L

Balanced
Response
Needed to
AIDS in Prison
Urvashi Void

NUMBER 7, SPRING 1986

ISSN 0748-2655

Florida Death Penalty Appeals
Office Opens
Jan Elvin

The men and women of death row
have one thing in common-they are all
penniless. "Capital punishment," said
Clinton Duffy, long-time Warden of San
Quentin, "is the privilege of the poor."
Larry Helm Spalding and his staff at
the newly formed Capital Collateral
Representative (CCR) office in Tallahassee, Florida, are now giving these inmates the one thing that they all need
and none can afford: a good lawyer.
In the face of a "crisis of counsel"
in Florida, CCR was created in the summer of 1985 by statute and out of
necessity to represent indigent death
row prisoners in post-conviction proceedings. With 239 people on death
row, Florida reigns as the nation's "capital punishment capital." Prior to the formation of CCR, the Florida Clearinghouse on Criminal Justice, a non-profit
agency whose task was to locate and
assist volunteer attorneys in handling
post-conviction matters, simply could
not get enough attorneys. Among the
small number:.,of attorneys willing to
take these cases, only a very few had
the knowledge and experience to do so
adequately. And, while volunteer attor-

CCR attained the odd and singular
distinction of being supported by
both pro- and anti-death penalty
groups.
neys in death cases are often required to
contribute from their own resources for
printing of legal briefs and for travel
expenses, they receive no money for
these difficult cases, most of which
would generate in excess of $100,000 if
they were billable to a fee-paying client.

"We're flat running out," the Attorney General told legislators in April
of 1985. "They [the lawyers] are just
not coming forward the way they used
to." And the cases continued to
.increase at an alarming rate of two a
month. The problem of inadequate
representation had reached crisis
proportions in Florida, where there
were significant numbers of deathsentenced inmates whose state court
appeals were over, and whose cases
were at the stage of federal habeas
corpus proceedings. These habeas
proceedings are usually the last opportunity to raise questions of fairness and
due process.
CCR attained the odd and singular
distinction of being supported by both
pro- and anti-death penalty groups.
Death penalty opponents were at last
able to rest easy in the knowledge that
each inmate would have the best representation possible. They recognized as
-continued on page 5

INSIDE ...
• Women in Prison
California Project Sues Over
Conditions
p. 10
• Prison Riots
The Underlying Causes
p. 12
• juveniles
Execution of the Young ..... p.13
New Resources
Offenders Needs Assessment, 14
1986 Prisoners' Assistance
Directory, 15
Alleviating Jail Crowding, 16

The occurrence of AcqUired Immunodeficiency Syndrome (AIDS) in prison
has sparked a variety of questionable
responses. Mandatory testing programs
have been instituted by a handful of
states and are being considered by
others. Prisoners with AIDS, ARC and
HTLV-1I1 antibody positive status are
routinely isolated, although this is medically unwarranted. The conditions of
confinement and medical treatment of
prisoners suffering from this illness may
be inadequate and unconstitutional.

Some Facts About AIDS
Before turning to the unique problems posed by the prison context, it is
useful to remember some facts about
AIDS. The disease was first identified in
-continued on next page

In the last issue of the JOU~­
NAL (Winter 1985), we reporte
the results of a National Prison
Project survey of state corrections
systems which sought to identify
both the scope of AIDS in prison
and what states were doing to
manage its occurrence. The NPP
survey, "NPP Gathers the Facts on
AIDS in Prison," found that at the
end of 1985 a cumulative total of at
least 420 state prison inmates had
been diagnosed with AIDS. A joint
National Institute of justice (NIJ)
and American Correctional Association (ACA) survey done at the
same time as the NPP study found
a total of 455 state and federal
inmates diagnosed with AIDS. The
Nlj/ACA study also found that an
additional 310 cases of AIDS had
been diagnosed in 32 of the nation's
largest jails. (AIDS in Correctional
Facilities: Issues and Options, January 1986). In this article we will
provide some medical background
about AIDS, discuss and evaluate
two of the major policy questions
facing corrections administrators
today: whether to screen inmates
for HTLV-III antibody, and
whether to segregate inmates with
AIDS related conditions, and
broach some of the emerging legal
issues.

A PROJECT Of THE AMERICAN CIVIl... I...IBERTIES UNION fOUNDATION, INC.

...._ _..............._'''''''''''''..._''''

_

Persons who test positive
face denial of insurance
coverage, job and housing
discrimination, and a
variety of other stigmatizing
experiences.
the United States in 1981. AIDS is characterized by an extreme weakening of
the immune system which leaves the
body vulnerable to debilitating attacks by
a host of opportunistic infections and
diseases. The virus, which is believed to
be the cause of AIDS, was isolated by a
team of French scientists in 1983 (who
labelled it LAV-Lymphadenopathy Associated Virus), and in 1984 by American
researchers (who labelled it HTLV-III Human T-Cell Lymphotrophic Virus
Type III).
Full-blown, or "end-stage," AIDS is
defined by the Centers for Disease Control (CDC) as the combination of an
"underlying cellular immunodeficiency"
whose cause is unknown, except for the
presence of HTLV-III infection, and the
presence of one or more opportunistic
infections. I As of February 24, 1986,
17,741 persons in the United States
were diagnosed as having AIDS.2
People who do not have full-blown
AIDS, but exhibit symptoms which indicate that their immune system has been
compromised are identified as having
AIDS Related Complex (ARC). ARC is
defined by the CDC and the National
Institutes of Health (NIH) as that condition which consists of any two symptoms from a list which may include
swollen lymph nodes and dramatic
weight loss, plus any two laboratory
abnormalities from a list which includes
the presence of depressed helper T-cell
ratios in blood. 3 While current studies
indicate that 10 to 30% of persons with
ARC will go on to develop full-blown
AIDS in five or more years,4 it remains
clear that the majority will not.
The relationship between infection
with the HTLV-III virus and the development of ARC or full-blown AIDS is
another aspect;.,of the medical background. Although it is clear that infection with the virus is a causative factor
in the development of AIDS, not everyone who harbors the virus goes on to
develop the drastic immune system dis'Centers for Disease Control, "The Case Definition of AIDS Used by CDC for National Reporting," August I, 1985.
'CDC Weekly Surveillance Report, February 24,
1986.
3The NIH/CDC definition of ARC is being revised
to include HTLV-III infection as a diagnostic
element.
'See, e.g., "AIDS in the Future: Experts Say
Deaths Will Climb Sharply," by Phillip M. Boffey,
New York Times, January 14, 1986, p. C9.
2

SPRING 1986

ruption which characterizes AIDS.
Recent studies which monitor the health
of persons with HTLV-III infection have
found a wide range of variation in the
number who go on to develop AIDS
over time. Experts estimate that from 5
to 35% of those who have HTLV-III
infection will go on to develop full-blown
AIDS.s
A final aspect of the medical picture
lies in the significance of antibodies to
HTLV-III in the blood. There is no test
for AIDS itself. Many people confuse the
Enzyme Linked Immuni-Sorbent Assay
(ELISA) test, which detects the presence
of antibodies to the HTLV-III virus, with
a test to determine if a person has AIDS
itself. The ELISA test was developed as
a simple way to screen donated blood
and to protect the blood supply by
rejecting any which reflected the
presence of antibodies to the virus
(seropositivity).
Although the ELISA test does not
detect the presence of the HTLV-III
virus itself, the CDC counsels all seropositive persons to assume that they
harbor the live virus. This advice is based
on studies which show that virus can be
cultured from most seropositive people.
However, there have also been reported
cases of persons who test antibody
negative, yet who have had virus cultured from their blood. 6
Medical experts debate the reliability
and usefulness of the ELISA antibody
Sid.
6 Groopman,

J.E., Hartzban, P.I., Shulman, L.,

et al., "Antibody Seronegative Human T-Lymphotrophic Virus Type III (HTL V-III)-infected Patients
with Acquired Immune Deficiency Syndrome or
Related Disorders," Blood 1985; 66: 742-744.
7NPP JOURNAL, Winter 1985, p.6.

test. In our last issue, Dr. Robert
Cohen, Medical Director of Montefiore
Rikers Island Health Services, noted that
the ELISA test, when done on its own
upon a sample of low-risk individuals,
results in a very high number of false
positive results, as well as a significant
number of false negatives. 7 The consensus in the medical community is that
an ELISA test that is performed twice
and confirmed' by a Western Blot test
will produce an accurate detection of
antibody status. The Western Blot is a
more specific test for the HTLV-III antibody, which is often used as a follow-up
for the ELISA. It is both more difficult
and more costly to perform.
It may be argued that knowledge of
one's antibody status is meaningful for
three reasons: first, to the extent it can
predict if a person is going to develop
AIDS; second, to the extent that it
informs them of the importance of
changing their behavior; and third, to
the extent that it can help someone
identify if and when antibody-conversion
has occurred from negative to positive
or vice versa. However, the test results
do not "predict" or help identify which
persons will develop AIDS or ARC. Nor
can the test enable medical personnel to
distinguish those who are infectious
from those who are not. There is also
valid concern and some evidence that
knowledge of antibody status alone does
In the last issue of the JOURNAL we
reported the results of a nationwide
survey on incidence of AIDS in prison.
It should have been reported that Connecticut does use the Western Blot
confirmatory test after the ELISA test.

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

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

JAN ELVIN
Editor, NPP JOURNAL

ALVIN J. BRONSTEIN
Executive Director

STEVEN NEY
Chief Staff Counsel

ALEXA FREEMAN
EDWARD I. KOREN
MARY E. McCLYMONT

NKECHI TAIFA
URVASHI VAID

SHARON R. GORETSKY
Administrative Director and
Research Associate
BERYL JONES

DAN MANVILLE
Research Associate
LYNTHIA SIMONETTE
LORNA TUCKER

STAFF ATTORNEYS
ADJOA A. AIYETORO
ELIZABETH R. ALEXANDER

SUPPORT STAFF
BETSY BERNAT
Editorial Assistant
MELVIN GIBBONS

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

- - - -

not result in the avoidance of unsafe
behavior. s On the contrary, significant
behavioral changes have been reported
among members of high-risk groups
through the use of targeted education
and counseling, without antibody
testing. 9
Finally, since the methodology of
the test is far from foolproof, and since
the test only measures antibody status at
a particular point in time, the information it prOVides about antibody status
may even be counter-productive. The
test may give seronegative persons a
false sense of security; at the same time,
it may greatly endanger the civil liberties
of persons who test seropositive
(whether falsely or correctly). Persons
who test positive face denial of insurance coverage, job and housing discrimination, and a variety of other stigmatizing experiences. Even those who test
negative may face repercussions for
simply haVing taken the test. 10 All these
factors have contributed to the decision
not to make the test mandatory for the
general public.

Facts About AIDS, ARC and
Seropositivity in Prisons and Jails

I

I
I

The NIJIACA report indicates that
as of December 1985, there were
about 144 diagnosed cases of AIDS
among state and federal inmates. Detection of the true rate of AIDS among jail
inmates is made more difficult by the
short incarceration time for most jail
inmates, but the NIJ/ACA survey found
that there were 35 cases of AIDS
among 32 responding county and city
jails. 11
Data on the rate of seropositivity
among prison and jail inmates is available
only for the two systems which have
gathered this information through testing
programs: Nevada and Maryland. Nevada
tested all of its more than 3800 prisoners and reports a seropositive rate of
2.5%12 Maryland is conducting two
studies designed to determine the incidence of seropositivity among new
inmates and to determine the rate of
seroconversio!i"among both long term
and new inmates. The system anonyBThe New Jersey Department of Public Health
voluntarily tested 600 intravenous drug users. A
number of persons who were told of positive test
results increased drug use behavior, attempted or
committed suicide, or acted out in other ways.
'See e.g., Research and Decisions Corporation,

"Designing an Effective AIDS Prevention Strategy for
San Francisco: Results from the Second Probability
Sample of an Urban Gay Male Community," (Prepared for the San Francisco AIDS Foundation,
June 1985).
I·Colorado law requires the reporting of names of
all persons taking the test to state health officials.
"NIJ/ACA survey, p. 17.
12NIJ/ACA survey, p. 50. The state had no diagnosed cases of AIDS as of February 1986.

- - - - - - - ~

mously tested all inmates entering two
institutions from April to July 1985. A
total of 748 men and 39 women were
tested. Fifty-two men (7%) and six
women (I 5 %) were confirmed to be
seropositive (using two ELISA tests and
a Western Blot). This inmate sample will
be re-tested periodically to determine
seroconversion ratios. In the second
study, 137 long-term inmates (who had
been incarcerated for seven years or
more) were voluntarily tested. Two
( I. 5 %) were confirmed as seropositive. 13
It is unclear if corrections systems
which are routinely testing prisoners for
HTLV-III antibody are using both the
double-ELISA test and the confirmatory
Western Blot, as the CDC recommends. The NIJ/ACA survey revealed
that 90% of the state and federal systems use the antibody test for some
purpose. 14 The majority of these states
(77 %) use the test only to assist in the
diagnosis of AIDS and ARC. Four states
(8%) have instituted mass screening programs for all inmates. IS

Should Prisoners Be Screened for
the HTLV-III Antibody?
Why is it important to determine
the antibody status of all prisoners? Will
testing and segregation actually have an
impact on the transmission of virus
among prisoners? Do mandatory
testing and the segregation of seropositive persons violate the due process or
Eighth Amendment rights of prisoners?
Although these fundamental questions
have yet to be answered by the courts,
mass testing has already become the
reality in five states and in the Federal
Bureau of Prisons (all pregnant women
inmates are tested).
Calls for the mandatory testing of
inmates for HTLV-III antibody are medically unwarranted and legally impermissible. Indeed, in January of 1986, the
National Association of State Corrections Administrators voted against
mandatory testing. When fears about
AIDS are set aside, two facts remain:
first, the HTLV-III virus is not spread by
casual contact; and second, testing for
antibodies to the virus will not halt its
spread even if all seropositive prisoners
are segregated.
A recent study has shown that persons in very close, day-to-day contact
with persons with AIDS did not "catch"
the virus. Those studied shared houses,
dishes, beds, meals, even toothbrushes
with diagnosed AIDS patients and did
not seroconvert from antibody negative
IJ/d., pp. 23-24.

'·Id., pp. 60-62.
ISThe four states are: Nevada, Colorado, Iowa,
and Nebraska. South Dakota has also begun mass
testing of current and new inmates as of
March 1986.

A proper classification system
ought to identify violent

inmates and house them
accordingly, rather than
penalizing all inmates who
happen to be seropositive.
to positive. 16 Since the HTLV-III virus
cannot be spread through casual day-today contact, the public health justification for screening all inmates at intake
or while they are incarcerated is questionable. Unlike \uberculosis, which can
be airborne, or hepatitis B which can be
transmitted through saliva, the HTLV-III
virus has only been shown to be transmissible through blood products and
semen. Intake screening would only
serve to create a class of persons stigmatized throughout their incarceration
by their antibody status.
Mandatory testing will not halt the
spread of AIDS in prison. There is a
continuing risk that the virus may be
passed along even if all confirmed seropositive inmates are separated from the
general population, given the significant
number of false negatives and false positives engendered by the ELISA test;
given the fact that there is a gestation
period between infection with the virus
and the generation of antibodies; and,
given the fact that seronegative persons
who assume that they are "safe" will
continue to engage in high-risk activities.
A credible argument can also be made
that mandatory testing will increase the
development of AIDS among prisoners
who are confirmed to be seropositive
and housed with other seropositive
people. The current medical evidence
indicates that while a single exposure to
the HTLV-III virus does not result in
infection, multiple exposures enormously
increase the chance of a person getting
the virus. By housing all antibody
positive prisoners together, prisons only
increase the chance that these inmates
will be exposed to the virus.
Proponents of mandatory antibody
testing are motivated largely by the fact
that sexual activity, both consensual and
forced, does take place in prison. The
argument is made that since prison systems have been notoriously unable to
control sexual assault, much less consensual sex, mass antibody testing and
segregation of all seropositives would at
-continued on next page
"Friedland, G.H., Saltzman, B.R., Roger, M.F.,
Kahl, P.A., Lesser, M.L., Mayers, M.M., Klein,
R.S., "Lack of Transmission of HTLV-Ill/LAV
Infection to Household Contacts of Patients
with AIDS or AIDS Related Complex with Oral
Candidiasis," The New England Journal of Medicine,
February 6, 1986, pp. 344-349. See also, Sande,
Merle, ''Transmission of AIDS: The Case Against
Casual Contagion," The New England Journal of
Medicine, February 6, 1986, pp. 380-383.

1986 SPRING 3

'---

Do mandatory testing and
segregation of seropositive
persons violate the due
process or Eighth
Amendment rights of
prisoners?

least help assure that no prisoner involuntarily acquired HTLV-III infection.
The fundamental problem with mandatory testing is that it will have little
impact upon the incidence of either consensual sexual activity or sexual assault.
Administrators concerned about the
spread of HTLV-1I1 infection through
consensual sex would be better served
by initiating well-designed, on-going educational campaigns geared at informing
inmates about how the virus is transmittedY Given the great concern most
feel about contracting AIDS, there is
every reason to believe educating prisoners about safe sex practices would have
an impact on their behavior.
Sadly, the real obstacle to the distribution of risk-reduction materials in
prison lies not with their lack of effectiveness, but with a dilemma peculiar to
prisons. Many states have criminalized
any sexual activity among prisoners. In
other states, sodomy itself is a crime.
Prison officials interested in disseminating
safe-sex or risk-reduction information
may find themselves in the awkward
position of discussing practices which
they are supposed to punish. By asking
state health agencies or outside groups
to produce and conduct educational
sessions, officials may be able to ease
their dilemma. In any event, the discomfort of prison officials should not be the
deciding factor in the availability of
invaluable educational information. The
reality of long term incarceration is that
some prisoners will have consensual sex.
At a minimum, the prison has an obligation to inform inmates how the AIDS
virus is and is not transmitted.
Prison rape is a by-product of the
inhumanity and perversity endemic to
our prison system's treatment of
prisoners' sexual needs. This underlying
and largely unaddressed problem has
been given a new dimension by the fact
that AIDS is sexually transmitted. The
American prison system has helped
institutionalize the phenomenon of
prison rape by: prohibiting prisoners
from conjugal visits with their loved
ones; prohibiting even basic contact
visits; by banning and criminalizing
consensual sex; and enshrining the values
of total domination and control.
Mandatory screening for the HTLV-1I1
•7See generally, NIJ/ACA study, pp. 30-50. The
CDC is planning a study involving prisoners and
non-prisoners to test the effectiveness of targeted educational efforts.

4 SPRING 1986

antibody will not decrease prison rape,
nor will it eliminate the possibility that a
victim of sexual assault might be
infected. The flaws inherent in the antibody test suggest that prisoners with the
virus will escape detection and could
continue to spread the virus to others.
A proper classification system ought to
identify violent inmates and house them
accordingly, rather than penalizing all
inmates who happen to be seropositive.
Increased staffing, the isolation of
violent offenders, the elimination of unsupervised dormitory housing, and an
unhesitating commitment by security
staff to not tolerate rape are among the
solutions prison officials must implement.
One of many ironies of prison life is that
weaker inmates are identified and separated into more restrictive custody settings, while predatory and more traditionally macho inmates remain in general
population, with even greater freedom
to coerce sexual favors. If prisons are
concerned about seroconversion among
previously seronegative inmates, the
policy of testing victims of sexual assault
after an attack would be a far less
intrusive option to mandatory testing.
Mandatory testing represents an
overreaction on the part of correctional
administrators who are quite reasonably
concerned about the disease. It represents precisely the kind of inappropriate
and irrational response to otherwise legitimate penological objectives which the
Supreme Court noted in Bell v. Wolfish 's
would violate the due process clause.
Most of the concerns voiced by proponents of testing could be adequately
dealt with through the development of
educational programs and materials
aimed at changing an inmate's behavior.
The concern most prisoners have about
contracting AIDS would only serve to
augment the effectiveness of such educational programs.

Segregation of Inmates
The only medical basis justifying the
segregation of inmates with AIDS, ARC
or HTLV-III seropositivity, would be if
the individual prisoner's condition medically warranted such isolation (if he or
she could not control bodily secretions
or was so weakened as to require intensive care). Since the virus cannot be
transmitted through casual contact, prisoners who encounter either seropositive
inmates or those with ARC or AIDS in
the general population are not at any
extra risk of contracting the virus.
Nevertheless, segregation of all three
categories of inmates is common among
state systems. Segregation of inmates
with AIDS is the policy of 42% of the
state and federal systems (21 out of 51).
Of these 21 systems, 18 (36%) also
18 441 U.S. 520 (1979).

segregate inmates with ARC, and
another 8 (I 6 %) segregate seropositive
inmates as well. 19 Only two states
reported that they do not segregate any
inmates because of AIDS or AIDSrelated conditions.
The primary justification offered for
the isolation of these inmates is that
they might be assaulted in general population. This argument for segregation
stems from' the fact that there is no
confidentiality of medical information in
most prisons. Corrections staff and
inmates are very likely to be aware of
which personS! are seropositive, or have
ARC. Invariably, rumors (both true and
false) will circulate about a prisoner's
illness being AIDS-related, and that individual may become the target of threats
and serious attacks. Certainly prison
administrators would be justified in
removing an individual who is being
threatened from general population. But
selectively placing individuals on protective custody status is markedly different
from a policy of wholesale segregation
of all prisoners with AIDS-related
conditions.
A number of states, including
Nevada which has tested all its inmates,
house seropositive inmates in general
population, unless their condition medically warrants another type of confine-.
ment. The threat to the welfare of
seropositive inmates is likely to be
related to the amount and quality of
education a prison system provides.
New York State, for example, which
has had the highest number of prisoners
with AIDS, does not segregate prisoners
diagnosed with ARC.
To date, only a handful of lawsuits
have been filed to challenge prison policies regarding the segregation of inmates
with AIDS-related conditions. Cordero v.
Coughlin,20 which was discussed at length
in the last issue of the JOURNAL,
involved a challenge to New York's
policy of segregating inmates with AIDS.
The court held that such segregation
was reasonable and that the conditions
of confinement did not violate prisoners'
Eighth Amendment rights. More recentIy, at least two cases have been filed by
asymptomatic prisoners who are antibody-positive and are being segregated
under allegedly unconstitutional conditions. 21 The evidence gathered by the
National Prison Project about the conditions under which most inmates with
AIDS and AIDS-related illnesses are being confined suggests that many more
lawsuits addressing conditions will be
I9NIJ/ACA study, p. 80.
2°607 F.Supp. 9 (S.D. N.Y. 1984).
21 Farmer v. Levine, et al., C.A. No. HM 85-4284
(D. Md. Amended Complaint filed March 6,
1986); Powell v. Department of Corrections,
c.A. No. unavailable (N.D. Okla., filed
August 10, 1985).

forthcoming. Prison officials should remember that while the decision to
segregate may be reasonable under the
circumstances, conditions of confinement in segregation must be constitutionallyadequate.
It is the Prison Project's position
that if segregation is imposed, it must be
akin to protective custody, and not
punitive or administrative detention. Like
protective custody inmates, prisoners
segregated because of AIDS-related conditions must be provided access to programs, jobs, recreation, visits, exercise
and adequate out-of-cell time. 22

Medical and Mental Health Care
Potentially the most litigation-prone
area involving prisoners with AIDS-related conditions involves the provision of
medical and mental health care. While
there is no cure for the underlying immune deficiency caused by infection with
the HTLV-1I1 virus, medical treatment
for many of the opportunistic infections
22See e.g., Cody v. Hillard, 599 F.Supp. 1025 (D.
S.D. 1984); French v. Owens, 538 F.Supp. 910
(S.D. Ind. 1982); Wojtzak v. Cuyler, 480 F.Supp.
1288 (ED. Pa. 1979); Lamaan v. He/gemoe, 561
F.2d 411 (1st Cir. 1977).

Florida Death Row
Inmates Finally Assured
of Representation
-continued from front page

well that no one could guarantee that
the courts would continue to grant stays
solely on the basis of lack of counsel.
Death penalty advocates, a clear
majority among the citizenry and the
legislature of Florida, were pleased
because they hoped that between CCR's
creation and the recently streamlined
two-year review process, executions
would begin to happen more often.
Attorney General jim Smith and Governor Graham realized as well that genuine
legal, ethical and perhaps political ramifications wolnd follow from the execution of individuals who were denied the
right to counsel in post-conviction
proceedings.
Both sides agreed that it was past
time to resolve the crisis in legal
representation.

The History of the Crisis of
Lack of Counsel
In March of 1985, the Florida
Supreme Court was confronted for the
first time with review of decisions by
trial courts which had issued orders to
stay execution warrants because the
death-sentenced indigents did not have
counsel for the post-conviction
proceedings.

experienced by AIDS patients is available. Neither the NPP survey nor the
Nlj/ACA study evaluated the nature and
quality of the medical care that is being
provided to prisoners with AIDS and
ARC. The anecdotal information we
have gathered through inmate correspondence and our general experience
with medical care in prison suggests that
serious shortfalls are likely to exist.
Medical care of prisoners with
AIDS-related conditions must meet the
standard set forth in Estelle v. Gamble,
and subsequent cases. The Estelle court
concluded that "deliberate indifference
to serious medical needs of prisoners
constitutes the 'unnecessary and wanton
infliction of pain', ... proscribed by the
Eighth Amendment."23 The Eighth
Amendment requires that prison officials
provide a system of ready access to adequate medical, mental health and dental
care with competent staff. Reasonable
and speedy access to outside facilities
must also be available for services not
provided within the prison. Inmates must
be able to make their problems known
to medical staff. Adequate facilities and
23 429

U.S. 97, 104 (1976).

The Florida Supreme Court continued the stays, without written opinion.
In doing so, it implied it would not lift a
stay granted by a trial court, where the
inmate was without counsel between the
time the Supreme Court denied the
initial appeal and the scheduled execution
date.
Efforts to ease the crisis date back
to 1982, when judge john C. Godbold,
along with other judges, initiated the
Florida State/Federal judicial Council.
Composed of judges from federal and

Why were out-of-state lawyers
always coming to Florida to take
these cases at the last minute? The
Florida Bar was certainly large
enough to handle them.
state courts, the Attorney General, representatives from the state prosecuting
attorneys and the Public Defender
office, the Council attempted to address
the unique problems and conflicts developing around capital post-conviction
cases. Hoping to reduce that conflict,
and concerned about last-minute stays,
they initially sought to adopt rules or
make recommendations for speedier
resolution of these cases. Meanwhile,
they began to take a closer look at how
the cases were handled, and soon they
came to understand that the real problem was simply not enough lawyers. In
the course of their meetings, judge

Medical experts debate
the reliability and
usefulness of the
ELISA antibody test.
staff to handle medical emergencies must
be providedJ4 Mental health counseling
is especially important to deal with an
inmate's reaction to a diagnosis of AIDS
or a positive antibody test.

Conclusion '
It is critical that prisoners' rights advocates do not accept at face value the
justifications for mandatory screening
and wholesale segregation put forward
by some in the corrections community.
Alternative remedies must be developed
which protect inmate and staff health
and also protect prisoners' rights to
privacy, due process and freedom from
cruel and unusual punishment. •
"See generally, Ramos v. Lamm, 639 F.2d 559
(10th Cir. 1980); Capps v. Atiyeh, 559 F.Supp.
894 (D. Ore. 1982); Balla v. Idaho State Bd. of
Corrections, 595 F.Supp. 1558 (D. Idaho 1984);
Todaro v. Ward, 565 F.2d 48 (2d Cir. 1977).

Godbold, judge Roney and others sitting
on the I Ith Circuit directly confronted
the Florida Bar about the problem. Why
were out-of-state lawyers always coming
to Florida to take these cases at the last
minute? The Florida Bar was certainly
large enough to handle them.
In response to their concern, the
Bar formed the Special Committee on
Representation of Inmates in Collateral
Proceedings, which in turn formed the
Volunteer Lawyers' Resource Centers at
Florida State University and Stetson University. Spurred on by the pressure
brought to bear by the Florida State/
Federal judicial Council, the Bar decided
that lawyers could be recruited from the
large civil law firms. The big firms had
the financial resources to handle what
experience had indicated were costs of
$5,000-20,000 plus billable hours which
could easily approach $100,000 or more
per case. Mark Olive, former Director
of the Volunteer Lawyers' Resource
Center, and currently Legal Director at
CCR, termed the whole notion of
recruiting lawyers from large civil firms
"bizarre at most, and novel at the very
least," since in many cases, while these
attorneys were willing and generally
competent, they simply did not have any
experience in the handling of such highly
complex cases.
The Resource Center was founded
on the premise that the volunteer lawyers would be able to handle the monumental caseload with the Center's
-continued on next page
1986 SPRING

5

-continued from previous page

assistance. As Director of the Resource
Center, Olive often assisted the volunteers, in conjunction with Scharlette
Holdman, then Director of the Florida
Clearinghouse. With too little time and
too little money to assist in all phases of
the cases, they were able to help mainly
after Graham signed the execution warrant. "Certainly not the ideal, but the
reality," says Olive.
"Then the Florida Bar [after founding the Resource Center] came to discover how hard these cases were, and
decided they wanted out. The Bar was
doing a good job," says Olive, "and is
still doing a good job. They just saw the
writing on the wall." And, he contends,
the Bar made the problem known to the
legislature, the Florida Supreme Court,
the Governor and the Attorney General.
He acknowledged, as had Larry
Spalding, that he thought it would be at
least two years before the bill to
authorize CCR was signed.
It is due largely to the support of
Attorney General Jim Smith, an avid supporter of capital punishment, that CCR
emerged (after speedy authorization by
the legislature) from the Volunteer Lawyers' Resource Center to become the
nation's first state-funded death penalty
defense group, separate from a state
public defender office.
Florida Attorney General Supports
CCR Bill
When word got out that the Attorney General had told the legislature that
without CCR, there might well be no
more executions, and that "if you're
opposed to the death penalty, you
should oppose this bill," some palms
sweated and mouths went dry among
those opposed to the death penalty in
the South. According to Spalding, "anti-

Models in Other States
Experience elsewhere supports the
idea of centralizing collateral appeals
representation. California has eight
years of experience with two different
models. The State Public Defender originally set up a central capital defense
center, funded by their regular state
budget. Governor Deukmejian slashed
their budget, forcing the office to
close for a time, but it reopened after
being taken over by the California Bar.
The present office, called the California Appellate Project (CAP), is supported by the Bar and the California
Supreme Court. Operating in a similar
manner to CCR's predecessor, the
Volunteer Lawyers' Resource Center,
CAP recruits lawyers to represent indigent death row clients in collateral
6 SPRING 1986

I see collateral appeals as desperate attempts to frustrate
the criminal justice system and
prevent the will of the people.
If I were a Florida taxpayer, I
would object.
Paul Kamenar, Executive Legal
Director, Washington Legal Faundatian.

death penalty people were being told
this is a good office, a fine thing, and
then you have the Attorney General
saying this is a wonderful thing. People
were backing off, saying, 'If he wants it
so bad, what's wrong with it?'''
Political allies were evidently available on the fairness/due process aspect
of capital punishment that were not
available on the abolition issue. In testimony before the legislature in the spring
of 1985 on the "CCR bill," Attorney
General Smith said, "I think the reality is
that either the Florida Supreme Court
or certainly federal courts are not going
to allow any inmate on death row to be
executed if they do not have the benefit
of counsel to guide them through collateral relief. "
He added, "In the old days, collateral relief was meaningless. Rarely did
death row inmates receive benefit of
federal review after a state court conviction. Frankly, we thought the Spinkelink execution would set a precedent
where there would not be exhaustive
review by the federal system of the final
judgment in the state courts which
related to death cases. The fact is, we
now have a long experience ... it has
been institutionalized, and there will be
exhaustive federal review through
collateral relief."
In fact, Smith compares this era to
the pre-Gideon era. In Gideon, (1963),
the Supreme Court ruled that all indiappeals. Unlike the Volunteer Lawyers'
Resource Center, however, CAP is
able to pay attorneys $75 per hour.
In Kentucky, the State Public
Defender has set up a capital punishment project for the 27 people on
death row.
"By centralizing within a state, a
function that requires a large degree of
specialization, you wind up with more
professional representation for defendants and more efficient administration
of the entire process. That is in
everyone's best interest -defendants,
prosecutors, legislators, and the
public," commented Anthony Amsterdam. "The central facility does not,
however, foreclose the involvement of
volunteer attorneys and others. It
means that they will have a backup
center to go to for help." •

gent felony suspects have the right to
legal counsel funded by the state. The
Supreme Court, he believes, will one
day order that counsel be provided during the collateral review process for indigent death row inmates because it has
become common practice.
Speaking of the Attorney General,
Spalding says, "There are different
images of Jim Smith. I think he's a very
honest, decent person. He's very prodeath penalty, but he does not believe
we should execute people without due
process. I think he's going to aggressively pursue·that policy."
Spalding is afraid that some executions
will happen sooner than they might have
without CCR. Jim Smith hopes they will.
"I believe that the death penalty is a
deterrent, but not if you have people
waiting 10 years to be executed. We
have people who've had their 10th anniversaries on death row," says Smith.
What Difference Will CCR Really
Make?
"I think there will be fewer executions because we are here," says Larry
Spalding.
David Bruck, a South Carolina
attorney recognized as a leading death
penalty opponent, says, "It was sold by
the Attorney General's office on the·
grounds of speeding up executions. But
it will also speed up the granting of relief
on meritorious claims, and will insure
that fewer cases fall through the
cracks. "
"I think, without CCR, people on
death row would have deliberately fired
their attorneys in order to bottle up
their cases in the courts," charged
Attorney General Smith. '" believe that
either the federal courts, or the Florida
Supreme Court, would not have allowed
executions to continue if people were
not provided counsel."
In two cases last year which went
before the Florida Supreme Court,
Attorney General Smith sat in the
courtroom both times and looked
across the room at an empty defense
counsel's table. Neither inmate had
representation, and death warrants had
been signed.
"Jim Smith was honestly embarrassed by that," contends Spalding.
"I would not, as a lawyer, have
been comfortable," says Smith, "executing people without counsel. I just
don't believe that it's right, and it would
have been a black eye for Florida to
have done so. , say this even though we
have no legal obligation to provide counsel in the collateral stage."
Staff at CCR Brings Experience,
Dedication
The entire staff at CCR is committed to the people on death row and

to stopping executions. "The Florida
operation has attracted a very high quality staff of lawyers and others. It should
be a super-stellar operation," commented Anthony Amsterdam, New
York University law professor and the
nation's leading capital punishment
theoretician.
One of Larry Spalding's first acts as
Director of CCR was to hire Scharlette
Holdman.
"Hiring her was the smartest thing
I've done," says Spalding. "I think it was
a good message to the people on death
row who were concerned about this
office. It was also a good message to
the people around the state. They knew
Scharlette wasn't going to be part of a
sellout.
"People are worried about her
stopping some executions. That's what I
hired her for."
"I will go to bat for CCR in the legislature," says the Attorney General,
"as long as I am convinced that they will
act in a professional manner."
Smith is referring to what he calls
"shenanigans" by Holdman while Director of the Florida Clearinghouse. The
Attorney General recalled the time she
sent him a birthday cake adorned with
black candles. Coincidentally, his birthday
fell on the same day as the execution of
John Spinkelink by the state of Florida.
On the first anniversary of Spinkelink's
death, the Attorney General and his
staff were greeted by a group of children (Holdman's and others) bearing the
birthday cake and singing, "Happy Death
Day to You .... "
Holdman brings with her a reputation as a tireless, extremely effective,
fiercely dedicated worker on behalf of
death row inmates. Well aware that
working at CCR on a state salary means
the "shenanigans" are over, she still
feels that that kind of dramatic public
protest is important and hopes that
someone else will take on the task.
Larry Spalding received both his
undergraduate and law degrees from
Vanderbilt University. After clerking for
U.S. Circuit Court of Appeals Judge
Irving Goldberg in Dallas, he practiced
law in Tennessee. In 1971 he joined a
private law firm in Sarasota, Florida, and
in 1973 became a partner in Lewis &
Spalding, where he practiced until his
appointment as Capital Collateral Representative. His private practice was in
criminal law, family law, appellate and
federal civil rights litigation. He has
worked on numerous ACLU cases during his career, and two years ago was
elected President of the Florida ACLU.
Spalding represented Howard Virgil
Lee Douglas, who has spent 13 years on
Florida's death row, the longest to date.
Recruited by Scharlette Holdman while
she was at the Florida Clearinghouse, he

The representation of people
under sentence of death cannot
be consigned to charity
forever.
David Bruck, attorney in South Carolina.

picked up the case at the clemency
stage. Douglas was thought to have a
better than average chance at clemency
because the jury had recommended a life
sentence. The jury voted for first
degree murder, while unanimously
recommending a life rather than a death
sentence. The judge overrode the jury's
recommendation, sentencing Howard
Virgil Lee Douglas to death. After
Spalding took over the case, he won a
new trial for Douglas, and, once again,

the judge overrode the jury's recommendation for life, sentencing him to
death a second time.
Under the statute which created
CCR, the State Public Defender Association acted as the nominating commission
for the directorship, and they sent three
names to Governor Graham for consideration. Spalding, the clear favorite of
anti-death penalty groups, was chosen.
Why would Graham choose an outspoken death penalty opponent and the
president of the state ACLU? "[Gov.]
Graham wanl1d to diffuse the charge
that he was setting up a paper tiger,"
says Spalding. "He can say, look, I got
you the president of the most vocal
anti-death penalty group in the state of
Florida."
CCR has attracted people from all
over - Ohio, Utah, Tennessee, and
North Carolina. "People are coming
-continued on next page

George Kendall, Staff Attorney for the new ACLU Death Penalty Resource Center for the II th Circuit.
The focus during the next two
ACLU Opens Two
years must be in the South, and particularly in those states covered by the
Death Penalty Resource
5th and 1 Ith Circuits, since that is
Centers in South
where nearly half the death-sentenced
inmates are imprisoned.
The functions of the Centers are
The ACLU has recently established
two Death Penalty Due Process Litigato:
I. handle post-conviction habeas
tion Centers, one in each appellate
cases;
court circuit in the deep South. The
2. screen post-conviction records;
first is located in Atlanta, where the
3. generate informational materiUnited States Court of Appeals for the
als for trial and habeas lawyers;
Eleventh Circuit sits. This covers the
and
states of Florida, Georgia, and Ala4. conduct a public education probama. The second is located in New
gram designed to advance the
Orleans, where the United States
establishment of publicly-funded
Court of Appeals for the Fifth Circuit
post-conviction offices, like
sits, covering the states of Mississippi,
CCR.
Louisiana, and Texas. These Centers
The Centers have been established as
are providing, on a smaller scale, the
two-year programs. •
help that CCR provides in Florida.
1986 SPRING

7

-continued from previous page
from everywhere to help out," said
Legal Director Mark Olive. "We have
gotten some very bright, sharp people
for very little money." Spalding is worried about his staff working so hard on
such emotionally draining cases, and over
the holidays at the end of 1985 he
ordered everyone out of Tallahassee,
because, as he says, "We won't breathe
until August."
Friends worry also. George Kendall,
staff attorney of the ACLU Death Penalty Resource Center for the I Ith
Cirq.iit, said, "When Florida heats up,
there will be one or two executions a
month. It's overwhelming."
Steve Bright, Director of the Southern Prisoners' Defense Committee in
Atlanta, expressed concern about having
all the habeas cases handled by one
office, for the same reasons. ''I'm afraid
the Florida Bar will now drop its responsibility of finding volunteer lawyers, leaving the. CCR staff to bear the entire
burden."
Indeed, Spalding is afraid that he will
be forced to take the cases which are
presently being handled by volunteer
attorneys who were recruited by the
Bar's Special Committee on the Representation of Inmates in Collateral Proceedings. "If the cases that are out are
dumped on the program, it's going to
sink in a hurry."

The Time Limit on Claims
Although they failed to convince the
FI~rida Supreme Court to consider striking down a recent amendment which
provides a statute of limitations (two
years) on some claims by death row
inmates, CCR successfully petitioned the
Court to extend a time limit on a procedural rule which affected some 30
inmates. The rule mandated that inmates
whose direct appeals were affirmed
before January I, 1986, had only until

The Jury Override
I shall ask for"'the abolition of the punishment of death until I have the infallibility
of human judgement demonstrated to me.
Lafayette, speaking to
the French Chamber
of Deputies, 1830.

"We don't talk abolition here anymore," says Larry Spalding. "What we
need to address in Florida now are the
executions of juveniles and the jury
override. "
Legislators in three states (Indiana,
Florida and Alabama) have provided the
jury override to allow judges to impose
a life sentence in cases where a jury
might have inappropriately recommended
death. Intended to insure more uniform
8 SPRING 1986

3. Within the first eight days of
CCR's operation, Governor Graham
signed four death warrants;
4. On November 4 he signed two
more.
The two-year time limit provision
had been enacted originally to address
"real or perceived problems" of delay in
capital post-conviction litigation. It was
adopted in November of 1984, eight
months before legislation creating CCR
gave at least statutory right to counsel
in capital post-conviction proceedings.
With the right ,to counsel comes the
right to effective assistance, which could
not be provided under a procedural rule
of time limitation.
When the time limitation provision
was proposed by the Attorney General,
no analysis or research had been done
by the Florida Bar prior to its adoption.
Since CCR was the agency most afS
E fected by it, Spalding asked to be able to
s analyze the data and "submit a formal
~ presentation on the impact of the rule
on capital post-conviction litigation, and
Larry Spalding, Capital Collateral Representative
to recommend changes, if any, in the
in Florida.
specified time-limitation period to the
that date to initiate their post-conviction
Florida Bar and this Court."
challenges. It would have been impossiThe request was denied.
ble, claimed CCR's petition, to investiThey were granted a one-year
gate and file proper pleadings for those
extension of the rule, affording more
individuals within that time limit. Accordtime to cope with the 30 immediate
ing to the petition filed by CCR in
cases, but were denied the re-examination of the two-year limit. The Attorney
November 1985:
I. Spalding was appointed by GovGeneral's office had supported the
ernor Graham on August I, 1985, but
extension, and opposed the rule change.
the appointment was not to take effect
"People in my office put in long
until October 7, 1985 to give Spalding
hours to do their jobs. Spalding's people
60 days to close his law practice in
will have to do the same," said Smith
Sarasota;
when told of Spalding's concern over
2. Of the 21 positions funded by
the time crunch. The reason for the
the legislature (I 1 attorneys, five investime-limitation rule, according to Smith,
tigators, five support staff) at the time
is that without it attorneys will abuse
of the filing of the petition, Spalding had
the system.
hired only two attorneys, two investiga"Basically, what they're asking is
tors, secretarial personnel and an office
impossible," sighed Spalding. "In one
administrator;
case, they wanted us to research the

l

penalties across the state and thus afford
an advantage to the accused, the result
in Florida has been just the opposite:
judges, instead of showing more mercy
than juries, have shown markedly less.
Almost one-third of the men on death
row are there due to an override, in
which the judge imposed death after the
jury had recommended life.
Supreme Court Justice John Paul
Stevens, speaking at the Florida State
University Law School, called the
override "a defect in your statute." He
added: "A procedure that was probably
intended by the legislature to prOVide
the defendant with two chances to
obtain mercy actually seems to have
provided the prosecutor with two
chances to obtain the death penalty."
Ironically, when the Florida Supreme

Court in 1973 upheld the state's new
death penalty law, the justices wrote,
"To a layman, no capital crime might
appear to be less than heinous but a trial
judge with experience in the facts of
criminality possesses the requisite
knowledge to balance the facts of the
case .... Thus, the inflamed emotions
of the jurors can no longer sentence a
man to die; the sentence is viewed in
the light of judicial experience."
Unfortunately, not all judges are of
a like mind. Judge Ellen Morphonios,
who recently overrode a jury and
imposed a death sentence where they
had recommended life, says she did so
because people become "more cautious" after being sworn in as jurors. Is
it wrong to be cautious in choosing
between life and death? •

case (in the original appeal they give you
180 days for this part), get experts, be
in the trial court, write an appeal, and
be ready for argument in two weeks.

Two weeks.
"Either we do a sloppy job, and we
really do grease the skids, or the whole
thing falls apart. The people we have
here are willing to work 20 hours a day,
seven days a week, but they are not
willing to grease the skids. If they have a
fighting chance ....
"There will be executions here this
year, no doubt. We can accept that, if
we have had time to develop the case,
have done everything we can do, and
feel like at least the courts have listened
to us.
"But if we get to the point where
the courts are saying, 'We don't care if
you're ready, just be here,' then we are
not going to be able to get lawyers to
do that.
"I'm not going to do that."
Pressure from the courts, as well as
case backlog and limitations on time are
going to sorely test the CCR staff. Right
after CCR was created, Spalding received a letter from Florida Chief justice
joseph A. Boyd, jr., congratulating him
for undertaking the representation of
indigents on death row. Last-minute
appeals for collateral relief, he observed,
have caused much frustration. "This
resulted in part because attorneys were
often serving without compensation and
were unaware of the need for their
services until a few days before the
anticipated dates of execution.
"One of the main reasons,"
A conference on "Imprisonment:
Its Effects on the Black Family and
Community" will be held june 6 and 7,
1986 at the Shiloh Family Life Center
in Washington, D.C. The ACLU
National Prison Project is cosponsoring
this conference with approximately ten
other civil rights, prisoners' rights and
church organizations in the D.C. and
Baltimore areq. june 6, 1986 will be
"Youth Day," where young people
from the metropolitan D.C. area,
Baltimore and Richmond will come
together to discuss alternatives to
imprisonment. The june 7, 1986
sessions will be open to people of all
ages. The purpose of the conference is
to convince people in the community
that imprisonment is not the answer to
the crime problem. Participants will be
urged to embrace the concept of
alternatives to imprisonment and to
become a lobbying force with local
legislatures to ensure that effective
alternatives are developed and utilized.
For further information, contact Adjoa
Aiyetoro at (202) 331-0500.•

"I believe that the death penalty is
a deterrent, but not if you have
people waiting I0 years to be

executed," said Attorney General
Jim Smith.
asserted the Chief justice, "for using tax
funds to create and support your office
was to prevent delays in collateral capital
matters .... Simply stated, we will
expect cases to be handled in an orderly
and timely manner, and, will not tolerate
unreasonable delays by anyone, anytime,
for any purpose."
Conclusion
''The CCR office can serve as a
model for other states which have a
progressive strain even though they continue to kill people," says Steve Bright.

I Oth National Conference on
Correctional Health Care

The 10th National Conference on
Correctional Health Care will be held
at the Washington, D.C. Hilton on
October 30-November I, 1986. The
conference is sponsored by the
National Commission on Correctional
Health Care and the American Correctional Health Services Association.
The 10th National Conference,
"Reasonable Health Care: What Is It?
How Much is Enough?", will address
practical, cost-effective, and efficient
methods of providing health care and
medical services, and will focus on clinical descriptions and treatment regimens
for acute and chronic diseases frequently found by medical practitioners
in correctional facilities. The Commission's 1986 revised standards for
health services in prisons and jails will
also be featured.
The National Commission on Cor-

When asked to comment on CCR,
judge Godbold responded, "Public
officials of Florida, the legislature, and
the Florida Bar, working together, have
made legal counsel available to Florida
prisoners under sentences of death.
Americans have differing views about
capital punishment, and whether habeas
corpus cases should be reviewed for
constitutional error in Federal courts in
addition to state court review. But
whatever one's opinions on these questions, the fact is that without attorneys,
habeas cases for ,fleath sentenced prisoners are delayed in filing or delayed in
disposition.
"Florida has acted courageously to
make attorneys available."
The numbers of men and women on
death row in the United States will inevitably, and tragically, continue to grow. If
the promise of access to the courts is
to become a reality, state-funded death
penalty defense groups will be a necessity. There is no doubt that state governments must take responsibility for
adequate representation of death row
inmates, unless we are to see a flood of
executions of people who have not been
fairly tried. Even for those who do not
oppose the death penalty, that is, or
should be, unconscionable.
"We have recognized for a long
time that this dark night will not pass
quickly," said David Bruck.
At least in Florida, a light now
shines into that dark night. •

rectional Health Care is a not-forprofit organization dedicated to improving health care in our nation's jails,
prisons, and juvenile confinement facilities through the accreditation of facilities that comply with standards for
health care and medical services originally developed by the American Medical Association. The Commission's
Board of Directors is composed of
representatives from twenty-eight professional medical and correctional
associations.
The American Correctional Health
Services Association is an organization
of professionals concerned with health
care and medical services in corrections.
A call for papers has been issued.
Abstracts not exceeding I50 words
should be submitted to the National
Commission on Correctional Health
Care, 333 East Ontario Street, Suite
2902B, Chicago, Illinois 6061 I. For
further information, contact jodie
Manes at (312) 440-1574. •
1986 SPRING 9

California Project Stands Up
for Women in Prison
I

Rebecca Jurado
In 1984, the ACLU of Southern
California announced the formation of
the Women Prisoners Rights Project.
Funded through private donations, the
Project was established to address the
constitutional rights and concerns of
women incarcerated in the California
prison system, which has just passed explosive population levels. In order to fulfill these goals, Project attorneys
Rebecca Jurado and Susan McGreivy provide information to inmates and the
public, and have filed various suits on
behalf of female inmates.
The California Institution for
Women (ClW), the only state facility
that houses female felons, is, at over
205 % of capacity, the most overcrowded of California's 13 prisons. As a
result of this overcrowding and the lack
of sufficient alternative facilities, female
inmates are subjected to more oppressive housing arrangements than otherwise required by their crimes or state
regulations and guidelines. This has led
CIW to establish its own classification,
disciplinary, medical, vocational and
educational systems.
To address this situation, the
Women Prisoners Rights Project first
began by interviewing and corresponding
with CIW prisoners. Out of these contacts numerous problems have been
identified. Each of these has been investigated and evaluated as subjects for
litigation. To date, five suits have been
filed.
The first, Whisman v. McCarthy,
filed in August 1984, challenges the failure of both the California Department
of Corrections (CDC) and the Department of Health Services to require state
licensure of the health care facilities
within CIW. The suit also questions the
limited, inadequate physical and mental
health care facilities available to women
prisoners.
Rios v. McCarthy, filed in June 1985,
puts two points at issue: the failure to
fully implement a unique program of
mother-infant care established by the
legislature and the failure to fulfill this
mandate in the limited implementation
seen so far. Under the Mother-Infant
Care Program, qualified women are allowed to serve their sentence in community-based facilities with their preschool aged children. Despite specific
statutory language, CIW and CDC have
failed to do the two things required:
10 SPRING 1986

A corrections officer peers through the tiny
window of a cell in the Administrative Segregation
Unit at the California Institute for Women.

provide notice and process applications
in a timely manner. As if to justify this,
the defendants have further undermined
the Program by misleading eligible
women or misusing their discretion by
substituting their own criteria for that
contemplated. For a potential pool of
1000 eligible women, 27 MIC Program
beds are in use statewide-only .27% of
need. This issue has attracted so much
attention that in late December the
Legislature's Joint Committee on Prison
Construction convened to investigate
conditions and policies relevant to the
MIC Program and to assess the Program's value in alleviating the present
overcrowding. It should be noted that
state Senator Presley stated for the
record that an additional 100 beds
should be immediately put to use by this
Program.
Scrape v. McCarthy, filed in October
1985, concerns an incarcerated
woman's right to timely pregnancy testing so that she can receive a statefunded abortion within the initial twelveweek pregnancy period arbitrarily set by
CIW. This period is intentionally more
restrictive than the twenty-week period
set forth in California's Therapeutic
Abortion Act. Although a woman's right
to an abortion is not denied by this
"twelve-week" policy, the availability of
an abortion as a "medical procedure"
(as opposed to an "elective procedure")
is denied if the inmate is informed of her
pregnancy after this period has run. This
means the inmate must pay both the
cost of the procedure and the prison
staff who must accompany her for security reasons. The cost quoted to this
plaintiff was $5,000. Accordingly, in
granting a TRO, the Court found that

ClW's eight-week delay in informing the
plaintiff of her pregnancy, some six
weeks beyond the ClW-imposed twelveweek period, constituted negligence.
CIW and CDC were ordered to pay the
costs of the medical procedure and all
required security. This suit hints that the
experience of this plaintiff was the result
of Governor Deukmejian's personal
mission to outlaw all abortions.
Kozeak v. McCarthy, filed in October 1985, puts at issue the constitutional
rights of inmates who are placed or retained in administrative and disciplinary
segregation units. The suit charges that
these rights are violated by the denial of
fair hearings prior to relocation to these
units and by living conditions after relocation. These units, basically prisons
within the prison, separate inmates from
the general population for reasons the
prison terms administrative, disciplinary
or otherwise. Although justified by
prison officials as necessary for the
"safety and security of the institution,"
the intention and effect are plainly punitive. Identical issues have been addressed
by a chain of litigation commencing with
Wright v. Enomoto, 462 F.Supp. 397
(N.D. Cal. 1976) and continuing through
Toussaint v. McCarthy, 597 F.Supp. 1388
(N.D. Cal. 1984). These cases establish
specific due process rights and living conditions for inmates in segregation units.
CIW, however, refuses to comply with
these court-mandated and CDC-adopted
principles and regulations.

This suit hints that the experience
of this plaintiff was the result of
Governor Deukmejian's personal
mission to outlaw all abortions.
In Jentry v. Alexander, filed in
November 1985, injunctive relief was
sought to enjoin the conversion of a 24'
x 34' kitchen into a 16-bed dormitory.
The court denied plaintiffs' application
for a TRO despite clear evidence that
the room was never meant for human
habitation: the room did not meet fire
safety requirements (applicable to inhabited areas) and failed to provide minimal
sanitary facilities. Further evidence was
presented that the area surrounding the
kitchen conversion could not even accommodate the 250 inmates already
housed there. The conversion of this
and other kitchen areas was the first
step in ClW's plan to deal with overcrowding, the final steps being the conversion of all recreation facilities into
living units. Additional conversion will
include the auditorium, the law library,
the mailroom, and the space where
religious services are held.
Having begun by addressing a female

r

I

...

The Women Prisoners Rights Project is committed to investigating, monitoring and, where appropriate, promptly
litigating questionable responses to overcrowding and numerous other serious,
unconstitutional conditions which have

Although justified by prison
officials as necessary for the
«safety and security of the
institution", the intention and
effect are plainly punitive.
become an intolerable fact of life at
CIW. But more importantly, the Project
has communicated relevant constitutional
rights to these women and they have
responded by acting on their own to
protect their rights. •

Rebecca Jurado is a staff attorney with the
Southern California ACLU, hired to research and litigate the conditions of
women's imprisonment in California.

The Pretrial Services Resource
Center announces a series of five regional seminars to be held during 1986
to address the problem of jail crowding. The executive seminars will be organized to assist teams of officials from
selected local jurisdictions in planning
systemwide strategies to alleviate
crowded jail conditions. The series is
sponsored by the U.S. Department of
j justice's Bureau of justice Assistance
~ (BjA), and preference will be given to
~ local governments receiving BjA block
.! grant funds to reduce crowding
Jj through population-reduction tech.,; niques. However, other sites are also
] encouraged to apply.
;:;
The 2-day seminars will focus on
]: local jail population management groups
~ and their potential for addressing the
crowding problem, jail use planning as a
a: problem-solving technique, jail population and system information needed
A prisoner looks out of her cell during lockup at the California Institute for Women.
for analysis of crowding causes, and
programs and procedures that have
prisoner's right to adequate medical
voter-approved prison construction
been used to safely reduce jail populacare, statutorily-mandated alternatives
bonds totaling $795 million, CDC, in its
tions
and alleviate crowding. Teams will
to incarceration, timely pregnancy testever-present shortsightedness regarding
be assisted in developing action plans
ing, due process rights and constitutional
women, has allotted only 450 beds for
for their respective jurisdictions, inremedies to overcrowding, the Women
women, out of the 19,400 beds to be
cluding timetables and assignment of
constructed.
Prisoners Rights Project has touched on
responsibilities.
only a few of the most vulnerable areas
The myopia of CDC's administrajurisdictions interested in particiof prisoners' rights. The list of concerns
tion and allocation of funding has caused
pating
in one of these seminars should
is endless. Central to any improvement
ClW (often referred to as the "Disneycontact Andy Hall at the Pretrial
is CDC's response to the needs of the
land of CDC") to place first in the rate
Services Resource Center, 918 F
ever-increasing population. At its present
of overcrowding and to experience a
Street, N.W., Suite 500, Washington,
growth rate of 25 inmates per week,
rise in the level of violence, assaults and
DC 20004-1482, or phone (202)
CIW absorbs the facility's original design
drug use well ahead of similar statistics
638-3080, as soon as possible. •
capacity every nine months. Despite
at men's institutions.

*

1986 SPRING

"""'

''JIItiW__

~

II

...

Neglect of Prisons Reaps
High Costs for Society
Riots are the voices of the unheard.

-Martin Luther King, Jr.
Alvin J. Bronstein
Why shouldn't people in penitentiaries be
taken out and shot down like dogs - which
is the West Virginians' philosophy?

I was asked that question in
Charleston, West Virginia, on a previously scheduled speaking tour about
ten days after the january 1-2, 1986,
uprising at that state's penitentiary in
Moundsville. In an interview for their
"Perspective" feature, the Editor of
the Charleston Gazette asked me that
tongue-in-cheek and provocative version of the question I am most often
asked: Why should we care about
prison conditions?
From Attica to Moundsville, prison
conditions have been the root cause of
prison riots. Since the fall of 1985,
there have been at least ten major
prison disturbances in Oklahoma,
Indiana, Tennessee, Virginia, West Virginia, Michigan and the District of
Columbia, resulting in the loss of at

The only common theme has been
that prisoners became tired of
terrible living conditions, tired of
unkept promises of change, and
tired of being treated like animals.
least four lives, scores of injuries and
millions of dollars in damaged property.
The common theme has been that prisoners became tired of terrible living
conditions, tired of unkept promises of
change, andJired of being treated like
animals. The fragile order that is maintained in most prisons explodes into a
riot; an inexcusable yet understandable
response to the frustration and anger
caused by years of neglect. Most
people believe that prisoners, after all,
have broken the law, and get what
they deserve. Most people do not care
if prison conditions are harsh or even
unconstitutional, until perhaps a friend
or family member goes to prison. To
say that Moundsville was unconstitutional, haVing been declared so by a
state court judge in june of 1983, puts
it in the abstract. I would rather say
that the conditions in Moundsville
which led to the uprising were simply
uncivilized. In his june 21, 1983,
12 SPRING 1986

opinion, judge Arthur Recht, Circuit
Court of Marshall County, West
Virginia, found, among other things:
• that two prisoners were confined to a 35-square-foot cell (the size
of a large closet) for I7-1 8 hours a
day and that all but 14 square feet
were taken up by bunks, a sink and an
open toilet;
• that the entire facility was
infested with rats, lice, fleas, maggots
and roaches and "the living areas
included a proliferation of rat feces and
dead rats with lice and fleas;"
• there was raw sewage in the living areas and broken plumbing; the
absence of hot water was the rule
rather than the exception;
• the heating and ventilation systems were so antiquated and inadequate that the temperature in some
cells was I 10 degrees in the summer
and 28 degrees in the winter;
• the medical, dental and mental
health care was grossly inadequate,
much of it being prOVided by inmates;
• the entire institution was a fire
hazard and totally out of compliance
with state fire codes;
• the food was unsanitary and
inadequate - the only utensil provided
was a plastic spoon, forcing inmates to
eat much of their food with their
hands.
The cumulative result of those
conditions is an unconstitutional prison.
It is also an uncivilized prison and if we
treated zoo animals in a similar manner

If state officials persist in running
an illegal prison, it ought to be
closed as well.
the public would be outraged. United
States Senator jeff Bingaman, at the
time Attorney General of New Mexico, wrote in his official report on the
tragic 1980 riot at the Penitentiary in
Santa Fe:

Throughout its history, the Penitentiary has suffered from neglect. The New
Mexico prison has always waited at the
end of the line for public money, and
elected officials have turned their atten-

tion to the ugly problems of the Penitentiary only when the institution has erupted
in violence and destruction.
* * *
The Penitentiary can be repaired and even
a bureaucracy can be repaired. But the
men who, day by day for year after year,
have to look over· their shoulder for the
man with the knife, who lack enough
opportunity to make decisions in their
daily lives that they forget how to decide
- these men cannot be repaired. They are
forever broken ~y a system designed to
correct them. .
There is considerable evidence that
prison is a dehumanizing experience
which serves to debilitate the imprisoned. For the vast majority who will
eventually return to society, the prison
experience isolates and alienates,
making reintegration as a useful citizen
difficult. As a result of this terrible
treatment while in prison, the exoffender often returns to society more
dangerous and more hostile than when
he or she went in, which serves no
one's interest.

"The medical, dental and mental
health care was grossly inadequate!
much of it being provided by
inmates. "
Prison is, after all, the largest
power that the state exercises in practice on a regular basis over its citizens.
If we claim to be a civilized and democratic society, we should care about
prison conditions because it is only fair
and just. The Constitution does not
only offer its protection to rich people
or white people or law-abiding people.
It says all people and that is what it
means. If we are to be a law-abiding
and lawful society, then the protection
of the law must be afforded to everyone. When we deprive people of
liberty, we ought to do it rationally,
we ought to do it lawfully, and we
ought to do it with a sense of justice.
How else can we condemn prison
riots?
The penitentiary at Moundsville has
been an unconstitutional and therefore
illegal institution for years. If someone
runs an illegal gambling establishment or
an unsafe theater, we close it down. If
state officials persist in running an
illegal prison, it ought to be closed as
well. The prisoner sitting in a dank,
rat-infested and filthy cell understands
that we apply the law one way for private citizens, especially if they are
poor, and another way for state officials. How can he not be frustrated
and angry?

· With good cause, prisoners perceive that West Virginia Governor
Arch Moore and former Governor Jay
Rockefeller were. just as responsible
for the rioting and deaths at Moundsville as the prisoners, and just as guilty
of being law violators as those they
locked up for breaking the law. How
will they learn to obey the law when
the return to the free world?
Attorney General Bingaman answered well the question of why we
should all care when he concluded his
report on the Santa Fe riot by saying:

If New Mexico's heritage of rich and
deep familial and community roots is to
be realized, communities must playa part
in housing, resocializing and accepting
persons who have violated the community's laws. If New Mexico does not
dramatically change its philosophy and
practices about how to deal with criminals, there will be more tragedies and the
need for more reports by Grand Juries, by
Citizens' Panels, and by the Attorney
General. Ultimately, there will be more
bureaucracy, more waste of taxpayers'
money for architects and buildings, more
crime and more human waste.

The West Virginia Penitentiary at Moundsville, built in J866.

The real question for us is
whether this country, as the richest
society in history, will take steps within
its means to rectify a festering and

dangerous situation in its prisons, or
whether it will pay an even heavier
price, sooner or later, for neglecting
it. •

two simple facts: Roach was borderline
mentally retarded and, like his mother,
likely suffered from Huntington's
Chorea, a degenerative brain disease.
Thus, recent evidence showed that although his chronological age at the time
of the crime was a youthful 17, he in
fact functioned at the mental age of an
I I or 12 year old. There was uncontroverted evidence that Roach and MahafMary E. McClymont
fey were clearly led by Shaw; furtherAnother prisoner has been executed Shaw, an adult. At the time of the
more, the identity of the actual "trigin the United States, raising the stategerman" was never clearly established.
crimes, Roach had experienced no more
sanctioned blood bath to a total of 5 I
At this writing, 31 other young
than minor skirmishes with the law; his
since the death of Gary Gilmore in
people in 15 states await execution,
worst offense was taking his father's car
1977. This time, there was a special ugly
condemned to death like Roach for
to visit a brother in Florida. The other
twist to the death. This time, a young
crimes they committed while children.
boy, Mahaffey, turned state's evidence
man, convicted of a capital crime while
and received a life sentence. Roach,
Until Roach, no juvenile offender had
he was still a juvenile under 18 years of
however, was not so lucky. He was senbeen executed in the U.S. on an involage and too young even to vote, was
unary basis since an execution in Texas
tenced to death along with Shaw, and
killed in the state of South Carolina.
in 1964.' According to Victor Streib, a
fought his conviction while sitting on
This time, the"lJnited States committed
South Carolina's death row.
Cleveland State University law profes_ _ _ _ _ _ _ _ _ _ _ _ _ _ _"'--_ sor, 270 juvenile offenders were exea violation of international human rights
law by permitting an execution that
Sadly, the flood gates appear to
~~~~. in this country between 1642 and
would have been found illegal by many
have been reopened, and the
Sadly, the flood gates appear to
of our allies and by governments whose
human rights records the U.S. frequently
sickening brutality has begun
have been reopened, and the sickening
condemns-the Soviet Union, South
anew.
brutality has begun anew. In the denial
Africa, Poland, Libya, and Iraq, to name _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ of Roach's final stay request, the
only a few.
Supreme Court could offer no more
There was an almost childlike air
James Terry Roach was executed in
than two dissenting opinions. The vengethe electric chair at 5 a.m. on January
about Terry at the end as he told ABC's ful murders of youthful offenders by the
10, 1986, while a handful of South
Nightline reporter-"I don't want to
purported moral leader of the world
Carolina citizens and one of Roach's
die" -and expressed concern for the
simply runs contrary to the practice of
lawyers looked on. Along with two covictim's family. In his final statement he
-continued on next page
defendants, Roach was convicted of two
reiterated his remorse and hoped that
I Charles Rumbaugh was killed in September of
murders in 1977, at the age of 17. One
he had been forgiven.
1985 by the state of Texas for a crime he comof his co-defendants, Ronald Mahaffey,
The execution of Roach is an even
mitted while a juvenile. He, however, had prowas a boy of 16 and the other, J.e.
hibited his lawyers from pursuing his appeals.
greater travesty of justice because of

Execution for Juvenile Crime
Raises Questions of
International Law

1986 SPRING

13

-continued from previous page
many civilized and not-so-civilized
nations.
According to data collected from
various sources by Professor Joan Hartman of the University of Washington
and by Amnesty International, 28 countries have abolished the death penalty
worldwide. An additional 18 permit the
use of the death penalty only for exceptional-such as military-crimes, thereby
excluding juveniles. Among the countries
reporting to the United Nations which
still retain the death penalty, as many as
41 explicitly forbid the execution of
persons who committed crimes as juveniles. They range in political cultural
diversity all the way from the Soviet
Union and Poland, to Morocco and
Libya, to South Africa and Japan.
The U.N. further reports that an
estimated 81 nations performed executions between 1973 and 1982; however,
only two of the persons killed were
juveniles. Amnesty International reports
that, since 1979, although over I 1,000
persons were executed in 80 countries,
only six juveniles were executed in only
four nations, including the U.S. This data
evidences a consistent practice among
nations that these youthful deaths will
not be tolerated by law-abiding
countries.
Significantly, three major international human rights documents explicitly
prohibit the execution of persons who
commit crimes while under 18 years of
age. The debates accompanying the
development of two of the documents,
the International Covenant on Civil and
Political Rights and the American Convention on Human Rights, reveal that
these documents served only to codify
an already established customary international law norm-that juvenile offenders who commit crimes while under 18

In response to a growing awareness of the importance of offender
classification in humane and effective
correctional management, a new
American Correctional Association
publication by""Carl B. Clements,
Ph.D., focuses on concepts and
methods important to the corrections
field and promotes recognition of
gUiding principles.
An essential handbook for today's
correctional professional, Offenders
Needs Assessment describes the
model systems approach to needs
assessment originally developed by the
National Institute of Corrections.
1985, 100 pages. ACA members $16,
nonmembers $20. Make check payable
to American Correctional Association,
4321 Hartwick Rd., Suite L-208,
College Park, MD 20740, or phone
1-800-ACA-JOIN. •
14 SPRING 1986

CAPITAL

PUNISHMENT
.~~~
.. ..
~

WE 00NOTDISCRlMW
ACCORDING 'ID:
RACE •CREED' COLOR' RELlGIOII
OR,.~t

years of age are not to be executed.
Although the documents do not necessarily prohibit the death penalty per se,
they unambiguously forbid the execution
of juveniles like Terry Roach. 2 Hence,
about two-thirds of the nations of the
world either prohibit the death penalty
through their laws or have ratified these
two conventions which prohibit juvenile
executions. It is also worth noting that
various U.N. resolutions make clear that
executions for offenses committed
under 18 are impermissible in the
modern world. 3
As of December 2, 1985, it was
clear that the U.S. courts were unwilling
to prOVide relief for Terry Roach. His
lawyers, J. Michael Farrell and Grady
Query, had strenuously pursued all
avenues of appeal and had petitioned and
been foreclosed by the U.S. Supreme
Court three times. They had been assisted in their efforts by lawyer David
Bruck, a leading expert on death cases
from South Carolina who has written
widely on juvenile capital cases, and by
2As with so many other human rights documents,
the U.S. has signed but not ratified these two
covenants. However, there is evidence that even
the U.S. reprsentatives working on the development of these documents insisted that the U.S.
would never allow the killing of juveniles or pregnant women.
3Even in the U.S., such prestigious, established
organizations as the American Bar Association
and the American Law Institute publicly oppose
imposition of the death penalty for crimes committed while minors. At least seven jurisdictions
in the U.S. as of this writing set 18 years as a
limitation on the exercise of the death penalty.
Fifteen additional states set other, but lower,
limits on the use of the death penalty. Ironically,
a bill has been introduced in the South Carolina
legislature forbidding executions for crimes under
18. If it passes, it will obviously be too late for
Terry Roach.

another South Carolina lawyer, John
Blume.
Realizing hope was dim in the
domestic courts and after discussions
with a number of experts in human
rights law and capital cases, we decided
to try a new approach. David Weissbrodt, an international law professor at
the University of Minnesota and a leading human rights law expert, and I filed a
petition on Roach's behalf with the
Inter-American Commission on Human
Rights, an official branch of the Organization of American States. The Commis-

Hence, about two-thirds of the
nations of the world either prohibit
the death penalty through their
laws or have ratified these two
conventions which prohibit juvenile
executions.
sion is charged with promoting the observance of human rights throughout the
Americas and has jurisdiction over the
U.S. as a member of the O.AS.
We alleged in our complaint, filed in
early December, that the U.S., byexecuting Roach, would violate the American Declaration on the Rights and Duties
of Man, as it is informed by customary
international law. The Declaration, in
part, guarantees the right to life, and
incorporates a provision on the special
protection of children in the American
countries. In our view, the Declaration
should be interpreted and informed by
the customary law norm that, as evidenced in the above discussion, we believe clearly exists and prohibits juvenile
executions. Our claims have been publicly supported by such groups as the
American Civil Liberties Union, Nobel

1

Peace Prize laureate, Amnesty International, and the International Human
Rights Law Group.
Because of the imminent execution,
we asked the Commission (which will
likely not decide our claims before its
regular session in April) to issue provisional relief. Prompt action was taken.
Cables were immediately sent by the
Commission on several occasions to
Dick Riley, Governor of South Carolina,
and George Schultz, Secretary of State,
urging that the Roach execution be
stayed pending the Commission's decision on our claims.
These and other vigorous attempts
by Roach's lawyers and many others fell
on deaf ears. None less than the U.N.
Secretary-General, Mother Teresa, the

a.A.S. Secretary-General and former
President Jimmy Carter made appeals on
Roach's behalf. The Governor decided
against both clemency and a reprieve,
despite the pending international claims
and new evidence about the Hunting-

None less than the U.N. SecretaryGeneral, Mother Teresa, the
a.A.s. Secretary-General, and
former President Jimmy Carter
made appeals on Roach's behalf.
ton's disease. The courts, including the
U.S. Supreme Court, once again refused
Roach, denying his final request for a
stay of execution only 7 hours before

!

his death. Justices Brennan and Marshall
were alone in their dissent.
Even now, we plan to pursue our
international claims. Considerable criticism from the international community
over this death has not abated. The
campaign to raise the consciousness of
the American public to rectify this inglorious display of vengeful arrogance
will continue. >
We hope that one day soon it can
be said that Terry Roach was not killed
in vain. We further hope that the time
will soon come when this country will
refuse to add furt1ler to the barbarity
which, by definition, surrounds capital
crimes, and will roundly condemn any
state-sanctioned killing of its ~ople,
especially of its adolescents. •

r

1
QTY. COST

the state of the law on various
prison issues (many case citations). 24 pages, $2.50 prepaid
from NPP.
The National Prison
Project Status Report lists
by state those presently under
court order, or those which
have pending litigation either
involving the entire state
prison system or major institutions within the state. Lists
only cases which deal with
overcrowding and/or the total
conditions of confinement.
(No jails except District of
Columbia). Periodically
updated. $3 prepaid from
NPP.
Bibliography of Women in
Prison Issues. A bibliography
of all the information on this
subject contained in our files.
Includes information on abortion, behavior modification programs. lists of other bibliographies. Bureau of Prison
policies affecting women in
pris.on, juvenile girls, women in
jail, the problem of incarcerated mothers, health care, and
general articles and books. $5
prepaid from NPP.

The National Prison
Project JOURNAL,
$IS/yr. $2/yr. to prisoners.
Back issues, $ I ea.

j
J
I

The Prisoners' Assistance
Directory, the result of a
national survey, identifies and
describes various organizations
and agencies that provide assistance to prisoners. Lists
national, state, and local organizations and sources of assistance including legal, library,
medical, educational, employment and financial aid. NEW
7th Edition, published April
1986. Paperback, $20 prepaid
from NPP.
Offender Rights Litigation:
Historical and Future Developments. A book chapter
by Alvin J. Bronstein published
in the Prisoners' Rights
Sourcebook (1980). Traces
the history of the prisoners'
rights movement and surveys
'--_l...----I

Fill out and send with check payable to
The National Prison Project
1616 P Street, NW
Washington. D.C. 20036

A Primer For Jail Litigators
is a detailed manual with practical suggestions for jail litigation.

QTY. COST

It includes chapters on legal
analysis. the use of expert witnesses, class actions, attorneys'
fees. enforcement, discovery,
defenses' proof. remedies, and
many practical suggestions.
Relevant case citations and correctional standards. 1st edition,
February 1984. 180 pages,
paperback, $15 prepaid from
NPP.
The Jail Litigation Status
Report gives a state-by-state
listing of cases involving jail conditions in both federal and state
courts. The Report covers
unpublished opinions, consent
decrees and cases in progress as
well as published decisions. The
Report is the first nation-wide
compilation of litigation involving jails. It will be updated regularly by the National Jail Project. Ist Edition, published September 1985. $15 prepaid from
NJP.
ACLU Handbook, The
Rights of Prisoners. A guide
to the legal rights of prisoners,
pre-trial detainees, in questionand-answer format with case
citations. Bantam Books, April
1983. Paperback, $3.95 from
ACLU. 132 West 43rd St.,
New York, N.Y. 10036. Free
to prisoners.
l...----I~--J

NAME

_

ADDRESS
CITY, STATE, ZIP

~-

1986 SPRING

IS

The following are major developments in the Prison Project's litigation
program since December 31, 1985.
Further details of any of the listed cases
may be obtained by writing the Project.
Black v. Ricketts -This case challenged
the conditions of confinement in the Administrative Segregation Unit at the Arizona State Prison in Florence and was
settled with a consent decree in June
1985. Our claim for attorneys' fees,
costs and expenses was settled and paid
in November. In December, the defendants attempted to bar NPP lawyers
from the prison claiming we were no
longer needed because there was a
compliance monitor in place. We quickly
obtained an order enjoining the defendants from interfering with our access
to prisoner clients.
Cody v • Hillard-This case deals with
a variety of conditions at the South
Dakota State Penitentiary. The state
appealed that part of the previous favorable decision which prohibited doubleceiling. At the end of September, the
Eighth Circuit denied defendants' request
for a stay of the overcrowding order.
The appeal was argued in January 1986.
Canterino v. Wilson-This case successfully challenged conditions at the
Kentucky Correctional Institution for
Women. We recently received the final
payment of attorneys' fees.
Palmigiano v. Garrahy-This case
challenges conditions in the entire Rhode

Island prison system. After a 3-day compliance hearing held in December, the
court granted our motion to immediately enjoin triple-ceiling of detainees at the
Intake Center and reserved decision on
the balance of the issues.
Whitley v. Albers-Our role in this
case was to draft and file an amicus brief
in the Supreme Court on behalf of the
Pennsylvania Prison Society and the Correctional Association of New York dealing with the legal standard to be applied
where deadly force is used in a prison
emergency. In March, the Court held
that prison officials were justified in
using deadly force in a riot situation, on
the facts in this case.
Shapley v. O'Callaghan-This case
challenges conditions of confinement at
the Nevada State Prison. In December
we filed motions to gain access to the
institution (after being denied by defendants and the magistrate) and to extend
the settlement period and monitor for
another year.
Jerry M. v. D.C.-This case deals with
conditions in the District's juvenile facilities. Recently the court certified the
class, denied defendants' motion to dismiss the case and set a trial date for July
1986.
Inmates of D.C. Jail v. Jackson-By
late fall, the District of Columbia reduced the jail population to the numbers
required by the August consent decree.
However, the crisis continues because

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

New Prisoners' Assistance Directory
Available From NPP. Seventh edition.
See PUBLICATIONS, p.IS.
16 SPRING 1986

the District ,has failed to develop alternatives to incarceration and has already exceeded the population cap on one occasion. To avoid exceeding it again, the
Department has resorted to keeping
prisoners on b'lIses parked outside the
jail. •

Alleviating Jail Crowding: A
Systems Perspective, written by
Andy Hall of the Pretrial Services Resource Center for the National Institute
of Justice, provides an in-depth discussion of the range of options available to
criminal justice professionals who can
help alleviate jail crowding while safeguarding public safety. The experience
of many jurisdictions demonstrates that
such options can be effective in addressing the jail crowding problem. The report provides information to gUide data
collection efforts, identifying what information is needed, how it should be collected and how it should be analyzed to
support the decision-making process.
Additional suggestions concerning the
implementation of jail population reduction strategies are also provided. "It's
really the first good piece for local governments to use to solve their population management problems short of new
construction," said Ed Koren, Director
of the National Jail Project.
The report is available from the
Pretrial Services Resource Center, 9 18
F Street, N.W., Washington, DC
20004-1482, (202) 638-3080, for $3.

Nonprofit Org.
U.S. Postage

PAID
Washington, D.C.
Permit No. 5248