1II

INSIDE ...
• Expert Negotiations
New Approach to Prison
Litigation

p.6

• Super-Max

Danish J,\pproach Yields
Success

p.8

• Special Masters

Compliance in Prison
Litigation,

p. 9

• Death Penalty

A Matter of Chance

ISSN 0748-2655

NUMBER 6, WINTER 1985

p.12

• PAt Private Prison
Toxic Dump for Sale

NPP Gathers the Facts
on AIDS in Prison

This issue begins a two-part series
on AIDS in prison. Starting on this
page are the results of a state-bystate survey and, on page five, concerns about potential for abuse in
current AIDS testing.

Urvashi Vaid

In early September of 1985, the
National Prison Project initiated a survey
of corrections departments around the
country to determine the incidence of
Acquired Immune Deficiency Syndrome
(AIDS) in the nation's prisons. This
article, the first of a series, reports on
the results of the survey. The second
article will appear in the Spring 1986
issue of the JOURNAL and will focus on
the legal and political dimensions of the
occurrence of AIDS in prison. The
results of the survey are summarized on
page four.
§-

Methodology

G

A four-page questionnaire was developed to gather some basic factual information about AIDS in prison. The survey
was co-authored by Urvashi Vaid and
Dr. Ron Sable, assistant medical director
for the Cook County Jail in Chicago.
Dr. Sable also works with AIDS patients
at the Cook County Hospital. He has
been active intraining correctional
health care prOViders to develop an
appropriate institutional response to
AIDS.
The survey sought information in five
general areas: epidemeological data;
screening and medical care; institutional
operations; and staff and inmate education. Specifically, data on the number of
cases of AIDS and AIDS Related Complex (ARC) was sought by risk group,
age, race and sex. The survey asked
about procedures for intake screening
for AIDS, the use of the HTLV-III antibody test, and general policies on the
medical care and handling of diagnosed
AIDS patients. Questions also covered
the segregation of persons with AIDS

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mation yielded 22 additional responses. I
Two states (Maryland and Ohio) and the
District of Columbia did not respond in
any fashion. The statistical information .
reported on these states was gathered
informally through press accounts and is
marked as such.
The survey was developed in order
to gather basic statistical information and
to get a sense of how corrections
departments are responding to this
medical crisis, and to share this information with the many people and agencies
who are concerned about this serious
problem. It was not designed to obtain
detailed information about particular systems, nor to anticipate all possible scenarios encountered in correctional settings. Protocols and policies on AIDS
were requested and those obtained are
available to the reader from the NPP.

Discussion

~

:is$

j

and ARC, as well as their access to basic
institutional programs. Finally, the survey
sought information on the educational
efforts of the departments, along with
information about inmate and staff
reaction.
The survey was sent to the medical
directors of all 50 state departments of
corrections, as well as to the appropriate administrators of correctional institutions in the District of Columbia, Puerto
Rico, the Virgin Islands and Guam.
Twenty-six written surveys were
returned. Follow-up phone calls to
obtain basic statistical and factual infor-

Information about the number of
cases of AIDS gathered from all 50
states reveals that there have been 420
cases of AIDS diagnosed in the nation's
prisons. 2 Since responses to the survey
were obtained over a two and one-half
month period (September to November,
1985), the precise number of cases
reported will have changed overall as
well as in particular states. The 420 figure reflects the number of cases diag-continued on next page
Responses obtained solely by phone are indicated
with a (.) on the chart.
2The number of cases .of AIDS in the nation's jails
is not reflected in this figure. A whole different
range of problems is presented when considering
jail inmates, many of whom are incarcerated for
short periods of time.
I

A PROJECT OF THE AMERICAN CIMIIE IEIBERTIES UNION FOUNDATION, INC.
·lIIn

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"Prison systems around
the country are striving to
develop a balanced
institutional response to
this medical crisis."
nosed to date, and does not identify the
number of persons with AIDS who are
presently incarcerated. More than half
of these 420 prisoners have died. It was
difficult to determine the exact number
of prisoners with AIDS who have died
because some states did not provide the
information, and in some instances, prisoners with AIDS may have died after
release.
The 420 cases have been distributed
among 24 states. Four states with no
diagnosed AIDS cases reported that they
had individuals who have tested positive
on the HTLV-III antibody test, while 22
reported no cases at the time of the
survey. The overwhelming majority of
the 420 cases diagnosed to date (85 %)
have been found in the New York, New
jersey and Florida systems.
Although the survey sought data on
the age, race, sex and risk group
identity of prisoners with AIDS, the
responses obtained were incomplete and
therefore unreportable. The data
received on the race of prisoners with
AIDS indicates that black and Hispanic
prisoners are heavily represented.
Nationally, people of color account for
over 39% of all the reported cases, as
of November II, 1985. The results
obtained did indicate that intravenous
(IV) drug users form the largest group
of prison inmates with AIDS. According
to the Assistant Commissioner for
Health Services for the New York State
Department of Correction, Dr.
Raymond Broaddus, over 95% of the
231 prisoners with AIDS in New York
were intravenous drug users.
Three major areas were generally
explored in the survey: the identification
and diagnosis of persons with AIDS and
ARC; the medical and institutional treatment of prisoners with AIDS, ARC and
of those prisoners with a positive antibody test; and the development and use
of educational materials related to AIDS.
Only sixteen states reported the use
of some form of intake screening specifically aimed at identifying persons at risk
for AIDS or those with AIDS-associated
symptoms. Screening methods used
included complete physicals, complete
blood count (CBC), skin tests to measure immune competence, and detailed
questionnaires to identify members of
high-risk groups. No state reported sole
reliance on the Enzyme Linked ImmuniSorbent Assay (ELISA) test, which measures the presence of antibodies to the
HTLV-1I1 virus, as a diagnostic tool.
2 WINTER 1985

However, 60% (29) of the 48 states
which responded to the survey indicated
that they use the ELISA test in some
fashion. Five others are developing policies governing its use. The most common usage was a means to confirm the
diagnosis of AIDS where other symptoms were present. The second most
typical usage of the test was on a case
by case basis, as determined by the
medical staff. New York and New jersey do not use the ELISA test at all.
Some of the problems with using the
HTLV-III test as a diagnostic tool are discussed in this issue of the JOURNAL by
Dr. Robert Cohen, the medical director
for Rikers Island jail in New York City.
The test was designed to protect the
blood supply from possibly infected
blood. The test was not designed to
diagnose which persons who test positive for the antibody will develop the
disease. The test cannot distinguish individuals who are carriers of the virus
from those who have been exposed to
it. In addition, the ELISA test when used
on its own results in an extremely high
number of false positives. The test also
results in a high number of false negatives; in other words, individuals who
test negative to the HTLV-III antibody
have gone on to develop the disease.
Despite these fundamental problems
with the HTLV-III antibody test, and
without even discussing the additional
problems posed by the need for confidentiality of test results or the discriminatory treatment of persons based on
their test results, 3 prisoners and corrections professionals around the country
3These issues will be addressed in Part 2 of this
series.

are calling for a greatly expanded use of
the test under the mistaken assumption
that it somehow diagnoses AIDS. Two
inmates in Alabama recently sued to
obtain such testing. Inmates without
AIDS in New York sought, among other
things, to compel the state to examine
all inmates and staff to insure that the
disease had not spread. 4 The corrections
officers' union in Michigan is seeking use
of the HTLV-III test on all state inmates,
while corrections officials in D.C. may
seek the early release of a prisoner with
AIDS on the grqunds that they do not
have the resources to properly treat
him. So far only one state, Nevada, has
used the test on a mass basis, to determine the antibody status of all inmates in
the system, as well as of all newadmissions. No information is available regarding what the state plans to do with
persons testing positive or on the confidentiality of test results. However, Missouri also plans to use the test to screen
all new admissions, and proposals to perform mandatory screening have been
made in Delaware and Pennsylvania.
The use of the test to create more
restrictive, indefinite housing for persons
on the sole basis of their exposure to
the HTLV-III virus poses massive legal
and administrative problems. For one,
there is no medical basis to justify such
segregation on the basis of seropositivity. AIDS is not spread through casual
contact, but only through the exchange
of bodily fluids during sex or by the
<LaRocca v. Dalsheim, 467 NYS 2d 302, 120 Misc.
2d 697 (1983). The suit also sought to prevent the
formation of a single prison where prisoners with
AIDS were housed. The court denied injunctive
relief.

The National Prison Project of the
American Civil Liberties Union Foundation
1616 PStreet, N.W.

Washington, D.C. 20036 (202) 331-0500

JAN ELVIN
Editor, NPP JOURNAL

ALVIN j. BRONSTEIN
Executive Director

STEVEN NEY
Chief Staff Counsel

EDWARD I. KOREN
MARY E. McCLYMONT

NKECHI TAIFA
URVASHI VAID

SHARON R. GORETSKY
Administrative Director and
Research Associate
BERYL JONES

DAN MANVILLE
Research Associate
LYNTHIA SIMONETTE
SALAAMA WADUD

STAFF ATTORNEYS
ADjOA A. AIYETORO
ELIZABETH R. ALEXANDER

SUPPORT STAFF
BETSY BERNAT
Editorial Assistant
MELVIN GIBBONS

The National Prison Project is a tax-exempt foundation-funded 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 alternatives 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 Project JOURNAL is designed by james True.

medium of contaminated blood transmitted through needles. There is no evidence that the HTLV-1I1 virus is airborne, exchanged through kissing,
shaking hands or any other non-sexual
interaction. The virus has not been isolated in human feces. Finally, only a small
percentage of those testing positive on
the ELISA go on to develop AIDS.5
Indefinite confinement on the basis of
antibody status alone would thus pose
serious due process and Eighth Amendment problems. An additional logistical
problem must be considered in reviewing
any proposal to isolate all antibody positive persons. Leading medical experts
estimate that between I to 2 million
people in the U.S. have been exposed to
the HTLV-1I1 virus. 6 New York State
estimates that over 60% of the approximately 36,000 inmates in its system
have been needle-users.? Even if it were
medically and legally defensible to segregate prisoners on the basis of antibody
status alone, it would be physically
impossible, given the overcrowded condition of most prison systems, to isolate
such a large number of prison inmates,
without the construction of new facilities designed solely to accomplish such
isolation.
Segregation on the basis of a confirmed diagnosis of AIDS is the policy of
20 of the 42 states from whom information on this point was obtained
(48%). Seven (17%) others are in the
process of developing a policy and two
(5 %) indicated that they decide to
segregate on a case by case basis. Only
three states, Louisiana, Michigan and
Minnesota, noted that they do not
formally segregate prisoners with AIDS;
while two others noted that they had
been segregating prisoners with AIDS,
but were planning to stop. Most states
reported that persons with AIDS who
are actively fighting an infection are sent
to an outside hospital. Some reported
that they house individuals in prison
infirmaries.
The segregation of prisoners with
AIDS has beel\justified primarily on the
grounds that AIDS patients need to be
. protected from infections they might
catch in general population, and from
the wrath of other prisoners. The segregation of prisoners with AIDS has been
challenged on constitutional grounds in
one lawsuit to date, Cordero v. Coughlin,
607 F.Supp. 9 (S.D. N.Y. 1984). The
prisoners argued that defendants' policy
of segregating them resulted in a lack of
social, rehabilitative and recreational
activities which violated their First,
'''Update: Acquisition of AIDS in the San Francisco
Cohort Study, 1978-1985" Morbidity ond. Mortality
Weekly Report, vol. 34, no. 38, p. 573, 1985.
'Cohen, Robert L., "AIDS: The Impending Quar,amine," HealthlPAC bulletin. p. I, 1985.
Conversation with Raymond Broaddus. 11/18185.

§-

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Eighth and Fourteenth Amendment
rights. The court rejected the Equal
Protection claim after finding that the
state had a legitimate objective " ... to
protect both victims and other prisoners
from the tensions and harm that could
result from the fears of other inmates."
The court held, in part, that "[ejertainly the separation of these inmates
. . . bears a rational relation to this
objective, at least until some better system is developed, and it is undisputed
that defendants are changing their programs as they work to improve their
ability to cope with the needs of prisoners with AIDS." Id., at 10.
The court rejected the Fourteenth
Amendment liberty interest claim on the
basis of Jewitt v. Helms, 459 U.S. 460
(1983), and rejected the Eighth Amendment claim on the basis that no showing
had been made that plaintiffs were
denied adequate food, clothing, shelter,
sanitation, medical care and safety. Id.,
at I I. The court also rejected the First
Amendment claim on the basis of Jones
v. North Carolina Prisoners Labor Union,
Inc., 433 U.S. 119 (1977) and denied
the claims raised under New York state
law based on Pennhurst State School and
Hospital v. Halderman, 465 U.S. 89
(1984).
The Cordero case makes it clear that
while prisoners with AIDS who seek to
remain in general population have an
uphill fight, they could successfully challenge their confinement in such a status
if conditions are violative of the Eighth
Amendment. In other words, segregation of prisoners with AIDS must involve
more than placement in an isolation cell
for 24-hours a day. Comprehensive and
detailed information about the conditions under which people with AIDS are
confined was not sought in the survey.

However, information concerning
prisoners' access to visitation, law
library, exercise, correspondence and
vocational and educational programs was
sought. Ten states provided information
on these areas. 8 All ten allow some visitation with the AIDS patient; only one
does not provide access to a law library
or to exercise (Virginia); and three do
not allow access to vocational and educational programs (Pennsylvania, South
Carolina, Virginia). It should also be
noted that at least one action seeking
better medical treatment is being
brought on behalf of prisoners with
AIDS.9
The survey revealed that a significant
number of states (20%-8 out of 40)
from whom information was obtained
isolate prisoners with the condition
described as AIDS-Related Complex
(ARC). Ten states (25%) have not had
any diagnosed ARC cases, while 9 (23%)
states reported they do not, or do not
plan to, isolate persons with ARC.
These states include Florida and New
York. Of the eight who stated they do
not segregate ARC patients, (our segregate prisoners with AIDS. Seven states
reported they are developing policies
with regard to segregation and six
reported that they do so on a case by
case basis.
Ironically, the survey revealed that
no consistent definition of AIDS Related
Complex is used across the country. Of
the 46 states from whom information
-continued on page 5.
·California. Connecticut, Illinois, Maine, Michigan,
New York, North Carolina, Pennsylvania, South
Carolina, Virginia.
-This action is being brought by a private attorney
and Prisoners Legal Services of New York. Further
details will be reported in the second article of this
series.

WINTER 1985 3

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-continued from page 3.

Conclusion

on this point was obtained, 35% (14)
use no definition of ARC. Five percent
(2) do not identify prisoners with ARC
in any way. Only 20% (8) cited the
Centers for Disease Control's definition
as the one they use. The CDC defines
ARC as the existence of any two clinical
and two laboratory abnormalities from
two separate lists of symptoms and tests
which they have created. Another 20%
identified ARC as a pre-AIDS condition
marked by the presence of symptoms
alone, while another 23% (9) defined
ARC as being a positive HTLV-III test
with some AIDS-associated symptoms.
The final area surveyed was the
development of training and educational
materials on AIDS for staff and inmates.
As the chart indicates, information was
not obtained from all 48 responders on
these points. However, the data gathered clearly reveals that the majority of
corrections departments have developed
training seminars for medical and security staff, and have distributed educational
materials to inmates. The process of
education is perhaps the key ingredient
to the corrections community's
response to the AIDS crisis. The educational brochures and fact-sheets gathered through the survey were reviewed
and, while found to be technically
accurate, varied greatly with respect to
their specificity and their perspective.
Prison systems concerned with needleuse as well as consensual and non-consensual sexual activity inside prisons must
continue to develop and improve educational materials which specifically and
vividly impress upon both inmates and
staff the risks associated with certain
behaviors. Information which discusses in
detail the risk of sharing needles, defines
casual contact concretely in the context
of the prison environment and tackles
tough questions about safe and unsafe
sexual practices was not found among
the educational materials received.

The diagnosis of AIDS among prison
inmates has caused enormous concern
among inmates, correctional officers and
prison administrators. Although such
concern is understandable given the
serious nature of the disease, it is important to remember that while approximately 420 persons with AIDS have
been diagnosed in the nation's prisons,
there were over 452,372 prisoners
incarcerated in state correctional
systems, as of the middle of 1985. 10
Assuming that half of the 420 prisoners
with AIDS have died, the approximately
200 cases of AIDS in prison represent
less than .00 I % of the total national
prison population in state correctional
§systems. Prison systems around the
country are striving to develop a bal~
anced institutional response to this medi- .~
cal crisis. National organizations such as j
the National Institute of Corrections
(NIC) and the American Correctional
~
Association are also working on the
issue and will be releasing an "Issues and ~
Practices Document" on AIDS in prison
in early 1986. The next article in this
This survey would not have been
possible without the research and organizaseries will discuss more specifically the
tional skill of NPP law student intern Katy
legal, administrative and political probBaird, nor without the input and assistance
lems that the incidence of AIDS in
prison poses. •
of NPP law clerk Laurie Solomon.

KEY
*Telephone response obtained
**Information obtained from press reports
A = case not confirmed but highly suspected
to be AIDS
B = determined on a case by case basis
C = in the process of developing policy
D = no, but plan to
E = have been, but may not in the future
I = housed in infirmary or hospital
K = the ARC classification is not recognized
by the system
N=No
NIA = not applicable
P=have individuals with positive HTLV·]
antibody tests, but not confirmed
AIDS diagnosis
S = same protocol(s) used as for other
infectious diseases
U = information unavailable

f

'OBureau of Justice Statistics, Mid-Year Report on
Prisoners, 1985.

Medical Expert Views
Potential for Abuse in AIDS
Screening
Robert L. Cohen, M.D.
At the present time there is no test
for AIDS. The antibody test which is
available, known as the ELISA test, was
designed to screen donated blood for
presence of antibodies to the HTLV-1I1
virus, which is thought to cause AIDS.
The first published report of the
virus now thought to be the cause of
AIDS came from Barre-Sinoussi, et aI.,
of France in 1983.' They called it
Lymphadenopathy Associated Virus
(LAV). In 1984, Dr. Robert Gallo of the
National Cancer Institute reported finding the AIDS virus, which he labelled
HTLV-1I1. 2 Dr. Gallo's prior research
'Barre-Sinoussi, F.; Chermann, J.; Rey, F., et aI.,
"The Multiple Isolation of a T-Lymphotropic
Retrovirus From a Patient At Risk for Acquired
Immune Deficiency Syndrome," Science, Vol.
220:868-871, 1983.
2Gallo, R.C.; Salahuddin, S.Z.; Popovic, M., et aI.,
"Frequent Detection and Isolation of Cytopathic
Retroviruses From Patients With AIDS Or Risk
of AIDS." Science, Vol 224:500-503, 1984.

involved the rival causes of certain cancers, in the course of which he had identified a virus causing a human cancer and
named it HTLV-I. Although LAV and
HTLV-III seem to be identical and LAV
was described 18 months earlier, Margaret Heckler, then Secretary of HHS,
credited Gallo with the "discovery" of
the AIDS virus.
The thesis that this virus is the causative agent of AIDS rests on several
pieces of evidence. First, LAVIHTLV-III
appears to be a new agent, not preViously seen in the United States or
Europe. Second, it specifically infects
certain kinds of T-Cells and damages
them, creating the T-Cell defect characteristic of patients with AIDS. Third,
the virus is found in most patients with
AIDS and has been found in asymptomatic individuals who have donated
blood to individuals who later developed
AIDS.
-continued on next page
WINTER 1985· 5

•••

• • •·••91
••

_

"At the present time
there is no test for
AIDS. "

The official position. of the Centers
for Disease Control and the National
Institutes of Health is that LAV/HTLV-III
causes AIDS, and it does appear probable that most, though not all, individuals
who have AIDS have been exposed to
it. However the majority of individuals
who have antibodies directed against
LAV/HTLV-III do not have AIDS as
defined by the CDC.
Dr. Gallo developed a simple assay
for measuring the presence of antibody
to the LAV/HLTV-III virus, using a technique called Enzyme Linked ImmuniSorbent Assay (ELISA). This test is now
available as a commercially produced kit
. manufactured by several drug companies.
Although this method is widely used, it
gives false positive results with disturbing
frequency. In two studies involving
screening of donated blood· during the
period March through June in 1985 the
following results were obtained:
I. In the first study, conducted by
the FDA, an initial positive ELISA result
was found in 9,629 out of 1,128,166
units of blood tested.
2. Of those 9,629 initially testing
positive, 2,831 were found to be positive when the ELISA test was repeated.
Thus 29% of those initially testing
positive remained positive on further
testing.
3. In another study conducted by
1,593,969 units of donated blood,
repeated ELISA testing was positive for
3,209 units. When a sample of 2,552 of
these repeatedly positive units was
tested by the Western Blot test, a confirmatory test for presence of antibody
to the LAV/HTLV-III antibody, 587
were labeled positive. Thus only 23 % of
those repeated testing positive were
confirmed tQ actually be positive.
4. Combining the results of these
two studies we see that a positive ELISA
test when repeated is positive only 29%
of the time, and that these repeatedly
positive tests can be confirmed only
23% ofthe time. Out of 1,000 tests
290 would be positive on repeated
ELISA testing, and 23 % of these 290,
or 67 would be confirmed as positive by
the Western Blot test. Therefore 923,
or 92% would be labeled falsely positive
by a single ELISA test.
These studies of volunteer blood
donors tested a population with a low
prevalence of positive antibody. For the
ELISA, as for other laboratory tests, the
lower the prevalence of individuals with
antibody present in the sample being

tested, the higher the number of false
positive tests. At the present time the
prevalence of AIDS and of antibody to
LAV/HTLV-III among prisoners is very
low in most states, and false positive
tests would be common if performed.
Although a Western Blot test for confirmation could be performed on repeated
positive ELISA tests, this test is at the
present expensive and not completely
reliable. 3
The ELISA test not only has many
false positive results, it also has false
negative ones. In a study of 96 patients
with AIDS, ARC, or at risk for AIDS,
four had no detectable antibody to
LAV/HTLV-III even though LAV/HLTVIII virus was grown from their blood. 4
This represents a detection failure rate
greater than four percent among people
who could potentially transmit the
disease. At this rate, among the one to
two million people exposed to date,
40,000-80,000 would escape detection.
The presence of antibody to HTLVIII does not provide that the HLTV-III
virus is present; it just means that
exposure has occurred. Additionally,
more than two thirds of individuals who
have been exposed to the HLTV-III virus
show no evidence of AIDS or any AIDS
related disease. There would be no dif]"Blood Banks Give HTLY-III Test Positive
Appraisal at Five Months," JAMA, Yol. 254, No.
13, p. 1681.
'Salahuddin, S.Z., Markham, P.O.; Redfield, R.R.,
et aI., "HTLY-III in Symptom-Free Seronegative
Persons," Lancet, p. 1418-1420, 1984.

ference in the treatment that any individual would receive based upon the
results of this test. If virus were present
then the individual has the potential to
transmit the disease.
For these reasons, HTLV-III antibody
testing should not be performed in
prisons or jails. The diagnosis of AIDS or
AIDS Related Complex is made by clinical evaluation, not by this test. We have
found on Rikers Island that a combination of the White Blood Cell (WBC)
count which is less than 3500 and an
anergy screen ""hich is negative to 4
antigens does identify individuals who
have severely depressed T-cell ratios.
AIDS is not casually transmitted; it
can only be spread in a jailor prison
through sexual intimacy or sharing of
needles. There is no reason to segregate
inmates based upon the results of this
test. Because intravenous drug use is a
common experience for inmates prior
to their inc;lrceration, targeted educational efforts about the spread of AIDS
through sharing of syringes can be very
productive for this population. Similarly,
education about safe practices should be
provided to all inmates. Since consensual
homosexual sex occurs in prisons and
jails, just as it does everywhere in our
society, condoms should be provided to
help prevent the spread of AIDS within'
correctional facilities. •

Dr. Cohen is the Director of the Montifiore
Rikers Island Health Services in New York
City.

Expert Negotiation Brings
New Ap·proach to Prison
Litigation in Hawaii
Ted janger
The details of the Hawaii settlement
and consent decree were reported in the
Fall 1985 JOURNAL, "Hard Fought Settlement Reached in Hawaii Case," 5 NPP
JOURNAL at 3.
When a legislature or bureaucracy
fails to meet its Eighth Amendment obligations, it falls to the judiciary to determine the scope and meaning of the
words "cruel and unusual punishment,"
and to formulate a remedy. Fiss, The
Forms of justice, 93 Harv. L.Rev. I
(1978); Fletcher, The Discretionary Con-

stitution: Institutional 'Remedies and judicial
Legitimacy, 91 Yale L.J. 635 (1982).
That judges are well qualified to determine the meaning of constitutional
values has deep roots within our jurisprudence, but once constitutional liability

has been established, remedying the deficiency is often a process which carries
judges well outside their accustomed
role as settlers of disputes. Chayes, The

Role

of the judge in Public Law Litigation,

89 Harv. L. Rev. 1281 (1976). As a
result, prison reform litigation is sometimes criticized for turning judges into
prison wardens.

Expert negotiation was developed
as a child of necessity.
During the early years of prison litigation this criticism carried some weight.
When the novel issues of liability for
conditions of confinement first reach the
courts, the judge and parties are forced
to pick their way through previously

6 WINTER 1985

.e.

uncharted territory. But as judges, the
plaintiffs' bar and the defendants' bar
have become more sophisticated, new
techniques have developed which have
helped to narrow the gap between right
and reality, while allowing jUdges to
remain more comfortable within their
judicial role.
The technique of expert negotiation,
used by the National Prison Project and
the State of Hawaii to settle the litigation in the case of Spear v. Ariyoshi, is
one of the most promising of these
techniques, and one that highlights the
fact that prison litigation has entered a
new stage in its history.

The Hawaii Decree
Expert negotiation was developed as
a child of necessity. In Hawaii, as trial
approached, the parties began
settlement negotiations with respect to
conditions at the Oahu Community Correctional Center and the Hawaii
Women's Correctional Facility. Both
were severely overcrowded and suffered
from deficiencies in environmental conditions, medical services, security staffing,

. . . expert negotiation eliminates
the adversarial nature of the
process and replaces it with one of
mutual persuasion.
training and classification. With only
three days remaining before the scheduled trial date, there simply was not
enough time to draft a detailed consent
decree. Instead, the parties chose to
deal with the immediate population
problem, agreeing to set up panels to
investigate remaining concerns. Each
panel included one expert proposed by
the plaintiffs, one by the defendants and
a member of the Department of Corrections. The panels had 90 days to
develop a final plan for remedying the
deficiencies in their subject area, referring any disputes to a mediator agreed
to by both of the parties.
The settlel'nent has worked well. The
state has met population reduction deadlines; the outlines of the plans were
determined within the 90-day deadline,
and the plans will be submitted to the
court for approval. Moreover, the
parties have retained the right to object
to any portions of the plans developed
by the experts which do not satisfy constitutional requirements or the provisions of the decree.

Advantages
This novel method of settlement has
a number of practical advantages, some
of which inhere the settlement generally, while others are specific to this
form of expert-negotiated, or

arbitrated, settlement. Judges are understandably reluctant to define the constitutional minimum for a given situation.
As a result, judges will often find liability
and then resort to threats or broad
outlines rather than detailing specific
methods for reaching those goals. This
was the technique used consistently by
Judge Henley in the Holt litigation in
Arkansas. Spiller, After Decision: Implementation of Judicial Decrees in Correctional Settings (1976). Settlement, on the
other hand, is negotiated with constitutional minima in the background, but the
terms of the settlement do not define
the constitutional minima. As a result,
the parties are free to negotiate relief
down to the last detail. Settlement
decrees are thus often more subtle and
more finely tuned to the situation.
Anderson, The Approval and Interpretation
of Consent Decrees In Civil Rights Class
Action Litigation, 1983 U.III. L.Rev. 579,
584 (1983). In the face of a more
detailed decree, compliance is easier to
monitor. Moreover, the judge is left
with the less controversial task of determining whether the parties have lived up
to the terms of their agreement, not
whether they have violated the
Constitution.
Settlement by expert negotiation
shares these benefits of settlement generally, but <tarries them one step
further. By dropping the lawyers and the
judge out of the decree formation process at. an earlier stage, expert negotiation eliminates the adversarial nature of
the process, and replaces it with one of
mutual persuasion. The prison official
must convince the experts that he is
doing as much as possible to improve
the situation, while the ~xperts cannot
recommend a solution that goes beyond
what the prison official considers feasible. As a result, the prison administrator
is exposed to authoritative opinion, and
can use that knowledge in order to
devise remedies to the problems within
his own system. The result is that the
cooperation of key prison administrators
is maintained. This is particularly
important in institutional reform
litigation, where the primary goal is to
create change within the institution.
The fact that this technique has only
recently become a viable option indicates a shift in the nature of prison litigation. It can be seen by comparing the
shifting roles of the judge and experts in
early cases to more recent ones. In the
early cases the key issue was to determine whether, and under what circumstances, liability existed for prison conditions. The role of the expert was to
educate the judge: to tell him whether
conditions in a given prison were cruel
and unusual. See Pugh v. Locke, 406
F.Supp. 318, 322 (M.D. Ala. 1976). The
judge was the center of the process. It

~

"'" h;, job to detenn;ne I;ab;Uty

fashion relief.
As the case law developed, establishing a basis for liability, prison administrators began adopting nationally
recognized standards (although these
standards did not themselves define constitutional minima). The developing case
law, combined witn these professional
standards, made it easier for judges to
determine. wh~ther a given practice fell
so far below the level of accepted conduct as to constitute cruel and unusual
punishment. The judge became less
important to th~ process as his role
shifted from one of making raw toone

The technique of expert negotiation . . . is one of the most
promising of these techniques, and
one that highlights the fact that
prison litigation has entered a new
stage in its history.
of finding facts. The law began to settle
around certain clear standards. Possibilities for settlement increased when
defendants began to see that conditions
within their institutions violated professional standards, which were clearly
attainable and could form the basis for
discussion. Thus, in this second phase the
experts became more important; they
were consulted when deciding whether
or not to bring suit, when formulating
the decree, and in monitoring
compliance.
In Hawaii, prison litigation entered a
third phase. Expert involvement has
reached a new peak. The parties have
chosen to delegate their positions as
negotiators to the experts. The fact
that both parties were willing to agree
to this process of expert negotiation is
simply a confirmation of the trend
toward settlement. While plaintiffs
recognized that an institution managed in
conformity with professional standards
may meet constitutional minima, defendants acknowledged that compliance
with professional standards was part of
the obligation of the state to its
prisoners.

Legitimacy
It is possible to argue that settlements of this type signify a failure of the
parties to press the interests of their clients. Such criticism is misplaced, at least
in the prison context. (This is especially
true since the parties retain the ability
to argue to the court that certain
expert-negotiated provisions do not satisfy their clients' needs.) The primary
reasons for requiring parties to go to
trial are to guarantee the development
-continued on next page
WINTER 1985 7

of the law, to protect unrepresented
interests, and to insure that the judge
has sufficient expertise to insure that he
will be able to evaluate later conflicts
over compliance when they inevitably
arise. None of these interests are present in the prison context. The law is
well understood. The class of inmates in
a prison is unitary with respect to its
interest in improved prison conditions. It
is not as important that the judge
develop familiarity with the conflict in
the first instance since there is an
accumulated body of judicial expertise
already in place with respect to judicial
administration of prisons. The same role

can be filled by an actor who already has
that experience. With this in mind,
parties should avail themselves of the
advantages of direct discussion between
acknowledged experts and an official of
the prison system.
The Hawaii decree may be a model
for speedier, less costly prison litigation
resolutions and, most important, the carrying out of a state's obligation to house
prisoners in constitutional prisons. •

Ted janger is a second year student at the
University of Chicago School of Law and
worked as a summer intern at the Prison
Project.

Denmark's Radical Approach
to Super-Max Yields Success
This is the fourth in our series on the proliferation of the supermaximum security prison.
(See "Super-Max Prisons Have Potential for 'Unnecessary Pain and Suffering', " 4
JOURNAL at I; "Oak Park Heights Sets High Super-Max Standards," 4 JOURNAL at 3;
"Bureau Continues Totalitarian Measures at Marion," 5 JOURNAL at 8.) Mr. Andersen
served as a consultant to the planners of the Oak Park Heights facility in Minnesota.
Erik Andersen
Ringe, a Danish "dosed" prison, is
the counterpart to the American maximum security penitentiary. The prison
opened in January 1976, designed to
accommodate 90 inmates* (male and
female) under the age of 25, for whom
detention in an open prison was deemed
unsuitable (Le., serious drug offenders
or prisoners with escape records from
less secure facilities). By Danish standards, this prison was designed for a
difficult population.
The prison employs a total of 73
people, 50 of whom are standard officers. With 90 inmates, the staff-inmate
ratio is .8: I . It has an electronic security
system and is surrounded by a 16-foot
high security wall.

Sinc€ the beginning at Ringe, we
placed great responsibility on the
inmates and their officers. This is
surely Ringe's most radical and
far-reaching innovation.
Ringe is very different from its
counterparts in the United States, even
beyond the fact that the facility is small,
co-ed and has a high staff-to-inmate
ratio. One major difference is found in
•American readers must change their mindsets
about prisons when reading this article. A facility
for 90 prisoners is not considered small in Scandanavia where many new prisons are designed to
hold approximately 40 persons.

8 WINTER 1985

the staff structure. To concentrate on
the many and varied jobs in the prison,
and to eliminate divisions and tensions
between treatment and security staff,
we have developed a non-traditional staff
structure. Instead of dividing the basic
staff into categories of security and pro-

gramming, we formed a single group
called "standard" officers who have
professional skills but are able to
perform all of the duties required in
prison activities. These include security
work, instruction in prison work programs, service as guards in wings, transport duties, and to a certain degree welfare officer duties as well. Unlike most
other Danish prisons, officers at Ringe
do not wear uniforms. The prison staff
is divided into six groups, each serving a
specific residence-wing. Each group
carries out the duties required for their
wing, and shares other duties with the
other five groups. There is no duty
roster in the normal sense; each group
organizes its own duty roster on the
basis of an adapted flexible time schedule
which is controlled by the micro-computer of the prison. During the planning
stage for Ringe, we decided that there
would be two primary criteria for the
.standard officer staff. One was that they
could never have worked in a prison
before (to eliminate people with traditional and pre-conceived ideas about
prison) and the other that they be
trained carpenters or cabinet workers.
As this was to be a work prison, the
latter was essential.
One of the most important things I .
have found in my many years in Danish
prison work was that even though we
expected inmates to be able to return
to normal society, everything we had
been doing for them left them as unprepared for normal life as possible. Thus,
since the beginning at Ringe, we placed

Inmates at Ringe prepare their meals in group kitchens.

great responsibility on the inmates and
their officers. This is surely Ringe's most
radical and far-reaching innovation.
Ringe is set up on a "functional unit"
model whereby it is divided into six living
sections, each with its own group of
standard officers. All decisions concerning inmates are made at "section" meetings held by the standard officers of
each section every two weeks, assisted
by the welfare supervisor and one of the
senior officers. The standard officer is
important here also. He or she, for in
all the wings two of the officers are
female, is the person who knows the
inmate best, and when necessary, helps
solve any social problems that arise.
Our intention is to give prisoners the
greatest possible degree of influence
over their own affairs, through performance of their social duties, and in
everyday routine - practical matters like
use of their private property, preparation of food, and payment of wages and
money for food in cash. In five of the
six wings, men and women inmates live
next door to each other. In principle,
inmates are expected to manage their
own social responsibilities and overcome
their own problems as they would in the
free world. If necessary they can obtain
the help of the standard officer on duty
in their wing. If the situation requires
special knowlege of welfare or other
regulations, the standard officer can
obtain the assistance of a welfare
officer.
The prison has no central kitchen and
prisoners prepare their own food. To
this end a kitchen has been provided on

Men and women prisoners at Ringe living in the
same housing unit may visit freely. Inmates have
the keys to their own cells.

Women prisoners are allowed to
keep their children under two years
old . . . where it is in the best
interest of the mother and the
child for them not to be separated.

Special Masters Aid
in Compliance Efforts
Susan Sturm
This article is based in part on discussions
held at a conference in May of 1985 held
by the Edna McConnell Clark Foundation
on the Role of Special Masters in Implementing Prison Decrees.
Over the past decade, courts and
litigants have increasingly turned to
special masters to aid in achieving
compliance with court orders involving
unconstitutional prison conditions.
Experience has shown that a court's
each block, and with the meal payments
made (35 Dkr. daily [equiv. =approximately $4.50]), prisoners can buy the
foodstuffs they need in a shop set up in
the area originally intended to be a central kitchen. The shop is operated by a
local food store. Prisoners form small
cooking groups; the organization of this
is left entirely to them. Meal payments
and wages are paid once weekly to prisoners in cash. Payment is made in a
bank-room provided for by a local bank
which agreed to operate this service.
In the prison, co-education has
become part of the natural daily routine.
In the five wings where men and women
live together the atmosphere has
become more natural, less sterile and
artificial than a "normal" prison.
We provide three types of employment for prisoners. The carpenters'
shop employs 35 inmates who make high
quality furniture; the assembly shop
employs 15-20 inmates. This unit manufactures a wide range of products from
mailbag bases to electronic components
such as battery chargers for hearing aids.
The prison's third working unit is a
mobile cleaning team which employs the
latest equipment and keeps all common
rooms and facilities clean. The team is
comprised of 5-7 inmates, a few more
in the summertime because it also looks
after the outdoor facilities. Two groups
of six specially selected inmates work
outside the prison in the company of
standard officers. One group is building a
fishing-boat and the other is engaged in
landscape preservation. Inmates are paid
according to group piece-rates but at
the same time have the opportunity to
earn a bonus every time they learn how
to operate a machine, for instance, or
master certain working processes.
Of course the inmates can be visited
by their relatives or by others with
whom it is important for them to keep

declaration that the conditions of a
prison violate the Constitution and must
be changed does not, in and of itself,
bring about the required reforms. In
fact, the problem~ that plague unconstitutional prisons and jails are complex
and, in some cases, deeply entrenched.
The process of achieving constitutional
prison conditions often founders without
sustained intervention by a neutral,
authoritative representative of the
-continued on next page
in contact. They have the right to two
I-hour visits a week but a visit will
normally last three or four hours. Visits
take place indiVidually in special rooms
and they are normally unsupervised,
including visits by persons of the opposite sex. As in all other Danish prisons,
conjugal visits are allowed at Ringe. Only
if there is a substantial suspicion that a
visit will be abused will it be controlled
by an officer present in the room.
Because many of the prisoners are drug
addicts, the abuse will consist of smuggling drugs, so the inmates are always
thoroughly searched after a visit. There
is a special area in the prison infirmary
where women prisoners are allowed to
keep their children under two years old
in cases where I decide it is in the best
interest of mother and child for them
not be be separated.
Many maximum security prisons
operate with the belief that prisoners
will behave badly and therefore must be
treated harshly with their every movement controlled. At Ringe, we believe
that prisoners will behave decently if
treated decently and with a minimum of
control. The experience at Ringe has
been a positive one thus far. Inmates and
standard officers alike respond positively
to the humane and flexible environment
and there have never been any great
troubles or problems. One of our hopes
and expectations is that other Danish
prisons and prisons elsewhere will learn
and benefit from our experience. •

Erik Andersen is governor (Warden) of the
state prison in Ringe, Denmark, and has
held positions as head of education, deputy
governor, and governor at several other
Danish prisons. From 1973 to 1974, he
was head of the prison officers' training
school in Copenhagen; from 1974 to
1976, he headed the Ringe Prison planning
committee.
WINTER 1985 9

. I

7

._---'U

-continued from previous page.
court-hence the need for the special
master.
Special masters are relatively new to
prison litigation. Ten years ago, prison
masters were few and far between.
Now, masters have been appointed "in
over 20 jail cases around the country, in
another dozen state institutions and in
the entire correctional systems of Cook
County, Illinois, New York City, and
the states of Rhode Island, Oklahoma
and Texas." I
The use of masters is not without
controversy. Although there is a consensus among prison litigators that a master's appointment is necessary to
achieve compliance with a prison decree,
many prison administrators and state officials oppose the appointment of masters as an unwarranted judicial intrusion
in the administration of the prison. Some
judges and legal scholars have raised concerns about the potential threat to the
legitimacy of the courts posed by the
special master's broad mandate. These
concerns must be addressed in formulating both the justification for appointing
masters and the definition of their role if
masters are to continue to be an effective means of achieving compliance with
prison decrees.

What Is a Special Master?
A special master is an official appointed by the court to aid in the development and/or implementation of a
court order mandating changes in prison
or jail conditions. 2 Some masters are appointed after a finding of liability, to aid
in the development of a remedial order
by fashioning the remedy independently
or by mediating between the parties to
achieve a negotiated order. Others are
appointed later in the process to aid in
implementing the court's order. In these
cases, the master's formal role is likely
to consist of observing and reporting to
the court on the defendants' progress
toward compliance, holding hearings, and
making recommendations to the court
concerning standards for compliance and
interpretations of the order. In addition,
masters may be called upon to mediate
disputes that arise among the parties in
the course of implementation, to facilitate communication among the absent
defendants whose cooperation is necessary to achieve compliance, and to provide expert assistance to the parties in
developing and implementing programs.

Michael Keating, Proposal for a Monograph on
Court Appointed Masters, p.7.
2For a comprehensive discussion of the role of
masters, see Vincent M. Nathan, "The Use of
Masters in Institutional Reform Litigation", 10 U.
of Tol. Law Rev. 419 (1979).

I

10 WINTER 1985

Appointment of a Special Master.
The circumstances under which it is
appropriate to appoint a master vary depending on a number of factors, including the stage of the lawsuit, the subject
of the suit, the judge's view of his role,
the degree of involvement of counsel,
the history of the litigation, the politiCS
of the prison, the position of the defendants and the role and power of the
master. 3 One scenario justifying the appointment of a special master was described aptly by judge justice: where
there is a finding of liability and a showing of intransigence on the part of the
defendants, the appointment of a master
is appropriate. 4 Sometimes, testimony of
key defendants during the hearings on
the issue of liability demonstrate to the
court that the defendants are incapable
of maintaining constitutional prisons.
Some officials reveal in their testimony
that they are satisfied with prison conditions which violate the Constitution, and
~re thus simply unwilling to take the

correct and credible factual record that
provides a common starting point for
the compliance process. 6 Also, by maintaining a presence in the prison, the master is a constant reminder of the specter
of the federal court, and may be able to
create a powerful incentive to comply
with the court order-getting rid of the
master.
Demonstrated inability or unwillingness to reform prison conditions is not
the only basis for appointing a master.
Masters may play a critical role in developing an order that is clear, workable,
and acceptable to the parties. Obviously,
the order provides the blueprint for the
entire implementation process. Many of
the problems that arise in the course of
implementation result from ambiguous
or impractical provisions in the court
order. Regardless of whether the defendants have demonstrated the willingness
and capability to undertake compliance,
a master may be extremely helpful in
formulating the terms of the order. If
the parties are able to reach agreement
on at least some of the terms of the
order, this negotiation process may set
_ the tenor for compliance.?
Of course, the process of formulating a decree may accentuate the differences between the parties in attitudes
and expectations with respect to compliance, and result in a degree of hostility
toward the master, who must arbitrate
these differences to achieve a result. For
this reason, one master has suggested
that if a master is to be involved in both
development and implementation of the
order, it may be appropriate to consider
Linda Singer, a Washington
appointing two different people to serve
attorney, is the special master
these
roles. s
in Powell v. Ward, a New
Masters
may also be effective in
York prison disciplinary case.
achieving compliance through consent
steps necessary to bring the prison into
decrees, prOViding the necessary liaison
compliance. s Certainly, in cases where a
between officials whose cooperation is
court order has been in effect for years
essential to aspects of the court order.
and the prison conditions continue to
Also, masters can save substantial time
violate the Constitution, appointment of and resources by avoiding costly disa master is justified.
covery and formal proceedings that
often accompany compliance. Moreover,
judicial intervention under these cirwhere the parties consent, masters are
cumstances is constitutionally mandated.
Issuance of a court order alone, without able to minimize the impact of the adversary process, which has a tendency
some mechanism for enforcing it, is unto polarize the parties and intensify the
likely to enable the court to fulfill its
confrontational atmosphere of the
mandate to provide a remedy to inprison. Participation of a master often
mates. Where defendants are unable or
results in the infusion of resources and
unwilling to enforce a court order, the
attention to the particular system, and
most effective master may be one with
enables the parties to compensate for
broad powers and a limited role. A master with unlimited access to records,
any inadequacies in the court order
staff and the facility, and the power to
hold hearings and issue reports can per'Remarks of Vincent Nathan, Clark Foundation
Conference.
form the critical role of establishing a
'Remarks of Michael Keating, Clark Foundation
Conference.
'Remarks of Judge William Wayne Justice, Clark
Foundation Conference.
sRemarks of Allen Breed, May 3, 1985, Clark
Foundation Conference.

7Remarks by Linda Singer in a telephone conversation of November 14, 1985. Ms. Singer also
pointed out that in fact, the decree shifts the
power balance, giving the defendants the incentive to negotiate.
8Remarks of Allen Breed, Clark Foundation
Conference.

without having to return to court for
formal proceedings. Because the master
may, under these circumstances, act as a
catalyst for change required by the consent decree, his involvement may expedite compliance even where defendants have agreed to implement changes
in the prison system.
Defendants are likely to resist the
appointment of a master as part of a
settlement. Masters are often associated
with failure on the part of the prison
system or inability of its administration
to run a decent prison. Also, administrators are interested in minimizing the involvement of the federal court.
One response to defendants' reluctance to involve a master is to change
the name. For example, in New York
City the parties agreed to the formation
of the Office of Compliance Consultants
as part of a negotiated decree. Resistance may also be diminished if they are
made aware that masters may be more
sensitive to the defendants' concerns
about security and cost than plaintiffs'
counsel, and may in fact end up being
less disruptive to the management of the
system than aggressive plaintiffs' counsel.

Also, masters have been successful in
obtaining resources and expertise
necessary to achieve compliance.
Structuring the Master's Role:
Basic Principles
Several principles have emerged from
the experience of masters over the last
decade. It is crucial that the master have
the support of the judge who appoints
him, regardless of the circumstances of
his appointment. The master's power
and authority derives solely from the
court. Unless the court understands and
supports the appointment of a master,
the master's effectiveness will be limited,
at best. 9
To be successful, a master must also
have sufficient power to enable him to
perform his duties effectively. As Ralph
Knowles stated, it is worse to have an
ineffectual master than no master at all.
A compliance panel charged with general
oversight duties with no real authority
creates the illusion that something is
being done when, in fact, the situation
remains the same.
'Remarks of Ralph Knowles and Allen Breed,
Clark Foundation Conference.

Private Prison Plans
Dropped by Buckingham
Jan Elvin

In the last issue of the JOURNAL, we
reported that Buckingham Security Ltd.,
a private corrections firm, was making
plans to build a private prison on a toxic
waste site in Beaver County,
Pennsylvania.
They have since abandoned those
plans and are attempting to sell the land,
which they purchased for one dollar, for
$790,000.
The maximum security prison was to
house 71 6 protective custody inmates
from various states. Buckingham's plans,
however, were placed in jeopardy by
the threat of a moratorium bill in the
Pennsylvania legislature, which would
have put on hold any construction or
operation of private prisons for one
year while questions concerning their
use could be answered. The bill has since
been amended to incorporate a bill
licensing privately managed, minimum
security, short-term facilities. At
present, there is no procedure for
licensing a private prison, such as the
one Buckingham has in mind, in the
state.
According to Sue Frietsche of the
Pennsylvania Civil Liberties Union, Pennsylvania legislators were put off more by

the idea of the state being used as a
"dumping ground for other states'
prisoners," than by the idea of a prison
built on a hazardous waste site.

----------------------------------

It is just as important, however, for
the parties and the court to recognize
and make explicit the limits of the master's power. 10 Experienced masters have
reiterated that it is crucial that masters
have no power to participate in the dayto-day decisions in the prison or to
administer directly. Masters also emphasize that they should not become
involved in the budgetary process. Some
courts have even placed such limitations
on the master's role in the order of reference to alleviate defendants' fears.
Moreover, masters cannot effectively
play the role of'\nediator or advisor
without the consent of the parties. By
defining the master's formal role as
largely one of fact-finding and reporting
to the court, courts may reduce defendants' resistance to the master's involvement and alleviate at least some of the
concerns about its legitimacy. I I
Experience has shown that concerns
about a master's legitimacy have a direct
-continued on next page
-------,oRemarks of Vincent Nathan. Allen Breed and
Michael Keating, Clark Foundation Conference.
"Remarks of Allen Breed, Clark Foundation
Conference.

The threatened moratorium bill had a
chilling effect on Buckingham's ability to
get financing for the protective custody
facility, and that is probably the main
reason behind the firm's decision to
back off. "We cannot afford to continually spend additional funds on this project while there remains a threat of a
moratorium on private prison construction or while no positive legislation is
passed which constructively regulates
private prisons," said Joseph Fenton,
Executive Vice President of Buckingham,
in a letter to a supporter of the building
project.
In addition, a study released in early
October by the Legislative Budget and
Finance Committee bf the Pennsylvania
General Assembly identified a host of
potential problems associated with privatization, including: government liability
for private entrepreneurs' actions; lack
of legal provisions for emergencies such
as riots, escapes, and bankruptcies;
possible misuse of the profit motive;
lessening of public accountability; lack of
established relationships with other parts
of the criminal justice system; potential
creation of a private monopoly; and the
problem of the use of deadly force and
firearms by private prison guards.
News reports indicate that Buckingham is now trying to open the protective custody institution in Idaho after
they sell the Beaver County property.
According to Barry Steinhardt, Executive Director of the Pennsylvania ACLU,
"the political climate in Pennsylvania is
such that they could never get a license
now."
WINTER 1985 II

<ii-~--iiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiiii. .,J
..

"_·-:iiiiili-__

-continued from previous page.
bearing on his effectiveness. The master
must be able to define and maintain a
position of neutrality in order to function effectively. 12 In the past, masters
have sometimes carried out their
responsibilities in the absence of any
clear guidelines as to how to proceed,
what to achieve and what to avoid. This
absence of a clear mandate can lead to
unrealistic expectations and mixed signals
among inmates and prison officials alike.
For this reason, masters now recognize
the importance of defining carefully, in
the order of reference, a master's
duties, responsibilities, powers and
limitations.
Although there is no consensus as to
whether a master should be a lawyer,
corrections expert, mediator, or some
combination thereof, one essential qualification is that he or she be perceived as
a highly respected member of his or her
profession. The integrity and competence of the master ·must be beyond
dispute.
It is also important to recognize that
the process of change involved in achieving compliance, particularly in an institution as complex and politicized as a
prison, requires time. A master is not a
magician; it is reasonable to expect that
the compliance process will begin with
I2Remarks of Michael Keating, Clark Foundation
Conference.

resistance to the court and the master,
and will give way to a determination to
comply with the court order, at least so
that the mastership will end. 13
Throughout the compliance process
and beyond, it remains the defendants'
responsibility to achieve and maintain
compliance. Masters cannot and should
not undertake that role. At the same
time, it makes sense to build into a
court order a means for enabling defendants to monitor their own activity and
to institutionalize changes in the prison
or jail. 14 Hopefully, at some point in the
process a master will no longer be
necessary to maintain a constitutional
prison. •

Susan Sturm is an attorney associated with
the New York firm of Teitelbaum & Hiller.
She has worked for a special master, has
written articles on the subject, and is a
consultant to the Edna McConnell Clark
Foundation on these issues.
'3Remarks of William Nagle, Clark Foundation
Conference.
14Alvin Bronstein has suggested five essential components to institutionalize change in prisons and
jails: (I) ongoing training of staff; (2) written
policies; (3) internal compliance mechanisms; (4)
ongoing reporting mechanisms to the court; and
(5) education of the staff about what the order
requires and how the prison administration plans
to comply. Remarks of Alvin Bronstein, Clark
Foundation Conference.

Judicial System Inconsistent In
Doling Out Death
Stephen B. Bright
When the Supreme Court struck
down the capital punishment statutes in
existence in 1972, justice Thurgood
Marshall hailed the decision as "a major
milestone in the long road up from barbarism."1 However, the pause at the
milestone was only temporary.
The death penalty, unique in its pain,
its finality and its enormity, has returned
as a form of punishment in the United
States. In many respects, it exists today
as it did before 1972: it is meted out
primarily in the South in a random and
racially discriminatory fashion against the
poor.
Today's executions in many states
draw crowds of proponents of capital
punishment to cheer the executioner
on. Coverage of the ritual surrounding a
state's first execution usually rivals that
of a football game.
'Furman v. Georgia, 408 U.S. 238, 371 (1972),
quoting Ramsey Clark, Crime in America, 336
(1970).

But the business of killing people
remains a primitive, grisly one. It took
five jolts of electricity over the course
of seventeen minutes for Indiana to electrocute William Vandiver on October
16, 1985. His was one of several
prolonged and tortured executions that
have taken place since the resumption of
capital punishment. 2
The execution of Vandiver was the
forty-ninth execution since the United
States Supreme Court approved the
resumption of executions in 1976. It
was the seventeenth execution this year.
'See for example the descriptions of electrocutions in Glass v. Louisiana, __ U.S. _ _, 85
L.Ed.2d 514, 516-525 (1985) (Brennan, j., dissenting the denial of certiorari). Electrocutions,
described by Justice Brennan as "the contemporary technological equivalent of burning people at
the stake", id. at 525, is the method of execution used by the most states, 18. A description of
death by lethal gas appears in qray v. Mississippi,
710 F.2d 1048, 1057-1061 (5th Cir. 1983).

Twenty-one people were killed by the
states in 1984. Thirty-seven states now
have the death penalty and over I500
persons are on death rows throughout
the country.
This is more than twice the number
of people that were on death row in
1972 when the Supreme Court in Furman v. Georgia found that the death
penalty as inflicted up until that time violated the constitutional protection
against cruel and unusual punishment.
Different justices found the penalty cruel
and unusual for different reasons, but
their opinions dJmonstrated the inglorious role the death penalty has played in
the history of this country's attempt to
deal with crime.
justice William O. Douglas found the
death penalty unusual because of its discriminatory impact on black people and
the poor. justice Marshall pointed out
that of the 3,859 persons executed
after the justice Department began
keeping statistics in 1930, 2,066 were
black and 1,751 were white. Of the 455
persons executed for rape, 405 were
black. 3 Both justice Marshall and justice
William Brennan found the penalty
excessive and inconsistent with evolving
standards of decency that mark the
progress of a maturing society. They
continue to adhere to that view today.
justices Potter Stewart and Byron
White found the death penalty unusual
because it was so infrequent and random
in application. justice Stewart wrote that
the death penalty was cruel and unusual
"in the same way that being struck by
lightning is cruel and unusual."4
Within months of Furman, a number
of states passed new capital punishment
laws. In 1976 the Supreme Court upheld
the laws of Florida, Georgia and Texas
on the assumption that their new death
penalty laws would prevent the arbitrariness as well as racial and economic disparity in the imposition of the death
penalty.s
The new laws were to meet this
objective by limiting the death penalty to
those cases where the sentencer found
one or more aggravating factors. 6 However, most states include in their aggravating factors frequently encountered
felony murder situations, such as homicides occurring in a robbery or burglary,
and a "catchall" aggravating circum3408 U.S. at 364.
4408 U.S. at 309.
sGregg v. Georgia, 428 U.S. 153 (1976); Proffitt v.
Florida, 428 U.S. 242 (1976); and Jurek v. Texas,
428 U.S. 262 (1976).
6 A variation is the Texas statute approved by the
Court in Jurek v. Texas, which defines capital
homicides as five specified situations of murder
and then provides that upon a conviction of
capital murder the jury is to answer certain questions at the sentencing phase before death can be
imposed.

12 WINTER 1985

iii

....~

stance that applies to virtually any
murder. For example, Florida and many
states provide for the death penalty if
the murder is "heinous, atrocious, or
cruel," Fla. Stat. 921.141 (5)(h), while
Georgia and others provide for death if
the murder is "outrageously or
wantonly vile, horrible or inhuman in
that it involved torture, depravity of
mind, or aggravated battery". Off.
Code. Ga. Ann. 17-10-30 (b)(7).
These broad provisions give prosecutors and local juries vast discretion in
seeking or imposing death. The decision
to seek death is committed completely
to the discretion of the local prosecutor
in most states. Some prosecutors may
seek death routinely in all murder cases,
while others may not seek it at all.
Thus, in Georgia, which has had its present death penalty statute since 1973,
the death penalty has been imposed in
only one third of the state's counties.
One small rural judicial circuit with a

§

population of 100,000 has imposed
j
more death sentences than the circuit
~
~
which includes Atlanta and has a popula- F
tion of 600,000.
.....~.
Such discretion has contributed to
~
the reemergence of the same patterns
~
that existed up until 1972.
l>
The majority of those on death row ~
are in the South, the part of the
country that, historically, has utilized the
finding reflects the racial attitudes of
death penalty most often. Of the 49
many Georgia prosecutors and juries in
executions which have occurred since
seeking and imposing the death penalty
1976, all but four have been in the
in the case of a person accused of killing
a prominent white person, but not in
South. All four executions outside the
South were suicide executions in which
the case of a defendant charged with
the condemned person gave up his
killing a black person.
In addition to the importance of the
appeals and asked the state to kill him.
race of the defendant and race of the
Florida, which had the most people
on death row at the time of the
victim, the race of who decides punishSupreme Court's decision in 1972, has
ment is a critical factor which often
determines life or death. Minorities and
the most today, over 200. It has killed
the most people, 13. Georgia, historipoor people are underrepresented in the
cally the nation's leading executioner,
composition of jury pools in many comranks second to Florida in the number
munities. Prosecutors routinely use all of
their peremptory challenges to exclude
of persons per 100,000 population senall blacks from the jury.s The result is
tElOced to death, with over I00 persons
that all-white juries often decide
on its death row. Texas and California
whether a black person accused of killing
also have ove':;. I00 people on their
a white person will live or die.
death rows.
Similarly, poverty continues to be a
Race continues to be a prominent
major determinant of who is sentenced
factor in who is killed. Georgia, which
to death. Supreme Court Justice William
executed 337 black persons and only 75
O. Douglas observed in 1972 that "one
whites between 1924 and 1972, has
searches in vain for the execution of any
killed five blacks and one white since
member of the affluent strata of this
1976. The most exhaustive study done
society. "9 Today is no different; viron death sentencing in America concluded that the odds that a defendant
in the administration of the death penalty in
will be sentenced to death in Georgia
Georgia. A petition for certiorari on behalf of
are four times higher if the victim is
McCleskey is pending in the Supreme Court.
white than if the victim is black. 7 This
8This practice is allowed by the Supreme Court's
'The study is discussed in the various opinions in
McCleskey v. Zant, 753 F.2d 877 (11th Cir. 1985)
(en bane), in which a majority of the Court of
Appeals for the Eleventh Circuit rejected a challenge to the arbitrariness and racial discrimination

decision in Swain v. Alabama, 380 U.S. 202
(1965). The Court has granted certiorari to
reconsider Swain in Batson v. Kentucky, cert.
granted, __ U.S. __ . 37 Cr.L.Rptr. 4034,
4047 (1985).
'Furman V. Georgia, 408 U.S. 251-52.

tually all of those condemned to die are
poor.
For the poor person charged with a
capital offense in the deep South, the
major consequence of poverty is legal
representation at trial by a courtappointed lawyer. There are still many
states which do not have public defender
systems and provide only minimal compensation to lawyers who defend poor
people accused of crimes. For example,
in Mississippi the most a court-appointed
lawyer can be paid is $ I000. For a
lawyer. who re~ntly spent 400 hours in
defense of his client and was paid that
amount, his compensation was a mere
$2.50 per hour.
In addition, defending persons in capital cases is often bad for a lawyer's business in a small community. Thus, it is
not unusual for capital cases to be
defended by inexperienced or incompetent counsel who cannot find any work
other than court-appointed cases. Nor is
it unusual for court-appointed lawyers to
let the jury know that they are representing the defendant only because they
had to do so.
As a result, many defendants receive
only perfunctory representation at their
trials. Tom Wicker, Associate Editor of
The New York Times, has observed that .
"something near a pattern of inadequate
or incompetent legal representation can
be found in death penalty cases, particularly in the South, particularly for the
poor and uneducated persons."
Justice Thurgood Marshall pointed
out recently how the complexity of capital punishment litigation and the lack of
expertise of most counsel in death cases
can have fatal consequences for the person facing death:

Often trial counsel simply are unfamiliar
with the special rules that apply in capital cases. . . . Though acting in good
faith, they ineVitably make very serious
mistakes. Thus, in cases I have read,
counsel have been unaware that certain
death penalty issues are pending before
the appellate courts and that the claims
should be preserved; that certain findings by a jury might preclude imposition
of the death penalty; or that a separate
sentencing phase will follow a conviction. The federal reports are filled with
stories of counsel who presented no
evidence in mitigation of their client's
sentences because they did not know
what to offer or how to offer it, or had
not read the state's sentencing statute.
I kid you not, precisely that has happened time and again. 10
-continued on next page
IORemarks of Justice Thurgood Marshall at Judicial
Conference of United States Court of Appeals
for the Second Circuit. Sept. 6. 1985. For

WINTER 1985 13

The condemned sometimes come within days of execution without counsel.

Unfortunately, many instances of
attorney inadequacy are not corrected
by reviewing courts. james David Raul'erson was executed by the State of
Florida in january even though his
attorney confessed his ineffectiveness in
an exceptionally brief closing argument
and failed to make any plea for the jury
to spare his client's life. He did not even
tell the jury that Raulerson was married
and had a child; that his stepfather had
died in his arms after being shot several
years earlier; that he had maintained
regular employment for a number of
years before the tragedy involving the
stepfather; or a number of other mitigating factors about Mr. Raulerson.
In showing how the death penalty
had been randomly applied, justice
Douglas in Furman pointed to an instance
where one pej::son was saved from electrocution because his attorney made
timely objection to the jury selection
system while another person was sent
to his death by a jury selected in precisely the same manner because his lawyer did not raise the issue. II Exactly the
same thing occurred in the case of the
examples of the type of representation
described by Justice Marshall, see, e.g., Tyler v.
Kemp, 755 F.2d 741 (11th Cir. 1985); King v.
Strickland, 748 F.2d 1462, 1463-64 (11th Cir.
1985); Douglas v. Wainwright, 739 F.2d 531
(1984); House v. Balkcom, 725 F.2d 608 (II th
Cir. 1984); Young v. Zant, 677, F.2d 792, 798
(11th Cir. 1982); Goodwin v. Balkcom, 684 F.2d
794 (11th Cir. 1982).
"Furman v. Georgia, 408 U.S. at 256 n.21.

14 WINTER 1985

first person executed in Georgia, john
Eldon Smith. As described by judge
joseph Hatchett of the U.S. Court of
Appeals for the Eleventh Circuit:

[Smith's codefendant] Machetti, the
mastermind of this murder, has had her
conviction overturned, has had a new
trial and has received a life sentence.
This court overturned her first conviction because in the county where the
trial was held, women were unconstitutionally underrepresented in the jury
pool . . . . Her lawyers timely raised
this constitutional objection. They won;
she lives.
John Eldon Smith was tried in the
same county, by a jury drawn from the
same unconstitutionally composed jury
pool, but because his lawyers did not
timely raise the unconstitutionality of
the jury pool, he faces death by electrocution. His lawyers waived the jury
issue.
.
Smith v. Kemp, 715 F.2d 1459, 1476
(1983). judge Hatchett found Georgia's
first execution to present "a classic
example of how arbitrarily this penalty is
imposed."
Although defending a poor person
accused of a capital crime is bad for a
lawyer's business, prosecuting a
celebrated murder case is still good for
one's political career. Thus, it is not
unusual to encounter the most base
forms of demagoguery in capital trials. A
number of states have prosecutors
whose political identity is the death pen-

alty and who routinely seek death in
murder cases. These prosecutors often
give closing arguments that are more
appropriate for a lynch mob than a
jury.12
Death sentences are reviewed by the
state supreme court, where in most
states the justices, like the trial judges,
are elected. Perhaps for that reason,
many of these courts have shown
remarkably little interest in the most
basic violations of due process and lack
of effective representation.
As a result, ~hose sentenced to death
must seek remedies for fundamental
constitutional violations in the federal
courts by filing petitions for writs of
habeas corpus. However, many states
provide lawyers to poor people
sentenced to die only at trial and on
direct appeal to the state supreme
court, leaVing it to the condemned to
find lawyers to prepare a petition for
certiorari to the Supreme Court or a
petition for a writ of habeas corpus.
Finding lawyers for the condemned
has become increasingly difficult as the
number of persons on death row has
grown. Many are represented by lawyers
on a volunteer basis or by overburdened
lawyers from public interest legal
projects.
As the difficulty in providing lawyers .
continues to grow, some condemned
persons come within days of execution
without counsel to represent them in
post-conviction proceedings. When this
happens there is a strong possibility that,
when a lawyer is found at the last
minute, in the rush to learn about the
client and the case, issues will be missed,
essential fact investigation will not take
place and a person entitled to relief may
eventually be executed.
On the other hand, if counsel can be
obtained before any crisis develops,
papers can be carefully prepared based
on full investigation and research and litigation will commence in an orderly fashion. Thus, whether a condemned person
obtains relief from an unconstitutional
conviction or sentence may depend on
the availability of volunteer counsel.
Once again, whether the condemned
lives or dies may be a matter of chance.
Those who populate death rows
throughout the nation are not
necessarily the worst offenders, but the
poorest, the most limited, and most
powerless. Many have serious mental
problems that are not adequately evaluated or diagnosed.
12See, e.g., the closing argument set out to Judge

Clark's dissent in Brooks v. Kemp, 762 F.2d
1383, 1444-1449 (11th Cir. 1985). The
Supreme Court held that a misleading closing
argument about appellate review required that a
death sentence be set aside in Caldwell v.
Mississippi, 472 U.S. __ , 86 L.Ed.2d 231
(1985), last term.

•••

l
Some are innocent. Jerry Banks
spent five years on Georgia's death row
before his innocence was established and
he was released. Earl Charles spent over
three years on Georgia's death row
before it was established that he was in
Tampa, Florida at the time the crime
occurred in Savannah, Georgia.
thirty-two were juveniles at the
time of the offense for which they were
sentenced to death. Three were 15,
seven were 16 and 22 were 17. Charles
Rumbaugh, executed by Texas last September, was 17 at the time of his crime.
What the experimentation with killing since 1972 has taught us is what the
Supreme Court said a year before it
decided Furman, that to identify "those
characteristics of criminal homicides and

their perpetrators which call for the
death penalty, and to express those
characteristics in language that can be
fairly understood and applied by sentencing authority, appear to be tasks
beyond present human ability." 13
In sentencing hundreds of people to
death since 1972, the states have still
not overcome centuries of racial prejudice, the disparity between justice for
the rich and the poor, the political
motives of many prosecutors, and the
differences between communities even
within the same state. As a result, it has
not been po~sible for those who are
asked to deCide life and death to put
13McGauthav. Califarnia, 402 U.S. 183,204
(1970).

aside the passions of the moment and
attempt to understand a person of
another economic stratum, another
race, and another upbringing.
In such proceedings, a handful of
people are randomly selected to die for
the 25,000 homicides committed each
year in this country. This is not a solution to the problem of crime and violence in our society. It is simply criminal
justice quackery. •

Steve Bright is the Director of the Southern
Prisoners' Defenslj Committee, Inc. in
Atlanta, Georgia.SPDC represents persons
throughout the South who are sentenced to
death, and also engages in civil rights
actions affecting conditions in prisons and
jails in the South.

QTY. COST

QTY. COST

nesses, class actions, attorneys'
fees, enforcement, discovery,
defenses' proof, remedies, and
many practical suggestions.
Relevant case citations and correctional standards. Ist edition,
February 1984. 180 pages,
paperback, $ I5 prepaid from
NPP.

the state of the law on various
prison issues (many case citations). 24 pages, $2.50 prepaid
from NPP.

The National Prison Project
Status Report lists each state
presently under court order, or
dealing with pending litigation in
the entire state prison system
or major institutions in the state
which deal with overcrowding
and/or the total conditions of
confinement. (No jails except
District of Columbia). Periodically updated. $3 prepaid from
NPP.

The National Prison
Project JOURNAL,
$IS/yr. $2/yr. to prisoners.
Back issues, $1 ea.
The Prisoners' Assistance
Directory, the result of a national survey, identifies and
describes various organizations
and agencies that provide assistance to prisoners. Lists national, state, and local organizations and sources of assistance
including legal, library, medical,
educational, employment and
financial aid. 6t~ edition, published January 1985. Paperback,
$15 prepaid from NPP.

listing of cases involving jail conditions in both federal and state
courts. The Report covers
unpublished opinions, consent
decrees and cases in progress as
well as published decisions. The
Report is the first nation-wide
compilation of litigation involving jails. It will be updated regularly by the National Jail Project. Ist Edition, published September 1985. $15 prepaid from
NJP.

Bibliography of Women in
Prison Issues. A bibliography
of all the information on this
subject contained in our files.
Includes information on abortion, behavior modification programs, lists of other bibliographies, Bureau of Prison
policies affecting women in
prison, juvenile girls, women in
jail, the problem of incarcerated mothers, health care, and
general articles and books. $5
prepaid from NPP.

Offender Rights Litigation:
Historical 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 Jail Litigation Status
Report gives a 'state-by-state

ACLU Handbook, The
Rights of Prisoners. A guide
to the legal rights of prisoners,
pre-trial detainees, in questionand-answer format with case
citations. Bantam Books, April
1983. Paperback, $3.95 from
ACLU, 132 West 43rd St.,
New York, N.Y. 10036. Free
to prisoners.

A Primer For Jail Litigators
is a detailed manual with practical suggestions for jail litigation.
It includes chapters on legal
analysis, the use of expert witI-----J~__J

1...-_1...----'

Fill out and send with check payable to

'/',.".V~./'/I

NAME

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

ADDRESS
CITY. STATE. ZIP

_

WINTER 1985

15

. . . .IIEII;BlnIlHIIr.II.Ifil. ..
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111i1iEIIiIiI.
The following are major developments in the Prison Project's litigation
program since July IS, 1985. Further
details of any of the listed cases may be
obtained by writing the Project.

recently appealed that part of the previously attained favorable decision which
prohibited double-ceiling.

Black v. Ricketts - This case challenges
conditions of confinement in the Administrative Segregation Unit of the Arizona
State Prison in Florence. Allen Breed
was appointed compliance monitor to
oversee the comprehensive settlement
agreement approved by the court in
June.

Duran v. Anaya - This is a state-wide
prison conditions case in New Mexico.
The defendants filed a motion to modify
the maximum security provisions of the
consent decree, and we have filed a
motion to hold the defendants in contempt for non-compliance with various
portions of the decree. Settlement
negotiations have been held on a regular
basis.

Brown v. S!elaff - This case challenged
conditions and practices at the supermaximum security prison (Mecklenburg
Correctional Center) in Virginia. In July,
the court approved the settlement
agreement which abolished the prison's
behavior modification program and
which affected a wide range of conditions and practices.

Grubbs v. Norris - This case successfully challenged conditions in the entire
Tennessee prison system. In October,
after a finding of non-compliance with
earlier population reduction orders, the
court enjoined the state from allowing any new prisoners into the state
prison system except under special
circumstances.

Bush v. Viterna - This case challenges
conditions at all jails in Texas. We
received a disappointing district court
decision dismissing the case on jurisdictional grounds. We have filed an appeal
with the Court of Appeals.

Inmates of D.C. Jail v. Jackson - This
case challenges conditions of confinement of pre-trial and sentenced prisoners at the D.C. Jail. In July the court
held the jail to be unconstitutionally
overcrowded and ordered a ban on
intake of new inmates unless the population was reduced by 900. In August the
defendants dropped their appeal and
signed a consent order agreeing to
reduce population.

Canterino v. Wilson - This case successfully challenged conditions and practices at the Kentucky Correctional Institution for Women. In September we
received a first payment on our award
of attorneys' fees.
Cody v. Hillard - This case challenges
a variety of conditions at the South
Dakota State Penitentiary. The state

..
American Civil Liberties Union Foundation
National Prison Project

1616 P Street, NW, Suite 340
Washington, D.C. 20036
(202) 331-0500

16 WINTER 1985

Nelson v. Leeke - This case challenges
conditions in the major South. Carolina
prisons. A settlement reached with the
state was finally approved by the court
in November.

Palmigiano v. Garrahy - This case
challenges conditions in the entire Rhode
Island prison system. The special master
recently filed a report indicating severe
overcrowding at two of the facilities. An
evidentiary hearing was held in midDecember.
Spear v. Ariy'bshi - This action challenges conditions of confinement at two
Hawaii prisons. The compliance plans
required by the recent settlement agreement were filed in October and the
defendants have maintained the agreed
population reduction schedule.
Terry D. v. Rader - This action challenges conditions in six juvenile institutions in Oklahoma. In September the
court entered an order awarding us
attorneys' fees and the defendants have
announced their intention to appeal.
During this period the National Prison
Project received $60 I,869 in attorneys'
fees and costs in various cases. These fees
and costs help make up part of the Prison
Project budget and enable us to continue .
our work.

VOTING RIGHTS
In the Spring 1985 issue of the JOURNAL
we reported that 26 states now have some
form of automatic restoration of the right to
vote upon release or completion of parole
and probation. New Jersey should have been
included on that list and was not. According
to T. Gary Mitchell, Director of the New
Jersey Department of the Public Advocate,
the prohibition denying a right to vote in
New Jersey excludes only those inmates who
are serving a sentence or are on parole or
probation as a result of a conviction for an
indictable offense.

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