# Amicus Curiae Brief — Wilson v. Seiter

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1991
- **Citation:** 501 U.S. 294

## Text

' Supreme Court,
| )) |. FILED
No. 89-7376 | es adianad

—_—_—_—_—— re *. SP 4 N01, J

Se

ee

IN THE
Supreme Court of the United States
OCTOBER TERM, 1990
>.
PEARLY WILSON,
Petitioner,
—vs.—
RICHARD SEITER, et al.,
Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT

—— BRIEF OF THE AMERICAN PUBLIC
A ATION AS AMICUS CURIAE IN

SUPPORT OF PETITIONER

JOHN BOSTON, Esq.
(Counsel of Record)

15 Park Row—7th Flocr
New York, New York 10038
(212) 577-3530

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1990

No. 89-7376

PEARLY WILSON,
Petitioner,
vs.
RICHARD SEITER, et al.,
Respondents.
ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

MOTION FOR LEAVE TO FILE
BRIEF OF AMICUS CURIAE
The American Public Health Associa-
tion ("“APHA") moves pursuant to Rule 36.3
of the Rules of the Supreme Court of the

United States for leave to file a brief

amicus curiae in support of petitioner.

The written consents of petitioner and of
respondent have been filed with the Court.

APHA is a national non-governmental

ti titi

sas toe eee Ss

Organization established in 1872 for the
purpose of improving public health and the
quality of health care. Together with its
affiliated associations, APHA is the
largest public health association in the
world, with a combined multidisciplinary
membership of approximately 50,000 health
care professionals and consumers. APHA
has appeared before this Court on numerous

occasions aS amicus curiae in cases with

serious implications for the public

health. See, e.g., West v. Atkins, 487

U.S. 40 (1988); Hardwick v. Bowers, 478

U.S. 186 (1986); Roe v. Wade, 410 U.S. 113

(1973).

APHA has a special interest in assur-
ing adequate health care and healthful
living conditions for underserved segments
of society, including prisoners. In the
early 1970's, APHA appointed a task force

to devise a set of standards--the first of

its kind--for the delivery and maintenance
of health care in correctional facilities.

See Standards for Health Services in Cor-

rectional Institutions (1976). A second,

revised edition of the standards was

issued a decade later. See Standards for

Health Services in Correctional Institu-

tions (1986).1

Both editions of these standards con-
tained extensive chapters on environmental
conditions because the APHA is committed
to the public health view that acceptable
living conditions are as important to
health as are effective medical services.
The current standards' chapter "Environ-
mental Health" directly addresses such
matters as temperature control, space

requirements, noise, sanitation, food

1 The 1986 standards are herewith lodged
with the Clerk of Court.

service, and vermin control--the same
issues involved in this case. Id. at 6l-
89.

Because of its professional expertise
and multi-disciplinary focus in addressing
health problems in prison, APHA believes
it will present to the Court a valuable
perspective on the issues concerning
prison conditions litigation that this
case presents. Consistent with its pur-
pose of advancing the public health and in
the hope of decreasing the human suffering
caused by health-threatening prison condi-
tions, APHA requests leave to file this

brief.

Respectfully submitted,

LS/

John Boston

Dated: November 12, 1990
New York, New York

TABLE OF CONTENTS

TABLE OF CONTENTS .....-.---eeee200. cocce I
TABLE OF AUTHORITIES eoeeeeseeese#seee#ee#e#egee#s?#*# ii

INTEREST OF AMICUS CURIAE .....-e22ee2-- Ll

SUMMARY OF ARGUMENT eoeeneeenee#eeseesteteeeeeeeeseee 2
ARGUMENT e*eesee#seenetee#ee#seeeneee#esee#ee#e#e#kee#e#e#e##ee#e#e##e#e####e#e* # @ 5

THE EIGHTH AMENDMENT ANALYSIS

ADOPTED BY THE COURT OF APPEALS
MISAPPLIES THIS COURT'S PRECEDENTS AND
UNDERMINES THE JUDIC.ARY'S ABILITY

TO ENSURE MINIMAL STANDARDS OF DECENCY
IN CONDITIONS OF PRISON CONFINEMENT

A. The court below misapplied this
Court's decision in Whitley v. Albers
and ignored the governing standard of
Rhodes v. Chapman........cceeeeeee0208

B. The Eighth Amendment analysis
applied by the court of appeals would
place the most inhumane prison condi-
tions beyond the federal courts'
INJUNCLIVE POWETS... cee ee eeeene ee el

CONCLUSION $066606666600006600066606666800

TABLE OF AUTHORITIES
Cases:
Alberti v. Klevenhagen, 790 F.2d 1220 (Sth
«TB BE 6 6weheudcbecdeeeeséseses 34
Allee v. Medrano, 416 U.S. 802 (1974).. 29

Balla v. Idaho State Board of Corrections,
595 F.Supp. 1558 (D.Idaho 1984).. 30

Battle v. Anderson, 788 F.2d 1421 (10th
Cir. i | PPT TETT TTT TTT Tee 20, 33

Battle v. Anderson, 564 F.2d 388, 395
(10th cae. | gg PPUR ET TPCT TTT TTT 19

City of Mesquite v. Aladdin's Castle, 455
U.S. 283 li: er rrrrTTrTT TT Tere 29

Coniglio v. Thomas, 756 F.Supp. 409
(Be DeBe Fe LET) occcccccsccscsceese 32

Davenport v. DeRobertis, 844 F.2d 1310
(7th Cir. 1988), cert. denied sub
nom. Lane v. Davenport, 109 S.Ct.
Ms PP rerrererrerr re Tere 30

Dean v. Coughlin, 804 F.2d 207 (2d Cir.
PPO T TT TTT TTT TTT TTT Te 31, 32

DeGidio v. Pung, 704 F.Supp. 922 (D.Minn.
er re se @pee#e 30

Duran v. Anaya, 642 F.Supp. 510 (D.N.M.
B9SS) ccoccece *eeneeee *oeneteeeeeeneteee#ee#ee#e#« 35

Fambro v. Fulton County, 713 F.Supp. 1426
(N.D.Ga. | PTT TTT TT CTT Tre 34

- ii -

Finney v. Mabry, 546 F.Supp. 628 (E.D.Ark.
L9SZcccccccccccccccceesece e*eeeete 34

Fisher v. Koehler, 692 F.Supp. 1519
(S.D.N.Y. 1988), aff'd, 902 F.2d 2
(2d Cir. 1990)......2.2-23, 27, 29, 30

French v. Owens, 777 F.2d 1250 (7th Cir.
1985), cert. denied, 479 U.S. 817
(19SS )ecccccccccccccacecce *“ewe34«oeee#e#ee#eses 6

Gates v. Collier, 548 F.2d 1241 (5th Cir.
LPT TJ dccecececs oeeeeveeeeeeeeee . 18, 33

Gates v. Collier, 501 F.2d 1291 (5th Cir.
1974). eee eeeeioeeeees#ssersesrerseser#se#teeee#ee#e#?#e 16

Gates v. Collier, 349 F.Supp. 881
(N.D.Miss. 1972), aff'd, 501 F.2d
1291 (Sth Cir. 1974)..... 14, 15, 16

Gates v. Collier, 390 F.Supp. 482
(N.D.Miss. 1975), affirmed on other
grounds, 525 F.2d 965 (5th Cir.
1976), affirmed and remanded with
directions, 548 F.2d 1241 (5th Cir.
LPT pccccccccccccccccccccescccccs Ad

Gates v. Collier, 423 F.Supp. 732
(N.D.Miss. 1976)......... Tererer 18

Gilland v. Owens, 718 F.Supp. 665
(W.D.Tenn. 1989)... ee eeees 27, 34

Gregg v. Georgia, 428 U.S. 153 (1976).. 10

Grubbs v. Bradley, 552 F.Supp. 1032

(M.D. TENN. LOBSZ) cccccccccccecece 24
Hoptowit v. Ray, 682 F.Supp. 1237 (9th
Cir. AOSZ) ccceccses *e @ee *eneee#es 31, 32

- iii -

Inmates of Occoquan v. Barry, 717 F.Supp.
854 (D.D.C. Bee pececeseceses 29, 34

Inmates of the Allegheny County Jail v.
Wecht, 901 F.2d 1191 (3d Cir. 1990)

soeneeeeeneeneeneeneeeneeeeeeeeeeneeee 25

Inmates of the Allegheny County Jail v.
Wecht, 699 F.Supp. 1137 (W.D.Pa.
1988), aff'd, 874 F.2d 147 (3d
Cir.), vacated and remanded, 110
S.Ct. 355 (1989), vacated as moot,
893 F.2d 147 (3d Cir. 1990)...... 25

Inmates of the Allegheny County Jail v.
Wecht, 565 F.Supp. 1278 (W.D.Pa.
i > PPrrrerr rer *eeteeee#se se eweeee#ee#ee#e 25

Johnson v. Levine, 450 F.Supp. 648, 655
(D.Md. 1978), aff'd in pertinent
part, 588 F.2d 1378 (4th Cir. 1978)
(BOE GUEAAR) cccccccsece wYTTTTTiT a -.

Laaman v. Heiyemoe, 437 F.Supp. 26°
(D.N.H. 1577). eee eeeeeeeeeeeneenee 12

LaMarca v. Turne’, 662 F.Supp. 647
(S.D.Fla. 1987), appeal dismissed,
861 F.2d 724 (llth Cir. 1988).... 28

LaReau v. Manson, 651 F.2d 96 (2d Cir.
BGGRdcocceces @*eeeee#e%*%e ee eneeeee#ee#ee#e#e#ee##e« 6

Lovell v. Brennan, 728 F.2d 560 (lst Cir.
Dae bbuecs 60660066046400066068% 30

Miles v. Bell, 621 F.Supp. 51 (D.Conn.
Bn oe00eesnenebeeness se @eeeee#eese#e. 32

Morales Feliciano v. Hernandez Colon, 697
F.Supp, 37 (D.P.R. 1988)......... 34

- iv-

Morales Feliciano v. Romero Barcelo, 672
F.Supp. 591 (D.P.R. 1986)........ 24

Morrow v. Harwell, 768 F.2d 619 (Sth Cir.
19B8) ccccccccccececes Se eegeTtkweTFe es ee & 30

Newman v. Alabama, 559 F.2d 283 (5th
Cir.), cert. denied sub nom. Alabama
v. Pugh, 438 U.S. 915 (1978)..... 32

Palmigiano v. DiPrete, 737 F.Supp. 1257
(DR. Te 199O) ccccccccccccccccces 36

Palmigiano v. Garrahy, 443 F.Supp. 956
(DR... LOTT) cccccccccccsccccces 24

Palmigiano v. Garrahy, C.A. No. 74-172,
Order (D.R.I., January 25, 1984). 35

Pugh v. Locke, 406 F.Supp. 318 (N.D.Ala.
1976), aff'd in part and remanded,
Newman v. Alabama, 559 F.2d 283 (5th
Cir.), cert. denied sub nom. Alabama
v. Pugh, 438 U.S. 915 (1978)

cpesseesecoscesosesscee Se Seen FF

Ramos v. Lamm, 639 F.2d 559 (10th Cir.
1980), cert. denied, 450 U.S. 1041
(1981) ccccccccccccscscscccecs 6, 32

Ramos v. Lamm, 485 F.Supp. 168 (D.Colo.
1979), aff'd in part and vacated and
remanded in part on other grounds,
639 F.2d 559 (10th Cir. 1980), cert.
denied, 450 U.S. 1041 (1981)

Seeeereucesoesectoness BO6 Be Fe

Reece v. Gragg, 650 F.Supp. 1297 (D.Kan.
1986) -ccccccccccccccscsccce e*eeees ef 29

ec Bi A ES Tt AE

cat oe

Rhodes v. Chapman, 452 U.S. 337 (1981)
7see ee ee ee @ Ze 9, 10, ll, 12, 14,
25, 31, 32, 37

Ruiz v. Estelle, 67S F.2d 1115 (5th Cir.),
cert. denied, 460 U.S. 1042 (1983)

seeeeeeee#se. Se tv eVervevr eee See a eV ee Se © 32

Ruiz v. Estelle, 503 F.Supp. 1265
(S.D.Tex. 1980), aff'd in part and

modified in part on other grounds,

679 F.2d 1115 (5th Cir. 1982), cert.

denied, 460 U.S. 1042 (1983)
ee erccccccccccccccccs oeeee26, 37

Smith v. Sullivan, 553 F.2d 373 (5th Cir.
1977) *e © feeeee#ee *enrteeneteente#ee#e#e#ee#ee##ee#e##e###e#«# 6

Tillery v. Owens, 907 F.2d 418 (3d Cir.
SOROd coccese *eeee *seeneeeeseee 6, 20, 21

Tillery v. Owens, 719 F.Supp. 1256
(W.D.Pa. 1989), aff'd, 907 F.2d 418

(3d Cir. 1990)
cocccccce 20, 21, 22, 23, 32, 33

Todaro v. Ward, 431 F.Supp. 1129
(S.D.N.Y.), aff'd, 565 F.2d 48 (2d
cet. BOT EPS cece nesseeseeeeeesesee 23

Toussaint v. McCarthy, 801 F.2d 1080 (9th
Cir. 1986), cert. denied, 481 U.S.
1069 CADET Peoeceesececeseoceeeoues 32

Toussaint v. McCarthy, 597 F.Supp. 1388
(N.D.Cal. 1984), aff'd in part and
rev'd in part on other grounds, 301
F.2d 1080 (Sth Cir. 1986), cert.
denied, 481 U.S. 1069 (1987)...... 6

Turner v. Safley, 482 U.S. 78 (1987)... 32

- vi -

United States v. Oregon State Medical
Society, 343 U.S. 326 (1952)..... 28

U.S. v. W.T. Grant Co., 345 U.S. 629
CIGSZ) cccccccecs eee 2 a2 &. @ e*eeweee#ee#ee#e# @ 29

Wellman v. Faulkner, 715 F.2d 269 (7th
Cir. 1983), cert. denied, 468 U.S.
1217 (19S4) wc cccccccces *“e ewe #eeeeee *e 22

Whitley v. Albers, 475 U.S. 312 (1986)
“eee eeeeveeeeeeeeee ee Ze 8, 13, 22

Wooden v. Norris, 637 F.Supp. 543
(M.D.Tenn. L9SG )eccccccccsccecsece 32

Constitutional Provisions:

U.S. Const., Amend. VIII 2, 3, 5 et passim

Federal Statutes, Regulations, and Rules:

U.S. Supreme Court Rule 36.3.....eeeee6- 1

Books, Journals and Other Authorities

Austin and McVey, The 1989 NCCD Prison
Population Forecast: The Impact of
the War on Drugs, NCCD Focus (Decem-
BOE LHSP) occcccvccccccceceseccees IO

Harris and Spiller, After Decision (1976)

*eeeenteneteeneteenreneteneteeeeeneeeeeeee # 25

Martin and Ekland-Olson, Texas Prisons:
The Walls Came Tumbling Down (1987)

e*eeeteeeeneeneeneteeneteeeeneeneneeeeeeeee# 37

- vii -

Note, Complex Enforcement: Unconstitu-
tional Prison Conditions, 94
Haryv.L.Rev. 626, 641 (1981)...... 28

Status Report: The Courts and Prisons
(January 1, 1990), in 2 Prisoners

and the Law (Robbins ed. 1990)

*eeeeenteeenrteentreenet#eneneeneeeeeee 33, 36

U.S. Dept. of Justice, Prison Population
Grows 6 Percent During First Half of
Year (October 7, 1990) ..ccrcccccecedd

Yackle, Reform and Regret: The Story of

Federal Judicial! Involvement in the
Alabama Prison System (1980)......37

- viii -

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1990

No. 89-7376

PEARLY WILSON,
Petitioner,
vs.
RICHARD SEITER, et al.,

Respondents.

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

INTEREST OF AMICUS CURIAE
AMERICAN PUBLIC HEALTH ASSOCIATION

The interests of the American Public
Health Association (APHA) are set forth in
its motion for leave to file this brief as

amicus curiae, which is bound herewith

pursuant to Rule 36.3 of the Rules of this

Court.

SUMMARY OF ARGUMENT

A claim that conditions of prison
confinement constitute cruel and unusual
punishment must be decided based on actual
conditions in the prison. The standard of
malicious and sadistic intent, applied by

Whitley v. Albers, 475 U.S. 312 (1986), to

certain kinds of constitutional torts by
prison officials, is not applicable or
helpful where the issue is continuing con-
ditions of confinement and not a discrete
incident or an emergency response. The
proper standard is that stated in Rhodes

v. Chapman, 452 U.S. 337 (1981): condi-

tions are cruel and unusual if "they
result[{] in unquestioned and serious
deprivations of basic human needs" or
“deprive inmates of the minimal civilized
measure of life's necessities." Id. at
347. This objective test is compelled by

-2-

the realities of prison life, in which
foul and inhumane conditions are rarely
imposed for evil motives, but more fre-
quently arise from lack of resources or
facilities, incompetence, or disorganiza-
tion.

The existence of reform efforts by
prison officials cannot be dispositive of
the existence of an Eighth Amendment
violation. Prison officials almost always
make improvements when they are sued, but
these changes are not always fully imple-
mented, and do not always eliminate the
constitutional violations when they are
Carried out. The significance of these
improvements should be assessed by the
district court as part of its remedial
discretion. If the constitutional viola-
tion has been entirely eliminated, the
court may withhold injunctive relief. If
the violation remains, in whole or in

- 3-

part, the extent and nature of changes
made by the defendants should be con-
sidered in formulating injunctive relief.
But the touchstone must always be the
actual conditions in the prison and their

effect on those imprisoned.

ARGUMENT 4
THE EIGHTH AMENDMENT ANALYSIS
ADOPTED BY THE COURT OF APPEALS
MISAPPLIES THIS COURT'S PRECEDENTS AND
UNDERMINES THE JUDICIARY'S ABILITY
TO ENSURE MINIMAL STANDARDS OF DECENCY
IN CONDITIONS OF PRISON CONFINEMENT.

This case poses the question whether
the Eighth Amendment requires that the
lawfulness of prison living conditions be
measured by the good intentions of prison
officials or by actual conditions in the
prison.

The prisoner-plaintiffs alleged con-
ditions that have previously been acknowl-
edged to violate the Eighth Amendment if
proven to be sufficiently severe:
unsanitary eating conditions, inadequate
heating, housing of physically and men-
tally ill prisoners in general population
dormitories, inadequate ventilation,

excessive noise, and vermin infestation.!

- 5 -

Prison officials responded that they had
made “affirmative efforts to maintain
habitable conditions" such as servicing
heaters, providing extra blankets,
installing exhaust fans, and hiring an

exterminator. A. 72. The actual effects

1 See, e.g., Tillery v. Owens, 907 F.2d
418, 422-24 (3d Cir. 1990) (inadequate
ventilation, insect infestation); French
v. Owens, 777 F.2d 1250 (7th Cir. 1985),
cert. denied, 479 U.S. 817 (1986)
(unsanitary eating conditions, inadequate
ventilation); LaReau v. Manson, 651 F.2d
96, 109 (2d Cir. 1981) (failure to screen
inmates for communicable diseases); Ramos
v. Lamm, 639 F.2d 559, 570-72 (10th Cir.
1980), cert. denied, 450 U.S. 1041 (1981)
(unclean food, inadequate heating and
ventilation, insect infestation); Smith v.
Sullivan, 553 F.2d 373, 380 (Sth Cir.
1977) (failure to segregate inmates with
communicable diseases); Toussaint v.
McCarthy, 597 F.Supp. 1388, 1395-96, 1409-
12 (N.D.Cal. 1981), aff'd in part and

rev'd in part on other grounds, 801 F.2d
1080 (9th Cir. 1986), cert. denied, 481
U.S. 1069 (1987) (lack of food sanitation,
inadequate heating and ventilation,
excessive noise).

of their efforts remain disputed.2 The
court of appeals observed:

Importantly, the appellants do

not contend that the appellees

have taken no efforts to provide

them with minimally decent con-

finement conditions. Rather,

appellants' complaints are aimed

at the results of those

efforts. ... The appellants'

position, apparently, is that

despite these actions, prison

conditions remain unacceptable.

A. Tae

The court did not purport to resolve the
disputed factual question of what the
prison conditions actually were. Instead,
it held that there was no indication that
the prison officials “used confinement
conditions to punish" the prisoners, and
that there was no evidence of “behavior
marked by persistent malicious cruelty."
Hence, it held that there was no genuine

issue of material fact, and the prison

2 The factual disputes are set out in the
brief of Petitioner herein.

officials were entitled to summary judg-

ment. A. 73-74.

A. The court below misapplied this
Court's decision in Whitley v. Albers and
ignored the governing standard of Rhodes
v. Chapman.

The appeals court relied on this

Court's decision in Nhitley v. Albers, 475

U.S. 312 (1986), which held that damages
could not be recovered for the use of
force in quelling a prison disturbance
unless prison personnel acted "maliciously
and sadistically for the very purpose of

causing harm." Id. at 320-21.

This case is not governed by Whitley

v. Albers. Whitley was a constitutional

tort case arising from a single discrete
incident requiring split-second decisions
and action by prison officials. The Whit-
ley plaintiff's interest in avoiding for-
cible injury had to be balanced against
prison officials' strong interest in

- 8 -

quickly ending the disturbance and the
threats it posed to other inmates and
staff. The Court therefore concluded that
the “deliberate indifference" standard
advocated by the plaintiff and used in
prison medical care cases did not "ade-
quately capture the importance of such
competing obligations, or convey the
appropriate hesitancy to critique in hind-
sight decisions necessarily made in haste,
under pressure, and frequently without the
luxury of a second chance." Id. at 320.
Hence a showing of malicious and sadistic
intent was required.

This case is more like Rhodes v.

Chapman, 452 U.S. 337 (1981), because it

involves continuing. "conditions of con-

finement." Id. at 345.3 #£The Rhodes

3 This phrase, the word "conditions," and
variations of them are used repeatedly
throughout the Rhodes opinion.

plaintiffs alleged persistently over-
crowded conditions resulting in double-
celling in an Ohio penitentiary. The
Court noted that the core of modern Eighth
Amendment jurisprudence is the ban on
punishments that “"‘involve the unnecessary
and wanton infliction of pain,'" including
those that are “totally without penologi-
cal justification."4 It concluded that
conditions are cruel and unusual if “they
result{] in unquestioned and serious
deprivations of basic human needs" or
“deprive inmates of the minimal civilized
measure of life's necessities." Id. at
347 (emphasis supplied).

The Rhodes standard speaks to condi-
tions in the prisons and not in the minds

of prison officials. So did its analysis

4 Id. at 346, quoting Gregg v. Georgia,
428 U.S. 153, 173, 183 (1976).

- 10 -

of the plaintiffs' challenge to double-
celling. The Court stated:

Virtually every one of the
[district] court's findings
tends to refute [the prisoners' ]
claim. The double celling made
necessary by the unanticipated
increase in prison population
did not lead to deprivations of
essential food, medical care, or
Sanitation. Nor did it increase
violence among inmates or create
other conditions intolerable for
prison confinement. ...
Although job and educational
Opportunities diminished
marginally as a result of double
celling, limited work hours and
delay before receiving education
do not inflict pain, much less
unnecessary and wanton
pain. ...

Id. at 347-48 (emphasis in

Original).°

2 The Court also was unconvinced by the
district court's reliance on factors like
the length of the prisoners' sentences,
the degree to which the prison's popula-
tion exceeded its "design capacity," the
large amount of time spent in-cell, and
the fact that double-celling was not a
temporary condition. Id. at.348. But the
focus remained on the facts of prison life
and not the prison officials' mental
state.

- ll -

Conspicuous by its absence from
Rhodes is any discussion of prison offi-
cials' state of mind. The focus is on the
actual conditions of confinement and their
effect on the people who live under them.®
And there is no discussion in Rhodes of
whether prison officials “used confinement
to punish" the prisoners. A. 73. Rather,
the Court held that basic Eighth Amendment
principles apply "when the conditions of

confinement compose the punishment at

issue." Rhodes, 452 U.S. at 347 (emphasis
supplied).

Nothing in Whitley purports to over-

6 “The first aspect of judicial decision-
making in this area is scrutiny of the
actual condit‘ons under challenge... .
In determining when prison conditions pass
beyond legitimate punishment and become
cruel and unusual, the ‘touchstone is the
effect upon the imprisoned.'" Rhodes, 452
U.S. at 362, 364 (Brennan, J., concur-
ring), uoting Laaman v. Helgemoe, 437
F.Supp. 269, 323 (D.N.H. 1977).

- 12 -

rule or modify Rhodes. Rather, Whitley

deals with an entirely different problem
for which the analysis of Rhodes simply is

not helpful.’ Nor is the Whitley analysis

helpful in addressing the Rhodes over-
crowding issue or the conditions presented
in this case--conditions that are ongoing,
that do not arise from short-term
exigencies, that do not require rapid
decision-making, and that are not justi-
fied by any substantial countervailing

penological interest.8

7 In Whitley, four Justices dissented.
Significantly, the dissent does not
criticize the majority for departing from
Rhodes; indeed, it does not mention Rhodes
at all. The Whitley majority cited Rhodes
only in support of the most general
propositions of Eighth Amendment jurispru-
dence. Whitley, 475 U.S. at 319, 321.
Taken together, these opinions show con-
vincingly that no Justice viewed Whitley
as limiting, qualifying, or indeed having
much to do with what had been decided in
Rhodes.

8 The respondent prison officials herein
did not assert any legitimate penological
interest in unhealthy food, lack of heat,

- 33-

B. The Eighth Amendment analysis applied
by the court of appeals would place the
most inhumane prisen conditions beyond the
federal courts’ injunctive powers.

The Sixth Circuit's misapplication of

Whitley v. Albers would effectively

immunize even the worst prison conditions
from federal judicial correction. A few
examples will show how.

In Gates v. Collier, 349 F.Supp. 881

(N.D.Miss. 1972), aff'd, 501 F.2d 1291
(Sth Cir. 1974),% the district court con-
demned the confinement of prisoners in
“barracks unfit for human habitation and

in conditions that threaten their physical

(footnote cont'd)

the spread of communicable disease,
excessive noise, and infestation with
insects.

9 Gates is one of several Eighth Amendment
prison conditions cases cited with
approval in Rhodes. See 452 U.S. at 352
n. 17.

- 14 -

health and safety, by reason of gross
deficiencies in plant and equipment and
lack of adequate medical staff and facili-
CSGGe « « a* Defendants had “failed to
provide adequate protection against physi-
cal assaults, abuses, indignities and
cruelties of other inmates," by giving
authority and weapons to "trusty" inmates
and by failing to separate serious violent
offenders from nonviolent or first
offenders. 349 F.Supp. at 888-89, 894.
The court noted that the state legis-
lature had authorized and directed the
penitentiary board to prepare a plan
directed at improving inmates' security
and eliminating the trusty system. A con-
Sultant committee engaged jointly by state
officials, the federal Law Enforcement
Assistance Administration (LEAA), and the
American Correctional Association had made
recommendations for one million dollars in

- 15 -

emergency reform steps, and LEAA had com-
mitted itself to provide the funds. The
Governor assured the court during pre-
trial conferences that he would “strongly
advocate to the Mississippi Legislature
that it provide adequate legislation and
funds not only to eliminate the
undesirable conditions at Parchman but to
make it an exemplary penal institution."
Id. 891-92. Nonetheless, the court
entered judgment finding an Eighth Amend-
ment violation, and the court of appeals
affirmed, observing: “While recognizing
that steps have been taken, since the
filing of this suit, to improve conditions
at Parchman, it is evident that much is
left to be done before Parchman is
operated in accord with [] constitutional
requirements. ..." 501 F.2d at 1321.
Under the approach of the Sixth Cir-
cuit in this case, the Mississippi dis-

- 16 -

trict court would have been required to
dismiss Gates. It made no findings that
the conditions had been imposed because of

the defendants' malicious or sadistic

‘motivations. And the Gates plaintiffs,

like the present petitioner, did "not con-
tend that the appellees have taken no
efforts to provide them with minimally
decent confinement conditions." A. 73.
In fact, they had made substantial
efforts; but the key fact, as stated by
the court of appeals, was that "much is

left to be done."19 fhe Gates court,

10 Just how much was left is made clear by
the district court's subsequent opinion,
issued three years after its initial
injunction, finding a continuing Eighth
Amendment violation in defendants' "“con-
tinuing failure to provide for the physi-
cal health and well being of inmates" by
their noncompliance with medical care
requirements, the “appalling, deplorable
condition" of many housing units, and the
continued overcrowding. Gates v. Collier,
390 F.Supp. 482, 488-89 (N.D.Miss. 1975),
affirmed on other grounds, 525 F.2d 965
(Sth Cir. 1976), a rmed and remanded
with directions, 548 F.2d 1241 (Sth Cir.

- 17 -

unlike the court below, recognized that
"the results of these efforts," A. 73,
were of prime importance./1

Similarly, in Battle v. Anderson, 564

F.2d 388, 395 (10th Cir. 1977), the dis-
trict court conaemned housing units with
“Severe environmental and fire hazards";
crowding so extreme that prisoners were
forced to sleep in garages, barber shops,
libraries and stairwells, and held in
dormitories without toilet and shower
facilities; overtaxed kitchen, water and

sewer systems; and dining facilities pre-

(footnote cont'd)

1977); see also Gates v. Collier, 423
F.Supp. 732 (N.D.Miss. 1976) (granting
further relief with respect to crowding
and the closing of dilapidated camps).

1l yltimately, it appears, those results
were acceptable. The last reported
opinion on the merits of the Gates liti-
gation was in 1977. Gates v. Collier, 548
F.2d 1241 (Sth Cir. 1977).

- 18 -

senting “immediate health dangers."

This case, too, would have been dis-
missed under the Sixth Circuit's approach
in this case. There were no findings of
malicious or sadistic intent on defend-
ants' part. To the contrary, the court of
appeals was constrained to hold that "the
good will shown by the Defendants cannot
serve as a defense." Id. at 396. Nor
could plaintiffs Claim that defendants had
made "no efforts" to improve conditions;
the state prison budget had been increased
fivefold in three years and the defendants
had submitted a comprehensive reform plan
approved by all parties. Yet the court of
appeals upheld the district court's find-

ing "that the presently existing over-

crowding . . ., when considered with other
circumstances, constitutes cruel and
unusual punishment. ..." Id. at 400
(emphasis in original). Like the present

- 19 -

petitioner, the Battle plaintiffs argued
that “despite [defendants'] actions,
prison conditions remain unacceptable," A.
73, and the court of appeals properly
affirmed on that basis.12

More recently, a Pennsylvania dis-
trict court condemned the State Correc-
tional Institution at Pittsburgh as an
“overcrowded, unsanitary, and understaffed

firetrap." Tillery v. Owens, 719 F.Supp.

1256, 1259 (W.D.Pa. 1989), aff'd, 907 F.2d
418 (3d Cir. 1990). The appellate court
agreed that "almost every element of the
physical plant and provision of services
at SCIP falls below constitutional norms."

907 F.2d at 427. Indeed, conditions

12 In 1986, the court of appeals affirmed
the district court's findings that condi-
tions of confinement met Eighth Amendment
standards; the action was dismissed except
for claims concerning racial discrimina-
tion. Battle v. Anderson, 788 F.2d 1421
(10th Cir. 1986).

- 20 -

appear fully as bad as in Mississippi in
1972. The risk of assault was so great
that many inmates feared to leave their
cells for recreation or to enter the
shower area; inmate housing was infested
with vermin and festooned with bird drop-
pings; ventilation was grossly inadequate;
defective plumbing resulted in leaks,
puddles and odors, and showers were
encrusted with dirt and slime; the danger
of fire was enormous and preparation for
it virtually nonexistent; and medical and
psychiatric treatment were "shockingly
deficient," with the psychiatric care area
"in shambles." 907 F.2d at 422-24. The
psychiatric observation area, in which
inmates were "“abandon[ed] ... to
vegetate and fester in despicable confine-
ment," emitted such an “overpowering
stench" that the district judge did not
get close enough to see it. 719 F.Supp.

- 21-

at 1304.

Under the court of appeals' approach
in this case, no Eighth Amendment viola-
tion could have been found. The district
court's lengthy opinion contains no find-
ings of malice or sadism on the part of
any defendant; indeed, at one point, it
"hasten[ed] to add that we do not question
the integrity of the officials at SCIP.
They are merely jerry-rigging with a
severe staff and supply shortage owing to
budget constraints." 719 F.Supp. at 1276.
Although there are numerous references to

deliberate indifference, that is precisely

the showing that Whitley, relied on by the

court below, held inadequate to establish
an Eighth Amendment violation. 475 U.S.
at 320.

The foregoing cases/3 illustrate two

13 fhe list could be extended at Length.
See, e.g., Wellman v. Faulkner, 715 F.
269, 273 (7th Cir. 1983), cert. denied,

- 22 -

central points.

First, the focus on prison officials'

(footnote cont'd)

468 U.S. 1217 (1984) ("Despite the
apparent good intentions of prison offi-
Cials, there seems no foreseeable cure for
this serious systemic deficiency" of lack
of medical staff); Fisher v. Koehler, 692
F.Supp. 1519, 1562, 1566-68 (S.D.N.Y.
1988), aff'd, 902 F.2d 2 (2d Cir. 1990)
(citing “obvious Sincerity and competence"
of Commissioner and Warden while finding
"systematic deficiencies" in failure to
control violence); Ramos v. Lamm, 485
F.Supp. 122, 168 (D.Colo. 1979), aff'd in
part and vacated and remanded in part on

other grounds, 639 F.2d 559 (10th Cir.
1980), cert. denied, 450 U.S. 1041 (1981)
(defendants had spent "significant sums"
to build new prisons; their failure to
remedy intolerable conditions represented
a “utilitarian calculus to obtain maximum
results from limited resources"; no malice
found); Johnson v. Levine, 450 F.Supp.
648, 655 (D.Md. 1978), aff'd in pertinent
art, 588 F.2d 1378 (4th Cir. 1978) (per
Curiam) (officials had "conscientiously

attempted" to improve facilities with

physical improvements and new programs and
services); Todaro v. Ward, 431 F.Supp.
1129, 1160 (S.D.N.Y.), aff'd, 565 F.2d 48
(2d Cir. 1977) (medical staff appeared
"truly concerned with [inmates'] well-
being," but the medical care system was
constitutionally deficient).

- 23-

State of mind misses the point. Filthy
food, flies and cockroaches, and exposure
to disease rarely result from the warden's
malicious and sadistic propensities. More
often, such conditions result from dis-
Organization, incompetence,24 or fiscal or

political difficulties,15 usually stemming

14 See, e.g., Morales Feliciano v. Romero
Barcelo, 672 F.Supp. 591, 605, 607, 613-
14, 619, 620-21 (D.P.R. 1986) (repeated
references to chaos, disorganization and
incompetence in numerous aspects of prison
administration); Palmigiano v. Garrahy,
443 F.Supp. 956, 977 (D.R.I. 1977) ("com-
plete absence of effective leadership or
management capability on the part of the
responsible officials").

15 For an extreme example, see Grubbs v.

Bradley, 552 F.Supp. 1032, 1082 (M.D.Tenn.
1982) (licensed practical nurse directed
to perform surgery on a hemorrhaging
prisoner because the year's hospital
budyet was exhausted).
In a more typical case, the dis-

trict judge observed:

We take judicial notice of the

fact that for years Allegheny

County officials have proposed,

rejected, discussed and haggled

over new jail facilities; plans

for new buildings have been

drawn up; proposals for renovat-

ing already existing facilities

- 24 -

at least in part from “[p]Jublic apathy and

the political powerlessness of inmates."16

(footnote cont'd)

have been made and rejected;
other plans have been delayed in
the hope that outside financial
sources of assistance will be
uncovered. As a result, the
jail remains with us--old,
dilapidated, and unconstitu-
tionally overcrowded. An eco-
nomic motive can no longer
excuse or be used to justify the
conditions imposed on the
inmates at ACJ.
Inmates of Allegheny County
Jail v. Wecht, 565 F.Supp.
1278, 1296-97 (W.D.Pa.
1983),
Five years later little had changed. The
district court concluded that constitu-
tional conditions of confinement could not
be provided in the old jail. Inmates of
the Allegheny County Jail v. Wecht, 699
F.Supp. 1137 (W.D.Pa. 1988), aff'd, 874
F.2d 147 (3d Cir.), vacated and remanded
on other grounds, 1:0 S.Ct. 355 (1989),
vacated as moot, 893 F.2d 147 (3d Cir.
1990). A few months ago the court of
appeals upheld coercive sanctions for con-
tinued violation of crowding limits,
citing the county's “consistent failure to
meet its meager Eighth Amendment obliga-
tions." Inmates of the Allegheny County
Jail v. Wecht, 901 F.2d 1191, 1200 (3d
Cir. 1990).

16 Rhodes, 452 U.S. at 358 (Brennan, J.,
concurring). Accord, Harris and Spiller,

- 25 -

Even overtly vicious conduct by lower-
level staff may ultimately find its roots
in neglect or ineptitude, rather than
malice, on the part of responsible offi-
cials.1?

Thus, in prisons, all that is neces-

sary for the triumph of evil is that good

(footnote cont'd)

After Decision at 5-8 (1976) (noting lack
of support for prison reform until
publicized via litigation).

17 Thus, widespread brutality by Texas
prison staff, as well as tolerance of the
exploitative "building tender" trusty
system, were closely related to state
officials' failure to provide enough
security staff to keep order in a humane
fashion. Ruiz v. Estelle, 503 F.Supp.
1265, 1299, 1303 (S.D.Tex. 1980), aff'd in
part and modified in part on other

rounds, 679 F. 1115 (5th Cir. 1982),
cert. denied, 460 U.S. 1042 (1983). Judge
Johnson made similar observations about
the inmate trusty system in Alabama. Pugh
_v. Locke, 406 F.Supp. 318, 325 (N.D.Ala.
1976), aff'd in part and remanded, Newman
v. Alabama, 559 F.2d 283, 291 (5th Cir.),
cert. denied sub nom. Alabama v. Pugh, 438

U.S. 915 (1978).

- 26 -

men and women have other Priorities. Con-
Sequently, an gighth Amendment analysis
that turns on the ill will of prison
functionaries Simply misunderstands the
problem and will be wholly ineffectual in
guaranteeing minimal standards of decency.

Second, the court of appeals'
apparent view that if prison officials
take any action, however ineffectual, to
improve conditions, no violation can be
found,18 would effectively abolish Eighth
Amendment injunctive jurisprudence.
Prison officials almost always do some-
thing when confronted with litigation; it

would be astonishing if they did not.19

18 In the court's own words: "Impor-
tantly, the appellants do not contend that
the appellees have taken no efforts to
provide them with Minimally decent con-
finement conditions. Rather, appellants'

complaints are aimed at the results of
those efforts." aA. 73.

49 gee, @.a., Giliand v. Owens, 718
F.Supp. 65, 689-90 (W.D.Tenn. 1989);
Fisher v. Koehler, 692 F.Supp. at 1565-67

- 27 -

And as one commentator put it, "a prison
is most in need of systemic reform when
pervasive violations persist despite good
faith efforts of reasonable individu-
als."20

This Court has sagely warned, "It is
the duty of courts to beware of efforts to
defeat injunctive relief by protestations
of .epentance and reform, especially when
abandonment seems timed to anticipate
suit, and there is probability of resump-

tien.” United States v. Oregon State

Medical Society, 343 U.S. 326, 333 (1952);

(footnote cont'd)

("a case of better late than never");
LaMarca v. Turner, 662 F.Supp. 647, 716
(S.D.Fla. 1987), a al dismissed, 861
F.2d 724 (llth Cir. ); Ramos v. Lamm,
485 F.Supp. at 178 ( “commandable™ improve-
ments begun during litigation); and cases
discussed at 14-23, above.

20 Note, Complex Enforcement: Unconstitu-
tional Prison Conditions, 94 Harv.L.Rev.
626, 641 (1981).

- "8 -

see also City of Mesquite v. Aladdin's

Castle, 455 U.S. 283, 289 (1982); Allee v.

Medrano, 416 U.S. 802, 810-11 (1974); U.S.

v. W.T. Grant Co., 345 U.S. 629 (1953)

(reforms undertaken under threat of liti-
gation do not moot injunctive claims).
The law books are replete with accounts of
internal reform efforts that either were
not adequate or were not completed.2! =f
the mere existence of some reform effort
is enough to defeat an Eighth Amendment
claim, then prison conditions jurispru-
dence is at an end.

This is not to say that district

courts shculd ignore prison officials'

constructive efforts. In some cases,
21 See, e.g., Inmates of Occoquan v.

Barry, 717 F.Supp. 854, 865-66 (D.D.C.

1989); Fisher v. Koehler, 692 F.Supp. at
1564-68; Reece v. _ Gragg, 650 F.Supp. 1297,
1299 (D.Kan. 1986) (court tour showed
severe problems remained despite substan-
tial improvements).

- 29 -

these efforts may be sufficient to
eliminate the Eighth Amendment violation
by the time of trial, obviating the need
for injunctive relief.22 In others, they
may affect the scope and nature of the
injunctive relief granted.23 Certainly,

where prison officials adopt or propose

22 See, e.g., Lovell v. Brennan, 728 F.2d
560 (lst Cir. 1984) (relief denied where
Eighth Amendment violations had been
eliminated by time of trial); DeGidio v.
Pung, 704 F.Supp. 922 (D.Minn. 1989)
(same).

23 Davenport v. DeRcSertis, 844 F.2d 1310,
1314 (7th Cir. 1988), cert. denied sub
nom. Lane v. Davenport, 109 §.Ct. 260
(1988) (injunctive relief must be tailored
to improved circumstances); Morrow v. Har-
well, 768 F.2d 619, 627 (5th Cir. 1985)
(where officials have shown their readi-
ness to meet constitutional requirements
by changing policies, initial response
should be limited to declaratory relief);
Pisher v. Koehler, 692 F.Supp. at 1566-67;
Balla v. Idaho State Board of Corrections,
595 F.Supp. 1558, 1578-80 (D.ldaho 1984)
(relief regarding personal security
limited to those housing units where
defendants' remedial efforts had not
solved the problem).

- 30 -

substantial reforms, the court should use
them as the basis of its remedy unless
they are shown to be plainly inadequate to
end the constitutional violation.24 put
in all such cases, these are matters “
the courts' remedial discretion; they do
not negate the existence of an Eighth
Amendment violation.

For the past two decades the federal
courts have been the primary force in
maintaining minimal standards of decency
in prisons. ". « « [J]udicial interven-
tion has been responsible, not Only for
remedying some of the worst abuses by
direct order, but also for ‘forcing the
legislative branch of government to
reevaluate correction policies and to

appropriate funds for upgrading penal

24 See Dean v. Coughli

7 - Coughlin, 804 F.2d 207 (2d
Cir. 1986); Hoptowit v. Ray, 682 F.Supp.
1237, 1247 (9th Cir. 1982).

- 31 -

systems.'"25 At the same time, judicial
intervention under the Eighth Amendment
has been kept within proper bounds by the
decisions of this Court?® and of the
courts of appeals, 27 as well as by the
often-expressed reluctance of district
courts to become more involved in prison
operations than constitutional standards

require. 28

25 Rhodes, 452 U.S. at 359-60 (Brennan,
J., concurring) (citation omitted).

26 Rhodes v. Chapman, supra; see also
Turner v. Safley, 482 U.S. 78, &9 (1987).

27 Dean v. Coughlin, 804 F.2d 207 (2d Cir.
1986); Toussaint v. McCarthy, 801 F.2d
1080 (9th Cir. 1986), cert. denied, 481
U.S. 1069 (1987); Hoptowit v. Ray, 682
F.2d 1237, 1246 (9th Cir. 1982); Ruiz v.
Estelle, 679 F.2d 1115 (Sth Cir.), cert.
denied, 460 U.S. 1042 (1983); Ramos v.
Lamm, 639 F.2d 559, 567 n. 10 (10th Cir.
1980), cert. denied, 45C U.S. 1041 (1981);
Newman v. Alabama, 559 F.2d 283, 291 (5th
Cir.), cert. denied sub nom. Alabama v.

Pugh, 438 U.S. 915 (1978).

28 see, e.g., Tillery v. Owens, 719
F.Supp. at 1309; Coniglio v. Thomas, 756

F.Supp. 409, 414 (S.D.N.Y. 1987); Wooden

v. Norris, 637 F.Supp. 543, 555 (M.D.Tenn.

- 32 -

The courts' task under the Eighth
Amendment is far from over and it is
doubtful it will ever be. It is tempting
to believe that the "deplorable" and "sor-
did" conditions revealed by many of the
prison cases of the 1970s are now ancient
history. That is not the case. While
some unconstitutional prisons have reached
and remained at constitutionally accept-

able levels,29 others have not.39 worse,

(footnote cont'd)

1986); Miles v. Bell, 621 F.Supp. 51, 57
(D.Conn. 1985); Ramos v. Lamm, 485 F.Supp.
at 132; Pugh v. Locke, 406 F.Supp. at 328.

29 There have been no reported opinions on
the merits in the Mississippi prison liti-
gation for thirteen years. See Gates v.
Collier, 548 F.2d 1241 (5th Cir. 1977).
In Alabama, the district court entered an
order finding the system constitutional
and dismissing the case in 1988. Status
Report: The Courts and Prisons (January
1, 1990), in 2 Prisoners and the Law at
App. B-23, B-24 (Robbins ed. 1990)
("Status Report"). In Oklahoma, condi-
tions were found to meet Eighth Amendment
standards in 1986 and the action was dis-
missed except for the racial discrimina-
tion claims. Battle v. Anderson, 788 F.2d
1421 (10th Cir. 1986). The Arkansas

- 33-

constitutional prisons are constantly

(footnote cont'd)

prison litigation was ended in 1982 after
a finding of continuing compliance. Fin-
ney v. Mabry, 546 F.Supp. 628 (E.D.Ark.
1982). Other states with prisons subject
to long-standing injunctive orders in
which there have been no recent substan-
tial findings of unconstitutionality or
noncompliance include Arizona, Florida,
Georgia, Hawaii, Idaho, Illinois, Indiana,
Iowa, Kentucky, Missouri, North Carolina,
and Wyoming. Status Report, supra.

30 Tillery v. Owens, discussed above at
20-22; Alberti v. Klevenhagen, 790 F.2d
1220 (Sth Cir. 1986) (“rampant” violence);
Gilland v. Owens, 718 F.Supp. 665, 686-88
(W.D.Tenn. 1989) (“pervasive and constant
threat of personal harm" a sae Boheme.
s of Occoquan v. Barry, . .
soa B6G-6E iD D.C 1989) ("dilapidated
and filthy" living conditions, life-
threatening fire hazards, “'y —.
failures" in medical services); °
Fulton County, 713 F.Supp. 1426, 1429-31
(N.D.Ga. 1 ) (health-threatening defects
in medical care system, unsanitary condi-
tions); Morales Feliciano v. Hernandez
Colon, 697 F.Supp. 37, 45 (D.P.R. 1988)
("structurally unsound and vermin
infested" facilities, life-threatening
fire hazards, uncontrolled violence,
denial of and interference with medica

care).

- 34 -

threatened, and the gains of past years
are always at risk, from the pressures of
increasing populations3! and limited

budgets.32 Indeed, it is well worth

31 The national prison population grew by
6 percent in the first half of 1990. U.S.
Department of Justice, Prison Population
Grows 6 Percent During First Half of Year
(October 7, 1990). The National Council
on Crime and Delinquency has estimated
that in the twelve states that use its
projection methodology, prison populations
will increase by over 68 per cent by 1994.
Austin and McVey, The 1989 NCCD Prison
Population Forecast: The Impact of the War
on Drugs, NCCD Focus (December 1989).

32 Thus, in Duran v. Anaya, 642 F.Supp.
5910 (D.N.M. 1986), a statewide class
action previously resolved by consent
judgment, the district court was con-
Strained several years later to enjoin
proposed budget and staff cuts directed at
medical care, mental health Care, and
security staffing. In Palmigiano v. Gar-
rahy, C.A. No. 74-172, Order (DeRelLe,
January 25, 1984), the defendants sought
to be released from injunctive obligations
based on a Special Master's report showing
substantial improvement in their com-
pliance with a 1977 injunction. The court
denied the motion, citing the lack of com-
plete compliance and the dangers posed by
overcrowding. Now the defendants have
lost the ground they had gained. They
have been held in contempt and in "con-
tinuing contempt" based on a "record of

- 35 -

remembering that the dreadful conditions
in the Alabama prisons arose from a his-
torical background of failed reform. The
end of the “convict lease" system in the
early 20th Century was followed by the
construction of numerous new facilities
from the 1920s through the 1960s, but
financial pressures and population growth
undermined the “enlightened objectives" of

state officials, leading to the

(footnote cont'd)

sordid and explosively dangerous condi-
tions" brought about largely by worsening
overcrowding. Palmigiano v. DiPrete, 737
F.Supp. 1257, 1261 (D.R.I. 1990). Other
states in which significant noncompliance
has been alleged or proved after a lapse
of years without controversy include
Kansas (1980 decree reopened in 1988,
injunctive relief granted, new decree in
1989), Louisiana (case reopened in 1989,
investigations pending), Michigan (con-
tempt found in 1989), New Hampshire (con-
tempt motion pending), and Utah (new liti-
gation filed, restraininy, order issued,
contempt proceedings filed in 1989).
Status Report, supra n. 29.

- 36 -

"degenerat[ion] into unrelieved squalor".
later documented in federal court liti-

gation. L. Yackle, Reform and Regret:

The Story of Federal Judicial Involvement

in the Alabama Prison System at 10-11

(1980); see also Pugh v. Locke, supra.

The Texas prisons, too, had been the
beneficiaries of several decades of reform
efforts at the time that they were found
unconstitutional. S. Martin and §S.

Ekland-Olson, Texas Prisons: The Walls

Came Tumbling Down at 15-25 (1987); see

also Ruiz v. Estelle, supra.

For these reasons, it is essential to
the maintenance of public health and human
decency under our Constitution that the

Court reaffirm the holding of Rhodes v.

Chapman that Eighth Amendment rights are

to be measured by facts in the prisons and

— not intentions in prison officials' minds.

If the Eighth Amendment requires no more

- 37 -

than good intentions--or, worse, the mere
absence of bad ones--it might as well not
exist.
CONCLUSION
For the foregoing reasons, the judg-
ment of the court of appeals should be
reversed, and the matter remanded for fur-

ther proceedings consistent with the deci-

sion in Rhodes v. Chapman.

Respectfully submitted,

’ .
(Counsel of Record)

15 Park Row - 7th Floor
New York, New York 10038
Counsel for Amicus Curiae
[212] 577-35

7 —

Se at edited
~ ‘
’

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0490%3A07. Public record. Not legal advice.