This issue we begin an exclusive fourpart series on alternatives to incarceration. Russ Immarigeon takes a
fresh look at the subject, and shows
that public opinion, surprisingly, favors alternatives to incarceration.

ISSN 0748-2655

NUMBER 9, FALL 1986

Surveys Reveal
Broad Support
for Alternative
Sentencing
Russ Immarigeon

For Detained Cubans
Freedom's Still a Broken Dream
Mary

E.

McClymont

Give us your tired and weak
And we will make them strong
Bring us your foreign songs
And we will sing along
Leave us your broken dreams
We'll give them time to mend
There's still a lot of love
Living in the Promiseland
-Sung by Willie Nelson

Imagine the following situation: A
government has taken a group of 1,800
people, locked them up and, for all practical purposes, thrown away the key.
Not only have these people been locked
away indefinitely, with no hope of re-

lease in sight, they have been confined
to one of the most severe and antiquated prisons in the country under
some of the worst living conditions any
20th century prison has to offer. Add
the facts that these people remain incarcerated although virtually none of them
have been convicted of any crime, and
that there has been no reliable showing
of a likelihood of danger to the
community.
At first glimpse, one might guess
that the country in question was some
recognized human rights violator such as
--<ontinued on page /2

Jail and prison populations across
the country are growing larger and
larger. I Some jurisdictions understand
that they can't solve correctional crowding problems simply through a building
program designed to increase the penal
system's housing capacity. However, few
places on either local or state levels
have instituted a comprehensive program designed to shift a significant part
of their institutional population to community-based settings.
Among the barriers blocking the
implementation of system-wide reform is
the apparently "tough mood" of public
opinion. Thus, in recent years legislators
and criminal justice policymakers have
shaped correctional policy according to
what they see, or claim to see, as the
public's active interest in society's being
"tough enough" in its response to the
criminal offender.
Two recent public opinion surveys
argue that previous studies failed to sep--<ontinued on page 2
I

...

Since 1972, the nation's prison population has increased from 175,000 to over 500,000. Based on
1984 data, the capital cost for the additional
325,000 beds using a low $50,000 average cost is
over 16 billion dollars, plus a staggering long-term
cost for debt financing. At the $17,000 national
average, the annual operating cost for these additional prisoners is over five and one half billion
dollars. (Source, The Corrections Yearbook, Criminal Justice Institute, 1985.)

INSIDE.

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Crime Stats
Official Reports Conflict

p. 6

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Drug Testing in Prison
Unfair and Unrealistic

p. 13

•

INDEX
Two years of JOURNAL
articles

p. 7

A PROJECT OF T .....E AMERICAN CIVIL lSIBERTIES UNION FOUNDATION, INC.

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Recent studies indicate that
legislator and policymaker
perceptions may be out of
line with public opinion.

-<ontinued from front page

arate public views concerning violent
and non-violent offenders or to supply
adequate information about specific alternative sanctions. Partially as a result
of these shortcomings, these surveys further argue, public opinion has been mistakenly seen as simply demanding imprisonment for more and more offenders.
These surveys' findings seriously question
policymaker assumptions about public
opinion, and suggest important leads for
the development of future correctional
policies.

New Surveys
In April of 1986, findings were released from the University of South Carolina's 1986 Fear of Crime Poll, a statewide survey of 1,218 citizens. Dr. Gene
Stephens, the study'S director, said that
"given a choice between imprisonment
or community-based alternatives for
non-violent offenders, more than 80% of
the respondents chose community-based
programs-restitution, community service and closely-supervised probation."
Moreover, the survey found that 53% of
those interviewed supported the early
release of non-violent offenders to reduce prison crowding, while 54% accepted the use of electronic bracelets as
an alternative to prison.
While other public opinion polls
have shown citizen support for imprisoning criminal offenders, Dr. Stephens argues that they have not distinguished between violent and non-violent offenders,
and they have not assessed appropriate
non-incarcerative sanctions for non-violent offenders. "It has just been assumed
that one had to build more prisons to
house more criminals," Stephens said?
In May f'986, the North Carolina
Center for Crime and Punishment, an independent organization of business and
civic leaders, released the findings of another citizen survey which found strong
support for prison alternatives for nonviolent offenders. Significantly, the survey also discovered that citizens were
more likely to support prison alternatives when they were better informed
about problems facing the criminal justice system and the benefits of particular
non-incarcerative sanctions, such as restitution and community service.
2"1986 Fear of Crime Poll," Columbia, SC: The
College of Criminal Justice, University of South
Carolina, April 1986.

2

FALL 1986

The North Carolina survey of 621
registered voters differed significantly
from traditional opinion surveys. Early in
each interview, respondents were asked
what they thought would be an appropriate sentence for particular types of
offenses. Later, after they were provided
with information about prison crowding,
the percentage of people serving sentences for non-violent crimes, prison
costs and possible consequences of confining non-violent offenders with violent
offenders, they were again asked the
same question.
Twenty-five percent of the respondents shifted their attitudes from disapproval to approval of community punishments; only an "extremely small"
number of respondents shifted their attitudes in the other direction. Thus, an
important finding of this survey was that
a "public education program which
stresses the economics of community
punishment will effectively increase support for the program." Moreover, the
survey found that those who shifted
their support to community punishments
knew about prison crowding, believed
prison conditions were bad, thought
prisoners worked all the time, and felt
federal courts were likely to impose
guidelines on the state's penal system. 3
3

Hickman-Maslin Research, "Confidential Analytical
Report Prepared for North Carolina Center on
Crime and Punishment Based on a Survey of Registered Voters in the State of North Carolina,"
Washington, DC: Hickman-Maslin Research,
March 1986.

Correction: The last issue of the
JOURNAL was dated Summer 1985,
instead of 1986.

Past Surveys
A review of other recent surveys
shows that the North Carolina and
South Carolina findings are similar to
those in the reports which also stress
that the general public, and many crime
victims, are not as punitive as legislators
and policymakers believe. Moreover, recent studies assessing the attitudes of
correctional, workers toward non-incarcerative programs have found a reservoir of support for these initiatives. T0gether, these findings strengthen an
emerging challenge to the notion that
the primary cdhcern of those who want
to "do something about crime" is more
and more imprisonment.

Public Opinion
Public support for alternatives to
imprisonment can be found in a number
of studies:
A 1984 survey by the Governor's
Office of Criminal Justice Services found
that citizens in Ohio knew little in general about the prison system, but separated their support for alternative sanctions between first-time and repeat
offenders. However, prison crowding
seems to have had a moderating effect
on citizens' attitudes. Ohioans "overwhelmingly approved" victim compensation, community supervision and early .
release from prison, and were "warmly
tolerant" of part-time work and educational or training release options.
The survey observed that "the alternatives to incarceration suggested in
the survey forced citizens to think in
specific terms of how to address the
overcrowding issue which they, themselves, had identified. Taken indiVidually,
and placed in the perspective of an ac-

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

Washington, D.C. 20036

JAN ELVIN
Editor, NPP JOURNAL

(202) 331-0500

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Chief Staff Counsel

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Administrative Director and
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Research Associate
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STAFF ATTORNEYS
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SUPPORT STAFF
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Public Information Assistant

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
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The JOURNAL is scheduled for publication quarterly by the National Prison Project. Materials and
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The National Prison Project JOURNAL is designed by James True.

tual response rather than simply an emotional reaction, these alternatives appear
to be more acceptable to Ohioans. "4
A 1985 national survey conducted
by Figgie International, Inc., of Richmond, Virginia, found that 52% of the
general public favored community service, 60% favored restitution, 53% were
in favor of work release programs, and
52% supported the use of halfway
houses. Moreover, 76% of the public
supported probation for first-time
offenders.s

Crime Victims
The National Organization of Victim Assistance's newsletter once suggested that "victim advocates have a
stake in the future of community-based
alternatives to the use of jails and prisons. Such alternatives make it much
more likely that the victims will receive
restitution, and some imaginative alternative sentences actually provide more
protection of victim rights than do traditional sentencing practices. "6
British studies seem to offer the
most concrete evidence of victim support for non-incarcerative penalties.
Mike Maguire's interviews with more
than 300 burglary victims uncovered a
significant lack of vindictiveness; less than
30% of these victims supported imprisonment for the offender in their case;
more than 70% of this sample favored
community service, restitution and rehabilitative sentences?
More recently, Joanna Shapland, Jon
Willmore and Peter Duff found that the
276 victims of violent crime they interviewed were not particularly punitive.
One-fourth wanted fewer offenders imprisoned, while a slightly smaller number
of victims wanted offenders incarcerated.
Other important findings were that victims felt they should be better informed
about the criminal justice system's processing of offenders and they should also
receive more compensation for their
losses.s
Home Office researchers Mike Hough
and David Moxon have shown that British Crime Su~ey results of 1982 and
1984 offer "no evidence to suggest
Governor's Office of Criminal justice Services,
"Ohio Citizen Attitudes Concerning Crime and
Criminal justice (Fourth Edition)," Columbus, OH:
The Ohio Statistical Analysis Center, 1984.
5 Figgie International, Inc., "Parole: A Search for
justice and Safety," Richmond, VA: Figgie International, Inc., 1986.
6 National Organization for Victim Assistance and
the Victim-Witness Support Center, Victim-Witness Support Center News, Vol. I/No. 3, june
1981.
7Maguire, Mike, Burglory in a Dwelling, Brookfield,
VT: Gower Publishing Co., 1982.
"Shapland, joanna; Willmore, jon; Duff, Peter, Victims in the Criminal justice System, Brookfield, VT:
Gower Publishing Co., 1985.
4

widespread punitive attitudes among the
public." Like Shapland, et aI., Hough and
Moxon argue that victims are generally
more interested in compensation or reparation than punishment and they want
reliable and timely information about the
court process. 9
American victims also appear less
punitive than many expect. A 1985 telephone survey of Michigan households
found that "crime victims favor the
more retributive aspects of criminal justice less than non-victims and are more
supportive of rehabilitation as a goal for
the system. Also, victims appear to be
more supportive than non-victims of alternatives to incarceration."lo

Legislators and Policymakers
Legislator or policymaker beliefs
that the public's desire to "do something about crime" requires them to
support the more extensive use of imprisonment is a key aspect in the development of incarceration-oriented sentencing policies. Recent studies indicate
that legislator and policymaker perceptions may be out of line with public
opinion.
In a 1980-81 survey of Maryland
residents and policymakers, Stephen D.
Gottfredson and Ralph B. Taylor found
that policymakers were significantly illinformed about public opinions. ''The
general public's opinions are very similar
to those of the policymakers," Gottfredson and Taylor observe, "yet the policymakers thought that they were very different." As a result, policymakers didn't
recognize that "citizens disagreed with
the idea of abolishing parole, thought
that moving prisoners to local jurisdictions was a good idea, and widely supported the idea of Community Adult
Rehabilitation Centers. "II
Similarly, in a survey of citizens, legislators and criminal justice interest
groups in a "large, representative state,"
Bruce A. Johnson and C. Ronald Huff
found that "while legislators and interest
group representatives hold personal
opinions similar to those of the general
public, these groups may perceive the
public as being more punitive, less tolerant with respect to certain alternativ~s,
and generally more conservative than is
actually the case."n
Hough, Mike; Moxon, David, "Dealing with Offenders: Popular Opinion and the Views of Victims," The Howard journal of Criminal justice, Vol.
24/No. 3, August 1985, pp. 160-175.
10 Clark, Patrick M., "Perceptions of Criminal
justice Surveys, Executive Summary: Victims and
Non-Victims," Lansing, MI: The Michigan Prison
and jail Overcrowding Project, December 1985.
"Gottfredson, Stephen D.; Taylor, Ralph B., "Public Policy and Prison Populations: Measuring
Opinions About Reform," judicature, Vol. 681
Nos. 4-5, Oct.-Nov. 1984, pp. 190-20 I.
12 johnson, Bruce A.; Huff, C. Ronald, "Public Opin9

a public education
program which stresses the
economics of community
punishment will effectively
increase support for
the program."
"

In 1985, ,a Michigan Prison and Jail
Overcrowding Project (MPJOP) survey
found significant discrepancies between
the public's opinion and criminal justice
policymaker perceptions of public opinion. Decisionmakers believed that only
22% of the public would support the
use of alternatives to imprisonment,
whereas 66% actually approved of using
alternatives. Also, only 12% of the decisionmakers felt the public supported rehabilitation as a criminal justice goal,
whereas 66% of the public responding
to the MPJOP survey believed rehabilitation was a proper criminal justice
objective. I 3

Correctional Workers
A final score of acceptance for alternatives to imprisonment comes from
correctional workers, a little noticed but
important sector of support. Billie Erwin
and Todd Clear's study of intensive supervision probation workers in Georgia, .
for example, found that "surveillance officers found themselves forming warm,
personal relationships with their clients,
even when engaging in surveillance,
while probation officers found that many
clients remained cold and aloof."
Erwin and Clear suggest that "the
surveillance function led surveillance officers to encounter their clients as more
'real' people, faced with human problems and imbued with human potential.
Intensive contact gave intensive supervision probation workers information
about clients that surpasses what is encountered as a consequence of the
client's court case. While probation officers might have felt a professional obligation to develop this kind of view of
probationers, surveillance officers were
faced with information that unquestionably confirmed the humanity of
offenders." 14
In another study, Charles lindqUist
and John Whitehead found that correctional officers assigned to Alabama's Su--<ontinued on next page

--------

ion and Policy Formulation in State Government," unpublished paper, n.d.
13 Clark, Patrick M., "Perceptions of Criminal
justice Surveys, Executive Summary: Findings for
Criminal justice Decision Makers," Lansing, MI:
The Michigan Prison and jail Overcrowding Project, September 1985.
"Clear, Todd; Erwin, Billie S., "Rethinking Role
Conflict in Community Supervision," unpublished
paper presented to the 1985 meetings of the
American Society of Criminology.

FALL

1986 3

--<ontinued from previous page
pervised Intensive Restitution (SIR) program showed "less preference for
maintaining social distance from offenders, greater preference for rehabilitation, less concern that close offender
contact might lead to corruption of authority, and less of a punitive orientation
than either probation/parole officers or
institutional correctional officers (emphasis added)."15
Policy Implications
These studies suggest a significant,
existing pool of support for alternatives
to confinement, particularly the use of
community service, restitution and intensive supervision for non-violent property
offenders. These studies indicate the importance of concrete information in
shaping public, policymaker and victim
opinions about the appropriateness and
Lindquist, Charles A.; Whitehead, John T.,
"Guards Released from Prison: A Natural Experiment in Job Enlargement," journol of Criminol justice, Vol. 14/No. 4, 1986, pp. 283-294.
15

acceptability of different sentencing
options.
The dearest implication of these
studies, however, is that alternative,
non-incarcerative sanctions for nonviolent offenders can be developed and
used with public support. These studies
suggest that the public does not disavow
the importance of punishment, but nonetheless places a higher emphasis on
changing offenders' behavior than simply
incapacitating them.
Citizens seem to resist prison-building programs both for their high cost
and because they don't want to abandon
approaches using educational, housing,
mental health, social and vocational services. These studies suggest, then, that
there are practical limits on the use of
punishment and retribution as the primary goals of correctional policies. II

Russ Immarigeon is the associate editor

of

Criminal Justice Abstracts and a research

associate for the UUSCs National Moratorium on Prison Construction.

OVERCROWDING

Court Orders South Carolina
To Comply with Decree
Julie Edelson
"I'm going to turn them out, and I'm
going to keep turning them out until the
Department of Corrections is in compliance with the settlement agreement they
entered into . .. with their eyes open . ..
"Now [they're] going to comply with
it."

Thus spoke federal district court
Judge C. Weston Houck on July 21,
1986, during a hearing in Columbia,
South Carolina regarding overcrowding,
including triple-ceiling, in the South Carolina Department of Corrections
(SCDC). The original lawsuit, Nelson v.
Leeke, was filed in federal court by inmate Gary Nelson in a class action in
1981. Nelson had charged that the severe overcrowding in the SCDC caused
rampant violence, threatening the safety
and security of both inmates and staff,
and therefore violated the Eighth
Amendment.
The prisoners were represented by
lawyers from the National Prison Project, the Southern Prisoners' Defense
Committee, and Gaston Fairey, local
counsel from Columbia. After two years
of negotiations, the parties settled the
case in January 1985, and Judge Houck
approved the I69-page consent decree
in November 1985. 1
I

For an earlier article on the settlement, see

4

FALL 1986

The main issue addressed by the
settlement is overcrowding. The consent
decree establishes minimum space standards to which each prisoner is entitled,
through a series of steps toward eventual compliance which span a five-year
period. These standards are to be
phased in according to custody level, giving relief first to those confined under
the more restrictive conditions. For example, the decree ordered that tripleceiling end immediately, except in a few
work release centers; that prisoners in
segregation be single-celled by January
1986; that half of the medium security
general population prisoners be housed
in single cells in late 1987; and that minimum security prisoners be entitled to a
certain amount of square footage, with
no double-bunking, by January 1990.
The settlement also required that
some of the older, dilapidated facilities
be closed, such as the Midlands Reception and Evaluation Center (a lockdown
unit housing three people in cells as
small as 35 square feet), and that new
ones be built as replacements. The population at each institution also had to be
reduced to reach population ceilings reKluger, Mark, "South Carolina Settlement Limits
Population, Enforces Standards," NPP JOURNAL 5
(Fall 1985):p.1.

quired by the decree.
During the last three months of
1985, the Department saw a net increase
of I38 prisoners per month. Due to this
huge influx, by the spring of 1986 defendants had failed to comply with several critical housing provisions of the decree, including the bans on triple-ceiling
of general population prisoners and double-ceiling of prisoners in segregation.
We immediately filed for supplemental relief, and at the July 1986 hearing Judge Houck ordered a "rapid reduction" in population. He began the
hearing by statiog that the plaintiffs were
entitled to enforcement of the terms of
the settlement, even if that meant early
release of some prisoners, and despite
the probability that such a ruling would
put the Department of Corrections in a
difficult political position.
The explanation for the "unprecedented" increase in prison population
was twofold. On the one hand, the Parole Board drastically reduced the percentage of eligible prisoners paroled
each month. Moreover, the South Carolina Legislature passed much stricter sentencing statutes. Thus, more people
were receiving longer prison sentences,
and fewer were paroled. The monthly
net increase in prisoners over the previous 18 months averaged 80 prisoners,·
resulting in further overcrowding.
While SCDC maintained the hope
that its population increase was just
temporary, others believed it stemmed
from the public's angry reaction to high
crime rates.
Mediator Allen Breed 2 testified at
the July 1986 hearing that, based on his
earlier investigation of the system's overcrowding, SCDC's population predictions were too conservative. He stated
that the dramatic prison population increases were neither new nor unforseen. One need look only at the national
scene, Breed noted. Rather than an
unexplainable fluke, he maintained, overcrowding is a political problem for which
neither the Parole Board nor the state
legislature was willing to take responsibility. "Political pressures have forced
the Department of Corrections into
non-compliance," Breed testified.
Judge Houck apparently agreed
with Breed's analysis. In his ruling, the
Judge stated that he did not like interfering in the operations of the state's
prison system, "but I do not have to
2

The decree provides that in the event of a substantial dispute, either party may request the assistance of a mediator. If the mediator is unable
to resolve the dispute with the parties, the dispute may be brought before the court, and the
mediator may testify as an expert witness. As
part of the settlement, Allen Breed, former director of the National Institute of Corrections,
agreed to serve as Mediator.

Prisoner stands in the center of the tiered cellblock at the Central Correctional Institution in
Columbia, South Carolina

worry about politics. I look at what's
right and wrong." What was right in this
instance was enforcing the decree because the plaintiffs were entitled to the
rights established by it.
In the spring of 1986, SCDC notified plaintiffs' counsel of various housing
violations at approximately 10 of
SCDC's 28 institutions. Most of these violations consisted of triple-ceiling prisoners in cells designed for one and, in
some cases, housing four men in a cubicle designed for two.
In answer to Plaintiffs' Motion for
Supplemental Relief, SCDC indicated
that they intended to attain compliance
by "building" their way out of the overcrowding problem through the use of
temporary barracks, and requesting permanent supplemental prisons. At the
hearing they asked the court to modify
deadlines with respect to some of the
housing provisions.
We objected to the use of these
so-called "temporary" barracks for several reasons, the most important being
that the proposed structures would be

dormitory-style housing. The decree
specifically prohibited the placement of
dormitories in new medium security institutions, because both sides agreed
that such housing was historically conducive to violence. At the hearing, we submitted exhibits which demonstrated that
the medium security prisons with dorms
had a higher rate of violence than other
institutions with cells for housing similarly classified inmates. Defendants maintained that the bed shortage was most
critical in the medium security institutions, and that they should be allowed to
use those barracks.
We objected to the use of barracks
for other reasons as well. The requirements in the settlement regarding such
housing are particularly stringent-both
sides intending, during the negotiations,
to make it difficult to utilize temporary
housing.
For example, all such temporary
units must comply with basic fire codes,
and American Correctional Association
standards regarding plumbing, lighting
and ventilation. In addition, all prisoners

housed in such structures are to have
the same access to services available to
others housed in permanent buildings.
Thus, we argued that the defendants'
failure to hire additional staff and expand
programming and medical and mental
health services diminished overall access
to these services. Defendants claimed
that such expansion was unnecessary.
Prior to the hearing, we asked Mediator Breed to investigate the dispute.
Mr. Breed, accompanied by representatives of defendants' and plaintiffs' counsel, toured several facilities where the
defendants admitted there were violations of the decree, as well as several
areas about which there was a dispute.
He also inspected the temporary housing
units, which were in various phases of
construction. In addition, he discussed
population trends and predictions with
the Department's Division of Resource
and Information Management.
After completing this investigation,
Breed met with both parties to explore
resolution of the problems. There was
little dispute with regard to violations;
the appropriate remedy was the core of
the disagreement.
Because we had twice earlier
---continued on next page
FALL 1986

5

--<ontinued from previous page

agreed to temporary modifications of
the decree's housing provisions in an effort to accommodate what the defendants had described as temporary overcrowding, we felt we could not
compromise further on this aspect of
the agreement. Our position was that a
release mechanism was the only solution,
since the overcrowding problem showed
no signs of abating.
While acknowledging the potential
for sustained overcrowding, and the failure of state law provisions to remedy
the situation to date, the defendants
could not support a court-ordered release which bypassed state authority. Because of the impasse, the matter was set
down for a hearing.
Mr. Breed filed a report with the
court in which he recommended that
the court implement a structured early
release mechanism. This recommendation was based upon his findings that (I)
there was no indication that the rise in
prison population would slow anytime
soon; (2) the defendants' proposed solution involved using housing which did
not meet the requirements of the decree; and (3) the overcrowding and inappropriate housing of prisoners atseveral institutions harmed all prisoners at
that institution because each person's access to services was diminished.
At the hearing, plaintiffs' counsel
sought to buttress the findings of the
Mediator by submitting testimony and
evidence showing problems with medical
care and access to other essential services. The court found that logic demanded the conclusion that when people
were added to an institution, without a
corresponding increase in medical staff,
the attention given each individual would
decrease.
judge Houck's principal interest,
however, was focused elsewhere. The issue was simply that both parties, after
extensive negotiations, had entered into
an agreement which set standards for
housing. The state legislature had endorsed the agreement before it was
signed, as had the State Budget and
Control Board and the Governor. "I
didn't force you to agree to the decree," the judge told defendants at the
hearing. But he would order relief to
bring the Department into compliance
with that decree, he continued.
And that he did. The judge ended
the hearing with his order that the Department comply by having all prisoners
properly housed within 60 days, through
whatever appropriate means available.
He made it clear that he was not ordering the Department to accelerate the
release of prisoners, but told them to
find a way to alleviate the overcrowding.
Because "the need for the decree dic6

FALL 1986

tates that something be done now," he
ordered that at least 200 of the 530
people who the parties agreed were improperly housed be appropriately housed
within 15 days of his order.
The judge also ordered that no additional temporary housing units be constructed at medium security institutions.
He allowed continued use of the one
which the defendants had opened prior
to the hearing, but gave the plaintiffs'
counsel six months in which to further
object to its use.
The judge's last statements in the
courtroom were warnings to the defendants. He stated they should not
come to him for a stay of his order
since it was "unlikely" that he would
grant it. 3
'On August 4, 1986, the U.S. Court of Appeals
for the Fourth Circuit denied the state's application for a stay and an appeal is pending.

After the hearing, Board of Corrections Commissioner William D. Leeke
acknowledged that the order was no
great surprise. "I think that it was inevitable that sooner or later we would end
up in federal district court. We've been
warning for years that unless we continue to move forward [in expanding
bedspace], we can risk this sort of
thing."
Speaking for the plaintiffs, Steven
Ney of the National Prison Project said,
"We asked the judge to enforce the overcrowding por;tions of the consent decree. We achieved the basic objectives
we wanted, that is, to have the state live
up to the agreement that it entered
into." III

Julie Edelson, a staff attorney with the
Southern Prisoners' Defense Committee,
served as co-counsel on the South Carolina
case.

Official Crime Reports Conflict
Samuel Walker
Confused about crime statistics?
Perplexed by conflicting reports of increases and decreases in the crime rate?
Uncertain about how to evaluate the reported "success" of crime reduction
programs?
You are not alone. The world of
official crime statistics is extremely complex. The nonspecialist is easily confused
and public officials are often misled.
This article is a brief introduction
to the mysterious world of official crime
statistics. It describes the basic data systems that exist, discusses their strengths
and weaknesses, and offers some guidelines on how to evaluate claims and
counterclaims about fluctuations in criminal behavior.

A. Official Crime Data
There are presently two separate
"official" measures of criminal activity in
America. The first is the well-known FBI
Uniform Crime Report (UCR). The second is the newer and less well-known
National Crime Survey (NCS), popularly
known as the "victimization survey."
The National Crime Survey is far
more reliable than the FBI's Uniform
Crime Report. You should always rely on
it rather than the UCR. There is a longstanding bias in favor of the UCR, owing
largely to its seniority (1930 vs. 1973).
The UCR is always referred to as the
"official" set of crime statistics. Don't
believe it. Both systems are produced by
the United States Department of justice
and are, therefore, equally "official."

B. Problems with the UCR
Criminologists recognized serious
flaws in the UCR system when it was
developed in 1930, and these problems
remain today. Contrary to its claims, the
UCR does not prOVide an accurate measure of criminal activity in the United
States. Although there have been some
technical improvements in the system
over the years, the fundamental flaws remain. Here are the most serious
problems:
I. Many crimes are not reported
to the police. The rate of non-reporting
varies according to the type of crime
and its seriousness. About 80% of all
auto thefts are reported (required for
insurance claims), while only 50% of all
rapes and about one third of all larcenies
are reported. The more serious the financial loss the more likely a burglary is
to be reported. The point is that if you
do not report the crime it never occurred, as far as the FBI is concerned.
2. Even if you do report the crime,
the responding police officer(s) may not
fill out a report. What?, you ask. Aren't
police officers required to file crime reports? Forget it. Officers exercise complete discretion in this area, regardless
of official departmental policy or state
law. They may (a) report the crime in a
different category (e.g. "assault" rather
than "rape"), (b) file no report at all, or
(c) record it as a misdemeanor rather
than a felony (option 'a' removes it from
--<ontinued on page II

VOLUME I: #1-8
FALL 1984-SUMMER 1986

Index To Articles:
Issue/page no.

Subject

-AACCESS TO THE COURTS
Mecklenberg Corr. Ctr. obstructs lawyer access
ADMINISTRATIVE SEGREGATION
Ad. seq. conditions in Arizona State Prison challenged in
Black v. Ricketts
Settlement reached in Arizona State Prison Ad. Seg. case
(Black v. Ricketts)
AIDS (Acquired Immunodeficiency Syndrome)
NPP gathers the facts on AIDS in prison, Part I
Results of nationwide AIDS in prison survey (Chart)
Medical expert cites problems in AIDS screening
AIDS in prison, Part II: medical background; policy
development

3/2
113
5/4

61 I
6/4
6/5
7/1

ALABAMA
Expert reflects on prison litigation and the Alabama case

8/12

AMERICAN CIVIL LIBERTIES UNION
ACLU opens two death penalty centers in South
Calif. ACLU opens Women Prisoners Rights Project

717
711 0

AMNESTY INTERNATIONAL
Position on death penalty

4/9

ARC (AIDS Related Complex)
NPP gathers the facts on AIDS in prison, Part I
Medical expert cites problems in AIDS screening
AIDS in prison, Part II: medical background, policy
development

6/1
6/5
711

ARIAS V. WAINWRIGHT

3/1

ARIZONA
..
Parties Move Toward Settlement
(Black v. Ricketts)
Revived settlement brings end to arduous trial (Black v.
Ricketts)
A lighter view of the Arizona case
AUTHORS
Aiyetoro, Adjoa A.
"Vestiges of Slavery: Racism in Sentencing"
"Bureau Continues Totalitarian Measures at Marion"
Alexander, Elizabeth
"Justice Department Retreats: The Michigan Case"
"Judge Halts Meddling with Access To Clients"
"Violations in South Dakota Prison Lead to lawsuit"
Andersen, Erik
"Denmark's Radical Approach to Super-Max Yields
Success"

1/3
5/4

SIS

2/12
5/8
III
3/2
4/6
6/8

Bernat, Betsy
"How Some Folks Do It In the Lone Star State"
"Chock Full of Nuts"
"How the West Was Won, Part II"
"Hold Your Nose! NPP Examines the Diet Loaf'
Bonnyman, Gordon
"Recent Federal Court Orders Spur Tennessee Toward
Prison Reforms"
Bright, Stephen B.
"judicial System Inconsistent in Doli,ng Out Death"
Bronstein, Alvin J.
"Opening Remarks"
"Court Says Hands Off on Contact Visits and Cell
Privacy"
"The Legal Implications of Privatizati041"
"Rhode Island Prisons Changing After Seven-Year
Litigation Effort"
"Super-Max Prisons Have Potential for Unnecessary Pain
and Suffering"
"Neglect of Prisons Reaps High Costs For Society"
"Sweeping New Order in Rhode Island Case Promises
Further Relief'
Cohen, Robert L., M.D.
"Medical Expert Views Potential for Abuse in AIDS
Screening"
Conrad, John
"An Expert Reflects on the Changing Face of Prison
Litigation"
Dorsey, L.c.
"The Death Penalty Is Still Wrong"
Elvin, Jan
"Private Firms Cash in on Crime"
"Private Prison Plans Dropped by Buckingham"
"Florida Death Penalty Appeals Office Opens"
Goldberg, Judy (with Nadine Marsh)
"Ex-Offenders Find Doors Closed on Voting Rights"
Janger, Ted
"Expert Negotiation Brings New Approach to Prison
Litigation in Hawaii"
Jurado, Rebecca
"California Project Stands Up For Women in Prison"
Kluger, Mark
"South Carolina Settlement Limits Population, Enforces
Standards"
Knowles, Ralph
"Strategies for Future Prison Litigation"
Koren, Edward I.
"Dramatic Change in Oklahoma Juvenile Justice System"
Levine, Jody
"Private Prison Planned on Toxic Waste Site"
Marnell, Gunnar
"Swedes See U.S. Death Penalty as Premeditated
Killing"
Marsh, Nadine (with Judy Goldberg)
"Ex-Offenders Find Doors Closed on Voting Rights"
McClymont, Mary E.
"Prison Litigation: Making Reform A Reality, Part I"
"Prison Litigation ... , Part II"
"Hard-Fought Settlement Reached in Hawaii Case"
"Execution For Juvenile Crime Raises Questions of
International law"
Ney, Steven
"Statewide Attack on Florida Jails Brings Improvement"
"Judge Bans Further Intake of Prisoners at D.C. Jail"
"D.C. Pushes Panic Button in Jail Population Crisis"
Rosenthal, Liz
"Tax Reform Package Caught in Catch-22"
Sturm, Susan
"Special Masters Aid in Compliance Efforts"

1/8
2/10
SIS
8/10
8/1

6/12
1/2
1/9
2/1
3/1
4/1
7/12
8/5

6/5
8/12

3/8
1/6
6/11
7/1'

3/3
6/6
7/10
5/1

2/1
2/3
SilO

4/9

3/3
1/8
2/4
5/3
7113

3/1
5/6
8/8
1/12

FALL 1986

6/9

7

Taifa-Caldwell, Nkechi
"Muslims in Prison Seek Religious Recognition"
Tushnet, Mark
"Supreme Court Briefs"
Vaid, Urvashi
"Depo-Provera: Blessing or Curse?"
"NPP Gathers the Facts on AIDS in Prison" (Part I of 2part series)
"Balanced Response Needed to AIDS in Prison" (Part II
of 2-part series)
Wood, Frank
"Oak Park Heights Sets High Super-Max Standards"
Wright, Claudia
"Parties Move Toward Settlement in AZ"
"Revived Settlement Halts Trial in Arizona Case"

8/3

CONTEMPT
"Prison Litigation: Making Reform A Reality, Part II"

2/4

8/7

CRIPA
"U.S. v. Michigan"

III

4/1
6/1

DANIELS V. WILLIAMS
Supreme Court issues decision in negligence case

8/7

7/1

DAVIDSON V. CANNON
Supreme Court hands down decisio'1

8/7

4/3
1/3

5/4

-8BEHAVIOR MODIFICATION PROGRAMS
Program challenged in Arizona State prison in Black v.
Ricketts
Settlement in Arizona includes behavior modification
program solutions

1/3

5/4
1/3
1/3

BLACK V. RICKETTS
Administrative segregation conditions challenged in Arizona
lawsuit
Revived settlement halts trial in Arizona
A lighter look at the Arizona case

5/4
5/5

BLOCK V. RUTHERFORD

1/9

BODY CAVITY SEARCHES
Searches challenged at Arizona State Prison in Black v.
Ricketts
Arizona settlement severely limits use of body cavity
searches

BROWN V. SIELAFF
Lawyer access problems at Mecklenburg

1/3

5/4

3/2

BUREAU OF PRISONS
Bureau imposes totalitarian conditions at Marion

5/8

BUSH V. VITERNA
Unusual practices found in Texas jails

1/8

-cCALIFORNIA
Women Prisoners Rights Project opens in Cal.; Inst. for
Women primary lawsuit target
CALIFORNIA INSTITUTION FOR WOMEN
Conditions challenged by Women Prisoners Project
CAPITAL COLLATERAL REPRESENTATIVE (CCR)
CCR opens i~ Florida for death penalty appeals

7/10

7/10
7/1

CAPITAL PUNISHMENT
See: DEATH PENALTY
CELL SEARCHES
Searches challenged in Block v. Rutherford

CONTACT VISITS
Block v. Rutherford seeks contact visits for pretrial
detainees
8

11

hH

FALL 1986

7/13

DENMARK
Danish super-max far cry from U.S. counterparts

6/8

1/9

III
5/3
5/3

1/9

3/6
3/8
4/9
6/12
7/1
7/6

717
7/8

DEPARTMENT OF JUSTICE, U.S.
See: JUSTICE, U.S. DEPARTMENT OF
DEPO-PROVERA
Depo-provera treatment raises serious questions

4/1

DIET
Right to religious diet sought by Muslims in prison

8/3

DIET LOAF
"Diet loaf' one issue challenged in Arizona case
"Diet loaf' outlawed in Arizona settlement
A lighter look at the diet loaf
DISTRICT OF COLUMBIA
judge sets population cap at D.C. jail
D.C. jail panics at population crisis
DISTURBANCES
Disturbances sparked by uncivilized conditions
DRUGS
Depo-Provera treatment: blessing or curse?

1/3
5/4
8/10

5/6
8/8
7/12
4/1

-E-

ELISA TEST
AIDS in prison, Part I: use of the ELISA test
Medical expert cites problems in AIDS screening
AIDS in prison, Part II: medical background, screening
policies and the ELISA test
EX-OFFENDERS
Voting Rights

6/1
6/5
7/1

3/3

EXPERTS
Reflections on the expert's role in prison litigation and the
Alabama case

COALITION FOR JAIL REFORM, NATIONAL
See: JAIL COALITION
CONSENT DECREES
Minimal decree in U.S. v. Michigan challenged by NPP
South Carolina Consent decree covers all state facilities
Consent decree entered in Hawaii lawsuit

DEATH PENALTY
Death penalty information packet
Death penalty: a personal view
Swedes confused by U.S. death penalty"
Courts inconsistent in issuing death penalty
Florida opens death penalty appeals office
Model offices for centralized capital appeals
ACLU opens two death penalty centers in South
jury override can backfire into death sentence
Execution for juvenile crime challenged

8/12

-F-

FUTTIE V. HILLARD
NPP lawsuit filed in South Dakota

4/6

FLORIDA
Statewide attack on Florida jails by NPP
Florida opens death penalty appeals office

3/1
7/1

GRUBBS V. BRADLEY
Court orders spur prison reform in Tennessee
Letter to editor describes role of Special Master in
Tennessee case

8/1
8/2

Making reform a reality; strategies for future
1/8,2/1
prison litigation
(Part II)
An expert reflects on the changing face of prison litigation
8/12

-HHAWAII
Settlement reached in Hawaii case (Spear v. Ariyoshi)
Expert panel negotiates settlement in Hawaii

5/3
6/6

HTLV-III
AIDS in prison, Part I: use of the HTLV-III antibody test
(ELISA test)
Medical expert cites problems in AIDS screening
AIDS in prison, Part II: medical background, screening,
policy development

6/5
7/1

ILLINOIS
Lockdown conditions at Marion investigated

5/8

-JJAILS
Cell searches of pretrial detainees challenged in Block v.

1/9

Rutherford
Contact visits for pretrial detainees in Block v. Rutherford
Florida jail conditions challenged by NPP in Arias v.

1/9
3/1

Wainwright
jail Coalition forced to close; list of new addresses for
information and services
jail Coalition information packets
(See 4/2 for up-to-date information)
National jail Project of the ACLU underway
Texas jails: unusual practices
Women in jail have special problems
judge sets population cap at D.C. jail
Nat'!. jail Proj. releases jail Status Report
D.C. jail panics during population crisis

4/2
3/9
1/1
1/8
2/9
5/6
5/12
8/8

JAIL COALITION (Nat'l. Coalition for jail Reform)
Information packets available
(See 4/2 for up-to-date information)
Coalition forced to close; list of new addresses for
information and services
JAIL PROJECT OF THE ACLU, NATIONAL
National jail Project underway
jail Project releases jail Status Report

5/2

MARION, ILLINOIS, U.S. PENITENTIARY
Lockdown conditions at Marion investigated
Examining the question of super-max prisons

5/8
4/1

•

MAXIMUM SECURITY PRISONS
Examining the question of super-max prisons
Oak Park Heights sets high super-max standards
Lockdown conditions investigated at Marion, "super-max"
prison of the federal system
Danish super-max differs from U.S. counterparts

6/8

MECKLENBURG CORRECTIONAL CENTER, VIRGINIA
Lawyer access problems challenged

3/2

MICHIGAN
"The justice Dept. Retreats: The Michigan Case"

1/1

JURY OVERRIDE
jury override can backfire into death sentence

4/1
4/3
5/8

MINNESOTA
Oak Park Heights super-maximum facility sets high
standards

4/3

MOUNDSVILLE, WEST VIRGINIA PENITENTIARY AT
Disturbances sparked by uncivilized conditions

7113

MUSLIMS
Muslims in prison seek religious recognition

8/3

-NNATION OF ISLAM
Muslims in prison seek religious recognition

8/3

NATIONAL JAIL PROJECT OF THE ACLU
National jail Project of the ACLU underway
jail Project releases jail Status Report

1/1
5/12

1/2

NATIONAL PRISON PROJECT OF THE ACLU
Status Report released

3/10

7/8

NEGLIGENCE
Supreme Court decides Daniels v. Williams and Davidson v.

1/1
5/12

JOURNAL, National Prison Project
Opening remarks by Alvin Bronstein

8/7

Cannon

JUSTICE, U.S. DEPARTMENT OF
Special Litigation Section files consent decree in U.S. v.

1/1

Michigan
JUVENILES
..
Oklahoma's juvenile corrections practices challenged in

2/3

Terrry D. v. Rader
Execution for juvenile crime challenged

NEW MEXICO
A.G. comments on Santa Fe riot in report

LEGAL ACCESS
Lawyer access problems at Mecklenburg

3/2

LEGISLATION
Texas legislature writes prison reform package

1/12

2/9,3/12,
4/12, 5/12,

6/16,7116,
8/14,
3/10

7/13

NELSON V. LEEKE
Settlement reached in South Carolina lawsuit

7113

-L-

NPP Status Report released

MAGID, JUDITH
In Memory

3/9
4/2

1/9

-M-

6/1

-1-

LITIGATION
NPP Highlights

LOS ANGELES COUNTY JAIL
Block v. Rutherford decided by Supreme Court

5/1

-0OAK PARK HEIGHTS
Minnesota super-max sets high standards

4/3

OKLAHOMA
juvenile corrections practices challenged in Terry D. v.

2/3

Rader

-pPALMIGIANO V. GARRAHY
Changes seen in Rhode Island's prisons
Sweeping new order promises further relief in Rhode
Island prisons
FALL 1986

3/1
8/5

9

PAT SEARCHES
Pat searches by female guards contested by male Muslims
seeking religious rights
PENNSYLVANIA
Private prison planned on toxic waste site in Pennsylvania
Private prison plans dropped at toxic waste site

S/3

5/10
6/11

S/5

PRETRIAL DETAINEES
Cell searches challenged in Block v. Rutherford
Contact visits sought in Block v. Rutherford

1/9
1/9

5/6
S/I

PRISONER VISITATION AND SUPPORT
PVS prOVides link to outside world

5/2

PRIVACY
Court says "hands off' in Block decision

1/9
1/6
2/1
5/10

6/11

PUGH V. LOCKE
Expert reflects on prison litigation and the Alabama case

S/13

-RRACISM
Racism in sentencing extensive problem
RELIGION
Muslims in prison seek religious recognition
RHODE ISLAND
Litigation in Rhode Island brings change
Sweeping new order promises further relief in Rhode
Island prisons
RINGE (Danish "closed" prison)
Danish super-max far cry from U.S. counterparts
ROACH, JAMES TERRY
Execution for juvenile crime challenged

S/3
3/1
S/5

6/S

5/1

Leeke)

10

FALL 19S6

SWEDEN
Swedes confused by U.S. death penalty
SUPER-MAX PRISONS
Examining the question of super-max prisons: an overview
by Alvin Bronstein
Oak Park Heights sets high super-max standards
Lockdown conditions investigated at Marion
Danish super-max far cry from U.S. counterparts
SUPREME COURT
Court says hands off in Block v. Rutherford
Execution for juvenile crime challenged
Reviewing the Supreme Court's recent prisoner rights
decisions

TENNESSEE
Court orders spur prison reform in Tennessee
Letter to editor describes role of Special Master in
Tennessee case

711
6/9
S/I
S/2

3/10

4/9
4/1

4/3
5/S
6/S
1/9

7/13

S/7

S/I
S/2

TERRY D. V. RADER
Oklahoma's juvenile corrections practices challenged in
lawsuit
TEXAS
Unusual practices in Texas jails
Legislature develops prison reform package

2/3

I/S

1/12

-u-

7113
4/6

1/1

-v-

2/12

4/1

Hillard)

STATUS REPORT
~
National Prison Project Status Report released

justice Dept. consent decree challenged by NPP

SEX OFFENDERS
Depo-provera treatment raises questions

SOUTH DAKOTA
Violations at penitentiary lead to NPP lawsuit (FJittie v.

SPECIAL MASTERS
Special masters aid in compliance efforts
Special master appointed in Tennessee to oversee reform
Letter to editor describes role of Special Master in
Tennessee case

5/3
6/6

U.S. V. MICHIGAN

1/3
5/1
5/3
5/4
6/6

Execution in S.c. for juvenile crime challenged

SMITH, ATTORNEY GENERAL jiM
Fla. A.G. supports death penalty appeals office

7/13

SETTLEMENT AGREEMENTS
...
Parties move toward settlement in Arizona
S.c. settlement limits pop., enforces standards
Hard-fought settlement reached in Hawaii case
Revived settlement halts trial in Arizona
Expert panel negotiates settlement in Hawaii

SOUTH CAROLINA
S.C. settlement limits pop.; enforces standards (Nelson v.

Settlement reached in Hawaii case
Expert panel negotiates settlement in Hawaii

-T2/12

-5SENTENCING
Racism in sentencing is an extensive problem

7/1

SPEAR V. ARIYOSHI

POPULATION CONTROL
judge sets population cap at D.C. jail
Population reduction program plays part in Tennessee
prison reforms
Population limits imposed by court in Rhode Island facilities

PRIVATIZATION
"Private Firms Cash in on Crime"
Legal implications of privatization
Private prison planned on toxic waste site
Private prison plans dropped at toxic waste site

SPALDING, LARRY HELM
Spalding heads Fla. death penalty appeals office

VIRGINIA
Lawyer access a problem at Mecklenburg

3/2

VOTING RIGHTS
Ex-offender voting rights not easy to obtain

3/3

-wWEST VIRGINIA
Disturbance sparked by uncivilized conditions

7/12

WHITLEY V. ALBERS
Supreme Court decides use of force case
WOMEN
Women in jail have special problems
Calif. ACLU opens Women Prisoners Rights Project

sn
2/9
7/10

-<:ontinued from page 6

the "high fear" crime category, while 'c'
removes it from the FBI's Crime Index
altogether).
3. Even if the officer fills out a
crime report, it can be altered or lost
by the department. Over the years a
number of police departments have been
caught "unfounding" crimes (that's police jargon for deciding that the crime
never occurred), downgrading reports
from felonies to misdemeanors, or simply not forwarding reports to the FBI.
Practices vary widely from officer
to officer, supervisor to supervisor and
department to department. Two serious
problems result: (I) year-to-year fluctuations in the "crime rate" may have nothing to do with the actual level of crime,
and (2) cross-city comparisons are virtually meaningless since departmental
practices are not comparable (unfortunately, this has not stopped criminologists from conducting studies). The following illustrates the comparability
problem: The FBI's category of "burglary" includes both completed and attempted burglary. Many departments
systematically fail to record the attempted burglaries. "Unfounding" is a
convenient way of keeping the crime
rate down. But some departments are
more conscientious about recording the
attempts. Thus, there is no comparability
from city to city. The FBI simply accepts
the information sent to it by the local
agencies.
4. The FBI's "Offical Crime Rate"
(the one that gets all the media coverage) is based on only eight felonies
(murder, rape, robbery, assault, burglary,
larceny, auto theft, arson). It does not
even attempt to measure other serious
categories of crime, notably white collar
crime and organized crime.

This selectivity has enormous social
and political implications. It focuses attention on those crimes which are disproportionately committed by low-income and racial minorities. And it
directs attention away from those
crimes committed almost exclusively by
white, middle-income, and business and
professional people. White collar crime,
according to the Chamber of Commerce, costs us at least ten times as
much as the property crimes in the FBI'~
UCR. Retail stores lose four to ten
times as much from employee theft as
they do from shoplifters. Yet, the FBI's
UCR skews the public debate over
crime to a particular category of offender: those already victimized by racial
and economic injustice.
S. The UCR treats all eight felonies
equally. Thus, one murder is equal to
one $75 theft. This defies all common
sense and does not provide a realistic
measure of the actual risk of serious
crime.

C. Some Practical Consequences
With these problems in mind, you
are ready to deal with some of the most
common situations arising in the crime
debate.
I. Evaluating programs. When your
local police department claims to have
reduced crime by X%, don't believe
them. The reduction could be the result
of factors having nothing to do with actual crime (including political or bureaucratic pressure to produce the right results). You should ignore all reports
about police crime reduction programs
unless the research has been done by an
independent agency and involves a before and after victimization survey.
2. Evaluating research. Research
based on the flawed UCR system should

Conference Studies Impact of
Imprisonment on Black Families
A conference entitled "Imprisonment: Its Effect!S on the Black Family and
Community" was held in Washington,
D.C. on June 6 and 7, 1986. It was
jointly sponsored by the National Prison
Project, the National Conference of
Black Lawyers, the National Moratorium
on Prison Construction, the Shiloh Baptist Church, and the American Friends
Service Committee. More than 100
young people attended the Special
Youth Day on June 6, and more than
100 adults participated in the two-day
conference.
The conference focused on the negative impact of incarceration and the
need to develop alternatives to imprisonment. The following workshops were
offered: "Being Black is Not a Crime;"

"Turning Stumbling Blocks into Stepping
Stones;" "Hard Times/Hard Choices;"
and "Community or Jail: Does Doing
Time Stop Crime?" Speakers at the
opening reception were D.C. Councilwoman Wilhemina Rolark and the Rev.
Benjamin Chavis, Director, United
Church of Christ Commission for Racial
Justice. Ms. Rolark also was the keynote
speaker for Youth Day. L.c. Dorsey,
long-time prisoners' rights activist, and
the Rev. Willie Wilson of the Union
Temple Baptist Church spoke on the final day of the conference.
A follow-up meeting of community
residents who have indicated an interest
in continuing this community work was
held in July. Call Adjoa Aiyetoro at 202/
331-0500 for further information.

be viewed with great skepticism. The
best example is Isaac Ehrlich's famous
study "proving" the deterrent effect of
capital punishment. There were many
problems with the study, and our discussion here highlights one of them. In determining the level of crime, Ehrlich
used UCR data from 1930 to the present. Yet, the figures were even less reliable then than now. Thus, the level of
crime was probably seriously undercounted during the years when executions were more frequent, thereby producing an apparent "deterrent" effect.
~

D. The Victimization Survey
The victimization survey technique
was developed in the late I960s because
of dissatisfaction with the UCR. It is
now institutionalized in the National
Crime Survey. Why does the Justice Department produce two national crime
data systems? Because of bureaucratic
politics, particularly the entrenched
power of the FBI.
A victimization survey is similar to a
standard public opinion survey. A randomly selected sample of households is
surveyed (by phone, mail, or door-todoor contact) about their experiences
with crime. (If you are skeptical about
these sampling techniques, remember
that pollsters have accurately called eachof the last seven presidential elections,
including four landslides and three very
close ones.)
Using the victimization techniques,
the National Crime Survey offers a better measure of crime than the FBI's
UCR for the following reasons:
I. It measures unreported crime,
and on that basis alone provides a more
accurate picture of criminal activity. As a
supplemental benefit, the survey asks
people why they didn't report the
crime, and this yields a wealth of useful
data. It is important, for example, to
know how many rape victims do not report the crime, why they did not, and
whether the rate of reporting has
changed in recent years.
2. The victimization technique circumvents the problems of police officer
discretion and agency manipulation. As a
result it provides a more accurate picture of year-to-year fluctuations.
3. The NCS provides more specific
information about crime victims and,
consequently, the actual risk of crime for
particular groups of people. The burden
of crime is not equally shared in this
country. Racial minorities and the poor
are victimized far more often than are
middle-class whites. Households with incomes of less than $7,500 a year are
burglarized 57% more often than households in the $25,000 to $30,000 range.
Black women are raped 30% more
often than white women.
--<ontinued on next page

FALL 1986

II

II
---continued from previous page
E. Practical Consequences

and Reagan. Crime is a local phenomenon, under the jurisdiction of local agencies, and is not affected in any significant
way by federal policy (and not at all by
White House rhetoric).

The NCS produces a very different
picture of long-term trends in crime.
According to the FBI, the crime rate
rose 24% between 1973 and 1983. (Ac- F. Conclusion
tually it rose 42% between 1973 and
The world of crime statistics is very
1980 and declined in the next three
complex. The cynical politician can easily
years.) But the NCS reports a nearly
manipulate them to "prove" virtually any
stable level of crime. Violent crime rose
point. Hopefully, we can contribute to a
by 1.6% in the same period (and rapes
more informed and rational discussion of
actually declined by 28.6%!). Which to
the crime problem. The best source of
believe? This is not a purely academic
data is the annual report on "Criminal
question. Whether or not crime is going Victimization in the United States," preup or down has enormous practical conpared by the Department of justice's
sequences for the national crime debate.
Bureau of justice Statistics. Equally im. The NCS system provides a more
portant and useful are the many suppleaccurate picture of long-term trends in
mental reports drawn from the NCS.
crime. The increase in crime reported to These include reports on "Crime and
the FBI can be attributed in part to con- the Elderly," "The Hispanic Victim,"
tinuing technical improvements in the
"Criminal Victimization in Urban
system. The crime rate has not gone up; Schools," and others. There is a wealth
we just do a better job of recording it.
of useful data here, and anyone who
Finally, a few significant points are
wishes to participate in the crime debate
worth mentioning:
should become acquainted with
I. The NCS data tells us we are
them. III
not in the middle of a continuing "crime
wave." The great increase in crime was
Samuel Walker, Associate Professor of
a one-time event that occurred roughly
Criminal Justice at the University of Nebetween 1962 and 1973. Unfortunately,
braska, Omaha, is the author of A Critical
crime has now stabilized at an extremely History of Police Reform (1977), Popuhigh and unacceptable level.
lar justice: A History of American Crimi2. The leveling off of the crime
nal justice (1980), The Police in America
rate has had nothing to do with presi(1983), Sense and Nonsense About
dential politics and the ideology of the
Crime: A Policy Guide (/985), and "The
incumbent administration. The stabilizaLimits of Segregation in Prisons: A Reply to
tion of the crime rate began under
Jacobs," Criminal Law Bulletin, Vo1.21,
Nixon and continued under Ford, Carter No.6, Nov.-Dec. 1985, and other articles.

Detained Cubans
---continued from front page

South Africa, Libya, or Chile, where arbitrary detention of citizens is the rule,
and not the rare exception. The reader,
living in the United States of America,
instantly, almost instinctively, recognizes
that such a situation runs contrary to
fundamental notions of fairness-notions
which most any American school child
can understanEl.
Yet the situation just described exists in the heartland of America. Over
1,800 Cubans have been detained for
years at the maximum security Atlanta
Federal Penitentiary. They face, in the
words of a U.S. Congressional subcommittee, I "no practical hope of ever being
released," and are "worse off than virtually all other Federal sentenced inmates" in the most overcrowded prison
in the federal system.
I

Atlanta Federal Penitentiary, Report of the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the Committee on the
Judiciary, U.S. House of Representatives, 99th
Cong., 2d Sess. (Comm. Print April 1986).

12

FALL 1986

But why? How did these people
end up in this never-never land, this legal limbo, caught at the core, in fact, of
an intergovernmental quarrel between
the Reagan administration and Castro's
Cuba?
Along with approximately 125,000
of their fellow Cubans, the detainees
came to the U.S. in 1980, partly in response to a statement made by President jimmy Carter who welcomed "tens
of thousands" of Cubans with an "open
heart and open arms."2
Most arriving Cubans were held in
temporary detention facilities across the
U.S., while the weeks grew into months.
By August 1981, over 123,000 Cubans
were released following riots in detention camps in Arkansas, Florida and
Pennsylvania, and a special immigration
status was created for most of the Mariel Cubans.
21n April of 1980, approximately 10,800 Cubans
sought sanctuary in the Peruvian Embassy in Havana. President Carter determined them to be
"refugees" and allowed the admission of 3,500 of
them to the U.S. Thereafter, large numbers of
Cubans began to leave Mariel harbor in flotillas of
small boats, headed for the U.S.

However, approximately I ,800 Cubans were imprisoned upon their arrival.
They were merely suspected by U.S. authorities of having criminal backgrounds
in Cuba. Most of the detainees, who
were initially paroled or released into
the community, have been subsequently
confined for revocation of their parole
for various reasons.
Strikingly, many have never committed any crime whatsoever, either in
Cuba or in the U.S. Instead, each detainee may have committed no more than
a technical, non-criminal violation of his
parole, such as failure to report to an
immigration officer on time or running
away from an immigration halfway house.
Some have been convicted of criminal
offenses in the U.S., many minor in nature (such as possession of marijuana) for
which the detainee was generally sentenced to probation rather than any jail
term. Even those Cubans who committed more serious offenses have
served their time and, under the most
commonly understood principles of due
process, should now be released.
Under the U.S. judicial system, you
commit the crime and you do the time.
Not so, apparently, if you are an alien
whom the U.S. has determined to be
deportable. That your own government
won't take you back is, apparently, of no
consequence. 3 Neither is the fact that
you have been shown to pose no danger
whatsoever to the community.
For about two years the government undertook a somewhat more formalized review process of the detainees'
status. However, despite lengthy class
action litigation by vigorous and capable
immigration lawyers, at the present time
no valid review process exists at all.
Guidelines for making parole revocation
decisions are vague, at best; lack any
specific criteria; and provide for no prior
notice, hearing, interview, or for input
of any kind from the parolee before parole may be revoked.
In short, no reliable and fair procedures or criteria have at any time been
established and implemented, nor has adequate justification been shown that any
of the Cubans currently in detention
pose any danger whatsoever to the
community, the public order, or national
security. The U.S. Congressional subcommittee implicitly acknowledged this
fact by urging, in its recently published
3

These detainees, deemed excludable aliens by the
U.S., are unable to return to their country. Although there was a deportation agreement in
place for several months, it was suspended in
1985 by Cuba when the U.S. initiated Radio
Marti broadcasts. Recent news reports suggest
that renewed negotiations for their return have
faltered since the U.S. refuses to permit any radio
broadcasts to the U.S. from Cuba, apparently a
prerequisite to any agreement, according to the
Cuban government.

report on the detention crisis, that a
"structured review of the legal status of
all these Cuban detainees" and the use
of "explicit criteria for [their] release" is
essential.
The current conditions under which
the Cubans are confined have been described by the subcommittee, headed by
Representative Robert Kastenmeier, as
"brutal and inhuman" and "intolerable
considering even the most minimal correctional standards." According to the
Congressional report, the Atlanta Federal Penitentiary is 45% over capacity.
Many detainees are housed in cells designed for 4 men which in fact hold 8,
allowing each man only 28 square feet
for sleeping, eating and living day after
day. The problem is exacerbated because most inmates are in "Iockdown"
status, which means that they must remain in their cells 23 hours per day.
The prison was locked down in October of 1984 following a riot which
occurred as a result of some Cubans
complaining about their indefinite imprisonment. The two Cubans charged with
starting the riot were acquitted. After
the trial, jurors stated to the press that
"the living situation of the detainees was
shameful."
The incidence of violence and
symptoms of stress at the prison are
startling, with seven successful suicides,
158 serious suicide attempts, 6,000 incidents of self-mutilation, and nine homicides reported over the last five years.
Fifteen inmate-on-inmate assaults occur
on the average each month (one-half the
monthly total in the entire Federal Bureau of Prisons), yet another striking
sign of tension and stress. Representatives of the prison's correctional employees testified before Congress, expressing their "concern about the level
of stress within the institution and the
failure of the prison administration to
address this problem."
Numerous other substandard living
conditions exist, including inadequate
light and ventilation; inadequate recreational facilities and library; unsanitary
food services; limited access to showers
and to items of personal hygiene and
other personal property; and limited
medical care, according to the Congressional report. "Substantial language barriers" were also found to exist between
staff and detainees.
Hope for relief has dimmed. Although federal court litigation on behalf
of the Cubans at the Atlanta Penitentiary has been pending since 1981, the
U.S. legal system has utterly failed to alleviate the plight of those currently confined to this arbitrary and prolonged detention. In the most recent federal
appellate court decision, the failure of
domestic remedies to resolve this situation was obvious; the court rejected all

legal theories advanced by the Cubans.
Although the lawyers for the Cubans
have recently sought review of the case
by the Supreme Court, the likelihood of
the Court granting any review is, at
best, uncertain.
Faced with this fundamental violation of human rights, a complaint was
filed by the ACLU, the National Council
of Churches, America's Watch, along
with other human rights and church organizations. It was filed in conjunction
with the Lawyers' Committee for Human Rights for submission to the Commission on Human Rights of the United
Nations. Gene Guerrero, Executive Director of the Georgia ACLU, led the initiative, having closely followed the Cuban detention crisis since it began years
ago. The complaint alleged that the arbitrary and indefinite detention of these
men and the cruel and degrading conditions under which they are forced to
live violate various international legal
instruments.
Given the rejection of legal claims
in the U.S. courts, we concluded that
few other avenues were available. Alleging a consistent pattern of gross human
rights violations, we invoked the procedures developed pursuant to U.N. Economic and Social Council Resolution
# 1503. The complaint could result in a
review of the situation by the U.N.
Commission on Human Rights and its independent investigation or full study of
the situation.
At the very least, the U.S. will be
forced to respond to our complaint and

thereby reassess its inaction regarding
this clear violation. We hope that more
pressure on the U.S. will also result
from the complaint once the attention
of the international community is
brought to bear. In short, one more avenue has now been opened toward resolution of the desperate plight of the
Cubans.
Newsweek, the Washington Post,
the New York Times, and ABC's
"Nightline" have reported on this story.
Will that be enough? What will it take
to render some reason and fairness to
this inequitable .nd intolerable problem?
Whatever that may be, it cannot happen
soon enough for the confined Cubans in
Atlanta, who, given the current impasse,
may be there for a lifetime.
So they came from a distant isle
Nameless woman, faithless child
Like a bad dream
Until there was no room at all
No place to run, and no place to fall
Give us our daily bread
We have no shoes to wear
No place to call our home
Only this cross to bear
We are the multitudes
Lend us a helping hand
Is there no love anymore
Living in the Promiseland?

II

Mary McClymont is a staff attorney with
the Prison Project.
Bluewater Music Corp. & David Lynn Jones
[Mighty Nice Music (BMI) & Skunk DeVille Music
(BMI») All rights reserved. Reprinted with
permission.
© 1985

DRUG TESTING

Is Urinalysis Reliable?
Daniel Manville
Caroline Smith
Prison administrators are utilizing
urinalysis test results in disciplinary hearings often as the sole evidence to prove
that individual inmates are using unprescribed drugs or marijuana. This raises
troubling questions regarding the standard of proof necessary to invoke disciplinary sanctions. Yet such tests are
being used with increasing frequency in
prisons around the country to subject inmates to probation revocation, loss of
good time and even disciplinary segregation. The tests are less than 100% accurate under the most controlled circumstances. Improper handling of the
specimen and other environmental factors can further reduce their accuracy
rate. Disciplinary boards have failed to
address these problems.
Several urine surveillance tests are
available, each involving different proce-

dures, with differing costs and rates of
accuracy.
The EMIT (Enzyme Multiplied Immunoassay Technique) test uses antibodies which are established in rabbits and
then extracted. These antibodies then
react to any drugs in the urine by binding with them. The EMIT test has a small
computer which measures the quantity
of the substance, or metabolite, in the
specimen and gives either a positive or
negative reading.
This test was referred to recently
by the U.S. District Court for the
Southern District of New York as a
"purely mechanistic, 'idiot proof device
requiring the operator to exercise no
discretion, read no graphs and make no
subjective interpretations." Peranzo v.
Coughlin, 608 F.Supp. 1504, 1505
--continued on next page
FALL 1986

13

..----------------~-----~-----------

-<ontinued from previous page

(S.D. N.Y. 1985). It is the least expensive
testing device on the market, since it
can be performed by persons with no
medical training. This test has a substantial rate of inaccuracy, however. The
Syva Company, which manufactures the
EMIT test, indicates that the accuracy
rate of the test is only 95%.' Independent testing has indicated that the accuracy rate may be well below 90%. The
Syva Company, in its own literature,
recommends that independent confirmation be obtained on each sample where
a positive result is found.
Several problems have been identified which produce the inaccuracy rate
in the EMIT test. The Syva Company
found at least I I substances other than
marijuana which could produce a false
positive (a positive EMIT result where
no marijuana had been ingested). These
substances include aspirin, secobarbital,
amphetamine and morphine. This crossreactivity can only be checked by using
an alternative confirmation method since
a second EMIT test will simply react to
the masquerading substance to produce
a second false positive result.
The potential for false positives to
result from passive inhalation of marijuana smoke by non-smokers or from
substances produced by the human liver
has also been suggested by studies of the
EMIT test?
The radioimmunoassay (RIA) test is
very similar to the EMIT test except
that it uses a different assay to check for
the presence of the drug; medically
skilled personnel must perform the test
since the results require some interpretation. This test has problems similar to
those of the EMIT test.
The most accurate test is the gaschromatography/mass-spectrophotometer (GC/MS). This test is currently being
used by the military to confirm positive
EMIT tests of people in the service. It is
the most expensive test, requiring
trained medical personnel to accurately
identify the chemical substance in the urine. The GC/MS test can still be challenged on thQ. basis of passive inhalation
and on procedural grounds. It is unlikely
that the GC/MS test will become the
normal method of confirmation used by
prison officials due to its expense.
None of these tests are accurate
without proper handling of the specimen. Normally the inmate who is being
subjected to the test is required to uriSee O'Connor and Regent, "EMIT Cannabinoid
Assay: Confirmation by RIA and GC/MS"; Journal
of Analytical Toxicology Ouly-August 1981).
2See Syva Company's Clinical Study No. 74 and Zeidenberg, et aI., "Marijuana Intoxication by Passive
Inhalation: Documentation by Detection of Urinary Metabolites," American Journal of Psychiatry,
January 1977.
I

14

nate into a container in the presence of
the use of urinalysis by prison officials is
a guard. The guard then removes the
that the tests are not reliable, especially
sample for testing. To assure the highest the EMIT test, which is the only one redegree of accuracy, the specimen must
ported in use by prison officials.
be refrigerated if there is to be any deOnly one federal court has allowed
lay in testing. To assure continued accua prison to impose disciplinary sanctions
based on an unconfirmed EMIT test. Jenracy over several days, the specimen
must be frozen. Without these precausen v. Lick, 589 F.Supp. 35 (D.N.J. 1984).
tions, the rate of false positives escalates. The plaintiff in Jensen was punished for
A review of several of the most im- refusing to submit to the urine test. He
portant cases which have challenged the
did not allege that he had received an
use of the EMIT and similar tests folinaccurate test result, thus the discussion
of the EMIT test reliability is dictum.
lows. Although the court decisions are
not entirely consistent, it is obvious that
Two recent federal courts have
the unsubstantiated use of these tests in
held that due I¥0cess requires that all
prison disciplinary hearings raises difficult positive EMIT results be confirmed by a
second test. See Wykoff v. Resig, 61 3
issues for the courts.
The most comprehensive decision
F.Supp. 1504 (N.D.lnd. 1985) (initial positive test should be confirmed by a secto date regarding the use of the EMIT
ond EMIT test or its equivalent), and
test as evidence in a prison disciplinary
setting is Storms v. Coughlin, 600 F.Supp.
Higgs v. Wilson, 616 F.Supp. 226
1214 (S.D.N.Y. 1984). The court deter(WOO. Ky. 1985) (punitive sanctions canmined that urinalysis testing constituted
not be based only on one EMIT test).
a search and was therefore entitled to
The latter case is being appealed.
the Fourth Amendment requirement
Two other federal courts have
that it be reasonable. The court further
dealt with the reliability of the EMIT
held that although entry into prison does test. 3 In Storms, the court dismissed the
not entirely dispel an inmate's legitimate
due process claim that a second alternaexpectation of privacy in his or her
tive method was required since none of
body, that privacy interest is limited by
the plaintiffs had received a disciplinary
the security needs of the institution.
sanction, but ordered trial on the Fourth
The specific findings of the court in
Amendment claim that the EMIT test itStorms show the breadth of possible isself was unreliable. 600 F.Supp. at 1222.,
sues which can be raised regarding the
In Peranzo, the court denied the
testing procedures. The court enjoined
plaintiffs' request for injunctive relief
(which would have precluded prison offithe prison's procedure for selecting inmates to be tested from a board concials from confirming a positive EMIT
taining cards with the name of each intest by a second EMIT test), and set the
mate, because it presented an
issue for trial on the merits. The court
"unjustified potential for abuse in the
stated that prisoners have a substantial
due process interest in the accuracy of
face of readily available alternatives."
600 F.Supp. at 1223. This procedure was the drug testing procedures used by
unreasonable because the official who
prison officials (608 F.Supp. at 1507), but
chose the inmates to be tested could
warned that "due process is not synonymous with a requirement of scientific
see the names of the inmates he was
choosing. This presented the possibility
exactitude or error-free procedures." Id.
that "the commander may, consciously
The court went on to discuss the reaor unconsciously, steer his choices tosonable doubt standard of evidence required in a criminal trial, and held that
ward less favored inmates." Id.
this standard was not required at a disciThe court scrutinized the process
employed in taking the urine specimen.
plinary hearing. Id. at 1508, citing Wolff
v. McDonnell, 418 U.S. 539, 556 (1974).
It held that forcing an inmate to urinate
in front of others where there was no
Two state courts have found unlegitimate need to do so would be unconfirmed EMIT tests unreliable. In Kane
reasonable, but requiring a guard to be
v. Fair, No. 126229, 33 Cr.L. 2492
present while the inmate provided the
(Mass.Sup.Jud.Ct. 8/5/83), the court held
urine sample was found to be
that a positive EMIT test result could
reasonable.
not be used as evidence at a disciplinary
The court addressed two issues
hearing unless confirmed by an alternadealing with procedures to assure the
tive method. Similarly, a Vermont Supereliability of the test result. It found that rior Court held that the chance of false
the state's method of retesting a posipositives using an unconfirmed EMIT test
tive EMIT result using another EMIT test result and the concomitant loss of libwould correct for human generated ererty violated fundamental fairness and a
ror. The court further determined that a prisoner's minimum due process rights.
single positive drug test coupled with
Johnson v. Walton, No. 561-84 Rm. (Rutother conduct or with possession of a
land Superior Court, Vermont, 2/14/85).
regulated substance would constitute
persuasive evidence of drug use.
3 See Storms v. Coughlin, supra, and Peranzo v.
Coughlin, supra.
The most substantial challenge tc;>

FALL 1986

.---------------------------------

'_ _ 'l1li1£1111i'_lIIHIIilDl

1I

The court required confirmation of a
positive drug test result by either massspectroscopy or Thin Layer Chromatography (TLC).
Recently, the Supreme Court
looked at the amount of evidence required in a disciplinary record to support
a finding of guilt when the revocation of
good time was involved. Superintendent,
Mass. Corr. Institution v. Hill, 105 S.Ct.
2768 (1985). The Court held that the
disciplinary record must contain "some
evidence to support the decision to revoke good time." Id. at 2774. In defining
what "some evidence" meant, the Court
said:

Ascertaining whether this standard [of
some evidence] is satisfied does not re-

quire examination of the entire record,
independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is
whether there is any evidence in the record that could support the conclusion
reached by the disciplinary board. Id.
Hill may make scrutiny of the EMIT test
and its use as evidence in disciplinary
hearings less strenuous, as the unconfirmed test result may constitute "some
evidence" sufficient to meet the Hill
standard. However, if a prisoner refuses
to submit to the test, and is charged
with substance abuse rather than refusal
to obey an order, that charge could be
challenged under the "some evidence"
rule.

There are other challenges to the
use of urinalysis tests, including improper
handling of the sample prior to testing
and chain of command concerns. An
analysis of these theories is available
from the National Prison Project. III

For further information contact Dan Manville at the National Prison Project. An excellent memo,on the subject was also done
by the Lewisburg Prison Project, P.O. Box
128, Lewisburg, PA 17837.
Dan Manville is a research associate at the
Prison Project Cbroline Smith is an attorney currently practicing in Massachusetts,
and a former law clerk at the Project

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
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The National Prison
Project JOURNAL,
$20/yr. $2/yr. to prisoners.
Back issues, $ I ea.
The Prisoners' Assistance
Directory, the result of a
national survey, identifies and
describes various organizations
and agencies that provide assistance to prisoners. Lists
national, state, and local organizations and sources of assistance including legal, library,
medical, educational, employment and financial aid. NEW
7th Edition, published April
1986. Paperback, $20 prepaid
from NPP.

by Alvin j. Bronstein published
in the Prisoners' Rights
Sourcebook (1980). Traces
the history of the prisoners'
rights movement and surveys

The Jail Litigation Status
Report gives a state-by-state
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. 1st Edition, published September 1985. $15 prepaid from
NjP.

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

Offender Rights Litigation:
Historical and Future Developments. A book chapter

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

A Primer For Jail Litigators
I..-_L.....--I

Fill out and send with check payable to

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. Ist edition,
February 1984. 180 pages,
paperback, $15 prepaid from
NPP.

L-----'~--J

NAME

_

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

ADDRESS
CITY. STATE. ZIP

_

FALL 1986

15

The following are major developments in the Prison Project's litigation
program since june 30, 1986. Further
details of any of the listed cases may be
obtained by writing the Project.
Duran v. Apodaca-This case challenges conditions in the entire state
prison system of New Mexico. Following
the state legislature's cutbacks in the
Department of Corrections' budget, the
court granted our motion for a preliminary injunction to restore those essential
services which were to be cut.
Inmates of D.C. jail v. jackson-This
case involves the conditions and overcrowding at the D.C. jail. In june we
filed a motion to hold the District and
the Mayor in contempt.
Inmates of Occoquan v. BarryAfter a major disturbance at these three
overcrowded D.C. prisons, we filed suit
in early August and asked for a preliminary injunction dealing with overcrowding and fire safety. After an evidentiary
hearing on August I3, the court granted
our motion establishing population caps
at each facility and requiring the defendants to develop a plan to correct fire
safety deficiencies in 21 days. The order
imposing caps has been stayed pending a
trial on the merits scheduled to begin
October 21.

jerry M. v. D.C.-This case deals with
conditions in the District's juvenile facilities. A consent decree was entered on
july 10, 1986, which ordered the closing
of one of the facilities by 1987, singleceiling at all facilities, the development
of educational programs, communitybased facilities, as well as the appointment of panels and a monitor.
Nelson v. Leeke--In this case involving
the entire prison system of South Carolina, a recent monitor's report found the
state in substantial violation of the consent decree. After a hearing last july, we
obtained an order setting new population caps and requiring the release of
non-violent prisoners. On August 4, the
Court of Appeals denied the Attorney
General's application for a stay.
Palmigiano v. DiPrete--This case
challenges conditions in the entire
Rhode Island prison system. In May we
received an excellent court opinion ordering, among other things, population
caps and a ban on double-ceiling. We
thereafter negotiated a slightly modified
version of the court order which provided that the defendants waive their
right to appeal.
Terry D. v. Rader-This action challenges the conditions in six juvenile institutions in Oklahoma. The settlement of
attor:neys' fees was approved by the
court.

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

INSIDE: INDEX TO ISSUES I THROUGH 8.
16

FALL 1986

u.s. v. Michigan/Knop v. johnsonThis action challenges conditions and
practices at four major Michigan prisons.
The trial in Knop was adjourned last
june after four days; the judge ordered
defendants to sflow cause why they
should not be sanctioned for filing frivolous motions. Sanctions were imposed
on the defendants, were paid, and the
trial commenced again on August 4. It is
expected to last for 6 to 8 weeks.
During this period the National Prison
Project received $653,000 in attorneys'
fees and costs in various cases. These fees
and costs help make up part of the Prison
Project budget and enable us to continue
our work.
The Lewisburg Prison Project
(P.O. Box 128, LeWisburg, PA,
17837) has published a series of
moderately priced manuals for the
use of prisoners and their advocates.
They include: "A Guide to Federal
Parole," "Prisoners' Civil Actions in
Federal Court," and "Paralegal Manual for Prisoner Advocacy: A Training and Reference Guide." There
are also two series of "Legal Bulletins," giving guidance and case citations on 25 different issues such as
access to the courts, protective custody, and medical treatment. Write
for a free brochure,

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