-continued from front pageclaims addressed to inadequate mentalhealth and medical care have beenraised.3 Forces driving this evolution in­clude: I) an increased population of fe­male offenders, taxing existing medicalservice delivery systems and resulting ingross delays in medical care, care by in­adequately and/or improperly trainedpeople, and failure to provide care ex­cept in emergencies; 2) an increasedawareness of women's special healthneeds, generally, and of the compro­mised health status of female offenders;43) a heightened sense of political em­powerment among the female offenderpopulation, resulting in their demandsfor a change in the medical status quo;and 4) most recently, the AIDS epidemicwhich is claiming as its victims female IVdrug users at alarming rates, many ofwhom are imprisoned at one time oranother.

This article will examine four as­pects of this new litigative focus: thetypes of medical care issues currentlybeing addressed in litigation; the applica­ble legal standards; a review of several

Shelley Geballe is supervising attorney atYale Legal Services and a staff attorneywith the Connecticut Civil Liberties Union.Martha Stone is the legal director of theConnecticut Civil Liberties Union.

'The authors gratefully acknowledge Yale law stu­dents Stephanie Cotsirilos and Kate Silverman fortheir assistance in background research.2£g. Glover v. Johnson, 478 F.Supp. 1075 (ED.Mich. 1979), 510 F.Supp. 1019 (ED. Mich. 1981),cert denied 106 S.Ct. 3334, slip op. April 21, 1987;Bukhari v. Hutto, 487 F.Supp. 1162, 1171 (E.D. Va.1980) (characterizing equal protection challengesto sex-based disparity in prison conditions as "arelatively new phenomenon ... which has sub­jected to review some traditional notions of thepurpose and resulting benefits of the confinement

. of women prisoners" and acknowledging that"[bloth de jure and de facto sex-based disparity hasexisted within the criminal justice system from ar­rest and sentencing procedures to incarcerationand classification within the prisons").'These claims may be joined in a single lawsuitwith sex discrimination and other claims, e.g. Can­terino v. Wilson,"S46 F.Supp. 174 (W.D. Ky. 1982),562 F.Supp. 106 (W.D. Ky. 1983), Order (W.D.Ky. Aug. 26, 1983), Memorandum Opinion (W.D.Ky. Aug. 23, 1984), 644 F.Supp. 738 (W.D. Ky.1986); West v. Manson, No. N83-366 (D.Conn.filed May 9, 1983, two year Agreement of Settle­ment, June 14, 1984; Consent Judgment on mentalhealth issues, June I, 1987), or may be raised inseparate litigation. For analysis of the advantages ofeach approach, see Section IV, infra.'For example, at the Connecticut Correctional In­stitution at Niantic (CClN), Connecticut's solewomen's correctional facility which serves bothsentenced and pretrial women, approximately 70%of the women report a history of recent substanceabuse, many have a history of psychiatric care, and96% are of childbearing age. See generally Resnikand Shaw, Prisoners of Their Sex: Health Problems ofIncarcerated Women in Prisoners' Rights Sourcebook.

of the cases which have moved to judg­ment to analyze the type of relief cur­rently being afforded; litigation strategyand some suggestions for new directions.

The IssuesMental Health Care. Common

to many women's jails and prisons is aninadequate or even nonexistent systemof providing mental health care toinmates.

Correctional officers administeredpsychotropic medications.

Typical of patterns observedthroughout the country was the situa­tion in Connecticut prior to West v.Manson, supra note 3. Mentally ill femaleoffenders were sent to Connecticut'ssole correctional facility for pretrial andsentenced women; they were not ad­mitted to a specialized facility operatedby the state Department of MentalHealth (restricted to male offenders).Virtually no mental health care was pro­vided to these women. Rather, theywere housed together with women insegregation or placed in the basement ofone of the housing units-'The Dun­geon"-where they were left unat­tended, often restrained and clothedonly in a paper gown, and locked up foras many as 23 hours each day. Only fourhours of psychiatric coverage was pro­vided each week for the entire institu­tion. Correctional officers administeredpsychotropic medications, which werefrequently prescribed without first per­forming the requisite tests and phYSicalexaminations and which were poorlymonitored once prescribed. Hard re­straints (Iegirons, helmets, handcuffs)were used to restrain women unable tocontrol their behavior. A severe short­age of staff competent to treat mentallyill women resulted in excessive relianceon the use of seclusion in "suicide"rooms and/or the use of restraints. Se­clusion and restraints were often initi­ated without a physician's order andmaintained without periodic psychiatricreassessments or nursing care to meetthe women's basic medical needs. Psy­chiatric records were scanty, renderingcontinuity of care impossible, and rec­ords were kept together with institu­tional and medical records, eliminatingconfidentiality. Inmates with less severemental health problems also were de­nied adequate care; psychotropic medi­cations were often the sole "treatment"rendered, even for minor sleepdisturbances.

This pattern of virtual total neglectof the mental health needs of womeninmates is, unfortunately, not uniqueto Connecticut. Similar facts haveprompted litigation on this issue in other

states, including California,s Kentucky,6Pennsylvania,? Idaho,S New Mexico,9 andHawaii. 10

5Wright v. McCarthy, No. OCV 33880 (Cal. Super.Ct., San Bernardino Cty., filed August 29, 1984)(California Institution for Women (CIW): double­ceiling of mentally ill inmates, failure to segregatementally ill inmates from protective custody in­mates, failure to screen incoming inmates for men­tal health problems, failure to provide and maintainstatutorily-required operational plan for mentalhealth programs, inadequate mental health staff,delays in or denials of care, sex-based disparity be­tween care at CIW and care prOVided to maleinmates). ~

·Canterino v. Wilson, supra note 3 (Kentucky Cor­rectionallnstitution for Women: patchwork of"outside," very part-time professionals providingmental health care to a female population withhigher levels of stress than their male counter­parts, care provided only to those with acuteproblems, 33-50% of population taking psycho­tropiC medications because of "stress, anxiety, ten­sion and sleep disturbances").7Beehler v. Jeffes, No. CW-83-1 024 (M.D. Pa., filedJuly 25, 1983) (State Correctional Institution atMuncy: inadequate treatment of women sufferingfrom psychiatric or psychological problems, inap­propriate or excessive levels of medication); In­mates ofAllegheny County Jail v. Wecht, 565 F.Supp.1278, 1285 (W.D. Pa. 1983) (Allegheny County

Jail: use of restraints on women with mental healthproblems, seclusion of suicidal and violent womenin glass faced cell where they were restrained, par­tially or totally stripped, to mattressless metalcot).·Witke v. Crowl, c.A. No. 82-3078 (D. Ida., filedSept. 9, 1982, Stipulated Settlement AgreementJan. 22, 1985) (North Idaho Correctional Institu­tion Women's Section: no psychiatric services ex­cept through outside appointments and appoint­ments made only in emergencies, no access topsychological testing or counselling).'Klatt v. King, Civ. No. 80-871-JB (D. N.M., Con­sent Order 1983) (Radium Spring Correctional fa­cility for Women: mental health care provided by

THE

LOF THE

NATIONAL PRISON PROJECT

Editor: Jan ElvinEditorial Asst.: Betsy Bernat

Alvin J. Bronstein, Executive DirectorThe National Prison Project of the

American Civil Liberties Union Foundation1616 P Street, N.W.

Washington, D.C. 20036(202) 331-0SOO

The National Prison Project is a taX-exempt foundation­funded project of the AClU Foundation which seeks to strengthenand protect the rights of adult and juvenile offenders; to improveoverall conditions in correctional facilities by using existing ad­ministrative. legislative and judiciaJ channels; and to develop al·ternatives to incarceration.

The reprinting ofJOURNAL materiaJ is encouraged with thestipulation that the National Prison ProjectJOURNAL be creditedwith the reprint, and that a copy of the reprint be sent to theeditor.

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2 SPRING 1988

Incarceration at the Santa RitaRehabilitation Center [wascharacterized] as "a potentialdeath sentence to her unbornchild and . . . dangerous to thewoman."

jail's failure to provide a staff obstetri­cian or gynecologist and failure to havea physician screen new admissions(thereby allowing pregnancies and preg­nancy-related complications to go unde­tected), delayed or denied prenatal andpostnatal medical examinations, inade­quate diet, failure to manage properlyhigh-risk pregnancies and pregnancycomplications, overcrowded housing, useof shackles while transporting pregnantwomen, and inappropriate medication ofpregnant women.

West v. Manson also challenges theprenatal care provided to Connecticut'sfemale offenders, specifically the inade­quacies in diet, pregnancy monitoringand prenatal education, the housing ofpregnant inmates in rooms without toi­lets and sinks, and barbaric restraint poli­cies (including the use of legirons on awoman while she was giving birth). Seealso Archer v. Dutcher, 733 F.2d 14 (2ndCir. 1984).

Reproductive Health Care. Liti­gation typically has focused on the deliv­ery of two types of reproductive healthcare: I) the medical care provided toprisoners who are pregnant or who havejust given birth, and 2) abortion services.Because of the increased incidence ofmedical conditions in the inmate popula­tion which pose special risk to pregnantwomen, (i.e., hepatitis, drug addiction,AIDS), and because these conditionsoften are exacerbated by the nutrition­ally deficient diet and stress of prison,the relief sought in the former is com­prehensive obstetrical care that cansuccessfully manage the "high risk" preg­nancies so prevalent in inmate popula­tions. '1 Relief in the latter seeks abor­tion counselling services and theelimination of barriers to abortionservices.

Prenatal and Postpartum Care.Inadequate prenatal and postpartummedical care at the California Institute ofWomen (CIW) caused the named plain­tiffs in Harris v. McCarthy, No. 85-6002(C.D. Cal., filed Sept. II, 1985) (Settle­ment Agreement April 1987) to sufferparticularly egregious losses, including emiscarriages, unnecessary hystereeto- r5'mies, and the birth of a disabled child. ::EHarris specifically challenged ClW's fail- ~ure to: provide on-site OB-GYN care, ~

regular and timely prenatal and postpar- ~

tum medical exams, adequate medical <l:records, appropriate responses to preg- ----------------nancy complications, high-risk pregnan­cies, and medical emergencies; prescribeand provide appropriate drugs; complywith the medical orders issued by thecommunity hospital which CIW hadcharged with providing care; and failureto provide adequate nutrition, prenatalvitamins and counselling, and the safetransport of pregnant and postpartumwomen.

Similar issues were raised in a sec­ond California case which characterizedincarceration of a pregnant woman atthe Santa Rita Rehabilitation Center as"a potential death sentence to her un­born child and . . . dangerous to thewoman." Jones v. Dyer, supra note 11.12

Specifically challenged in Jones are the

only two staff psychologists, one of whom "dis­trusted" by inmates because of breaches ofconfidentiality).•oSpear v. Ariyoshi, Civ. No. 84-1104 (D. Hawaii,Consent Decree June 12, 1985) (Hawaii Women'sCorrectional Facility)."Far broader relief is urged in Jones v. Dyer, (Cal.Super. Ct. Alameda Cty., filed February 25, 1986),which seeks an injunction barring any woman in astate of advanced pregnancy from being incarcer­ated in a county jail.12The infant mortality rate at the Santa Rita Jail is

. at least 50 times the state average, according toEllen Barry of Legal Services for Prisoners withChildren, San Francisco, CA (co-counsel forplaintiffs).

Abortion Services. Barriers toabortion services have been challengedin three cases. A county requirementthat a court must order an inmate's re­lease for an off-grounds abortion, thecounty's failure to pay for off-groundsabortions (whether elective or medicallynecessary), and its failure to provide on­site abortion services for those inmatesfor whom security concerns precludedrelease were challenged successfully inMonmouth County Correctional InstitutionInmates v. Lanzaro, 834 F.2d 326 (3rdCir. 1987). Monmouth enjoined thecounty policy which required pregnantinmates who seek to terminate a preg­nancy to obtain a court ordered releasein order to get the abortion. It also re­quired the county to provide transpor­tion to an appropriate medical facilityfor inmates seeking abortion and re­qUired the county to assume responsibil­ity for insuring the availability of fundingfor all inmate abortions, even if elective,and, if alternative means of funding arenonexistent, the county itself must as­sume the "full cost. Reproductive HealthServices v. Webster, 655 F.Supp. 1300(W.D. Mo. 1987) (final judgment onconsent June 23, 1987), 3 invalidated

13Lanzaro and Webster also challenged the correc­tional facilities' failure to provide abortion coun­selling to inmates.

SPRING 1988 3

- --._~---- ----

state statutory restrictions on the use ofpublic funds and employees for abortionsinsofar as they could bar off-groundsabortion services for inmates who reliedupon escorts and transportation byprison employees. Finally, a fee of$5,000 imposed by the state on inmatesat CIW for abortions performed pasttwelve weeks gestation is being chal­lenged in Scrape v. McCarthy, No. OCV­36620 (Cal. Super. Ct., San BernadinoCty., filed Oct. 1985), a temporary re­straining order ordering an abortion atstate expense having been granted forthe named plaintiff in October 1985.

Substance Abuse Care. Thoughmany women enter the correctional sys­tem with substance abuse problems, todate there has been little focus on thismedical need. The areas of general con­cern are two-fold: I) medical manage­ment of women detoxifying from drugsand/or alcohol when first incarceratedand the unique problems of detoxifyingpregnant women; and 2) counselling andtreatment prOVided to assist substanceabusing inmates in eliminating theirdependencies.

Commonly, women withdraw fromdrug and/or alcohol addictions withoutdirect medical supervision and outside ofthe medical unit. Persons other thanphysicians are allowed to "diagnose" thetype and extent of addiction and to ad­minister palliative medications. Pregnantinmates addicted to heroin or metha­done may be detoxified during the firstand third trimesters despite grave riskto the fetus. "Treatment" is often leftto a small and poorly trained staff andportions of the population are excludedfrom "treatment" because of "security"concerns.

Conditions such as these are beingchallenged in West v. Manson, supra note3. At least one death, and several "closecalls," resulted from gross deficiencies incare.

Klatt v. King, supra note 9, also chal­lenged New Mexico's failure to providedrug and alcohol counselling programs toits female off~nders (though 50% of thepopulation had drug-related problemsand 90% had alcoholism problems) andits failure to manage alcohol withdrawaladequately. Jones v. Dyer, supra note 1I,addresses a California jail's failure toprovide a comprehensive drug programfor pregnant addicted inmates, therebyforcing the inmates into immediate andtotal withdrawal (precipitating spasms,nausea, convulsions and, on occasion,miscarriages). See also Beehler v. Jeffes,supra note 7.

General Medical Care. Generalmedical care in women's jails and prisonsis too often characterized by lengthy de­lays, an exclusive focus on emergencycare, a staff which is frequently under-

4 SPRING 1988

qualified and overworked, abysmal record­keeping, a failure to prOVide routine andpreventive services (e.g., screening ofnew admittees for contagious disease,pap smears), inadequate facilities andequipment, and an excessive reliance onoutside medical consultants and treat­ment facilities, particularly in Iigh~ of thedifficulty most prisons have in transport­ing inmates to such care in a consistentand timely manner.

These gross systemic deficiencies,coupled with the denial of appropriatecare to specific individuals, have beenchallenged as violative of the EighthAmendment's ban on cruel and unusualpunishment. I" Claims addressed to sex­based disparities in care are sometimesjoined because care provided in facilitieshousing women is characteristicallypoorer than that prOVided men.'s

Dental Care. Like general medicalcare, dental care in women's jails andprisons is typically marked by staffingshortages, failure to perform initial ex­ams, delays in emergency care, and de­lays in or total denials of routine, pre­ventive, and restorative care. E.g. Deanv. Coughlin, 623 F.Supp. 392 (S.D.N.Y.1985),633 F.Supp. 308 (S.D.N.Y. 1986),vacated and remanded, 804 F.2d 207(2nd Cir. 1986) (Bedford Hills Correc­tional Facility, New York); Todaro v.Ward, 431 F.Supp. 1129 (S.D.N.Y.1979), affd 565 F.2d 48 (2d Cir. 1977);Witke v. Crowl, supra note 9; West v.Manson, supra note 3; Mitchell v. Untrei­ner, supra note 14.

14£g. West v. Manson, supra note 3; Canterino v.Wilson, 546 F.Supp. at 214-15 (rejecting claim thatsystemic deficiencies in Kentucky's women's prisonestablish "deliberate indifference" in absence ofproof of denial of medical care to specific individu­als); Mitchell v. Untreiner, 421 F.Supp. 886 (N.D.Fla. 1976); Wright v. McCarthy, supra note 6 (com­prehensive attack claiming not only cruel and un­usual punishment, but also breach of statutory andregulatory duties, and denial of equal protection);Witke v. Crowl, supra note 9 (characterizing thedeficiencies as "so severe ... that they constitute alife-threatening Situation," e.g., no infirmary, nocare except through outside appointments and noappointments except in emergencies. medicationsdispensed by non-professionals); Klatt v. King, supranote 10; Beehler v. Jeffes, supra note 8; Spear v.Ariyoshi, supra note I I.15£g. Batton v. State Government of North Carolina,501 F.Supp. 1173, 1177 (E.D. N.C. 1980) (reject­ing claim of lack of parity based on fact Depart­ment of Correction operated hospital for state'smale inmates but relied on outside contracts forservices to female inmates); Wright v. McCarthy,supra; Beehler v. Jeffes, supra; West v. Manson, su­pra. See also Costello v. Wainwright, Nos. 72-109­CIV-J-S, 72-94-Civ-J-S (M.D. Fla., Interim MedicalSurvey Team Report, December 14, 1984)(notingthe formal objections by women inmates to thehealth care settlement in Costello as not addressing"their special health care needs," describing nu­merous deficiencies in medical care for women andcharacterizing the case as "inadequate and fail[ing)to meet minimal ... standards").

The Constitutional Standardsl6

Eighth Amendment Chal­lenges. Successful Eighth Amendment'?challenges to medical care require proofof "deliberate indifference" to "seriousmedical needs." Estelle v. Gamble, 429U.S. 97 (1976). Deliberate indifferencearises when a doctor refuses to treat,when an inmate's access to a physicianfor diagnosis and treatment is denied orunreasonably delayed, and/or when aninmate is not prOVided with the treat­ment prescribed by a physician. Id. at104-05. It can ~e established not only byproof of a defendant's reckless disregardfor the health needs of inmates, but alsoby proof of denial or unreasonable delayin treatment regardless of a particulardefendant's mental state. E.g. French v.Owens, 777 F.2d 1250, 1254 (7th Cir.1986), cert. denied 107 S.Ct. 77 (1986);Whisenant v. Yuam, 739 F.2d 160, 164(4th Cir. 1984); Dean v. Coughlin, 623F.Supp. at 402; Harding v. Kulhman, 588F.Supp. 1315, 1316 (S.D.N.Y. 1984),affd 762 F.2d 990 (2nd Cir. 1985); To­daro v. Ward, supra. Indeed the EighthAmendment imposes on government anaffirmative obligation "to prOVide per­sons in its custody with a medical caresystem that meets minimal standards ofadequacy." Wellman v. Faulkner, 715F.2d 269, 271 (7th Cir. 1983), cert. de­nied, 468 U.S. 1217.

Such deprivations can be establishedindiVidually (by proof, for example, thatan inmate made her serious medicalneeds known and waited in pain untildelayed treatment was provided her)and/or institutionally (by proof of re­peated instances of delay or denial of

I·Federal litigation characteristically is brought un­der the Eighth and Fourteenth Amendments. liti­gation in state courts has been necessary sincePennhurst if state law violations are also allegedagainst state defendants. This article will not ad­dress these other claims. £g. Wright v. McCarthy,supra note 6 (breach of statutory and regulatoryduties); Scrape v. McCarthy, supra (AdministrativeProcedure Act Violation); Whisman v. McCarthy,No. OCV-33860 (Cal. Super. Ct., San BernardinoCounty, filed Aug. 29, 1984) (pending motion forsummary adjudication as to state's failure to re­quire licensure of CIW's medical facility and failureto comply with state and department health careregulations; simliar issue successfully raised with re­gard to male prison in Durggan v. McCarthy, No.326371 (Cal. Super. Ct., Sacramento, Order Aug.13, 1987).17Pretrial detainees have substantive rights to befree from punishment under the Due ProcessClause of Fourteenth Amendment, Bell v.Wolfish,441 U.S. 520, 535 and n.16 (1979), which are atleast as great as the protections of the EighthAmendment. City of Revere v. Massachusetts Gen­eral Hospital, 463 U.S. 239, 244 (1983). Thus,Eighth Amendment standards can be used by anal­ogy to determine the minimum substantive rightsof a pretrial detainee under the FourteenthAmendment. £g. Madden v. City ofMeriden, 602F.Supp. 1160, 1163-64 (D.Conn. 1985).

medical care). Among the institutionalfailures which have been characterized as"deliberate indifference" are failures toperform initial exams, a collapse of thesystem for requesting routine care or"sick call," a backlog in emergency re­quests, a failure to keep followup ap­pointments, a failure to provide care ifinmates could not pay, entrusting careto an unqualified attending physician orstaff person, dispensing of medication byunqualified personnel, inadequate num­bers of professional staff, and providingcare "so cursory as to amount to notreatment at all." E.g. Ancata v. PrisonHealth Services, 769 F.2d, 700, 704 (11thCir. 1985); Bass by Lewis v. Wallenstein,769 F.2d I 173, 1186 (7th Cir. 1985);French v. Owens, 777 F.2d at 1254-55;Wellman v. Faulkner, 715 F.2d at 272-74;Todaro v. Ward, 565 F.2d at 52; Duran v"Anaya, 642 F.Supp. 510, 523 (D.N.M.1986); Medcalf v. State of Kansas, 626F.Supp. 1179, 1186 (D.Kan. 1986).

"Serious medical needs" are notlimited to those which are life-threaten­ing, but encompass conditions whichcause or perpetuate pain, provided thatthe prison authorities have reason toknow of such needs. E.g. Dean v. Cough­lin, 623 F.Supp. at 401; Todaro v. Ward,565 F.2d at 52. The requisite knowledgeis established if the need for treatmenthas been determined by a physician, ifthe need is apparent or obvious even toa lay observer, and/or if the inmate hasrepeatedly notified and complained ofthe condition. E.g. Ancata v. PrisonHealth Services, 769 F.2d at 704; Laamanv. Helgemoe, 437 F.Supp. 269, 311(D.N.H. 1977).

Equal Protection Challenges.Equal protection challenges to the medi­cal care provided women prisoners havebeen judged by a "parity of treatment"standard. E.g. Batton v. State Governmentof North Carolina, 50 I F.Supp. at 1177.The smaller size of the female inmatepopulation which results in a greater percapita cost in prOViding medical care hasbeen held not to justify disparities in thatcare. E.g. Glover v. Johnson, 478 F.Supp.at 1078; Cant!rino v. Wilson, 546 F.Supp.at 207, 211.

Relief. In those cases which haveresulted in consent judgments, expan­sive, detailed remedial orders have beencommon. Typically, these orders imposethe norms and principles of medical carewhich have been developed in non-cor­rectional settings onto correctional facili­ties. Professional standards, such as thoseof the American Correctional Associa­tion, the National Commission on Cor­rectional Health CarelS and American

'&fhe NCCHC recently published new standardsfor health care services in prisons and jails to re­vise those originally developed by the AMA andlast published in 1979 (prisons) and 1981 Oails).

. .. winning is but the first, andpossibly the easiest, of thehurdles to improvement inconditions.

Public Health Association, though notadmitted or adjudged to be "constitu­tionalized," are used as gUidelines forcare. Treatment plans, health care teams,peer review, staffing ratios and training

.requirements, and formal and compre-hensive protocols for examinations,treatments, recordkeeping, seclusion, re­straint and the prescription, administra­tion and monitoring of medication areamong the components of caremandated.

The Harris v. McCarthy settlementagreement, for example, adopted thestandards of the American College ofObstetricians and Gynecologists as aworking guide, adapting the ACOGguidelines to the special circumstances ofa correctional setting. It established acoordinated "pregnancy-related healthcare" team, headed by a qualified obste­trician, to create and insure compliancewith a "plan of care" for the duration ofeach inmate's pregnancy. Also mandatedwere detailed protocols for emergencyresponse (mandating response timeS and

responsible medical personnel), schedulesfor prenatal and postpartum examina­tions, and new policies for medical rec­ordkeeping, laboratory tests, medicaltransport (requiring the least restrictiverestraint consistent with security con­cerns), and nutrition.

The consent judgment in West v.Manson pertaining to mental healthcare '9 sets out, in 41 pages, detailed re­quirements as to the use of seclusionand restraint, the administration, pre­scription and monitoring of psychotropicmedications, medical recordkeeping,transfers to state mental health facilities,and recreation for prisoners with mentalhealth problems. In addition, it mandatesa significant increase in the professionalmental health staff in the in-patient men­tal health unit and increased coverage bypsychiatrists and psychologists for theentire facility. A three-member panel ofpsychiatrists-all from outside the De­partment of Correction--is empoweredto monitor compliance indefinitely.20

-continued on next page

lOWest v, Manson, No. H83-366 (D.Conn. ConsentJudgment, June I, 1987).2°An earlier, two year Agreement of Settlement inWest (entered in June 1984, and now being negoti­ated), mandated changes in general medical anddental care and in the care of pregnant and sub­stance abusing inmates.

SPRING 1988 5

••• nllWlIII!lIIIJ.....1IIIlIIIJllII. _

-continued from previous page. The portion of the consent order in

Klatt v. King, supra note 10, pertaining tohealth care specifies in elaborate detailthe requirements of initial health assess­ments, the policies and procedures formanagement of pharmaceuticals, the re­view of medical and dental records of in­coming inmates to assure continuity ofcare, the sick call procedure, a prohibi­tion on correctional officers distributingmedications, the requirements for peri­odic review of prescriptions and treat­ment plans, staffing ratios, the supervi­sion of the medical unit, components ofmental health care and the duties andpowers of the autonomous panel of ex­perts (dentist, dietician, two physicians,psychologist) impaneled to make findingsand additional recommendations abouthealth care at the institution.

By comparison, the stipulated set­tlement agreement in Witke v. Crowl, su­pra note 8, mandates simply that medi­cal, dental, psychiatric and psychologicalservices be provided "in accordancewith ACA standards" and that "womenbe provided services equal to those pro­vided to men." The consent decree inSpear v. Ariyoshi, supra note I0, estab­lished a medical/mental health panelwhich, with representatives of Hawaii'sprofessional medical societies, was toevaluate the medical and mental healthneeds at Hawaii's women's prison anddevelop a specific plan to address theseneeds, which was to be implemented bythe defendants by a certain date.

In those cases which have gone totrial, courts--quite appropriately-haverefused to afford prison administratorsthe same broad deference as is accordedin matters of prison security. While theremedy in successful litigation is often anorder directing defendants to propose aremedial plan, the specificity of theseplans is often, ultimately, comparable tothat of the consent judgments?'

21 For example, though the Second Circuit in Deanv. Coughlin, supra... criticized a district court for re­jecting the defendants' plan for dental care at theBedford Hills facility in New York in favor of amore specific plan proposed by the plaintiffs, thedefendants' plan, as modified and embraced by theSecond Circuit, was extremely comprehensive. Itrequired defendants to contract with a privateprovider of professional dental services for all ofthe dental care at Bedford Hills. The contract wasto provide for a detailed "Plan of Care" (which in­cluded increased professional staff and operations,specific procedures to identify dental needs, meth­ods of establishing treatment priorities, assessmentexaminations, a sick call system, a follow-up ap­pointment system, an enlarged dental clinic andmaintenance of detailed individual dental recordsfor each inmate). The contractor was also to cre­ate and provide a "Policy and Procedures Manual"for Bedford Hills and to meet a set timetable forcommencement of operations. 804 F.2d at 209.

6 SPRING 1988

Strategy and New DirectionsExperts. In few cases are expert

witnesses· more essential than those chal­lenging health care. Just as physicianscannot be expected to identify all legalissues in a legal transaction, so too law­yers must defer to physicians to evaluatethe inadequacies of a health care deliverysystem. This fundamental fact counselsearly identification of one's expert wit­nesses: to help identify issues prior todrafting the complaint, to help frame andrespond to discovery, to be involved intrial preparation and, of course, to tes­tify at trial. Moreover, should settlementnegotiations commence, experts are in­valuable. The mental health consentjudgment in West v. Manson was negoti­ated in the first instance by a panel ofthree psychiatric experts, all of whomwere paid by defendants-one appointedby plaintiffs, one by defendants, and athird (mutually agreed to by plaintiffsand defendants) appointed by the judge.The product of these three psychiatrists'efforts was an immensely detailed pro­posed consent judgment to which coun­sel for the ~arties needed only to add"legalese."2 Medical school faculties andstate mental health facility staffs arefertile grounds for locating eminentlyqualified and eager physicians andpsychiatrists.

Omnibus Case v. MultipleCases. When confronted by a correc­tional facility with multiple deficiencies­in health care, in inmate access to court,in overcrowding, in sex-based disparitiesin programming--one has essentially twocourses for litigation: I) bring an omni­bus case addressing all issues, or 2) bringmultiple cases. The former is less costly,appears on its face to be more efficient,and permits the joining of weaker claimswith claims which are strong, enhancingthe potential for favorable settlement ofthe former. This approach, however, isnot without its disadvantages, especiallyif the case appears likely to settle. Thecost- and time-based efficiencies of anomnibus case are less significant if thecase ends up in settlement talks. Also, atsuch a point, defendants are better ableto play issues off against each other intheir efforts to reduce the overall costof settlement (e.g., a medical staff per­son is offered at the expense of addi­tional educational staff). Finally, the slow­est common denominator dictates thepace of resolution: issues requiring im­mediate resolution (such as the care ofsubstance abusing inmates and mostother health care claims) are not ad­dressed as expeditiously as they mightbe were they not joined with others.

llSee also Janger, "Expert Negotiation Brings NewApproach to Prison Litigation in Hawaii," NPPJOURNAL, No.6, Winter, 1985, pp. 6-8.

On balance, one should be cautiousabout joining health care claims withother claims, such as claims addressed tosex-based disparities in educational andjob programming and overcrowding(recognizing that some proof of medicalclaims will be necessarily involved in theproof of an overcrowding claim). Sepa­rate litigation is preferable in suchinstances.

Monitoring and Compliance. Ithas become an axiom of prison litigationthat winning is but the first, and possiblythe easiest, of the hurdles to improve­ment in conditifms. Enforcement of judg­ments-whether they are court ordersor judgments by consent-is an immensetask.23 The most effective way to insurecompliance and decrease the attorneytime necessary to monitor a judgment isto incorporate into the judgment theappointment of a monitoring panel or aspecial master, with the cost to beborne by defendants?4 The powers andduties of this oversight body should alsobe specified: allOWing access to all insti­tutional records, all staff, and all facilities,mediating disputes as to compliance, etc.No member of the oversight bodyshould be employed by the defendants,though the formation of wholly internalQuality Assurance Committees to moni­tor the day-to-day provision of health .care services should also be encouraged.(Non-correctional health care facilities,of course, rely on both internal and ex­ternal quality control bodies to monitortheir health care services.) The task ofenforcing compliance also is eased some­what if one demands specificity in theremedial order, placing all parties onclearer notice of what is and is notrequired.

New Directions. Because manywomen enter the correctional system inpoor health and have greater medicalneeds, as a rule, than male offenders,health care delivery in ~omen's prisonsand jails must become a focus for litiga­tion in the next decade. Moreover, asthe incidence of AIDS grows within thefemale IV drug using population, the im­pact on women's prisons will be dra­matic. Medical care delivery systems,which are currently being stressed by arapidly increasing population of female

"Perhaps the most graphic example in the wom­en's prison context is Glover v. johnson. Filed inMay 1977, the initial judgment upholding plaintiffs'claims of sex-based disparity in programming wasgranted in 1979. 478 F.Supp. 1075 (E.D. Mich.1979). Full compliance is still not forthcoming. Thedistrict court recently ordered the appointment ofan Administrator with "full power, subject to thesupervision of the Court, to contract for educa­tional services with educational institutions neces­sary to achieve parity." (slip. op., April 21, 1987)."See also Sturm, "Special Masters Aid in Compli­ance Efforts," NPP JOURNAL, No.6, Winter, 1985,pp. 9-11.

Prisoners With AIDS in NewYork Live Half As Long AsThose on Outsidejulia Cade and jan Elvin

AIDS is now the leading cause ofdeath among prisoners in New York State.New York, along with New jersey andPennsylvania, has surpassed the rest of thecountry in numbers of reported AIDS cases:as of December 1987, there have been597 cases of AIDS inside its prisons since1981, 346 of whom have died. Onehundred fifty-two have left the system, and99 are still in custody.

The high numbers in New York areattributable to the large number of intrave­nous (IV) drug users--an estimated250,000 people within the state. IV drugusers are at high risk for the disease, andcorrections officials estimate that over60% of those incarcerated in New Yorkprisons, and at least 40% of those in NewYork City jails, have IV drug use histories.

A recently released report by theNew York State Commission of Correc­tion on prison mortality rates revealsthat prisoners with AIDS in New YorkState live only half as long as free worldpersons with AIDS. I On closer examina­tion, it appears that the reason for thisshocking disparity may be deficiencies inthe provision of medical care to pris­oners. With 34% of all AIDS cases

julia Cade is a paralegal and public infor­mation assistant at the Prison Projectjan Elvin is the editor of the NPPJOURNAL

'Acquired Immune Deficiency Syndrome: A Demo­graphic Profile of New York State Inmate Mortalities,1981-1986, September 1987 Update, New YorkState Commission of Correction.

offenders, will be additionally stressed bya greatly incre~ed demand for medicalservices by persons with AIDS and otherimmune system deficiencies. In addition,because of overcrowding, the increasedspace required for adequate medical andmental health care will become moredifficult, but no less essential, to secure.

All areas of gross deficiencies ofmedical care must be challenged, partic­ularly any lack of medical oversight fordetoxifying inmates, inadequate prenataland postpartum care, and de jure or defacto barriers to family planning andabortion services. Litigation about AIDSmust focus not only on the actual medi­cal care provided (including whether"experimental" therapies such as AZTtherapy are offered) but also on the

". . . one would not expect tofind inmate survival rates to beless than half that of the generalpopulation sample and decliningannually."

within the United States arising out ofthe state of New York, the state's cor­rectional health care system has been se­verely taxed by the AIDS crisis.

"Even given the differences in thedemographic profiles [of inmates versusthose on the outside with the disease],"the report states, "one would not ex­pect to find inmate survival rates to beless than half that of the general popula­tion sample and declining annually." Theauthors then ask, "Are these findings inany way related to the identified deficitsin inmate health care resources and pa­tient management practices found in thisstudy?

"Current research indicates thatearly detection and aggressive therapy ina medical center setting followed byclose monitoring by medical center­based infectious disease departments ex­tends both the duration and quality oflife for AIDS victims. What remains lack­ing is convincing evidence that each con­firmed inmate patient receives vigorousmonitoring and aggressive therapy in anappropriate setting."

The magnitude of the AIDS crisis inNew York has not been matched byincreased staffing or resources. Thissuggests that "the increased strain on

mental health care provided to womenwho test positive for the virus, thosewho have full-blown AIDS, and thosewho have ARC. Support groups for pris­oners and their families should be urgedas an essential component of necessarymental health care. Confidentiality isparticularly important in this area ofmedical care.

Finally, there must be an increasedfocus on the very real disparities in thehealth care provided to incarceratedwomen as compared with that providedto men. Actual disparities-e.g., in sizeand competency of staff, in physicalplant-are rendered more egregious be­cause of the greater needs of womenfor medical care, particularly when theyare in their childbearing years. II

limited Department of Correctional Ser­vices (DOCS) health care resources,both facility and community-based, ishaving a negative impact on DOCS' abil­ity to achieve nominal results in its man­agement of AIDS."

The average length of survival wasarrived at by noting the first date thatsymptoms were recognized by medicaland correctional personnel at the facility.It is known, however, that within aprison setting appropriate medical diag­nosis and treatment often lag behindthat which would be offered in the freeworld. Thus, this date may not accu­rately reflect the actual onset of the dis­ease, partially accounting for the shorterreported survival rate of prisoners.

The results of the study wouldseem to indicate as well that the lives ofAIDS patients who receive adequatemedical care can be prolonged beyondthe time in which they would die with­out that care.

Alvin j. Bronstein, Executive Direc­tor of the National Prison Project of theACLU, pointed out in recent testimonybefore the House judiciary Committee'sSubcommittee on Courts, Civil Libertiesand the Administration of justice, thatthe provision of medical care is a seriousproblem for prisoners with AIDS and an

-continued on next page

SPRING 1988 7

__________________________________________iIIim'Jigllll·.B!rDgB!B!....B!ngllll.------

Decisions in Safley and O'LoneUndo Years of ProgressMark j. Lopez

Since the Supreme Court decided Pro­cunier v. Martinez l in 1974, it has beenassumed that the question of a prisoner'sFirst Amendment rights was governedby an intermediate standard of review,requiring prison authorities to justify anyrestriction on the exercise of thoserights. Although this standard of reviewwas somewhat less protective than thatapplied in the free world, its applicationin the ensuing years provided significantprotection to inmates in their cause forFirst Amendment freedom. In Martinez,prison officials unsuccessfully defendedtheir policy of screening all prisoners'mail, censoring that which they foundunacceptable. The First Amendment per­mits such restraints, held the Court, onlywhen they "further an important or sub­stantial governmental interest unrelatedto the suppression of expression" andare "no greater than is necessary or es­sential to the protection of the particu­lar governmental interest involved."2 In

Mark Lopez has been a staff attorney withthe National Prison Project since June1987. Be(ore that he was staff counsel (orthe Illinois Civil Liberties Union.

'416 U.S. 396 (1974).'Id. at 413.

-continued from previous pageissue of great concern to the PrisonProject.

"Despite the fact that there are es­tablished guidelines for health workersto follow to protect themselves," saidBronstein, "reports abound of prisonmedical staff refusing to treat ailments inwhich there is virtually no risk of trans­mission. Another frequent problem isthe placement of AIDS patients in thesame room or ward with prisoners whohave infectious diseases.

"Disagreements in the medicalestablishment over proper treatmentcoupled with the high cost of somemedications such as AZT have led to in­consistent and inadequate care for pris­oners. At the same time, because thereis no cure for AIDS, many prisonersseek the right to voluntarily experimentwith non-FDA-approved medications andother therapies, as people with AIDS inthe free world can, which raises a diffi­cult policy question for prison officials."

Key findings of the New York Statestudy include:

• Over half of all DOCS deaths be­tween 1984 and 1986 have been due toAIDS;

8 SPRING 1988

No longer can prisoners expectthe federal courts to show thesensitivity and respect for theirrights that has beendemonstrated in the past

what can now be considered a fatefulturn of events, the Court, ruling in favorof the prisoners, did not determine towhat degree the Constitution protectedprisoners per se, but based its decisionon the "consequential restriction on theFirst and Fourteenth Amendment rightsof those who are not prisoners."3 Thir­teen years later, the Court's failure tosquarely address the issue of prisoners'rights has been used by the current Su­preme Court as an occasion to eviscer­ate the protections thought to be pro­vided by Martinez, striking a terribleblow to the struggle for religious andexpressive freedom for prisoners.Turner v. Safley:'

Last term the Court visited thequestion of a prisoner's First Amend­ment rights in Safley, assessing those

3/d. at 409.·107 U.S. 2254 (1987).

• AIDS in New York State's cor­rectional system is predominately a dis­ease of males. Ninety-six percent of de­cedents were male;

• Ninety-five percent of inmates inthe sample had a history of intravenousdrug use;

• Forty-five percent of the caseswere Hispanic, 43% black and 12%white. Compared to their ratio in thecorrectional population, Hispanics weredisproportionately represented in deathcases;

• Fifty-seven percent of mortalitieshad been in the correctional system 1-18months; 27% for 19-36 months; 12%for 37-54 months; and 3% 4V2 to sixyears. Two inmates had served 6V2 toseven years at the time of death;

• The most prevalent opportunisticinfection at time of death was Pneumos­cystis Carinii Pneumonia (PCP). Fifty­four percent of cases were PCP or PCPin combination with some other oppor­tunistic infection;

• The majority of deaths occurredat maximum security facilities. 11IIII

rights by a rational relation test, andclearly rejecting the higher standard an­nounced in Martinez previously thoughtto govern prisoners' claims. Answeringthe question it had sidestepped in Marti­nez, the Court wrote, "When a prisonregulation impinges on inmates' constitu­tional rights, the regulation is valid if it isreasonably related to legitimate penolog­ical interests. ~'5 Prison officials could es­tablish a regulation's reasonableness byproving that: (I) there is a rational con­nection between the policy and some le­gitimate, content-neutral governmentalinterest; (2) alternative avenues allowthe prisoner to exercise the right; (3)accommodation of the prisoner requestdoes not impact significantly on prisonresources, prison guards or other in­mates; and (4) no obvious alternatives tothe regulations exist.6

Applying this four-factor analysis,the Court in Safley held that limitingcorrespondence between plaintiff in­mates and those at other prisons waslogically connected to the state's inter­est in the prevention of criminal activity;thus, the content-neutral ban survivedconstitutional scrutiny.7 But the sameprison officials failed to prove any ra­tional link between a restriction on in­mate marriages and legitimate securityand rehabilitation concerns.8

Only days after deciding Safley, theCourt relied on the analysis establishedthere in upholding a restraint on in­mates' free exercise of reli~ion. InO'Lone v. Estate o( Shabazz, the Courtupheld a prison regulation that pre­cluded prisoners who were part of awork gang detailed on assignments out­side the prison from coming back atmidday for jumu'ah; these prisonerswere thus denied the opportunity to at­tend jumu'ah. lo In applying the Safley fac­tors, the Court gave credence to thetenuous security and rehabilitative con­cerns the restrictions purportedly fur­thered, II and found that, although therewere no alternative means for theseprisoners to attend jumu'ah, the pris­oners "retain[ed] the ability to partici­pate in other Muslim religiousceremonies." 12

The Court's opinions in Safley andO'Lone mark the end of an era for thesupremacy of prisoners' rights over whatare often arbitrary and callous restric-

SId. at 2261.·'d. at 2262.lId. at 2263-64.ald. at 2266.9107 S.Ct. 2400 (1987).IOJumu'ah is the Muslim religion's central and onlyobligatory and congregational service, which is heldon Friday, the Muslim Sabbath, in the earlyafternoon."Id. at 2405-06."Id. at 2406.

L--------------------------------------------~----_.~-_....._-_...

tions placed on the exercise of thoserights. No longer can prisoners expectthe federal courts to show the sensitiv­ity and respect for their rights that hasbeen demonstrated in the past. Con­strained by the Supreme Court's admo­nition to keep hands off the day-to-dayoperations of prisons, lower courts arenow obliged to defer-except in themost abusive cases--to the judgment ofprison administrators in these matters.One hopes that prison officials havegained a sensitivity to the rights of pris­oners in the years between Martinez in1974 and Safley and O'Lone in 1987.While this can be expected of manyprison administrators, others will surelysee these recent cases as an opportunityto return to the ways of the past. Proofof this is already apparent, as the casesdecided in the months following Safleyand O'Lone have shown.

The fallout from Safley andO'Lone was almost immediate.

The fallout from Safley and O'Lonewas felt almost immediately. While thosedecisions were pending, both the Secondand Third Circuit Courts of Appeals haddecided cases in favor of prisoners'rights. In Higgins v. Burroughs,'3 thecourt struck down a regulation that hadprohibited an inmate from carrying hisrosary beads into the prison visiting areaon the grounds that it violated the pris­oner's religious rights and could not besustained as a valid security regulation. Inthe aftermath of Safley and O'Lone, cer­tiorari was granted and the case wassummarily reversed and remanded forfurther consideration in light of thosedecisions. I. A similar fate was bestowedon the plaintiff in Fromer v. Scully,'S acase involVing a successful challenge byan Orthodox jewish inmate to the "nobeard" rule of the New York Depart­ment of Corrections as a violation of hisright to the free exercise of religion.These cases are pending and their dispo­sition should prOVide a clear indicationon how those courts of appeals will at­tempt to balance competing individualand institutional interests in future casesinvolVing prisoners' claims. Because ofthe prominence of these two courts ofappeals, their decisions will unquestiona­bly have significant ramifications for pris-

"816 F.2d 119 (3rd Cir. 1987).14108 S.Ct. 54 (1987). On remand from the Su­preme Court, the Court of Appeals sent the caseback to the district court for further findings. 834F.2d 76 (3rd Cir. 1987). Significantly, the Courtstated in dictum plaintiffs' "view" that "no differ­ence in result w[iII] obtain" under the new stan­dard.ld. at 77.IS I08 S.Ct. 254 (1987), reversing 817 F.2d 227(2nd Cir. 1987).

oners throughout the country.'6Several other courts of appeals

have already had occasion to apply Safleyand O'Lone while these cases are pend­ing. To date the Ninth Circuit has beenthe most prolific. The reviews thus farare mixed, ranging from disastrous topromising. Perhaps the most distressingdecision as yet is Standing Deer v. Car/­son,'? a case brought by Native Ameri­can prisoners challenging a prison regula­tion that prohibited the wearing ofheadgear, including religious headbands,in the dining hall. A conservative panelof the Ninth Circuit Court of Appealsheld that the regulation did not uncon­stitutionally interfere with the free exer­cise rights of the Native American in­mates; the ban was logically connectedto the legitimate penological interests ofthe prison in maintaining security. Tojustify the regulation, prison officials ar­gued that they were responding to com­plaints from inmates about dirty head­gear being worn into the dining facilityand to threats from prisoners about tak­ing matters into their own hands. Plain­tiffs countered that the defendants hadnot proved that allowing inmates towear their headbands during mealswould prove disruptive and that, as aless restrictive alternative, prison officialscould inspect the headbands for cleanli­ness. In affirming the grant of summaryjudgment in favor of defendants, thecourt totally deferred to the judgmentof the prison authorities both with re­spect to the perceived "threat" posedby the wearing of headgear and the"burden" of inspectinf them as an alter­native to a total ban. ' In the process,the court demonstrated a gross insensi­tivity to the rights of Native Americansand gave a clear indication of the re­sponse prisoners can expect in the Cir­cuit when pressing First Amendmentclaims in the future. '9

16Relying on Safley v. Turner, the Second Circuithas sustained a prison directive that allowed theinspection of inmates' outgoing mail on thegrounds that it furthered a legitimate governmen­tal interest in preventing inmates from committingfraud on business and from obligating funds beyondtheir needs. Rodriguez v. James, 823 F.2d 8 (2ndCir. 1987). Although it would seem from thecourt's discussion that it gave short shrift to theinmates' claims and too easily accepted the prisonofficials' rationale for the regulation, in fact, thiscase provides little guidance as to how the SecondCircuit will rule in cases involving more fundamen­tal First Amendment rights such as that in issue inFromer v. Scully, currently pending on remand fromthe Supreme Court. 817 F.2d 227. In upholdingthe regulation in James the Court applied the Saf­ley factors woodenly and intimated that the casemight be different if the content of the letter waseither "personal" or "political," as opposed to"commercial." 823 F.2d at II.17831 F.2d 1525 (9th Cir. 1987).IS/d. at 1528-29."See also, Allen v. Toombs, 827 F.2d 563 (9th Cir.

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

The Ninth Circuit is not alone inbroadly interrcreting Safley and O'Lone. InHadi v. Horn, 0 the Seventh CircuitCourt of Appeals held that cancellationof Muslim services when a Muslim chap­lain was unavailable did not violate theprisoners' First Amendment rights. Toadd salt to the wound, the court alsoheld that the occasional cancellation ofMuslim services, even when a chaplainwas available, did not violate the pris­oners' rights when the chapel wasneeded for recreational activities. Ad­dressing the chaplain claim first, thecourt was persuad\;!d by the testimonyof the prison officials that security wouldbe jeopardized by granting inmates posi­tions of authority as religious leadersover other inmates, and that conflictsmight arise because inmates lacked therequisite religious expertise to resolveissues that arose during the meetings.The court also based its position on theconcern expressed by the officials thatthe services might be used for gangmeetings. In reaching this conclusion, thecourt brushed aside plaintiffs' argumentthat these concerns were based on pureconjecture, and in any event, could beminimized by assigning a correctional of­ficer to supervise the meeting?' Ad­dressing next the cancellation of servicesdue to scheduling conflicts in the chapel,here again the court deferred to the au­thority of the prison officials: meetingthe recreational needs of prisoners, withthe concomitant boost to morale andresultant enhancement of security, was alegitimate governmental interest servedby the practice.22 In response to the in­mates' plea that the defendants made noefforts to reschedule the services or findan alternative location, the court opinedthat the plaintiffs failed to show that

-continued on next page

1987): Policy prohibiting "close-custody" inmatesfrom having access to a sweat lodge is upheld asreasonably related to the security concerns ofprison authorities. The court also upheld regulationprOhibiting inmate "pipe bearers" (spiritual leader)from conducting ceremony for inmates in segrega­tion when no outside "pipe bearer" was available.Accord, McCabe v. Arave, 827 F.2d 634 (9th Cir.1987): Idaho prison regulation prohibiting groupworkshop and study by "close custody prisonersheld constitutional." But the same prison officialsfailed to justify its refusal to allow religious litera­ture advocating racial purity to be stored in thechapel library where other religious literature waspermitted to be stored. See also, McElyea v. Bab­bitt, 833 F.2d 196 (9th Cir. 1987), noting in rever­sal of grant of summary judgment in favor of de­fendants in challenge to prison officials' refusal toprovide Kosher diet, that inmates have "the rightto be prOVided with food sufficient to sustain themin good health that satisfies the dietary laws oftheir religion." Id. at 198.2°830 F.2d 779 (7th Cir. 1987).2I/d. at 784-86.ll/d. at 787-88.

SPRING 1988 9

••• 1&1111&_1&11l1li.l1li . .JIIII

Critics Urge Caution inInterpreting Justice DepartmentStudy

-continued from previous pagethese were reasonable alternatives?3

The deference shown by the courtsto prison officials in these cases seriouslythreatens the existence of individualrights in prison. This is cause for earnestconcern. Fortunately, not all the post­Safley decisions have taken such a nar­row view of its application to prisonerrights. The most notable of these casesinvolve censorship of prisoner mail. TheCourts of Appeals for the Third, Eighthand District of Columbia Circuits havedeclined invitations to extend the ra­tional relation test established in Safleyto attempts by prison officials to censorinmate mail and publications. The leadingcase in this respect is Abbott v. Meese?4

In Abbott, federal prisoners, repre­sented by the National Prison Project,challenged the Bureau of Prison's regula­tions governing censorship of inmatepublications. Distinguishing Safley on thegrounds that the regulation there wascontent-neutral and did not affect therights of a non-prisoner, the court heldthat the more permissive Martinez stan­dard,2S and not the rational basis test es­tablished in Safley, applied to the censor­ship of inmate publications. Since thedistrict court did not apply the Martineztest, the decision was reversed and re­manded for application of the correct le­gal standard. A similar regulation en­forced by Missouri correctional officialshas also been held subject to the rigorsof the Martinez standard. Valiant-Bey v.Morris.26 Finally, in Brooks v. Adolina,27 acase involVing a somewhat different kindof censorship, the court held that prisonofficials may not punish inmates for de­rogatory statements about prison offi­cials made in a letter to an outsidereven if the same statements made orallyto prison staff would be grounds forpunishment. Here as in Abbott, the courtexpressly rejected defendants' argumentthat the case was 1'!overned by Safley,and not Martinez.2J'

In spite of these developments inthe area of prison censorship, it wouldseem that in one blow the SupremeCourt's decisions in Safley and O'Lonehave laid the groundwork for undoingyears of progress in the struggle forprisoners' rights. The Court has clearedthe way for lower courts to close theirdoors to prisoners. Many would applaudthis as a long time in coming. Others,especially prisoners, brace for the immi-

23ld. at 788. But compare, Jackson v. Elrod, 671F.Supp. 1508 (N.D. III. 1987) (applying Safley fac­tors, finding that county jail officials failed to justifytotal ban on receipt of hardcover books).24Abbott v. Meese, 824 F.2d 1166 (D.C. Cir. 1987).>SId. at I 170, quoting Procunier v. Martinez, 416 U.S.at 413 (discussed at the outset ofthis article).26829 F.2d 144/, 1443 (8th Cir. 1987).27826 F.2d 1266 (3rd Cir. 1977).>BId. at 1268.

10 SPRING 1988

Russ Immarigeon

In polls, you have to know what questions areasked and how they're being asked.Ronald ReaganPresident, The United States of America'

If people do not understand a process to an ad­equate degree, their advice is not likely to be ofvalue.Leslie T. WilkinsResearch Professor EmeritusState University of New York, Albany

The U.S. Bureau of Justice Statistics(BJS) released a controversial report thispast November that ostensibly showsstrong public support for increased lev­els of incarceration in the United States.As part of an apparent effort to makethe study's findings part of criminal jus­tice lore, BJS also convened a two-dayconference, held in Ann Arbor, Michigan,to disseminate the results of this studyto policymakers and practitioners acrossthe land.

However, several criminal justicepractitioners and researchers argue thatdifferent methods of measuring publicopinion about the use of imprisonmentwould produce different results. Signifi­cantly, they suggest, in the words of one

Russ Immarigeon is public policy re­search director for The Maine Council ofChurches' Criminal Justice Committee,and a regular contributor to the NPPJOURNAL

'Associated Press, "Transcript of Interview withPresident Reagan," The Washington Post, Decem­ber 4, 1987, p.A12.2Leslie T. Wilkins, Consumerist Criminology, To­towa, NJ: Barnes & Noble Books, 1984, p.8.

nent assault on the few constitutionalfreedoms they are allowed. In the end,we can only hope that the blow doesnot strike so heaVily that it crushes whatwe believe are the last vestiges of dig­nity and self-respect in prison?9 III

2"The National Prison Project has recently filed alawsuit challenging the policy of the Idaho Depart­ment of Corrections prohibiting the growing ofbeards. The plaintiff, an Orthodox Jew, contendsthat the prohibition interferes with the free exer­cise of his religion and is not supported by a legiti­mate penological justification. The defendants con­tend that the policy furthers its interest in beingable to easily identify inmates in the event of theirescape. The case is styled Carberry v. Murphy, Civ.No. 87-1249, and is currently pending in the fed­eral district court in Boise, Idaho.

researcher, that "it's too premature touse (the study) as a basis for policy."3

The BJS-funded study ignores re­cent advances i.p assessing public opinionabout crime and punishment issues thatincreasingly assume people may changeor shift their answers to survey ques­tions if they are given information whichprovided them with a stronger empiricalbasis for making their decision. In fact,the study's principle investigators, con­stricted by contractual arrangementswith BJS and by limitations characteristicof telephone interviewing techniques,made what one of them called a "hardchoice" to not provide respondents withadditional information about alternativepenalties or sanction costs.

Recent changes in public opinionpolling hold significant potential for re­dUcing the misuse of survey data formyopic political ends. In particular, edu-.cating the general public about the com­parative costs and potential advantagesof various alternative criminal sentencingoptions, provides an opportunity for al­ternatives to imprisonment to emerge asthe widely accepted penalty of firstchoice, especially for property and non­violent offenders.4

Criminologists Douglas R. Thomsonand Anthony J. Ragona recently identi­fied serious flaws in traditional opinionsurveys that find public dissatisfactionwith perceived judicial leniency in crimi­nal sentencing. "Conventional assess­ments of public attitudes toward sen­tencing are deficient in two respects,"Thomson and Ragona argue. "First, theydo not simulate the decision-making taskfacing judges. Second, they do not allowcitizens to consider the relative fiscal

3Telephone interview with Dr. Alfred Blumstein,Dean of the School of Urban and Public Affairs,Carnegie-Mellon University, February 8, 1988.<Some significant movement is already being madein this regard. An editorial in The Fayetteville Ob­server this past December urged North Carolinapolicymakers to take "a hard look at the wholenotion of imprisonment as a punishment of first re­sort for nonviolent criminals." Faced with federalcourt intervention because of prison overcrowd­ing, the paper argued that North Carolina "shouldnot have to adopt statutes mandating the releaseof nonviolent criminals to relieve overcrowding;they shouldn't be there in the first place." As a fi­nal note, the paper further argued that "alternativesentencing should not be regarded as an experi­ment; it should be the norm."

~-----

Perceptions of judicial leniency. . . may belie the fact thatjudges are handing outincreasingly stiffer sentences.

costs of current and alternative sentenc­ing practices."s

Other arguments can also be madeagainst conventional surveys. Perceptionsof judicial leniency, for example, may be­lie the fact that judges are handing outincreasingly stiffer sentences. Moreover,public perceptions of judicial leniencymay be based on a misunderstanding ofhow legislation determines the imposi­tion and nature of criminal sentences.The "truth in sentencing" debate, for in­stance, suggests that the public is beingdeceived because an offender sentencedto a long prison term is released after acomparatively short stay in "stir." Gen­erally omitted from this debate is discus­sion of how indeterminate and determi­nate sentences are structured, thepurpose and process of parole decision­making, and operational realities ofcourt, defense, prosecutorial, probation,parole and correctional agencies. Decep­tion rarely has anything to do with it.

The Bowling Green StudyOn November 8, 1987, a BJS news

release announced that "Americansoverwhelmingly support incarceration asthe most appropriate punishment forcriminals." Moreover, BJS furtherclaimed that "the public wants longprison sentences for most crimes, withother sanctions for minor infractions ofthe new law or as add-ons toimprisonment."

BJS' announcement was based on astudy of a representative sample of1,920 adults who were interviewedabout their attitudes toward punishmentfor criminal offenders in a national tele­phone survey conducted between Au­gust and October 1987 by interviewersat Bowling Green State University'sPopulation and .society Research Center.Eight crime vignettes were read to eachperson interviewed. Each vignette in­cluded information about crime type,amount of harm or injury, and offenderand victim characteristics. Each personinterviewed was then asked his or heropinion about offense seriousness, thetype and amount of punishment the of­fender should receive, and the reasonswhy they selected particularpunishments.

'Douglas R. Thomson and Anthony J. Ragona,"Popular Moderation Versus Governmental Au·thoritarianism: An Interactionist View of PublicSentiments Toward Criminal Sanctions," Crime &Delinquency, 33(3): July 1987, p.337.

Joseph E. Jacoby and Christopher S.Dunn, the stu~y's principal investigators,found that 71 % of those surveyed saidthat imprisonment was part of an appro­priate punishment, and only 17% of therespondents mentioned probation as themost severe sanction. Fines and restitu­tion were included even less often. Re­spondents' sanction or choice variedWidely according to the type of offenseand amount of harm resulting from theoffense. "No alternative to imprison­ment was favored over imprisonment asthe most severe penalty for any of­fense," the study found.

While respondents connectedlength of imprisonment with crime se­verity, they disagreed about the appro­priate length of incarceration for specificoffenses. Moreover, and perhaps mostSignificantly, Jacoby and Dunn found thatretribution wasn't the predominant justi­fication given for punishment. "Our re­spondents claim," they say, "that manyother purposes of punishment--deter­rence, boundary setting, rehabilitation,incapacitation, morality-are more im­portant than retribution."6

What's Wrong with the BowlingGreen Study

Interviews with research criminolo­gists and criminal justice practitionerssuggest a number of significant problemswith the Bowling Green study. Fore­most among the study's problems are: apeculiar sense that its findings are sur­prising; its failure to ask respondents anadequate range of questions or providethem with sufficient information to makewell-grounded judgments; its failure toplace their analysis of the study's findingsin the context of related research; itsfailure to consider the policy and fiscalimplications of the study's findings; andthe potential for incomplete interpreta­tion or premature application of thestudy's findings for immediate policypurposes.

"Joseph E. Jacoby and Christopher S. Dunn. Na­tional Survey on Punishment for Criminal Of­fenders: Executive Summary, Bowling Green, OH:Bowling Green State University. November 1987.A copy of this report can be obtained from theNational Criminal Justice Reference Service(NCJRS). P.O. Box 6000, Rockville, MD 20850,301/251·5500 or 8001732·3277 (for places otherthan Alaska, Maryland or Washington, D.C.).Other publications may result from this study. Ja­coby and Dunn are, as this article is being writtenin early February. negotiating with BJS for a con­tract to produce three additional products stem·ming from their study: a brief statistical bulletincovering the main findings of the study. an editedvolume of the papers and proceedings of the AnnArbor conference, and a monograph consisting of avastly expanded version of the earlier statisticalbulletin which would include a history of publicopinion research on crime and punishment issues.

Few studies have assessed a firmpicture of public opinion, or howit influences public policy.

Are the Results Surprising?Few studies have assessed a firm

picture of public opinion, or how it influ­ences public policy. Public interest in in­creasing criminal penalties, for instance,may result from the general impressionthat courts have been lenient with crimi­nal offenders. If gwen the opportunity tolearn about actual court practices, wouldpublic opinion change~ And how do poli­cymakers respond to findings fromeither of these situations~

The findings of the Bowling Greenstudy fit well with a knee-jerk, "gettough" approach toward criminal sanc­tions, but these results are not them­selves surprising, especially when oneconsiders what questions respondentswere asked.

Francis T. Cullen, a University ofCincinnati criminologist who has writtenwidely on crime, punishment and publicopinion, observes that "the public's cleartendency to favor prison terms reflectstheir understanding that prison equalspunishment, whereas probation or fines .mean that offenders escape punishment."He further suggests that politicians-lib­erals as well as conservatives-promotethe prison equals punishment equation.

In this context, Cullen says "it is tobe anticipated that the first reaction ofmost citizens is to favor throwing of­fenders in jail." Thus, one wonders whythe study's authors claim so boldly that"a major finding of the survey is the de­gree to which respondents favor impris­onment as a punishment relative to itsactual use by the criminal justicesystem."]

Consider the Questions Asked"The way questions are asked,"

David L. Bazelon, the former chief judgeof the United States Court of Appealsfor the District of Columbia, recentlywrote, "frequently has a lot to do withhow they are answered.,,8 The BowlingGreen study appears to have placedmore emphasis on developing differentcrime scenarios than on designing ques­tions to get a more consistent picture ofrespondents' feelings about how the

'Christopher S. Dunn and Stephen A. Cernovich."National Survey on Punishment for Criminal Of·fenses: Comparisons with Other Punishment Indi·cators," Bowling Green, OH: Bowling Green StateUniversity, November 1987. p.2.BDavid L. Bazelon. Questioning Authority: Justice andCriminal Law, New York. NY: Alfred A. Knopf,1988. p.21 3.

SPRING 1988 II

"The way questions are askedfrequently has a lot to do withhow they are answered," saysformer ChiefJudge David LBazelon.

criminal justice system should respond tocriminal offending. Apparently, inter­viewers only asked respondents theirgeneral thoughts about how serious par­ticular offenses were, the type andamount of punishment specific offendersshould receive, and why they chose par­ticular penalties. No more detailed de­scriptions of what questions were askedis given, and no information is providedoffering respondents a range of sanctionpossibilities from which to choose.

What About Other ResearchFindings?

Overall, the study does offer somebalance to its unnecessarily hard pro­nouncements about apparent public pref­erence for imprisonment. In particular,the study observes a significant lack ofdesire for retribution by its respondents.Unfortunately, analysis of this data has sofar failed to place this finding in the con­text of other public opinion research.Specifically, studies which probe moredeeply into what the public wants fromthe criminal justice system suggest thatcitizens show strong support for alterna­tives to incarceration when they are in­formed about what these sanctions cando or what imprisonment costs because,underneath it all, they also show strongsupport for both rehabilitation andrestitution.

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Bowling Green Responds to CriticsJacoby and Dunn, the Bowling

'For more information on this perspective, seeAlfred Blumstein and Jacqueline Cohen, "Sentenc­ing of Convicted Offenders: An Analysis of thePublic's View," Law and Society Review, 14(2):223-261, Winter 1980.

offender would actually serve.9

People frequently form their opin­ions of appropriate punishments, Blum­stein says, from the headlines or leadparagraphs in newspaper articles. Oftenthese sources of information are wrongor misleading, especially when they em­phasize the maximum sentence an of­fender could receive. Time served statis­tics consistently show that an offenderrarely serves the maximum sentencepossible for a given conviction.

"The basic problem is one of inter­pretation," Gottfredson adds. "I'm notyet convinced that the public knowswhat it truly means to be sentenced toprison for some time."

the least desirable goal of sentencingcriminal offenders. However, he also ob­serves that "the general public has apoor understanding of what prisons do,but they seem to have a good under­standing of what they want them todo."

In such a context, wherein the sur­vey's respondents are left uninformedabout all available choices and the impli­cations of choosing from a limited rangeof sanctions, to what extent can thesefindings accurately be applied to a real­ity-based policy debatel

A Cautionary Note on Using theStudy for Public Policy

At the Ann Arbor conference,Blumstein urged caution in the interpre­tation and use of the study's findings."People don't have an anchor in reality,"he argued, observing that when peopleare asked what they think is an appro­priate punishment for a specific crimethey generally give a response that istwo to four times the length of what an

12 SPRING 1988

Failure to Examine Study'sImplications

"Everyone agrees that you can'ttranslate (the study's findings) directlyinto prison sentences," researcher Ja­coby told the NPP JOURNAL. In fact, Ja­coby wonders what can be done, as heput it, "without doubling, tripling orquadrupling the prison system."

Alfred Blumstein, Dean of the Col­lege of Urban and Public Affairs at Car­negie-Mellon University, argues that"policy shouldn't deal simply with publicperceptions." Policymakers need to ex­amine, he further maintains, constraintssuch as the availability of money and ca­pacity to provide sufficient sanctionresources.

Steve Gottfredson, a Temple Uni­versity criminologist who conducted apublic and policymaker opinion surveyabout correctional issues for the U.S.National Institute of Justice several yearsago, is encouraged that the study's re­spondents suggested that retribution was

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Md. County Sued By NPP, LocalACLU, Agrees to Improve Jail

Green researchers, acknowledge someof the same shortcomings mentioned bythe study's critics. "We are aware," ja­coby told the NPP JOURNAL, "that alarge proportion of respondents wouldprobably choose alternative scenarios ifwe presented them." The study, he says,is only a first step. "The primary thingwe didn't do," he adds, "is offer somealternative scenarios, in particular inten­sive supervision."

While the study finds, in jacoby'swords, that the public is "not fond" oftraditional probation, he also observesthat the public is not aware of the stud­ies showing the positive results of real­world alternatives to incarceration.

ConclusionThe Bowling Green study's impact

on imprisonment policies is uncertain atthis point, primarily because its findingshave been in the public domain for onlya short period of time. These same find­ings, however, could become the basisfor inappropriate policy decisions, partic­ularly in the absence of a proactive re­sponse to the findings and how they areused. While some attention should bedirected toward inadequacies with thestudy's approach cited in this article,more energy must be centered on howBjS' interest in this study fits in withother Reagan administration criminal jus­tice policies and initiatives.

Repressive components of the Rea­gan administration's approach towardcriminal justice have included attacks onthe exclusionary rule, nominations of Su­preme Court candidates who supportthe death penalty, coordination of fed­eral support for accelerating state prisonconstruction, as well as support for pri­vate prisons as a method of assuring thatmore penal facilities be built. Reagan-in­spired policies also include bail practices(under the Bail Reform Act of 1984)that, according to one observer, put theUnited States in the same punitiveleague as Chile and South Africa by al­lowing "the indeterminate detention ofpeople not convicted of a crime."IO

The administration's criminal justicepolicies have only recently reached fullOrwellian overtones, however. In thepast few years, for instance, agencies ofthe U.S. Department of justice haveclaimed, in general, that: crime causespoverty; nearly everyone, in what istruly a land of opportunity, will becomea victim; and imprisonment is the mosteconomical method of handling criminaloffenders. Each of these statementsserves as a salvo for the broader admin­istration emphasis on imprisonment asthe primary response to criminal behav-

'"Martin Garbus, "Detention U.S.A.," The Nation,january 30, 1988, p.1 13.

On january 25, two days beforetrial was scheduled to begin, the Na­tional Prison Project and the MarylandACLU reached an interim agreementwith Wicomico County jail officials torelieve crowding and to improve firesafety, sanitation, plumbing, and medicalcare at the Maryland Eastern Shorefacility.

The agreement prOVides that thecounty will reduce the jail population byestablishing a pretrial release programdesigned to divert low-risk inmates fromjail to various forms of bail release.

According to Claudia Wright, Na­tional Prison Project attorney handlingthe case, the ACLU and the NPP were

ior. As things stand now, BjS' responseto the Bowling Green study suggeststhat the administration sees apparentstrong public support for imprisonmentas the glue that holds these separatecriminal justice initiatives together as asingle, ideological package.

In the end, BjS and its critics agreethat too little information is dissemi­nated to the public about the criminaljustice system's operations and proce­dures. They disagree, however, aboutwhat types of information should be em­phasized and the relationship betweenpublic opinion and public policy.

joseph M. Bessette, BjS' deputy di­rector for data analysis, told the AnnArbor conference attendees that "themultiplicity of decision-makers, the hugenumber of discrete cases, and the pas­sage of time combine to generate enor­mous information costs that create bar­riers to public knowledge of and impactupon punishment policy." However, healso argued that "aggressive and public­spirited political leadership that drawsupon reliable aggregate statistics on pun­ishment and a detailed understanding oflocal practices and policies can do muchto form an educated citizenry capable ofdirecting crime and punishment policy ina responsible and just way.""

Bessette places the burden of blameon criminal justice leaders for not re­sponding adequately to what he feels isan undisputed public preference for in­creased use of imprisonment as socialpolicy. However, others, like StephanieBass, executive director of the NorthCarolina Center on Crime and Punish­ment, distrust studies which "leave un-

"joseph M. Bessette, "Public Opinion, Politics, andPunishment," Washington, D.C.: U.S. Departmentof justice, November 1987. p.26.

appointed by the United States DistrictCourt in Baltimore to represent plain­tiffs who had filed over 20 individuallawsuits complaining of the "atrociousconditions" at the jail.

"We found their complaints to bewell-founded," said Wright. "Our ex­perts were prep~red to testify that thejail should be closed due to imminenthealth hazards. We believe this settle­ment will protect the prisoners by re­ducing population and improving condi­tions more quickly than the courtprocesses could act, until the newly con­structed jail is opened later this year.But we will be returning to the jail prior

-continued on next page

asked all the questions about what pris­ons actually do. The things," she says,"that people in the field may actuallyknow they don't do.

"Alternatives to incarceration areburgeoning in America," Bass observes,"but the study doesn't operate in thisreality. The study doesn't do a fair jobof explaining what alternatives to prisonactually are so that people can make aninformed choice." She also shares Blum­stein's concern that policy-relevant infor­mation about the costs of different pol­icy approaches, especially in the contextof scarce prison space, has not been in­cluded in the study.

In the end, the BjS-Bowling Greenstudy must be placed in the larger con­text of actual sentencing and prisonpractices and the findings of other em­pirical investigations of public opinion.

"In terms of policy responses topublic attitudes about punishment," Brit­ish researcher Mike Hough told the AnnArbor conference, "perhaps the clearestthing to emerge [from his review ofpublic opinion research] is the Proteannature of opinion. People's views aboutthe adequacy of sentencing differs acrosscrime categories. When asked aboutspecific sentences, their views shift withthe amount of information they are pro­vided about the crime. It is equally clearthat there is widespread dissatisfactionwith sentencing practice, and this threat­ens to erode popular confidence in thecriminal justice system. It is far fromclear, however, that the response entailsadjustments to sentencing policy. Even,or especially, those who argue that theweight of public opinion is the bestguide to the eqoity of sentencing mustaccept the need for public opinion to beinformed before it can be trusted." III

SPRING 1988 13

-continued from previous pageto March I to review the improvementsto assure the safety of the prisoners."

The lawsuit claimed that the "un­safe, unsanitary and overcrowded condi­tions of this jail, as well as the risk offire. demonstrated the likelihood of irrep-The settlement agreement in Hendrickson pro­vides for a reduction of population to ease over­crowded conditions such as these at the Wi­comico County Jail.

FIi"'li4H]-n&"-' I'(

1

14 SPRING 1988

arable harm to the plaintiffs."The ACLU complaint alleged the

following:• Prisoners are housed at least

eight men to a IOx20 foot cell. On thewest side of the floor, three cells houseprisoners who are never alloWlld out oftheir cells for recreation or exercise andwho must eat all meals inside the cell."Roaches and other unidentified bugsflourish in the filth";

• There is no light whatsoever inthe cellblock at night, and light is dimand inadequate during the day;

• The "stench of human waste ...is overwhelming... ." Bodies arecrowded together in incredible filth, andnoise is deafening;

• Guards are not stationed in thecellblock, but must be summoned by

For the Record

• A National Conference on PrivateCorrections will be held May 22-24 inLexington, Kentucky. Co-sponsored bythe Council of State Government andthe Department of Correctional Servicesat Eastern Kentucky University, the con­ference will address legal and ethical is­sues, the politics of privatization, con­tracting, and evaluation. Speakers includeEdward I. Koren, a staff attorney withthe National Prison Project, and TomBeasley of the Corrections Corporationof America. For more information aboutthe conference contact the Departmentof Correctional Services, Eastern Ken­tucky University, 202 Perkins, Richmond,KY 40475,606/622-1497.

• A recent report issued by the Na­tional Institute of Justice (NIJ) claimingthat locking up more offenders in prisonwill save money is based on a "selectiveuse of information," according to a newanalysis by The Sentencing Project ofWashington, D.C.

The Sentencing Project's analysisexamines the claims of Edwin W. Zed­lewski of NIJ that the societal costssaved through reduced crimes and crimi­nal justice expenditures outweigh themassive costs of prison construction andoperation. The analysis criticizes Zed­lewski's use of a RAND Corporationstudy which contended that prisoners inthree states committed an average of187 crimes a year. According to TheSentencing Project, the use of the studyis misleading because:

• Prisoners who report they com­mitted 187 crimes a year are not typicalof all offenders, since the ones whocommit the most crimes are most likelyto be caught and imprisoned. Therefore,there is no reason to assume, as Zed-

banging on the steel bars, adding to thenoise;

• A "shocking" risk of fire exists inthe jail. "The facility [is] a virtual tinder­box.... The design of the buildingwhich includes heavy, manually lockedcell bars and steel doors, barriers to su­pervision of the prisoners, and the lackof feasible routes of egress ensures thatif a fire occurs, all will surely perish."

The agreement calls for plaintiffs'lawyers to inspect the Detention Centerprior to March I, 1988 to insure compli­ance with the \erms. A final agreementwill be drafted at that point, providedcompliance is acceptable. The case isbeing handled by Claudia Wright, ACLUNational Prison Project Associate Direc­tor, and Susan Goering, Maryland ACLULegal Director. IiliIIl

lewski does, that there is an endlesspool of offenders committing 187 crimesa year who could be imprisoned;

• Incarcerating one offender whocommits 187 crimes a year will not nec­essarily result in 187 fewer crimes being

The Rights of Prisoners

Completely Revised and Up-to-date, AComprehensive Guide to the LegalRights of Prisoners under Current Law

Fourth Edition

By David Rudovsky, Alvin 1. Bronstein,Edward I. Koren, and Julia Cade

While prison officials continue to holdenormous power over prisoners, sincethe late I960s judicial decisions have be­gun to reflect an attempt to eliminatemajor prison abuses.

Topics covered include freedom fromcruel and unusual punishment, due proc~

ess, prison censorship, religious and ra­cial discrimination, special concerns ofwomen prisoners, medical care, rehabili­tation, parole, and remedies and proce~

dures for challenging conditions ofconfinement.

David Rudovsky is Visiting Professorof Law at the University of Pennsylvania.Alvin J. Bronstein is the Executive Direc­tor and Edward I. Koren is a Staff Attor­ney for the National Prison Project ofthe ACLU Foundation. Julia Cade is aParalegal and Public Information Assis­tant for the National Prison Project.

The book will be available at book­stores for $6.95. As in the past, it willbe free of cost to prisoners, from theACLU, 132 West 43rd St., New York,NY 10036.

committed since many crimes are com­mitted by groups, and new potential of­fenders will be recruited to the group;

• Offenders who are imprisonedmay become "hardened" by the prisonexperience or face societal prejudicesupon release, and therefore commitmore than their "average" number ofcrimes.

The Sentencing Project also ques­tioned the crime control savings cited byZedlewski, including such items as com­mercial security, individual firearms, andguard dogs. Even if crime rates do godown, societal spending on these itemsmay not decrease, since spending on se­curity devices often is a function of peo­ple's fear and "perception" of crime,rather than actual crime rates.

The Sentencing Project called for a"more comprehensive examination" of

these issues, including alternative policiessuch as job creation or expanded sub­stance abuse programs.

The Sentencing Project is a non­profit organization which promotes thedevelopment of alternatives toincarceration.

For a copy of The Sentencing Proj­ect's analysis, "Does Building More Pris­ons Save Money?," contact The Sentenc­ing Project, 1156 15th Street N.W.,Suite 520, Washington, D.C. 20005; 2021463-8348.

• The National Sheriffs' Associationhas received a grant from the Bureau ofJustice Assistance to develop a technicalassistance program to aid county and lo­cal criminal justice agencies in developingand implementing stress managementservices for their departments.

NSA's project will result in the de­velopment of a monograph detailing allaspects of establishing and maintainingstress management programs as well as amodel first-line supervisor's training cur­riculum addressing appropriate methodsof identifying and relieVing job-relatedstress.

A demonstration training workshopis scheduled f9r NSA's Annual Confer­ence in Louisville, KY, June 19-24, to in­troduce the monograph and the trainingcurriculum. These materials will be dis­seminated to state sheriffs' associations,police chiefs' asstlciations, and criminaljustice training academies at that time.

For further information on thisproject, please contact Anna Laszlo,Project Director, NSA, 703/836-7827 or1-800-424-7827.

ated mothers. health care, andgeneral articles and books. $5prepaid from NPP.

A Primer For Jail Litiga­tors is a detailed manual withpractical suggestions for jail lit­igation. It includes chapters onlegal analysis, the use of ex­pert witnesses, class actions,attorneys' fees, enforcement,discovery. defenses' proof.remedies, and many practicalsuggestions. Relevant case cita-tions and correctional stan­dards. 1st edition, February1984. 180 pages, paperback,$15 prepaid from NPP.

The Jail Utigation StatusReport gives a state-by-statelisting of cases involving jailconditions in both federal andstate courts. The Report cov­ers unpublished opinions, con­sent decrees and cases inprogress as well as publisheddecisions. The Report is thefirst nation-wide compilationof litigation involving jails. Itwill be updated regularly bythe National Jail Project. 1stEdition, published September

QTY. COST 1985. $15 prepaid from NJP.

Sourcebook (1980). Tracesthe history of the prisoners'rights movement and surveys

~.<.;: the state of the law on various~ prison issues (many case cita-

..~ tions). 24 pages. $2.50 prepaid, from NPP.

The National Prison Proj­ect Status Report lists bystate those presently undercourt order, or those whichhave pending litigation eitherinvolVing the entire stateprison system or major institu­tions within the state. Listsonly cases which deal withovercrowding and/or the totalconditions of confinement.(No jails except District ofColumbia). Periodically up­dated. $3 prepaid from NPP.

Bibliography of Women inPrison Issues. A bibliographyof all the information on thissubject contained in our files.Includes information on abor­tion, behavior modificationprograms, lists of other bibli­ographies, Bureau of Prisonpolicies affecting women inprison, juvenile girls, women in

QTY. COST jail, the problem of incarcer-

The Prisoners' AssistanceDirectory, the result of a na­tional survey, identifies and de­>tribes various organizationsand agencies that prOVide as­sistance to prisoners. Lists na­tional, state, and local organi­zations and sources ofassistance including legal, li­brary, medical, educational,employment and financial aid.7th Edition, published April1986. Paperback, $20 prepaidfrom NPP.

Offender Rights Litigation:Historical and Future De­velopments. A book chapterby Alvin J. Bronstein published

QTY. COST in the Prisoners' Rights

The National PrisonProject JOURNAL.$20/yr. $2Iyr. to prisoners.

Fill out and send with check payable to

The National Prison Project1616 P Street, NWWashington, D.C. 20036

NAME _

ADDRESS -'--- _

CITY, STATE, ZIP _

SPRING 1988 15

D-

The following are major develop­ments in the Prison Project's litigationprogram since October I, 1987. Furtherdetails of any of the listed cases may beobtained by writing the Project.

Abbott v. Meese--This is the nationalclass action which challenges the mailand literature policies of the Federal Bu­reau of Prisons. The court of appeals de­nied the government's petition for re­hearing on the prisoner correspondenceissue, and all proceedings were stayed bythe district court until the Solicitor Gen­eral determines whether or not a peti­tion for certiorari will be filed. If a peti­tion is filed, the district court will waitfor the Supreme Court to take action.

Cody v. Hillard-This suit challengesconditions at the South Dakota StatePenitentiary. In October, the Eighth Cir­cuit Court reversed the trial court or­der against overcrowding, with threejudges dissenting from the decision. ThePrison Project filed a petition for certior­ari on January 4.

Epps v. Martin-This case challengesconditions at North Carolina's CraggyState Prison. The district court issuedapproval of a settlement which prOVidesfor improvements in fire safety, ventila­tion, heating, medical and mental healthcare, and a reduction of triple-bunkingand overall overcrowding. Plaintiffs arenow monitoring overcrowding.

Palmigiano v. DePrete--This case·challenges conditions in the Rhode IslandState Prison system. In October a modi-

National prison ProjectAmerican Civil Liberties Union Foundation1616 P Street, NW, Suite 340 .Washington, D.C. 20036(202) 331-0500

16 SPRING 1988

fied order was entered establishing newpopulation limits for the Intake Center,with the limits going down on January I,1988 and April I, 1988. At that time,defendants are. reqUired to produce along-range plan for dealing withovercrowding.

Phillips v. Bryan-This is a conditionscase at Nevada's maximum securityprison. The consent decree on all issueswhich the parties agreed to in Septem­ber was given to plaintiffs for review andgranted preliminary approval by thecourt in October.

u.s. v. Michigan/Knop v. Johnson­This is a statewide Michigan prison con­ditions case. In Knop, plaintiffs filed anobjection to defendants' remedial plan.Our motion for reconsideration on theissue of segregation in the dining hallswas denied by the court. In U.S. v. Mich­igan, defendants filed an appeal from thelitigating amicus ruling. Defendants' mo­tion to modify the mental health re­quirements was defeated through the ef­forts of amicus.

Carberry v. Murphy-In this newcase, we are challenging the "no beard"rule of the Idaho Department of Cor­rections as infringing upon the free ex­ercise of the rights of those inmateswhose religious beliefs forbid them toshave. In December, the district courtdenied plaintiffs' motion for preliminaryinjunction.

Anderson v. Orr-The NationalPrison Project became co-counsel in an

on-going case cl1allenging conditions atthe Westville Correctional Center inWestville, Indiana. Our efforts will be di­rected primarily at improving the qualityof medical and psychiatric care.

Maryland Jail\-The Prison Project,along with the Maryland ACLU, filed suitagainst three jails in Maryland's EasternShore. Hendrickson v. Welch requestsclosure of the Wicomico County Jail andseeks alternative placement of inmatesuntil a new jail, now under construction,is completed. Macer v. DiNisio seeks re­lief for overcrowding of and unconstitu­tional conditions at the Talbot CountyJail, with families and friends of inmatesjoined as a second plaintiff class. Dotsonv. Satterfield is a challenge to over­crowded and unconstitutional conditionsat the Dorchester County Jail, with aspecial focus on First Amendment rightsand receipt of publications. An interimagreement was reached in Hendrickson .on January 25, two days before trial wasto begin, which prOVides for a reductionof population by establishing a pretrialrelease program.

Tillery v• Owens-This new case en­tered against the old Western Peniten­tiary in Pittsburgh, Pennsylvania (nowknown as the State Correctional Institu­tion at Pittsburgh, or SClP) challengesdouble-ceiling practices, environmentalconditions and improper housing ofmentally ill inmates, among other issues.The original complaint was filed pro seand Legal Services lawyers were assignedto the case. We have since filed anamended complaint. II

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