Jail Project
Underway

NUMBER I, FALL, 1984

Justice Department Retreats:
The Michigan Case
Elizabeth Alexander

The Rise and Fall of the Special
Litigation Section
For over 25 years, this nation's
commitment t o civil rights for all its citizens has been symbolized by the
existence of the Civil Rights Division o f
the Department of Justice. The Civil
Rights Division was given official authority t o enforce, on behalf of the government itself, civil rights laws ranging from
those protecting voting t o laws attempting t o guarantee equal access t o public
accommodations, education and
employment.
In 1974, a new unit was formed
within the Civil Rights Division t o
address the civil rights of our most vulnerable citizens-prisoners, the mentally
ill, the mentally retarded, and others
confined in public institutions. Over
time, the Special Litigation Section of
the Civil Rights Division became known
as an effective and formidable ally o f
advocacy groups seeking t o bring the Bill
of Rights inside prison and mental hospital gates. The lawyers assigned t o the
Unit developed a reputation for technical expertise and care in the development and presentation o f their litigation,
and a particular reputation for utilizing
all the resources necessary t o make the
case. As litigation in the area became
increasingly sophisticated, as in the
development of the concept of "totality
of conditions" litigation in prisons and
jails, public interest groups increasingly
relied on the ability o f the Department
of Justice t o conduct the extensive discovery and t o pay for the experts
necessary t o win the cases. Among a
larger number of landmark cases in

In 1983 the National Prison Project
announced the formation o f a National
Jail Project. The purpose of the Project
is t o provide technical assistance t o private attorneys, legal agencies and others
who are concerned about jail conditions
in their locality. The Jail Project commenced with a grant of $1 25,000 from
the Edna McConnell Clark Foundation o f
New York and has since received an
additional two-year grant.
The Jail Project, unlike the National
Prison Project, does not engage in any
litigation itself. It will help t o coordinate
and organize efforts t o focus on the
problem o f conditions in the nation's
jails.
"The uncivilized conditions that we
have helped begin t o eliminate in our prisons," said Alvin J. Bronstein, Executive
Director o f the National Prison Project,
"still exist in most o f our jails, often in
a grossly exaggerated manner." Bronstein oversees the activities of the new
Jail Project, along with Edward I. Koren,
Jail Project Director. Staff also includes
Urvashi Vaid and Dan Manville.
"The present jail-by-jail o r incidentby-incident approach is extremely costly
t o all concerned, and is relatively ineffective in dealing with systemic problems, and could, because of sheer numbers, go on endlessly," says Bronstein.

"Much of what we have learned in
the twelve years of the National
Prison Project can be successfully
replicated in the jail area through
the jail Project. "

which the participation o f the Special
Litigation Section was crucial were
Wyatt v. Stickney,' the first major case
t o address the rights of the mentally disabled which exposed appalling conditions
in public hospitals in Alabama, and Ruiz v.
E~telle,~
which reformed the largest
single prison system in the United States,
since the state of Texas incarcerates
more people than even the federal
government.
--continued

on page 4.

'344 F.Supp. 373 (M.D. Ala. 1971) offd sub nom.
Wyatt v. Aderholt, 503 F.2d I305 (5th Cir.
1974).
2503 F.Supp. 1265 (S.D. Tex. 1980). affd in port,
modified in part, rev'd on other grounds, 679 F.2d
I I 15 (5th Cir. 1982).

The Jail Project began by surveying
the current state o f jail litigation in the
country. Other priorities are t o develop
jail litigation strategies and t o provide
assistance t o local agencies and attorneys
in determining whether o r not litigation
is appropriate. Technical assistance is
given t o jail litigators, t o people who are
attempting t o mediate jail problems, and
t o communities interested in developing
alternatives t o jail incarceration. The
Project staff is available t o provide onsite training sessions, advice and consultation concerning a locality's jail problems. The Project also monitors litigation
and other developments nationally t o
prevent duplication and unnecessary,
costly litigation and provides leadership
in determining the most effective way t o
address jail problems.
-continued

on page 3.

Opening Remarks
Alvin I.
Bronstein
As we concluded our first 12 years
of work, the staff o f the National Prison
Project decided that it was important t o
broaden the effort t o share our views,
concerns and expertise. Hence, this
IOURNAL.
There have been a series o f prisoners' rights newsletters published over
the past dozen years, all addressed primarily t o lawyers o r persons using the
courts, and none in existence for some
time now. W e visualize our public information mandate somewhat more broadly
and hope t o share our thoughts with a
wider audience. The future development
and recognition of the rights of prisoners and rational criminal sanctions depends as much on public education and
political leadership as i t does on the
courts. Indeed, the Supreme Court itself
in recent years has cast a pall over the
entire movement.
As a natural outgrowth of the postWorld War II civil rights and civil liberties movements, and aided by the public
awareness that resulted from the explosion in Attica in 197 1 , judicial attitudes
in the 1960's and 1970's began t o move
away drastically from the notion of de
facto rightlessness that had been almost
universally accepted for prisoners. Recognizing that there was no iron curtain
drawn between the Constitution and the
prisons o f this country, for ten years
the courts carefully examined what went
on behind the curtain, and set limits on
the government's curtailment of the
rights and civil liberties o f prisoners.
However, beginning in the last half of
the 19701s, the Burger-Rehnquist Court
has moved us, though not yet full circle
back t o the slave-of-the-state era, at
least half of the way back. In what is
best characterized by Justice Rehnquist's
callous comment in one case that "nobody promised them a rose garden", a
majority o f the Supreme Court has seen
as its principal role the halting of the
doctrinal expansion of prisoners' rights
law.
While the Supreme Court has substantially increased the burden and cost
of establishing constitutional violations in
prison cases, there are fewer well-financed and well-staffed prisoners' rights
offices. Reform litigation by offices funded through the Legal Services Corporation has been severely curtailed by the
Reagan administration and the efforts o f
the Civil Rights Division of the United
States Department of Justice have been
reduced t o the point where they are
relatively meaningless. As the Michigan
2 FALL 1984

Seated: Mary McClyrnont, Adjoa Aiyetoro, A1 Bronstein, Urvashi Void, Claudia Wright; Standing:
Elizabeth Alexander, Lynthia Sirnonette, Betsy Bernat, Heidi Reavis*, Dan Manville, Sharon Goretsky,
Michelle Deitch *, Liz Rasenthal*, Linda Goldstein *, Maggie Wood Hassan*, ]an Elvin; N o t
pictured: Melvin Gibbons, Beryllones, Ed Koren, Steve Ney.
'Law students

story appearing on page one o f the
IOURNAL illustrates, we have even had
t o use our resources t o prevent Justice
from doing evil.
What then might we look t o in the
future as our nation's prisons become
human warehouses holding more persons
than at any other time in history? W e
must devote even more of our efforts
toward the goal of a uniform acceptance
by all branches of government, as well as
the media and the public, o f the principle
that prisoners must be afforded certain

fundamental rights if we are t o regard
ourselves as a civilized society. Those
rights must include: personal safety, decent care, personal dignity, work, selfimprovement, the vote, and the right t o
a future. We should do no less if we believe that the Bill of Rights applies t o all
persons, and if we expect prisoners t o
return t o society as lawful and productive citizens.
W e would like this IOURNAL t o
broaden this discussion and promote
these goals.

.

The National Prison Project of the
American Civil Liberties Union Foundation
1346 Connecticut Avenue, N.W.
JAN ELVlN
Editor, NPP IOURNAL

Washington, D.C. 20036 (202) 33 1-0500

ALVIN J. BRONSTEIN
Executive Director

STEVEN NEY
Chief Staff Counsel

EDWARD I. KOREN
MARY E. McCLYMONT

URVASHI VAlD
CLAUDIA WRIGHT

SHARON GORETSKY
Legislative Coordinator and
Administrative Assistant
BERYL JONES

D A N MANVILLE
Research Associate
LYNTHIA SIMONETTE

STAFF ATTORNEYS
ADJOA A. AIYETORO
ELIZABETH R. ALEXANDER

SUPPORT STAFF
BETSY BERNAT
Editorial Assistant
MELVIN GIBBONS

The National Prison Project is a tax-exempt foundation-funded project of the ACLU Foundation which
seeks t o strengthen and protect the rights of adult and juvenile offenders; to improve overall conditions in
correctional facilities by using existing administrative. legislative and judicial channels; and t o develop alternatives t o incarceration.
The reprinting of JOURNAL material is encouraged with the stipulation that the National Prison Project
JOURNAL be credited with the reprint, and that a copy of the reprint be sent t o the editor.
The JOURNAL is scheduled for publication quarterly by the National Prison Project. Materials and
suggestions are welcome. Deadline for next printing is October 3 1.
The National Prison Project JOURNAL is designed by James True.

Parties Move Toward
Settlement in Arizona
Claudia Wright

After months o f investigation and
preparation for trial, National Prison
Project lawyers representing plaintiffs in
the administrative segregation unit o f the
Arizona State Prison are cautiously optimistic about possibilities for settlement
of the case. Preliminary agreements have
been reached which clear the way for a
series of negotiation sessions in which all
substantive issues will be discussed by the
parties. In an unusual effort t o facilitate
resolution of the problems at ASU, the
parties agreed t o a review and evaluation by a panel o f independent correctional experts which would make recommendations t o be used as a framework
for negotiations. The panel toured the
institution in June, 1984 and presented
its recommendations t o the parties on
July 23, 1984. Panel members are Allen
Ault, former Director of Corrections in
Georgia and Colorado, Allen Breed,
former Director of the National Institute of Corrections, and Gordon
Kamka, former Director of Public
Safety in Maryland. Mr. Ault was selected as a panel member by the defendants,
Mr. Kamka was selected by the plaintiffs, and Mr. Breed was jointly selected
by both parties. The parties are now
engaged in negotiations concerning the
substantive issues o f the case.
The case at ASU, styled Black v.
Ricketts, involves a challenge t o the conditions o f confinement in the maximum
security administration segregation unit,
Cellblock 6, o f the facility located at
Florence, Arizona. The case in its present posture was filed by lawyers for the
Arizona ACLU and the National Prison
Project on behalf of the 160 prisoners
now incarcerated in Cellblock 6.
The case was initially filed in Federal
District Court in Phoenix, early in January 1984, as a pro se petition by
prisoner Stephen Bishop. In his initial
petition Bishop challenged the constitutionality of a recently implemented
behavior modification program. The
Management Adjustment Program, called
MAP, is a complex system of levels in
which a prisoner can be denied such
basic necessities as food, exercise, visiting, and other forms o f communication
with the outside, in response t o minor
disciplinary infractions. MAP includes as a
punishment the placement o f a prisoner
on a diet consisting only of "diet loaf",
a gruel-like concoction, and water for
indefinite periods o f time.

The court in Phoenix, recognizing
the serious nature o f Bishop's complaints, appointed Alice Bendheim, a veteran ACLU litigator in Arizona, t o
represent Bishop and all others similarly
situated. Bendheim's investigations
revealed a number of other dangerous
and abusive practices occurring in Cellblock 6. Bendheim found that many o f
the cells had been altered by the addition o f steel plates, welded over interior
and exterior openings, which cut off
light and air. Prisoners were allowed out
of these cells only three hours a week.
The unit was in a dangerous state o f disrepair and was chronically unsanitary.
Many men had been housed in Cellblock
6 since the building was opened, over
four years ago. N o procedure presently
exists for release into general population
from Cellblock 6. Most shocking was
the practice o f routinely subjecting men
t o abusive rectal body cavity searches
for purposes o f punishment and control.
Early in March, 1984, Bendheim
contacted the National Prison Project
for assistance on the case. The Project
responded, investigation intensified, and
on May 7, 1984, an amended complaint
was filed raising all the outstanding issues
as an Eighth Amendment, totality of
conditions lawsuit, Several preliminary
rulings were obtained from the court
which enjoined the defendants from prohibiting contact between the plaintiffs
and their lawyers and experts. Extensive
requests for documents were filed.
Several state officials have been
deposed. The lawyers discovered that
videotapes had been made on March 22
and 23, 1984, of over a hundred men
being subjected t o rectal body cavity
searches. Even considering the obvious
security requirements of prisoners
placed in administrative segregation, the
plaintiffs' lawyers believe they will be
able t o prove that these searches go far
beyond any notion o f cruel and unusual
punishment prohibited by the Eighth
Amendment.
Upon the filing o f the amended
complaint, the court certified the case
as a class action and set a trial date for
October 2, 1984. On-site evaluations
have been conducted by plaintiffs' experts which include a medical doctor, a
psychiatrist, a sanitarian, a nutritionist, a
psychologist, and corrections expert
Kamka. During Kamka's visit, conversations between the lawyers for the

parties and Mr. Kamka led t o the proposal t o allow an independent panel t o
review the situation and make suggestions. It is hoped that these suggestions,
o r recommendations, will provide the
parties with specific, objective standards
for the operation of Cellblock 6 which
can be acceptable t o all parties and form
a basis for settlement o f all the issues in
the case. This unusual cooperative effort
incorporates several key factors which
should facilitate the success of a negotiated settlement. First, the use o f a
panel t o make recommendations reflects
the commitment o f all parties t o
improve living conditions for the prisoners. Second, full participation by the
parties in the selection o f panel members assures confidence in the quality of
the recommendations which result from
the panel. Third, this joint effort will
potentially result in agreements which
will relieve the court o f the burden it
faces if a trial is required and court
intervention is found t o be necessary t o
remedy constitutional violations.
The conditions under which prisoners are living in Cellblock 6 in Arizona
are serious and continuing, but are not
intractable. The process t o alleviate
these unconstitutional conditions has
begun. Lawyers for the plaintiffs are
encouraged by the attitude of the defendants t o move swiftly t o the negotiating
table. Perhaps if these attitudes o f cooperation can be sustained, humane conditions of confinement can finally be realized for the prisoners of Cellblock 6.

.

Jail Project
-continued from page I .

In March o f 1984 the Jail Project
published A Primer for jail Litigators, a
178-page book which contains chapters
addressing tactical and strategic questions in jail litigation as well as remedies,
proper parties, planning and research,
the use o f experts, class actions, discovery, defenses, enforcement o f court
decrees, and attorneys' fees. See the
publications list for information on how
t o obtain the Primer.
Bronstein summarizes his hopes for
the Jail Project by saying, "Much o f
what we have learned in the 12 years of
the National Prison Project can be successfully replicated in the jail area
through the Jail Project: how t o avoid
litigation on certain kinds o f problems
and resolve them through mediation and
negotiation, how t o discourage unrealistic litigation, and most importantly, how
t o maximize the possibility of real and
everlasting changes in our jails."
Please send in any relevant materials,
legal or otherwise, to h e 4 keep our files
current.

.

FALL 1984 3

Justice Retreats
--continued from page I.
Congress recognized this new role
for the Civil Rights Division in 1980
when it passed the Civil Rights o f Institutionalized Persons A c t (CRIPA), clarifying the legal duties o f the Department
of Justice t o protect the constitutional
rights o f those in public institutions. At
the time o f CRIPA's enactment, the
Department o f justice told Congress it
expected that the number o f lawsuits
filed under CRlPA would be n o more
than seven t o ten per year.3
In fact, since the effective date o f
CRlPA in May, 1980, there have n o t
even been seven actions filed. The reasons f o r the failure o f the Civil Rights
Division t o enforce CRlPA in a meaningful way were effectively summarized in
Congressional testimony by a former
lawyer f r o m the Special Litigation
Section:
The passage of the Act should have
been a clarion call for the Justice
Department t o renew and reinforce its
advocacy for the rights of the institutionalized. Unfortunately, there was
another event that interposed itself and
negated this positive development. That
event was the appointment of William
Bradford Reynolds as Assistant Attorney
General for the Civil Rights Division.
From his confirmation hearing, it was
clear that Mr. Reynolds would change
Justice Department positions on several
highly public civil rights issues where the
Reagan Administration had already
stated its views, such as busing as a
remedy for the segregation of school
children and the use of so-called quotas
to remedy racial discrimination in
empl~yment.~
The first major impact o f Mr. Reynolds' appointment on the Special Litigation Section was the change o f position
o f the Department o f Justice in many o f
its existing lawsuits involving prisons and
mental hospitals. In case after case, the
Special Litigation Section stopped advocating r e f o r m and joined forces w i t h its
supposed opponents, the state and local
defendants. For example, in the Mississippi case, one o f Justice's most
important prison cases, the federal judge
dismissed the Department as a party as
t o certain issues because o f the Department's switch in positions and because
the court found Justice's interests t o be
no longer "common t o the interests o f
'Senate Report No. 96-416, p. 33, n. 88
(November 1 5, 1 979).
'Testimony of Stephen A. Winston. Hearing,
House of Representatives Subcommittee on
Courts, Civil Liberties and the Administration of
Justice and Subcommittee on Civil and Constitutional Rights 12/8/84).

4 FALL 1984

Reynolds objected, in a handwritten
memorandum, to the "detailed
proposals" which he thought
should be monitored by state
agencies even though the state
itself had produced the
unconstitutional conditions.
the plaintiff c l a ~ s . "The
~
Department has
adopted new positions bitterly opposed
by representatives o f the inmate plaintiffs in a number o f other important
cases as
Developing the reputation as the
anti-Civil Rights Division inevitably t o o k
its toll in morale, particularly in the Special Litigation section. One result was
the departure f r o m the Section o f dedicated and experienced lawyers. Sixteen
o f eighteen staff lawyers in the Section
have left since January, 198 1 , as have
five o f their replacements7
By January o f 1984, the Department o f Justice finally g o t around t o filing what was only its second lawsuit
under CRIPA.8 (The first lawsuit, against
the Hawaiian prison system, was t h r o w n
SGatesv. Collier, No. GC 71-6-K (N.D. Miss.
8/6/83). earlier opinions a t 423 F.Supp. 732
(N.D. Miss. 1976). aff'd and remanded, 548 F.2d
1241 (5th Cir. 1977).
5ee, e.g., Wyatt v. Ireland, C.A. No. 3195-N
(M.D. Ala.. Feb. I, 1983). see later opinion at
515 F.Supp. 888 (M.D. Ala. 1983) (after more
than a decade of helping the plaintiffs representing a class of mental patients the Justice Department joined the defendants in proposing a settlement which the plaintiffs have opposed) (this is a
later stage of the Wyatt v. Stickney litigation,
supra n. I.; Gary W. v. State of Louisiana, C.A.
No. 74-2412 "C" (E.D. La.). earlier opinion at
622 F.2d 804 (5th Cir. 1980) ("[llf DO] persists
in its new posture as guardian of the federal
executive branch's or defendants' interests, then
the plaintiff-class will have no choice but to
move for DOJ'sdismissal from this case."
Raintiff's Supplemental Memorandum in Support
of Motion to Approve Placement Procedure
Order. November 1 5. 1983. p.4); Battle v.
Anderson, No. Civ. 72-95 (E.D. Okla.) (Private
plaintiffs' counsel for class of prisoners asked the
court to remove the Department of Justice,
charging that "[alttorneys for the United States
have abdicated their lawful role in this
litigation." Application filed November 2 1 ,
1983, and see 708 F.2d I523 (10th Cir. 1983)).
For a full account of Mr. Reynolds' sabotaging of
civil rights in all areas of his responsibilities, see
Spence, "In Contempt of Congress and the
Courts: The Reagan Civil Rights Record"
(1984). available from ACLU, Suite 301, 600
Pennsylvania Avenue. SE, Washington, D.C.
20003.
'The New York Times, 6/22/84.
is interesting to note that, since January, 1981,
the National Prison Project, with seven lawyers.
has filed fifteen major new lawsuits. To date,
our best information is that there have been
four CRlPA actions filed.

o u t o f court o n procedural ground^.^)
The lawsuit, filed simultaneously w i t h a
proposed consent decree in January,
1984, illustrates the lengths t o which
the Justice Department, under Bradford
Reynolds, will go t o implement anti-civil
rights policies under the guise o f
enforcing CRIPA.

Michigan: Test Case for States'
Right Under CRlPA
O n October 9, 198 1, the Department o f Justice sent a formal letter
informing the state o f Michigan that pursuant t o CRlPA an investigation o f conditions o f confinement would be undertaken at the State Prison o f Southern
Michigan in Jackson, Michigan; the Michigan Reformatory at lonia; and the State
House o f Corrections and Branch Prison
at Marquette.
O n October 29, 1982, Reynolds
submitted a "notice o f findings" regarding these facilities t o the state o f Michigan. The investigation by the Justice
Department, the letter states, had "discovered . . a pattern o r practice o f
egregious o r flagrant conditions that are
subjecting the prisoners incarcerated in
each facility t o grievous harm in violation o f their Eighth Amendment rights."
Among the Justice findings were stark
conclusions that the prisons consisted o f
physical plants that had become antiquated and unsanitary. There was a critical lack o f provision f o r fire safety.
Inmates were inadequately protected
against physical and sexual assault, other
violence, and extortion. Overcrowding
had strained support facilities, physical
plants, equipment, and sanitation. Mental
health care was inadequate at each o f
the facilities.
Between December, 1982, and the
first o f October, 1983, the attorneys
f o r the state o f Michigan and the
Department met o n numerous occasions. Experts hired by the Department
o f Justice also attended the negotiation
sessions that related t o their specific
areas o f expertise.
In the first part o f October, 1983,
the state o f Michigan and t w o attorneys
f r o m Justice had negotiated a comprehensive, mandatory 54-page consent
decree. All o f the necessary parties
f r o m the state o f Michigan had approved
the decree as o f the middle o f October.
The lawyer representing the state o f
Michigan likened the state's position t o
"a bridegroom waiting at the altar f o r
the bride t o show up." Accordingly, the
t w o lawyers f r o m Justice's Special Litigation Section headed back t o Washington
t o t r y t o sell the decree t o Reynolds.

.

9UnitedStates v. Hawoii, Civil No. 83-0248 (complaint filed 3/4/83).

Despite Michigan's approval of the
proposed decree, Reynolds refused t o
move from his position that "states'
rights" principles required the Department o f Justice t o refrain from placing
specific obligations on the states. Reynolds objected, in a handwritten memorandum, t o the "detailed proposals"
which he thought should be monitored
by state agencies even though the state
itself had produced the unconstitutional
conditions.I0 Reynolds added that "[fJedera1 supervision o f such planned improvement goes well beyond our proposed
complaint and our CRIPA authority."
But Reynolds was ready with a solution. Indeed, cutting out the staff
lawyers that had put together the case,
he had already made direct contact with
the state officials. Reynolds reported
that the state officials agreed t o his proposal t o change the consent decree into
a "plan", primarily monitored by the
state itself.
By January, 1984, Michigan signed
off on the new consent decree that
called for "minimally adequate" sanitation, medical care, fire safety, and protection from harm. The consent decree
gave no explanation as t o the meaning
of "minimally adequate" standards, but
noted that the state had prepared a
plan. However, the consent decree
blandly stated, the state's failure t o
comply with the plan (the original consent decree) was not, by itself, a
violation of the consent decree. In plain
language, Michigan signed a statement
that it would obey the Constitution but
undertook no binding obligations t o take
any single step t o end the violations in
the prison. Since Michigan was always
required t o obey the Constitution, the
proposed "consent decree" was legally
a meaningless act. Both lawyers who had
negotiated the original proposed decree
refused t o sign Reynolds' decree; in a
matter of months both left the Special
Litigation Section.
The Department of Justice then
filed its proposed consent decree, along
with a final complaint, against the state
of Michigan, in federal court in Kalamazoo, Michigan. The National Prison
Project, along with the Michigan affiliate
of the ACLU, asked Judge Richard
Enslen for permission t o argue against
loReynoldsclaimed the reason for objecting to the
plan was that several parts of the proposed consent decree borrowed standards set by state law
of general affiliation, such as plumbing codes or
public health codes. But use of such state set
standards to remedy constitutional standards is
commonplace. See, e.g., Williams v. Edwards, 547
F.2d 1206. 1214 (5th Cir. 1977); Ramas v.
Lamm, 639 F.2d 559 (10th Cir. 1980); Battle v.
Anderson, 457 F.Supp. 719 (E.D. Okla. 1978);
Palmigiana v. Garrahy, 443 F.Supp. 956 (D. R.I.
1977).

But the justice Department's
campaigning will also continue
across the country to replace
enforceable decrees with paper
travesties.
the new decree. Private lawyers
representing the class o f all inmates in
the Central Complex of the Jackson
prison also petitioned t o appear t o
oppose the consent decree. Despite the
press release o f the Department o f
Justice describing the Reynolds' decree
as a model for future litigation, there
was widespread criticism o f the decree.
Indeed, Kenneth Schoen, the corrections
expert employed by the Department o f
Justice t o investigate the Michigan
prisons, filed an affidavit with the court
attacking the new decree as ineffective
and no more than "a set o f polite
suggestions" t o Michigan.
O n March 23, 1984, Judge Enslen
heard argument on whether the decree
should be approved by the court. He
began by allowing the National Prison
Project t o appear as an amicus curiae
(friend o f the court) and allowing the
private lawyers t o intervene t o challenge
the decree insofar as it applied t o the
Central Complex at Jackson.
Judge Enslen continued by criticizing
the decree in blunt language:
I realize that I have only been in
the profession 26 years, but I have
never seen a . . . five page [consent
decree] like this five-page document. I couldn't read it:
* * *
The point is that in its present
form it seems to me that I do
nothing by signing the five-page
consent decree. I don't know what
it means, and if I don't know what
it means, I don't see how anybody
else does. I

After rejecting the consent decree,
Judge Enslen ordered the state of Michigan and the Department of Justice t o
negotiate a new decree.
For a period, the Department of
Justice refused t o schedule further negotiations with the state of Michigan. O n
its own, Michigan prepared a new consent decree that. like the original argument, made the entire "planz enforceable in court. But when the Michigan
representatives were finally allowed t o
meet with Justice, Justice gave them a
new eight-page consent decree.
Again, the eight-page consent
decree incorporated the critical provision that violations o f the state's plan
"U.S. v. Michigan, No. G84-63 (W.D. Mich.)
transcript of hearing 155- 156 (3123184).

(the original consent decree) were not
violations o f this consent decree unless
Justice proved that they violated the
Constitution. Judge Enslen, after receipt
of the new consent decree, held a private conference with the lawyers and
again asked for new negotiations for a
decree that he could accept. He pointedly ordered Michigan's attorneys t o go
t o Washington, D.C., for the negotiations, since it was apparent that all the
decisions were being made in Washington by Reynolds.
By this time, the National Prison
Project had had an opportunity t o learn
more about the Michigan system. The
Project realized that even if the Michigan "plan" were fully implemented,
serious constitutional problems would
remain. Accordingly, the National Prison
Project, again with the Michigan ACLU
affiliate, filed a new lawsuit t o redress
the remaining constitutional problems in
Michigan prisons, including racial segregation and discrimination in jobs and
programs.
Despite the judge's cajoling, however, Michigan and the Department o f
Justice submitted the same eight-page
unenforceable decree t o the court at
the public hearing on June 12. Acceptance o f the consent decree had
become so important t o Justice's plans
for states' rights that Reynolds took the
highly unusual step of appearing personally t o argue for the acceptance o f the
decree. After negotiations Judge Enslen
ultimately told Reynolds that he must
accept changes in the consent decree o r
have the decree rejected once and for
all.
In essence, the judge's new language
changed the decree in three important
ways. First, the state could not change
anything in the "plan" without the
approval of Judge Enslen. For practical
purposes, that made the plan little different from a traditional enforceable consent decree since the parties t o a traditional court decree can also seek court
permission t o modify the decree.
Second, Judge Enslen set a hearing for
June, 1985, at which time he would
determine if the consent decree is in
fact working effectively t o cure the constitutional violations in the Michigan prisons. If it is not working, he would then
order further changes. Third, the
National Prison Project, the Michigan
ACLU and the private lawyers representing the Jackson Central Complex
inmates would have a role in monitoring
enforcement o f the consent decree,
including participation in the 1985
hearing.
-continued on next page.
I 2 b a p v. johnson, G84-65 1 -CA5 (W.D. Mich.,
filed 6184).

FALL 1984 5

-continued

from preceding page.

The Struggle Continues
In short, the outcome in Michigan
was a fairly complete victory for prisoners' rights advocates. But it was a victory in one battle, not the war. Indeed,
even as t o Michigan prisoners themselves, how much impact the Project's
efforts have had will not be measurable
until after the June. 1985 hearing.
Because the Department o f justice
fought bitterly against an enforceable
decree, no one can expect that Justice
will voluntarily pursue vigorous enforcement o f the decree. Obviously, the
longer fight is just beginning in Michigan.
But the justice Department's campaigning will also continue across the
country t o replace enforceable decrees

with paper travesties. Ironically, during
the very months that the Prison Project
and the Department o f justice were
contesting the Michigan decree, the
Department o f justice successfully signed
a comparable consent decree involving
t w o mental hospitals in Indiana, attracting almost none o f the media attention
that had surrounded the Michigan case.I3
There is absolutely no reason t o believe
that Mr. Reynolds has changed his position that his proposed Michigan decree is
the appropriate model in prison and
other institutional litigation, and we can
expect the battle between states' rights
and human rights t o continue in the
courtrooms across the land. W
"United Stotes v. Indiono, l P 84-41IC (Consent
decree) S.D. Ind. 4/6/84).

Private Firms Cash In
On Crime
]an Elvin

Anyone keeping up with the corrections field knows that the most talkedabout trend is the potential movement
toward privatization o f prisons, jails,
juvenile institutions, and Immigration and
Naturalization Service (INS) detention
centers. The idea has stimulated lively
debate as the feasibility o f privately managed and operated prisons and jails is
being explored.
There is a long history o f contractual arrangements between corrections
and private organizations for certain
services, such as health care, and for
secondary community corrections placements (halfway houses, drug rehabilitation programs, etc.). The actual number

//

6 FALL 1984

of privately financed o r operated jails
and prisons remains small, however, and
a recent National Institute o f Corrections survey shows that the trend
towards contracting out complete operation o f a prison o r jail is still viewed with
skepticism by corrections administrators.
Complete takeover by private companies would represent great loss of
control t o the corrections community,
and they are nervous about liability and
responsibility issues. O f governmental
agencies responding t o the NIC study,
only 22% would favor contracting for
management of an entire facility; 75%
would not consider it and over 4%
were unsure. However, faced with rising

prison populations, higher costs, and
public reluctance t o finance more
prisons and jails, corrections administrators are taking a good look at the privatization packages that are being marketed around the country. Some involve
only financing of capital costs while
others also include private operation o f
the facility. Companies like E.F. Hutton
and Dean Witter Reynolds are entering
the business t o finance construction
costs only. Governments have traditionally financed prison and jail construction with money at hand and "general
obligation bonds." General obligation
bonds, however, are subject t o voter
approval, and, as the E.F. Hutton brochure, "Innovative Alternatives t o Traditional jail Financing" points out,
"Detention facilities have not enjoyed
popular support at the polls."
Private financing, therefore, will
effectively sidestep statutory constraints
on public debt and allow construction o f
more prisons and jails without voter
approval. Private industry stands t o
make a profit off the fact that we as a
nation jam nearly 314 of a million men,
women and children into our jails and
prisons. In spite of the decline in the
crime rate in most areas, we are still
putting more and more people away
behind bars: prisons are operating at
l 10% capacity. The involvement of
profit-making firms may well mean that
more effective and more humane
methods o f punishment will be ignored,
and citizen participation in formulating
correctional policy will be drastically
reduced. Although community service
and restitution programs have proved
successful, companies like E.F. Hutton
turn a deaf ear since they do not fit into
their profit-making goals.
The entrepreneurial operation of a
jail o r prison raises additional concerns.
When the private company wants t o
show, o r increase, profits, it is prisoners

I

who will suffer. Prisoners who already
endure outmoded environmental conditions, inadequate medical and psychiatric
care, paltry programs and grossly overcrowded living space will be asked t o
pay even further for the cost-cutting
measures. Should constitutional conditions o f confinement be sacrificed for
the profit motives o f private business?
Private companies such as the Corrections Corporation o f America claim
t o be able t o build and operate prisons
and jails at a lower cost without loss in
operating efficiency. H o w will these
companies pay property taxes (they
have no tax-exempt status), higher interest rates, liability insurance, and earn a
profit? The Rutherford County Commission in Tennessee found that a proposal
by the Corrections Corporation o f
America t o build and manage a new
county jail would result in increased
costs. Some Commissioners want a
study done t o seek alternatives with less
impact on the property tax rate. Commissioner Gannon said, "We should
question whether this is what we can
truly afford. Common sense would dictate that there are alternatives."
A number o f recent studies have
recommended that jail and prison space
be considered a scarce resource, like
energy o r water, and should therefore
be used parsimoniously. If a private company is getting paid a certain number o f
dollars per occupied bed, the tendency
will be t o increase occupancy. The company will have a vested interest in keeping the head count high inside prison,
not in exploring alternatives t o incarceration. The current prison population
boom is already a reflection o f our
shortsighted, narrowminded judicial and
public policy. Add t o that a profit
motive, and the possibility o f meaningful
reform in the way o f implementing alternatives t o incarceration becomes an
even more remote dream than it is now.

Making money as a result o f imprisoning people raises a number o f legal
and ethical questions. W h o will monitor
performance o f the private company?
W h o will monitor and enforce regulations and standards? O f course all these
items can be written into the contract
between the state o r locality and the
provider, but who can guarantee that
they will be? And who will say that the
conditions o f the contract are satisfact o r y t o those o f us who are more
concerned about prison conditions and
the reduction o f unnecessary confinement than in profits made on the backs
o f prisoners? D o administrators o f privately run facilities have the authority t o
handle inmate disciplinary actions including use o f deadly force? Should this
important, issue be delegated t o a
money-making venture?

"Private industry stands to
make a profit off the fact
that we as a nation jam
nearly 314 of a million men,
women and children into our
jails and prisons. "
So far the most active new market
has emerged in efforts t o confine more
illegal aliens. Holding camps are appearing all along the Southern border. The
Corrections Corporation o f America
has built a $4 million, 300-bed INS
detention center in Houston. C C A is
the first corporation that was formed
solely t o "offer complete management
and operational services o f correctional
facilities . . ."
W i t h the exception o f the INS facilities, at the present time there is no
adult prison under private management.
The closest thing t o it is a minimum

security work-study release facility in
Wisconsin totally managed and operated
for the past 5 years by Wisconsin Correctional Services, a non-profit corporation. The Division o f Corrections retains
only the responsibility for inmate
discipline.
Nearly 20 states are negotiating t o
go private with some jails. One reason
jail contracting may appeal t o local governments is because it would permit the
cost o f jail construction and management t o be shared across jurisdictional
lines. The companies who market private financing are concentrating their
efforts on states and localities which are
under court order because o f overcrowding. It's no wonder: 3 1 states and
17% o f the counties are under court
order t o relieve unconstitutional conditions, including overcrowding.
In spite o f the publicity around the
INS contracts which may have the public
expecting a stampede towards prisons
for profit, a study done by the National
Institute o f Justice, "Corrections and
the Private Sector," found little change
in the contracting practices o f state
adult correctional agencies. It is really
t o o soon t o tell whether o r not this will
become a major trend and will lead t o
contracts for management o f "secure"
facilities. Some observers are saying that
things can't get much worse than they
are now, and we should give business a
try. O n the other hand, there is no
reason t o suspect miracles since the private corporations will only reflect the
policies o f the governments they
represent.
In the next issue o f the IOURNAL,
we will discuss the legal implications for
all concerned in the prisons for profit
movement..

FALL 1984 7

Prison Litigation: Making
Reform a Reality
Mary E. McClymont
Once the substantial hurdle of establishing liability for unconstitutional conditions has been overcome in prison litigation, as with all major complex civil
rights and institutional reform litigation,
lawyers are faced with the equally important and difficult tasks of arguing for
and ensuring compliance with effective
and meaningful remedies. In this article,
we highlight several o f the major methods available t o a district court t o enforce the remedial orders it has framed
t o cure constitutional violations.
The power of a district court t o
fashion an effective remedy once a constitutional violation has been established is
beyond question. A court possesses the
full range of equitable powers. The Supreme Court, in Hutto v. Finney, 437
U.S. 678 (1 978), upholding the district
court's remedy providing for a 30-day
limitation on confinement t o punitive
isolation, reiterated this principle, citing
several other Supreme Court cases:
As we explained in Milliken v. Bradley
[citations omitted], state and local authorities have primary responsibility
for curing constitutional violations. "If,
however, '[those] authorities fail in
their affirmative obligations . . judicial
authority may be invoked." iwann v.
Charlotte-Mecklenburg Board of Education [citations omitted]. Once invoked,
"the scope of a district court's equitable powers to remedy past wrongs is
broad, for breadth and flexibility are
inherent in equitable remedies." Ibid.
437 U.S. at 687 n.9.
The Court in Hutto further explained
that the 'district court "was seeking t o
bring an ongoing violation t o an immediate halt."
A federal court has the inherent
power t o enforce its orders through civil
contempt.' It also has power under statutes, court rule, and traditional equity
doctrines2 t o make further orders necessary t o effectuate its judgments. The
principles governing the remedial powers
of district courts require federal courts
I
UnitedStates v. United Mine Workers, 330 U.S.
258, 303-04 (1947); McComb v. ~acksonvillePaper
Corp., 336 U.S. 187 (1949); Powell v. Ward, 487
F.Supp. 9 17 (S.D.N.Y. 1980). aff'd as mod., 643
F.2d 924 (2nd Ci. 1981), cert. den., 454 U.S. 832
(1982); Miller v. Canon, 550 F.Supp. 543 (M.D.Fla.
(1982); Palmigiano v. Gorrahy, 448 F.Supp. 659
(D.R.I. 1978).
* 28 U.S.C. 91651 (All Writs Act); Rule 60(b),
F.R.C.P.; United States v. United Shoe Machinery
Corp., 391 U.S. 244. 248-49 (1968).

8 FALL 1984

t o focus upon three factors. First, the
nature o f the remedy is t o be determined by the nature and scope o f the
constitutional violation, and the remedy
must, therefore, be related t o the condition alleged t o offend the Constitution.
Second, the decree must be remedial in
nature and designed as nearly as possible
t o restore victims t o the position they
would have occupied in the absence o f a
constitutional violation. Third, the federal courts in formulating a remedy must
take into account the interests o f state
and local authorities in managing their
own affairs consistent with the Constitution. Furthermore, while state and local
authorities have primary responsibility
for managing their own affairs, if those
"'authorities fail in their affirmative obligations . . . judicial authority may be invoked."' Milliken v. Bradley, 433 U.S.
267, 28 1 (1 977) (Milliken I!), quoting
Swann v. Charlotte-Mecklenburg Bd. of
Ed., 402 U.S. 1 (1 971).
Much has been written in recent
Years about the complex and time-consuming problems encountered in the
remedial stages o f institutional reform

l i t i g a t i ~ n There
.~
are a variety o f possible remedial steps t o employ in institutional litigation. Some of those steps,
generally in the order o f escalating intrusiveness, include the following:
I. a declaratory judgment with o r
without guidelines for compliance:
2. time'for good faith compliance;
3. a compliance hearing;
4. plaintiffs' request for supplemental relief;
5. an order for defendants t o submit detailed remedial plans;
6. hearings on court-ordered plans;
7. more time for good faith complian~e;~
8. appointment o f a master o r
oversight committee with power t o gather data and review
See, e.q., Chayes, The Role of theludge in Public
Law Litigation, 89 Haw.L.Rev. 1281 (1976); Goldstein, A Swann Song for Remedies: Equitable Relief in
the Burger Court, 1 3 Haw. C.R.-C.L.L. Rev. I
(1978); Note, lmplementatian Problems in Institutional Reform Litigation, 91 Haw.L.Rev. 428 (1977);
Note, Monitors: A New Equitable Remedy, 70 Yale
L.J. 103 (1960); Special ~ i o j e c t ,The Remedial Process in institutional Reform Litigation, 78
Colum.L.Rev. 784 (1978); Nathan, The Use of
Masters in lnstitutionol Reform Litigation, I0 Toledo
L.Rev. 419 (1979).
4 In order to enhance compliance efforts, a
court may require new inspections, record keeping or reporting requirements. See, e.g., Powell v.
Ward, supra; Todaro v. Ward, 74 Civ. 4581 (RJW).
(S.D.N.Y.. November 21, 1979) (Order).

How Some Folks Do It
In The Lone Star State
Betsy Bernat
Bush v. Viterna, the National Prison
Project case which challenges conditions
in the Texas jails, has brought t o light a
slew o f jail practices which we have yet
t o see in any published set of standards.
A compilation of these procedures might
well be entitled Making Do: A Guide to
Innovative Violations, o r perhaps, Reinventing the Bastille.
Just ask officials at the Coleman
County Jail about fire safety procedures.
A February. 1978 report stated that
"the sheriff has a cable hooked t o the
second story window bars so that he
can jerk out the window with a car in
the event o f a fire t o unlock the cells
and let the inmates out."
N o t t o be outdone, Crane County
once rigged an "audio system" whereby
"at night the only available communication was for a trustee t o bang on the
floor with a frying pan o r other instru-

ment t o awake the sheriff downstairs."
Getting an Excedrin headache?
According t o a 1980 article in the Big
Spring Herald, a Callahan County jailer
"shot a I6-year old juvenile abductor in
the wrist . . . t o end a period o f tension
within the jail."
"Short People Got N o Reason T o
Sleep." O n March 30, 1979, the Commissioners Court o f Goliad County,
which has a substantial Mexican-American population, asked for a variance on
the size o f bunks. The request stated in
part that "the bunk had t o be resized t o
fit the remaining space as indicated. This
reduced the bunk lengths t o 5'9". Since
a large percentage o f the inmates in
Goliad County are small in stature (5'6"
and under) we believe this reduced bunk
length will be entirely adequate for the
t w o bunks in question." W

and guide decree implementati~n.~
Several o f the most commonly used enforcement options, o f an even more intrusive nature than those above, include:
I. contempt;
2. an order for population capslreduction;
The district court in Reed v. Rhodes, 500
F.Supp. 363. 397 (N.D.Ohio 1980). affd in part
ond reversed in part on other grounds, 635 F.2d 556
(6th Cir. 1980). modified, 642 F.2d 186 (6th Cir.
1981), discussed the common use of masters upon
a finding of liability in institutional reform litigation
to "assist in conducting and overseeing actual implementation of the remedies":
These officials have been given various
names: masters, special masters, examiners.
experts, monitors, referees, commissioners,
administrators, observers, committees.
panel, etc. See Special Project: The Remedial Process in Institutional Reform Litigation, 78 Colum.L.Rev. 784, 826-27
(1978). Because these officials inevitably and
necessarily displace certain functions and responsibilities that otherwise would rest with
those who control the institution, they have
been classified as a group as "neoreceivers"
(footnote omitted). Comment, Equitable
Remedies: An Analysis of judicial Utilization
of Neoreceiverships to Implement Large
Scale Institutional Chonge, W s . L.Rev.
I 161 (1976).

3. appointment o f a receiver;
4. closing o f institutions; and
5. the release o f prisoners.
It goes without saying that the particular option employed will be dependent on a number o f factors. The
remedy must fit the particular violation
in question (e.g., population reduction
would be used t o cure overcrowding
perhaps more readily than a contempt
finding, whereas a contempt finding
would be used as a first step, perhaps, in
relieving unconstitutional medical care).
It will also depend upon the particular
juncture in the history o f the compliance
process as t o which remedy is best
suited. Finally, the relevant political considerations and local public attitudes, not
t o mention the cooperation and competence of the particular defendant officials, will factor into the decision as t o
which remedy is most appropriate. A
combination of remedies might also be
ordered. See, e.g., )ones v. Wittenberg,
440 F . Supp. 600 (N.D.Ohio 1977)
(where, inter alia, the court ordered a
population cap and gave the master
authority t o seek contempt against
defendant officials).
In the next issue o f the IOURNAL,
we will discuss in greater depth the five
enforcement options mentioned above.

Court Says Hands Off on
Contact Visits and Cell Privacy
Alvin ). Bronstein

O n July 3, 1984, the Supreme
Court took one of the largest steps in
its march t o halt the doctrinal expansion
of prisoners' rights law (see "Opening
Remarks"). Indeed, according t o the dissenting op'inion in one of the-cases, written by justice Stevens for four justices,
"By adopting [the majority opinion], the
Court takes the 'hands off' approach t o
prison administration that I thought i t
had abandoned forever . . . ."
The first case, Block v. Rutherford,
-U.S. -,
52 LW 5067 (July 3,
1984), involved pre-trial detainees at the
large Los Angeles County jail. The
Federal District Court and the Court o f
Appeals had held that low risk detainees
incarcerated for more than a month be
allowed contact visits with their families
and loved ones and that detainees be
allowed t o observe from a distance if a
search o f their cells is t o take place
when they are in the area. A Supreme
Court majority, in an opinion written by
Chief justice Burger, held that the Constitution does not require that detainees
be allowed contact visits when respon-

sible experienced administrators have
determined, in their discretion, that such
visits will jeopardize the security of the
facility. The Court further held that the
cell search rules violated neither the

Fourth Amendment nor the due process
rights o f prisoners because "proper
deference t o the informed discretion of
prison authorities demands that they,
and not the courts, make the difficult
judgements which reconcile conflicting
claims affecting the security o f the institution, the welfare of the prison staff,
and the property rights of the
detainees."
Although he concurred in the
majority decision, justice Blackmun
warned that "the Court's apparent willingness t o substitute the rhetoric of judicial deference for meaningful scrutiny o f
constitutional claims in the prison setting" could "run the risk o f returning us
t o the passivity o f several decades ago,
when the then-prevailing barbarism and
squalor of many prisons were met with
a judicial blind eye and a 'hands off'
approach. "
Justice Marshall, in a dissenting opinion for himself and t w o other justices,
pointed out that the majority ignored
two important issues in upholding the
ban on contact visits. They ignored the
findings of the trial court that t o deprive
a long term, low risk detainee o f the
opportunity t o embrace his loved ones
constituted punishment and any punishment of a detainee, whether intended o r
not, was prohibited by Supreme Court
precedent. In addition, the Court
ignored the fact that certain fundamental
rights-the freedom t o engage in and
prevent the deterioration o f family relationships-were involved and therefore
the jail officials should have been
required t o justify interfering with those
fundamental rights by showing it materially advanced a substantial state interest, a showing they could not make on
the record in this case. The dissent also
found that the jail's cell search procedure violated the Due Process Clause.
-continued on next page.

Photo by Anthony Crorr-Lonon Photography Workshop

FALL 1984 9

-continued from preceding page.

Hudson v. P a l m e r , U.S. -,
52 L W 5052 (July 3, 1984). involved a
Virginia prisoner who had sued an officer
at his prison claiming that the officer had
conducted a malicious and unreasonable
search o f his cell and intentionally destroyed the prisoner's noncontraband
personal property. The Supreme Court,
again in an opinion written by the Chief
justice, ruled that because in their view
it would otherwise be impossible t o
accomplish asserted
objectives o f
preventing the- introduction o f contraband into the premises, a prisoner has
no reasonable expectation of privacy in
his cell; therefore the Fourth Amendment's protection against unreasonable searches and seizures did not
apply. The Court went on t o say that
even if the officer had intentionally
destroyed the prisoner's property during
the search, the destruction did not violate the Due Process Clause o f the
Fourteenth Amendment since the prisoner had an adequate post-destructive
remedy, a suit for damages in state
court. Thus, in one opinion the Court
gave license t o a malicious correctional

The Prisoners' Assistance Directory, the result o f a national survey,
identifies and describes various organizations and agencies that provide assistance
t o prisoners. It lists national, state, and
local organizations and sources of assistance including legal, library, medical, educational, employment and financial aid.
5th edition, published December 1982.
Paperback, $1 5 prepaid from NPP.
Offender Rights Litigation: Historical and Future Developments. W e
have reprinted a book chapter by Alvin
J. Bronstein published in the Prisoners'
Rights Sourcebook (1 980). The chapter traces the history of the prisoners'
rights movement and surveys the state
of the law on various prison issues (includes many case citations). 24 pages,
$2.50 prepaid from NPP.
ACLU Handbook, The Rights of
Prisoners. A guide t o the legal rights o f
prisoners, pre-trial detainees, in questionand-answer format with case citations.
Bantam Books, April 1983. Paperback,
$3.95 from ACLU, 132 West 43rd St.,
New York, N.Y. 10036. Free t o
prisoners.
10 FALL 1984

officer who wanted t o ravage a prisoner's
cell and his prized, personal possessions,
and then closed the doors t o the federal
court for any redress.
Justice Stevens, in his dissent,
pointed out that even the "trivial
residuum" of privacy and the possessions
that a prisoner keeps in his cell may
mark the difference between slavery and
humanity. He pointed out that the
majority opinion was fundamentally
wrong for at least t w o reasons. First,
the property was entirely legitimate as a
matter o f state law and therefore the
prisoner had a legitimate claim of entitlement t o that property and the State
could not arbitrarily deprive him o f his
legitimate interest in the property.
Second, the prisoner's interests were
protected by the Eighth Amendment's
prohibition against cruel and unusual punishment because "to hold that a prisoner's possession o f a letter from his
wife, o r a picture of his baby, has no
protection against arbitrary o r malicious
perusal, seizure o r destruction would
not, in my judgement, comport with any
civilized standard o f decency. " Finally,
the dissent warned that the courts have

a special obligation t o protect the rights
of prisoners because they are the disenfranchised outcasts o f society, shut away
from public view. The majority opinion,
continued the dissent, was "a decision
t o sacrifice constitutional principle t o
the Court's own assessment o f administrative expediency. "
Both -decisions were on relatively
narrow, though important, issues and
even the majority opinions of Chief Justice Burger did repeat that "prisons are
not beyond the reach of the Constitution" and that prison officials cannot
"ride roughshod over inmates' property
rights with impunity." What remains t o
be seen is how the lower federal courts
reconcile the difference between those
general caveats and the repeated
lecturing by a majority of the Court
about how those courts should pay
deference t o decisions of the prison
administrator. The task for us is t o
meet the increased burden of proof and
clearly establish the severity o f the constitutional injury in our prisoners' rights
litigation.

Prisoners' Rights 1979. These are
course handbooks prepared for the Prisoners' Rights National Training Programs held January-March 1979. They include articles, legal analyses, and litigation forms. The books, prepared by the
staff of the National Prison Project, are
available in paperback. $35 per set, from
the Practicing Law Institute, 8 10 Seventh
Ave., N e w York, N.Y. 100 19. 2 Vols.,
1 163 pages. This set, plus Representing Prisoners (below), can be purchased
for $40.

the state which deal with overcrowding
and/or the total conditions of confinement. (No jails except District of Columbia). Periodically updated. $3 prepaid
from NPP.

Representing Prisoners. This is the
course handbook prepared for the Prisoners' Rights National Training Programs held in June and July 198 1. It includes articles, legal analyses, and litigation forms. Prepared by the staff of the
National Prison Project. Available in paperback from the Practising Law Institute, 8 10 Seventh Ave., N e w York,
N.Y. 10019. 1 volume, 980 pages. $35.
The National Prison Project Status
Report lists each state which is presently under court order, o r is dealing with
pending litigation in the entire state prison system o r the major institutions in

.

Bibliography of Women in Prison
Issues. This is a bibliography o f all the
information on this subject contained in
our files. Includes information on abortion, behavior modification programs,
lists o f other bibliographies, Bureau of
Prison policies affecting women in prison, juvenile girls, women in jail, the
problem o f incarcerated mothers, health
care, and general articles and books. $5
prepaid from NPP.
A Primer For Jail Litigators is a detailed manual with practical suggestions
for jail litigation. It includes chapters on
legal analysis, the use of expert witnesses, class actions, attorneys' fees, enforcement, discovery, defenses' proof,
remedies, and many practical suggestions. It also lists relevant case citations
and correctional standards. 1st edition,
February 1984. 180 pages, paperback
$1 5 prepaid from NPP.

-continued from page 12.
"Fiscal conservatives in the legislature said 'it's time for prison reform',"
Turner said. "The reason was t o contain
costs."
He
not think that the Blue
Ribbon Commission was a necessary first
step t o the legislation. "Ruiz hangs over
the state's head like a Sword of Chmocles. Nobody needed the Blue Ribbon
commission
to tell the legislature what
t o do."
Turner acknowledges the initial SUCcess of the measures. "The bills are a
useful first step t o control the prison
population," he noted. "but they are
not sufficient." He says that Texas prisons were designed for a smaller capacity. "Our view is that they are at 150%
of capacity," he said. Ruiz attorneys
have a motion pending in federal court
concerning the prisons' true capacity.
Nevertheless, Turner feels the good
time amendment is behind the recent
prison population reduction. Others
agree.
"The good time law has effectively
reduced prison population," observed
T D C Board Director Harry Whittington.
Charles Sullivan, executive director
of Citizens United for the Rehabilitation
of Errants (CURE), a prison watchdog
and lobbyist group, also cites liberalized
good time as the most effective anticrowding measure. The removal of the
governor from the parole process has
been beneficial, too, Sullivan says,
explaining that the measure "caused a
considerable reduction in delay o f parole
grants."
However, both he and Whittington
feel that local resistance has jeopardized
the success of the more progressive
measures in the package: work release
and restitution centers.
"I think we're at the point where
we may have t o use a carrot-stick
approach," Sullivan said.
Particularly troublesome t o some,
however, is a so called anti-crime mea-

Too Much Time for the Crime IDone
Idone too much time, buddy, whoa man, for the crime I've done,
Well ifIhad a knowed it, oh, I'd a broke and run,
Well, Ijust had a knowed it, oh boy, I'd broke and run,
Igot way too long, buddy, for the crime Idone.
"What you do, buddy, get your great long time?'
Whoa, man, they accuse me a robbin', poor boy, with a fire iron .

..

Well, wasn't Ilucky, please 'sider me lucky, now when Igot my time,
Igot it cut from one hundred, oh boy, down to ninety-nine . . .
by J.B. Smith, a Texas prisoner who was serving a 45-year sentence for murder, recorded by Bruce
Jackson in Wake Up Dead Man: Afro-American Worksongs from Texas Prisons, Harvard University Press.
Cambridge. Mass.. 1972.

sure, passed seven years ago as an
amendment t o the Mandatory Supervision Law.
The amendment provides that a person convicted of an aggravated form of
kidnapping, rape o r sexual assault, o r
who is found by the court t o have used
o r revealed a firearm in the commission
of o r immediate flight from a felony
must serve one-third o f his sentence in

''Ru~zhangs Over the state's
head like a Sword of Damocles.
Nobody needed the Blue Ribbon
Commission to tell the
legislature what to do.''
-William Bennett Turner
prison after which he is t o be released
under mandatory supervision for the
remainder o f his sentence. Good time
applies t o the mandatory supervision
period only.
Under the old law, according t o
Turner, a prisoner sentenced t o life
could be released in seven years on
parole when his good time went toward
completion o f one-third of his sentence.
With the change in law, this will be the

year that the 1977 law begins t o take its
toll on prison crowding. According t o
TDC figures, there are 7,266 inmates
currently doing "flat time" under the
Mandatory Supervision Law.
T D C General Counsel Steve Martin
said that the earlier law will "ultimately
undermine" the 1983 legislative package's goal of prison population reduction.
Meanwhile, John Byrd, executive
director of the Texas Board o f Pardons
2nd Paroles, does not see much cause
for concern, although "If not for the
Mandatory Supervision law, inmates
would have gotten longer sentences,"
he said.
CURE'S Charles Sullivan maintains
that the threat posed by the law t o
overcrowding was foreseeable in 1977.
"They predicted then that it would
cause overcrowding," said Sullivan.
There is a lesson here for other
states which are attempting t o grapple
with the problem o f prison overcrowding. N e w legislation designed t o reduce
prison population must take into account
all existing laws which have a population
impact t o avoid the apparent catch-22
situation facing Texas.
Elizabeth Rosenthal is a third-year law student from Rutgers-Camden School of Law
who did an internship at the Prison Project
this summer.

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FALL 1984 I I

Texas Reform Package
Caught in Catch-22
Elizabeth Rosenthal
Population reduction initiatives
passed in 1983 by the Texas legislature
have been hailed by many people as the
most progressive package of legislation
the prison reform movement has ever
offered. However, much of the impact
of this legislation may be frustrated by a
1977 law that was designed t o keep certain inmates in prison for longer periods
of time.
The 1983 lesiglative package was
comprised of 14 bills and one state constitutional amendment, all of which
became law, with the exception of one
bill that was vetoed by Governor Mark
White. The new laws came on the heels
of a December, 1982, report by the
Blue Ribbon Commission for the Comprehensive Review of the Criminal Justice Corrections system. The Commission was formed by then Governor
William Clements in response t o the
overcrowded conditions in Texas prisons
declared unconstitutional in Ruiz v.
Estelle.
The laws embody a range of methods designed t o reduce overreliance on
incarceration. Here are the most
notable:
A state constitutional amendment removes the politically sensitive governor from the parole
process and a bill enables the Texas
Board of Pardons and Paroles t o

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American Civil Liberties Union Foundation
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Washington, DC 20036

12 FALL 1984

exercise full authority over parole
grants and revocations. .
The Texas Prison Management
Act provides for emergency awards
of good time and accelerated
parole that the Department of
Corrections must implement when
the prison population reaches 95%
of capacity (no more than one inmate per forty square feet, according t o the 1982 Fifth Circuit Court
of Appeals modification of the
District Court's order in Ruiz.)
Trustees are eligible for an additional ten t o 25 days of good time.
Good time also is made available t o
Texas Department of Corrections
(TDC) inmates serving time in jail,
and t o those inmates participating
in educational ok vocational
programs.
Community work-release programs for thirddegree felons, restitution centers for nonviolent
offenders and pre-parole halfway
houses for low-risk offenders are in
place as alternatives t o incarceration.
The Habitual Offender Law is
amended t o give juries the option
of sentencing third-time felons t o
an indeterminate sentence of 25
years t o life rather than life only.
A person convicted of a property crime is classified as a felon

where the pecuniary loss is at least
$750, which is up fkom the old
law's $200.

Texas Department of Corrections'
statistics show that the prison population
has been reduced from approximately
37,000 t o 35,000 in one year.
Conflicting forces contributed t o
the introduction, passage and success of
this legislation. I t s main political orchestrator was State Senator Ray Farabee,
chairperson of the Senate State Affairs
Committee and member of the Blue
Ribbon Commission.
"I thought we had t o reevaluate
where we were going from a corrections point of view and a fiscal point of
view," said Senator Farabee, who introduced and steered through the Senate
much of the legislation, including the bill
that removes the governor from the
parole process, and the Texas Prison
Management Act. "I can't say I was
ever part of a prison reform movement," he said.
Farabee attributed the package's
success t o the cooperation of conservative and liberal forces in the state
legislature.
Mark Burk, who until recently was
staff director of Senator Farabee's senate committee, and before that was a
committee manager on the Blue Ribbon
Commission, called the legislation an
amazing feat for such a conservative
state.
William Bennett Turner, counsel t o
the plaintiffs in Ruiz, said that the legislature, faced with the specter of exorbitantly expensive prison construction,
simply chose cheaper measures.
-continued on page II.

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