declared unconstitutional on overcrowding and conditions.
Ruiz v. Estelle, 503 F.Supp. 1265 (S.D.
Tex. 12/ I0/80), stay granted and denied,
650 F.2d 555 (5th Cir. 1981), stay
granted and denied (5th Cir. 1/14/82). A
Special Master has been appointed. On
appeal, the district court order was affirmed in part, vacated in part and vacated
without prejudice in part for further hearings. 679 F.2d II 15 (5th Cir. 1982). A
stipulation was reached and a consent
decree entered on the crowding issue in
1985. A contempt order was entered by
the district court on December 3, 1986.
Ruiz v. McCotter, H-78-987-CA (S.D.
Tex.). The contempt order was vacated
April 27, 1987; no fines had been imposed. During the summer of 1989 private prisons were added as defendants.
Ruiz v. Lynaugh. Because of overcrowding and backlog into county jails, county
jail litigation implicates Ruiz; the judges
send the cases back and forth. The Special Master's office in Texas is scheduled
for termination March 1990.
44. Utah: The state penitentiary is
being operated under a consent decree
on overcrowding and some conditions.
Nielson v. Matheson, C-76-253 (D. Utah
1979). Prior consent decree had been
ignored because it· was considered to
have no teeth. A new suit challenging
double-ceiling was filed, Baker v. Deland.
A temporary restraining order regarding
double-ceiling was obtained in June
1989. Soon afterward, contempt proceedings were brought regarding double-ceiling set for December 1989.
45. Vermont: State prison closed
in late 1970s. Extensive use of community correctional facilities. Higher security prisoners sent to other states.
46. Virginia:* The state prison at
Powhatan is under a consent decree

dealing with overcrowding and conditions. Cagle v. Hutto, 79-0515-R (ED.
Va.). The maximum security prison at
Mecklenburg is under court order dealing with various practices and conditions.
Brown v. Hutto, 81-0853-R (ED. Va.)
(consent decree entered April 1985).~,
The state penitentiary at Richmond w~;1;
challenged on the totality of conditionsf'
Shrader v. White, C.A No. 82-0247-R:t
(ED. Va.). Trial court dismissed the·;.:
complaint in June 1983. The court ot,~p­
peals affirmed and remanded in part; '" I
F.2d 975 (4th Cir. 1985). The remand
was settled in 1987, covering security
issues.
47. Washington:* The state reformatory is being challenged on overcrowding and conditions. Collins v. Rhay,
C.A No. C-7813-V (W.D. Wash.). The
state penitentiary at Walla Walla has
been declared unconstitutional on overcrowding and conditions and a Special
Master has been appointed. Hoptowit v.
Ray, C-79-359 (ED. Wash. 6/23/80),
affd in part, rev'd in part, vacated in part
and remanded, 682 F.2d 1237 (9th Cir.
1982). In a later appeal, Hoptowit v.
Spellman, 753 F.2d 779 (9th Cir. 1985),
the court of appeals affirmed the findings
of the district court on remand with respect to the conditions of confinement
and remanded the case for the entry of
an order, which was filed April 10, 1986.
Defendants' motion to dissolve the injunction was denied on May 22, 1987.
48. West Virginia: The state penitentiary at Moundsville is under court
order on overcrowding and conditions.
Crain v. Bordenkircher, #81-C-320R (Circuit Court, Marshall County 6/21/83).
Decision affirmed by West Virginia Supreme Court in 1986. A Special Master
has been appointed. The West Virginia
Supreme Court ordered the state penitentiary at Moundsville closed by mid1992. Crain v. Bordenkircher, 44 Cr.L.
2374 (W.Va. Sup. Ct. App. 1989). The
Huttonsville Correction Center is also
under court order with respect to conditions. Nobles v. Gregory, #83-C-244
(Randolph Co. Cir. Ct. 2/22/85). Ongoing enforcement proceedings
continue.
49. Wisconsin:* The state prison at
Waupun is under a court order on overcrowding. Delgado v. Cady, 576 F.Supp.
1446 (E.D. Wisc. 1983).
50. Wyoming:* The state penitentiary was being operated under terms of
a stipulation and consent decree. Bustos
v. Herschler, C.A No. C76-143-B (D.
Wyo.). The federal court relinquished jurisdiction in early 1983 and that prison is
now closed.
51. District of Columbia:* The
District jails are under court order on
overcrowding and conditions. Inmates of
D.C. jail v. jackson, 416 F.Supp. 119

(D.D.C. 1976), Campbell v. McGruder,
416 F.Supp. 100 and III (D.D.C. 1976),
affirmed and remanded, 580 F.2d 521
(D.C. Cir. 1978). On remand, the court
ordered a limit on the period of doubleceiling and increase in staff, 554 F.Supp.
562 (D.D.C. 1982). In 1985, the district
court held conditions at the jail required
an order that intake be enjoined. A consent decree requiring reduction in population was entered August 22, 1985. Inmates of D.C. jail v. jackson, #75-1668
(D.D.C.). Several facilities at the Lorton
Complex, the ~istrict's prison, are under court orde~ for overcrowding and
conditions. Tht¥re are population caps in
place in both the Central Facility and the
Maximum Security Facility. Twelve john
Does v. Barry, #80-2136 (D.D.C.) (Central); john Doe v. District of Columbia,
#79-1726 (D.D.C.) (Maximum). Contempt orders entered. Twelve john Does
v. District of Columbia, 855 F.2d 874
(D.C. Cir. 1988). On December 22,
1986, Lorton's medium security Occoquan facilities came under court order
and a population cap was imposed. Inmates of Occoquan v. Barry, 650 F.Supp.
619 (D.D.C.), vacated and remanded, 844
F.2d. 828 (D.C. Cir. 1988), motion for
rehearing en bane denied, 850 F.2d. 796
(1988) (dissenting opinions and separate·
statements). Trial on remand in January
1989. Facility found unconstitutional in
June 30, 1989 remand opinion and order; defendants ordered to devise a plan
to alleviate constitutional violations, 717
F.Supp. 854 (D.D.C. 1989).
52. Puerto Rico: The Commonwealth Penitentiary is under court order
on overcrowding and conditions. Martinez-Rodrigues v. jiminez, 409 F.Supp. 582
(D.P.R. 1976). The entire Commonwealth prison system is under court order dealing with overcrowding and conditions. Morales-Feliciano v. Barcelo, 497
F.Supp. 14 (D.P.R. 1979). A Special Master was appointed in 1986. District
court orders of contempt and daily fines
have been affirmed by the First Circuit,
_ F.2d _ (I st Cir. 9/26/89).
53. Virgin Islands: Territorial
prison is under court order dealing with
conditions and overcrowding. Barnes v.
Gov't, of the Virgin Islands, 415 F.Supp.
1218 (D.V.1. 1976).
Summary
Entire Prison System Under Court Order or
Consent Decree
Nine jurisdictions: *Alaska, Florida, Mississippi, *New Mexico, *Rhode Island,
*South Carolina, *Tennessee, Texas,
Puerto Rico

Major Institution(s) in the State/jurisdiction
Under Court Order or Consent Decree
Thirty-four jurisdictions: *Arizona, *Cali- continued on page twenty
WINTER 1990

17

1111111.11
judy Greenspan
State prison systems are re-evaluating
their policies on the management and
treatment of AIDS in light of new medical developments and an increase in class
action lawsuits. A recent telephone survey reveals dramatic shifts in two important areas: segregation of infected prisoners, and mandatory testing for the
Human Immunodeficiency Virus (HIV).
States Move Toward
Mainstreaming of HIV-infected
Prisoners
More states are moving towards the
mainstreaming of HIV-positive prisoners
into the general prison population. This
reversal in policy has come about, administrators say, because of three factors: I) recently filed lawsuits, 2) the
high cost of keeping those prisoners segregated, and 3) updated medical information. In a 1988 survey, the National
Prison Project reported that I0 state
systems segregated all HIV-positive prisoners. Over the past year, the states of
Arizona, South Dakota, Wyoming, and
Tennessee have reversed their segregation policies and now mainstream HIVinfected prisoners into the general
prison population. Colorado and Georgia
are moving in that direction.
In addition, prodded by the recent
Connecticut AIDS desegregation settlement in Smith v. Meacham, several states
which now segregate prisoners with fullblown AIDS, such as Massachusetts, are
seriously considering changing their
policies.
Lawsuits against departments of correction like the three currently pending
in the state of California against the segregation of HIV-positive prisoners, have
definitely served as an incentive to mainstream HIV-infected prisoners.

...

Increase in Mandatory Testing
The most negative and alarming trend
regarding AIDS in prison, however, is
the increase in the number of states
now conducting mandatory testing for
HIV. The 1988 NPP survey reported
that 12 states tested all prisoners on entry. Our 1989 phone survey indicates
that number has risen to 17, and includes Alabama, Colorado, Georgia,
Idaho, Iowa, Michigan, Mississippi, Missouri, Nebraska, Nevada, New Hamp-

,:
1,1

tI"

~

judy Greenspan is the AIDS information
coordinator at the National Prison Project,
and contributes a regular column to the
NPP JOURNAL on AIDS.
18

WINTER 1990

shire, North Dakota, Oklahoma, Rhode
Island, Utah, West Virginia and Wyo- >"
mingo The only positive sign here is thatl
even after testing, fewer states segre-"''i
gate those who do test positive.
Studies Show Voluntary Testing~
More Effective
P)
"it
Health educators who specialize in
AIDS in prison continue to support education, counseling and voluntary testing as
the most enlightened response to HIV
infection and AIDS. Two recent studies
by corrections and public health officials
in Wisconsin and Oregon conclude that
given ongoing, quality AIDS education
and counseling by trained people (including peer counselors), prisoners who have
engaged in high risk behavior, such as
unprotected sex and sharing needles,
will come forward to be tested. In fact,
the Oregon study, "HIV Testing in Prisoners: Is Mandatory Testing Mandatory?"
which appeared in the july 1989 issue of
the American journal of Public Health,
helped defeat a plan in the state legislature for forced HIV testing.
AZT and Pentamidine Still Not
Provided in All States
Unfortunately, the recent pronouncement by the U.S. Public Health Service
regarding the benefits of early drug
therapies and treatment for asymptomatic HIV-infected individuals may encourage other states to initiate mandatory testing programs for their prison
population. This would indeed be a step
backward for the management of AIDS
in prison.
A handful of states, including New
York and New jersey, are considering
providing early treatment of AZT and
pentamidine to asymptomatic prisoners,
while many states search for funds for a
more modest AZT treatment program
for prisoners with AIDS. A few states,
such as Missouri and Maine, do not even
provide AZT. Many prisoners from a
cross-section of state systems write to
the National Prison Project complaining
that they have clear signs of opportunistic infections associated with AIDS and
are not receiving AZT. Medical and correctional staffs cite cost as the reason
for denial of AZT treatments.
A recent article in the September 15,
1989 journal of the American Medical Association states that, nationwide, early
treatment will cost an already underfunded health-care system over $5 billion per year. This figure is even considered low by some observers and the
article is not optimistic about securing

government funding for early treatment
and intervention for asymptomatic HIVpositive individuals.
A massive infusion of funds to the
state and federal prison systems for early
treatment will be necessary. Testing,
particularly if it is mandatory, without
appropriate counseling and the accessibility of early treatment, can have extremely negativF consequences for HIVinfected prisorters.

The National Prison Project's 1990
AIDS in Prison Bibliography is now available for $5 from our office. It includes an
updated legal case list, a resource direc-

tory for AIDS educators, and recent policy
directives on the management of AIDS and
HIV in state prison systems. III .

FOR

E RECORD

III Two foundations have awarded generous grants to support the National
Prison Project's work in AIDS education
and litigation. The Public Welfare Foundation renewed a one-year grant of
$40,000 to continue our AIDS education
work. It was largely due to their support last year that the Project was able
to print the AIDS booklet, AIDS in
Prison: The Facts for Inmates and Officers,
which is available in both English and
Spanish (see publications page for more
information). Both booklets have been
Widely distributed and continue to be in
demand.
In late October, the Aaron Diamond
Foundation awarded the AIDS Project a
two-year grant of $50,000. The grant
will fund the Project's education and litigation programs and bolster its ability to
meet the growing number of requests
for information and assistance.
III In the Spring 1989 JOURNAL, editor
jan Elvin explored the reasons behind the
decrease in Washington State's prison population. In November, the JOURNAL received a letter (also addressed to Corrections Compendium, which had reprinted
the article) from William C. Collins, coeditor of the Correctional Law Reporter,
a publication out of Washington State.
Mr. Collins' letter brings us up to date:
As of November 6, the current DOC
population was just over 6,500, or
within 50 of the Department's defined
operating capacity. just over 400 boarders remained housed in Washington prisons, most of these from the federal
system. The number of boarders is
decreasing.
In what shocked a number of experi-

enced hands in the Washington prison
system, the Governor recently called for
the construction of over 2,200 new
prison beds by the end of the 1991
biennium and over 3,300 new beds by
1996. So much for excess bed space.
Of additional concern is that the projections the governor was considering
were just for increased drug related
crime. Washington's political winds appear to be blowing up a storm for sex
offenders which probably will culminate
in substantial increases in the length of
time being served by many persons fall-

I

ing into this category. Thus the projections may actually understate the population increases we can expect absent
some dramatic change of direction in
criminal justice.
Perhaps the only silver lining on the
cloud raised by the Governor's an~,
nouncement is that the attention of thel
public and the legislature is being fo-';'';
cused on at least one cost of the war dtf
drugs-a massive expenditure in corr$t~
tions-before our prisons are ready ¢
burst and in time to do something atlPut
the projected population increases. Time

will tell if this early announcement has
any positive effects.
So the good old days of excess capacity and rent-a-cell programs seem to be
over in the Pacific Northwest.
- William C. Collins
Co-Editor, Correctional Law Reporter
The electronic monitoring photo
that ran on page 8 of the Fall 1989
issue of the NPP JOURNAL was not
credited. The credit should have read:
Gregg Rummel/Courtesy NIJlNCJRS.

The National Prison

- L - Project JOURNAL.

$25/yr. $21yr. to prisoners.

QTY.COST

Offender Rights Litigation:
I:!istorical and Future Developments. A book chapter
by Alvin J. Bronstein published
in the Prisoners' Rights
Sourcebook (1980). Traces
the history of the prisoners'
rights movement and surveys
the state of the law on various
prison issues (many case citations). 24 pages, $3.00 prepaid
from NPP.

Fill out and send with check payable to

The National Prison Project
1616 P Street, NW
Washington, D.C. 20036

WINTER 1990

19

11111111111
The following are major developments
in the Prison Project's litigation program
since September I, 1989. Further details
of any of the listed cases may be obtained by writing the Project.
Anderson v. Orr-This case challenges
conditions in Indiana's Westville Correctional Center. Prison officials appear to
be making a good faith effort to comply
with the terms of the settlement agreement. Due to continued abusive practices in the psychiatric unit, however,
we threatened to bring contempt proceedings, and these practices were then
corrected. Local counsel will assume primary responsibility for monitoring compliance in this case.
Dickerson v. Castle-This case challenges conditions and overcrowding in
the Delaware prison system. After discovering defendants had failed to comply
with the terms of the settlement agreement, plaintiffs' attorneys filed a contempt motion in November on the issues of overcrowding, ventilation and
legal access.
Duran v. Carruthers-This is a totality of conditions case against the entire
New Mexico state prison system. On
September 15, the Tenth Circuit decided in the plaintiffs' favor on defendants' appeal on their motion to modify
the terms of the consent decree as well
as on apPElals from two recent fee
awards. The court affirmed both lower
court deCisions in all respects.
Macer v. DiNisio/Dotson v. Satterfield- The Prison Project and the Maryland ACLU are challenging conditions
and practices in two jails on Maryland's
Eastern Shore. In Macer, which chal-

lenges conditions at the Talbot County
Jail, counsel reached final agreement on
all issues. We are awaiting court
approval.
Palmigiano v. DiPrete-This case,,';;
challenges conditions in the Rhode Isljind
prison system. The defendants continBe
to be completely out of compliance with
various court-ordered population caps
and major contempt hearings will be
held in the next few months after completion of current discovery efforts.
Spear v. Waihee- This case challenges
conditions at two Hawaii facilities. At

Status Report

the request of the Hawaii Senate, and
with the Prison Project's assistance, the
Governor appointed a special master to
oversee the Corrections Department.
Kip Kautsky, the appointee, will meet
with plaintiffs' counsel and members of
the expert panels in Spear in early 1990
to discuss theirtoncerns about continuing problems in j the Hawaii facilities.
;"1

U.S. v. Michigan-This is a state-wide
Michigan· prison conditions case. On November 3, at the conclusion of a threeday hearing, the judge entered an excellent order on classification.

-continued from page seventeen

fornia, *Colorado, *Connecticut, *Delaware, Georgia, *Hawaii, *llIinois, *Idaho,
*Indiana, Iowa, Kansas, *Kentucky, Louisiana, *Maryland, Massachusetts, '*Michigan, *Missouri, *Nevada, *New Hampshire, New York, *North Carolina,
*Ohio, *Oklahoma, Oregon, *Pennsylvania, *South Dakota, Utah, *Virginia,
*Washington, West Virginia, *Wisconsin,
*District of Columbia, Virgin Islands

Formerly Under Court Order or Consent
Decree-Currently Released from Jurisdiction
of the Court
Three jurisdictions: *Alabama, *Arkansas,
*Wyoming
Pending Litigation
Nine jurisdictions: *California, *Connecticut, Georgia, Illinois, Massachusetts, Nebraska, *North Carolina, *Pennsylvania,
*Utah
Special Masters/Monitors/Mediators
Appointed
Twenty-three jurisdictions: *Alabama,

*Alaska, *Arizona, *Arkansas, *California,
*District of Columbia, Florida, Georgia,
*Hawaii, *Idaho, *llIinois, Louisiana,
*Michigan, *Nevada, *New Mexico,
*Pennsylvania, *Rhode Island, *South
Carolina, *Tennessee, Texas, Washington, West Virginia, Puerto Rico

Prison Systems Under Court Order and
Cited for Contempt
Eight jurisdictions: *Alabama, *Michigan,
Mississippi, *Rhode Island, Texas, Virginia, *District of Columbia, Puerto Rico
Not Involved (to date) in Overcrowding or
Conditions Litigation
Five jurisdictions: Minnesota, Montana,
New Jersey, North Dakota, Vermont
Note: There is some overlap between
the second and fourth categories because in some states where one or more
facilities are under court order, others in
that state are presently being challenged
(e.g., Illinois). III

...
National Prison Project
American Civil Liberties Union Foundation
1616 P Street, NW, Suite 340
Washington, D.C. 20036
(202) 331-0500

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WINTER 1990

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