Appendix — Oswald v. Sostre

«

Ix THE cs .

9

| Supreme Court of the Hnited States

’ “3 OCTOBER TERM, 1971

~

Pau D. McGrx NIs, Commissioner of” Correction of ©

the State of New York, et al., ~

:

°

Petitioners,

against i aie a

" Martry Sostre,

- Respondent.

“Martin Sostre.

-Petitioner,

against

Pati D. McGrynis, et al.

“

: a

. APPENDIX |

———$———_$$————

Lovis J. LerKowitz~

Attorney Genera] »

Of the State of: New York

_Attorne ‘vy for

Petitioner-Respondent

: -MeGinnis

. , 80 Centre Street

4 is New York, New York

aa ear : 212-488-7411

Rap sINOWITZ,: Bounpixn & Staxparp

Attorneys for ”

- Petitioner- Respondent Sostre

. 30 East 42 St. a

New York, N. Y. 10017

212—OX 7-8640

2»

eet

eo

Ld

TABLE OF CONTENTS”

PAGE *

ApPenpIx A—Opinion of the United States Court of |

Appeals for the: Second Circuit, dated

ebruary us Sg) SP et aie a la

Appenpix B—Opirion and Order of the United. States

; _ District Court. for the Southern Dis-

trict of New York ‘(Morttey, D.J.); dated

Bey ee 62a

APPENDIX C—Meimorandum Opiziion and Order ofthe —

District Court: (MotLey, D.J.), dated

June 12, 1970 kaha sig a Saws eaten -112a

APPENDIX D—Memorand 1 Opinion, on Motion for

; Preliminar¥ Injunction, of the District

Court (Morttey, D.J .), dated September

Se ene:

SO eae

é oes \

Appendix A. ee “

UNITED STATES COURT OF APPEALS

For THE SEcoND Circuit

- No. 180—September erm, 1970; a

(Argued to the- court in banc October 21, 1970. Decided.

ie aoe February 24, 1971.) ae

: Docket No. 35038 a ae

ae ~ Martie Sosrre, ,

; ; t Plaintiff-Appeliee,

Si eda Lee eS ~

Paut D. McGrxts, Commissioner of Correetion 6f. the

State of New York, Vixcext Mancusi, Warden of Attica’

Prison, and -Harotp W. Fo.erte, Warden of Green ‘—

Haven Prison, Reger) eee

Defendants-A ppellants.

. Before: | aa ae ze

ala Lumsarp, Chief Judge, -

WartTERMAN, Senior Circuit Judge,* :

/ Moors, ,F r1enpy, Smitu, Kavrmay, Hays,

‘ANDERSON and FEINBERG, Circust Judges.

° Appeal from a: decision and order -of the United States ° =

District Court for the Southern District of New York,’ -

Motley, Judge, granting plaintiff punitive and compensa-

_ tory damages and. injunctive relief, pursuant to the Civil — :

Rights Act, 42 U.S.C. § 1983.** | La Pa | RS oes

, +. . . . . . s .

* Judge Waterman was_an active circuit judge at the.time the °

_ ,court commenced in-.banc. consideration of this ¢ase. - wl

-** This decision is reported at-442 F.2d 178.

<

:

: Da

Appendit eer, Iie a tee IS

ae in part; — in: part; affirmed in ‘part,

.

aes , oe *

. ‘i v

beats "Kristy Boorx Ginn (Victor eine itz, David Rosen-

berg, Rabinowitz, Boudin & Standard, New —

ON. Y,, of counsel), for ‘appellee.

HILieu Morena, Acaistant Attorney General of the

State of New York (Louis J. Lefkowitz, Attorney

General, Samuel A. Hirshowitz, First Assistant :

Attorney General, on the brief), for appellant. ,

soon ~ WinuraM Bennett TURNER, San Francisco, Calif. (Jack

Greenberg, Stanley A. Bass, New York, N. Y., pn <

‘the brief), Amicus Curiae, for the N.A. A.C.P. be io

gal Defense and Educational’ Fund, Incs, and the.

National Office for the Rights of the Indigent.

_ , Haywoop Burns, Lowett Jounston, MaRGARET Burn-

9 HAM, New York, N. Y.,; on the brief, Amicus Cu-

riae, for The National ‘Conference of Black Law- 7

-yers.- : ie ee

a oe tae .

—_ FMAN, Circuit Judge:.

We voted to hear the initial aries of this appeal ="

en banc, a procedure we reserve for extraordinary circum-

My stances, so that we might give plenary review to a complex

of urgent social and- political conflicts. persistently seeking

solution in the courts as legal ‘problems, a phenomenon ,

. de Tocqueville ‘commented upon many years ago. Democ- |

racy in “America, vol. I at 290 (Vintage ed. 1945). The

elaborate opinion and order below, gaise important ques-

tions concerning the federal constitutional rights of state

prisoners, Ww hich neither silanes Court precedent nor our

ao ee

Appendix A.

* own past decisfons have answered. The sparse authority

from other courts is for the most part either inconclusive

‘or conflicting.” = |. | Re es ay

/ ty * : L

eae a: * ay

'. ‘PRocrEpines Brow aXxp Jurisbictiox

This is an appeal from an order entered May 14, 1970,

. by Judge Motley, sitting ‘in ‘the Southern District. of New’

- York, 312 F. Supp. 863, which ‘granted plaintiff Martin

‘ Sostre punitiye and compensatory damages against defend-

ants Follette and McGinnis as well as a wide variety of.

injunctive relief in his action pursuant ‘to the Civil. Rights

~. Aet of 1871,'42 U:S.C. §.1983, and 28 U.S.C. §$ 1331, 1343

(3). ‘At the time Sostre filéd his handwritten complaint; he”

. was‘inearcerated in New York’s Green Haven Prison (now -

-ealled Green Hayen Correctional Facility), serving a sen-

, *@

SB te

tence of thirty to forty years for seNing narcotics, followed’

by thirty days further imprisonment for contempt pf court,

imposed on him March 18, 1968. The original efendants —

included the Governor of New York’ as ‘well-as the State

‘ Commissioner of Corréction, appellant McGinnis; the War-

. den of Green Haven, Harold W. Follette, who died shortly

before the opinion below was éntered ;; and the Warden of

‘. Attica Prison (now ‘called Attica Correctional Facility),

appellant Vincent Mancusi. ‘Sostre had been, confined for

one night in Attica immediately after\:sentencing, then —

transferred the following day to Green Haven: ; i

Sostré does not appeal from the dismissal by Hrerdistrict

court of his action. against the Governor, in which Sostre

“2 On ‘June 12,:the district court ruled that Follette’s successor as

Warden (now called Superintendént) of Green Hayen would be

~ automatically substituted ‘as Te in this action under F. R.

ae Ae ~ ees yh Bok

ll

————

if P pend iv. A. :

had asserted the Governor's complicity in cracial dhie ‘rimi-

nation in the administration.of New: York's prison system.

Because there was no finding below that Warden Man-

eusi had in any way violated Sostre’s constitutional rihts,

the ease against him should also have been dismissed. In

refusing this dismissal, Judge Motley observed that Com-

thissioner MeGinnis ‘has the power to re-transfer Sostre

to Attica.” 312 F: Supp. at Si7 n. 8. The relevance of this

admitted fact escapes us. After bringing this law suit,

Sostre was transferred to Wallkill State Prison, but we

suppose that would not justify an injunction directed

against the Warden there.

We agree with the district court that Sostre was not

required as a precondition of maintaining this suit to per-

form the meaningless and plainly futile gesture of writing

a letter to defendant MeGinnis. See Houghton v. Shafer.

392 U.S. 639 (1968). (per curiam); Eisen v. Eastman, 421

B24 S60 (2d Cir, 1969). The record amply supports the

district court’s ‘finding that the State Commissioner of

Correction ‘‘had already ‘been informed of the facts’ and

fulther enlightenment from Sostre himself could not have

heen expected te affect his attitude or his inaction“ 312

_F. Supp. at 881-82. Nor js exhaustion of state legal or

equitable pemedies necessary “to a Section 1983. action,

which prov ides **a remedy inthe federal courts supplemen--

tary to any remedy any: State might haves’) McNeese v.

Board of Education, 373 U. Ss. 668, 672 (1963). See King

v. Smith, 392 U.S. 309 (1968) : Damico v. California, 389

PS. 416 (1967) (per curiam): Wright v.. MeMann, 387

F’. 2d -_ 922-23 (1967).

We alse * agree *with Jwige Motley “that defendants have not

femonstrated the adequacy of other relevant alministrative pro--

cedures. See ‘312 F. Supp. at 888-84 n

‘y

ayes 5a

Appendix AL er e..

Moreover, because Sostré “is not challenging the validit y

of his sentence” with the ultimate object of obtaining re-

lease’? from prison’ Hancock Vv. Arery, 301 F, Supp. 786,

791 (M.D. Tenn. 1969), his Seetion 1983 petition ix clearly

‘hot'a mere sham procedure to avoid the exhaustion require."

ment of the federal hahexs’ corpus statute. 2S USC. § 2254

(bi. (ey. Cf. Smartt y. Are ry. dtl F.2d 408 (6th Cir. IMGT hs *

Kalec yx. Adamowski, 406 F; 2d 3236 (7th Cir. 1969): Pemad

Vv. Adult Auth., 405 F. 2d 1185, 1186 (9th Cir.), cert. deni: d,

399 U.S. 968 (1969); Johnson v: Walker, 347 F. 2d 418,

419-20 (Sth Cir. 1963) ; King vx. UcGingis, 289-F. Supp.

467 (S.D.N.Y. 1968). see iere |

II. ca.

Facts

*

. ~

A. Circumstances of Sostre’s € ‘ommitment to

Punitive Segregation

On June 25, 1968, Warden Follette ordered that Sostre

Ine committed pursuant to Section 140 of the New York Cor.

rection Law’ to ‘solitary confinement” (the words in the

“tatute) or ‘punitive segregation” (the term adopted by

Judge Motleyand by the parties on appeal, which we will

use for that reasonand also because he Was not as ise.

lated in his segregation as “solitary”? would imply). The

parties vigorously disagree as to the considerations that

motivated Follette to infliet this punishment.

Section 140 was repealed and replaced-with a new Section 137.

eflective July 8, 1970 (McKinney Supp. 1970). Section 137.6 of

"the new statute vets the Superintendent of each correctional facility

(formerly called the Warden) with discretion to “keep any inmate

confined in a-celf or room apart from the accommodations provider

for inmates who are participating in programs of the facility, for

such period ‘as may be duecessary for maintenance of order and

discipline. om

j

6a

A ppendix A.

On June 25, 1968, the day he put Sostre in segregation,,

Folletty called Sostre to his office. At this meeting, Fol-

lette questioned Sostre about his-attempt that morning to

mail to an atterney,.Miss Joan Franklin of the National

Associatian for the Advancement of Colored People; a let-

ter with handwritten legal papers attached, ineluding a

motion for use in the trial of Mrs. Geraldine Robinson.

Mrs. Robinson is described by Judge Motley and tlie parties

on appeal as Sostre’s ‘*codefendant.”’ Although she was

joined with Sostre in the indieument which resulted in

Sostre’s imprisonment, they were not tried together. Fol-

lette told Sostre ‘the must confine his legal activities to

_his own incarceration?’ and aecordingly that the -motion

would not be mailed. Follette explained that he objected -

to Sostre’s attempt to, ‘‘practice law?’ without a license.

Sostre believed that he had a right to mail legal papers in -

behalf of Mrs. Robinson and refused to assure Follette, as

Follette requested, that he would discontinue attempting

to mail such documents through normal yrison channels.

During the same interview, Follette questioned Sostre

about a reference to an organization known as ‘‘R.N.A.,”’

mentioned by Sostre in his letter to Miss Franklin and to-

‘which Sostre had referred in earlier correspondence.

‘*R.N.A.”’ in fact referred to the Republic of New Africa, :

Which Sostre identified at the trial before Judge Motley as

a black liberation or black separatist organization. * Sostre

disputed Follette’s testimony that Sostre had lied about

- RLN.A. at the June 25 interview by persistently claiming

at that time that it was a ‘‘federal agency . . . ‘Recovery

National Administration’ or something like this.’? Sostre

did admit, as Follette assegted ‘at trial, that after respond-

ing to a few ‘questions Sostre refused to diseuss R.N.A.

further. The plaintiff's justification for his silehce was that

Follette -had. persisted in labelling R.N.AL a ‘‘subversive

organization.” Sostre ‘‘clammed wp,’’ as he testified, to

ia

Appendix A,

avoid. antagonizing Folette by further explaining or de-

fending R.N.A,. : ar :

Follette testified without contradiction that the organiza-

tion known as the Republic of New Africa was of pone: gat

concern to him to have been the.object of an investigation

before the interview with Sostre, Follette feared that ‘‘this

organization was a cloak for an attempt to organize prison

‘inmates for riot and insurrection,’’ based on information —

obtained from the F.B.1. andthe New York Stite and. *

Buffalo City Police. “{T Jhe possibility of insurrection at

Green Haven”’ was a “‘major fear” to Follette jt all times,

but particularly so in June, 1968. Security at the prison

had been weakened, in Follette-s view, by an exceptionally

high turnover of correction officers, approaching a rate of

about fifty pereent each year. An influx of new officers had

not yet been cleared through the New York State Identifiea- .

tion and Intelligence System. Moreover, Sostre had ©x-

acerbated Follette’s concern with the possibility of maior.

disorder because of a statement ina letter that Sostre had

written to his sister, dated May 19, 1968:

As for me, there is no doubt in mv mind whatsoever’

that T will be out soon, either by having may appeal

reversed in the courts or- by heing liberated by the

Universal Forces of ther

This sentenee is included in a broad indictment of milita-.

rism and oppression in this country.and asprediction that

“the power structure’? would soon be overthrown,

Follette insists that hhis decisién to commit. Sestre to :

segregaiion reflected (1) Sostre’s declared intent to defy

Follette’s order by preparing: legal papers for his ea

defendant; (2) his intransigence about R.N.A.: (3) the

allusion in the letter to his sister to his impending libera-

tion. Rule 54 of the “Tiniate’s Rule Book.” a publication of

_ the New York Department of Correction issued to each

~

Sa

Appendix A.

prisoner when he’ arrives at Green Haven, limits inmate

correspondence to ‘their oyen personal matters.’’ Follette

interpreted this as proscribing the sending of legal papers

in behalf of a eo- defendant. Sostre’s refusal to discuss.

R.N.A. and his persistence about Mrs. Robinson's legal

papers both violated Rule 5 of the Inmate Rule Book which

requires that. an inmate obey_orders+‘ promptly amt Tally)”’

“pending whatever appeal he may wish to take to higher

authority. In addition, his silence violated Rule 12; en join--

ing inmates to answer ‘‘fully and truthfully”? all questions

put by prison officials. In sum, Follette assigned as his

motive for Sostre’s punishment the fact that Sostre’s

‘‘whole attitude was one of defianee, of flatly refusing .

to conduct himself as a proper inmate within the rules,

regulations and laws set down by the State of New York

andethe Department of Correction.”” Section 140-of the

New York Correction Law authorized Follette, by, its. -

terms. in his unfettered discretion, to’ commit Sostre te *

segregation when ‘necessary .... to produce [his] entire

submission and obedience’? and to keep him <a ep irsus he

shall be reduced to.submission and obedience.’

Judge Motley ‘disbelieved each of Follette’s asserted

motives for punishing Sastre, crediting instead Sostre’s

testimony that Follette was motivated by Sostré’s threat to

sue Follette over his withholding the motion papers in-

tended: for Mrs. Robinson. Additionally, Judge Motley

attributed to Follette. an intent to punish Sostre feeause of

his earlier activism in bringing litigation related to the.

practice of the Black Muslim religion in New York prisons

and ‘because he is, unquestionably, a black militant who

persists in writing and expressing his militant and racic al

ideas in prison.’’ She held that the summary meeting with

Warden Follette which resulted in Sostre’s commitment to

segregation did not afford’due process of law to Sostre

>

- before his ‘liberty’ was taken.

—

ind 9a

Appendix A,

Apart from the events of the June 25 interview, Judge

Motley also dismissed as one of Follette’s reasons for

. continuing Sostre’s inea reeration in segregated confinement-

|

several items of ‘‘contraband”’ which F< © claimed were -

the fruit of asearetof Sostre’s cel] conducted. immediately

after he enteréd segregation. These items consisted of (1)

two small (3 inches by 5 inches) pieces of heavy black

emery paper.covered with an abrasive material like sand

which, according to Follette, could be flaked off and in some

manner attached to a string to fashion an instrument

capable of sawing through cell bars; (2) six tables of con-

tents torn from issues of the Harvard Law Review avd

stamped by prison officials to indicate that the hooks, Sos-

tre’s personal property, were not’ to circulate to other

prisoners ; (3)"A letter dated June 10, 1968, from the Appel-

late Division of the Supreme Court of New York addressed.

to ‘a fellow-prisoner of Sostre’s Jiian Moline, a Puerta

Rican, which Sostre later explained he was translating-for

Moline from English into.Spanish. Judge Motley believed

Sostre’s testimony that he had never seen the, pieces of

emery paper before they were introduced by defendant at

trial. 312 F. Supp. at 869. Tlie other contraband indicated.

that Sostre had violated prison rules by cireulaiing his

law periodicals’ to other prisoners and by giving a

fellow-prisoner_legal assistance without first securing the

Warden?s permission. The Court below not only declined

to find that these getivities motivated the punishment of

Sostre, but. held in’ addition. that Sostre's activities were ,

protected by the Fourteenth Amendment.'

~~

a “disciplinary court.” conducted by Sawner alone, and charged

Sostre with sending letters covertly to- unauthorized correspondents

under the guise of writing to his sister, Letitia. Sostre admitted

the infraction, which Follette claimed to have been under investiga-

tion as early as June 25, the day he committed Sostre to segregation.

For this: violation, Sestre was penalized with the loss of 90. days of

“good behavior time” credit. In addititon, Letitia was removed

from the list of Sostre’s approved correspondents.

.

*On. July 11, 1968, Deputy Warden Sawner called Sostre before

sere

o~ ‘\ Sey Tins Appendix 4.

B. Conditions of Punitive senile

Sostre remained confined: in punitive segregation for

twelve months and eight days, until Judge Metley re-

strained liis continued punishment pendente lite on July

2, 1969. By regulation, Sostre lost the opportunit¥-to earn

1241, days ‘of good behavior credit while he was segre-

gated. We cannot avoid setting forth the precise con-

ditions of Sostre’s long confinement with some particularity

. because Judge Motley found as a matter of law, that (1)

in view of those conditions, Sostre*s punishment—or any

confinement in segregation under similar conditions for.

longer than 15 days®-was ‘‘cruel and unusual’? under the

Eighth Amendment; (2) this absolute ‘rule aside,. Judge

Motley held that the penalty inflicted upon Sostre was so

disproportionate fo the offenses charged against him that

his segregation would have been eruel and unusual even

crediting each of Follette’s assigned justifications for it.

We cannot approve these Peragatmrey Our reasons for

refusing to do so.are based in part on undisputed facts:

in the record. which do not appear in Judge: Motley’s other-

wise entirely accurate description of Sostre’s segregate

environment. ~The following account dyaws upon those un-

“

_ * =

*New York: State prisoners may earn a maximum of ten days

“good Behavior time’* credit each month, thereby ailvancing both. the

date the prisoner will’ be eligible for parole and the date he is en-

titled as of right to be “conditionally released” (that is, released

from custody subject t8 parole conditions)... Prison atithorities may.

restore good behatior time withheld. or revoked. . See N. Y. Penal

Law §§ 70.30.4, 7040:1 (McKinney 1967); N.Y. Correction Law

§§ 230, 803 (McKinney 1968). The repeal of Section 230, as of

July 8, 1970 (McKinney Supp. 1970), does not affect allowances

for good behavior permitted priot to that*date, Forfeiture of the

chance to earn “good, time” credit during punitive segregation is

prescribed by regulation, 7 N.Y. Codes, Rules & Regulations,

Correction § 260.4. eet, , -e

| Ila

Appendix A. . i

disputed facts which do not appear in the opinion below, as

well as those which do, in an effort to present the whole

fabric. |

I. Isolation from Human Contact

Although for four months only one other prisoner was

confined with Sostre in his small ‘segment’? of five cells,

the entire punitive segregation unit at Green Haven housed

on the average about 15 prisoners at any one time. During

the period between June 28, 1967, and September 18, 1968,

179 prisoners were held in segregation for a total of 8,960

days. From September 19, .1968 to July. 3, 1969, when

Sostre was there, a total of 79 inmates were segregated-at

Green Haven. Of these, about ten percent were held in

‘“protective’’ segregation. This term is used ‘to describe

those who are segregated from the general population to

protect them from harm rather than as punishment. These

prisoners were incarcerated in cells entirely separated from

Sostre’s cell in the punitive segregation unit. The other

prisoners were confined in cells near Sostre’s, so that he

would have been able to communicate with them, albeit with

some difficulty depending on the distance between Sostre

and the other prisoners. We are informed of an incident

‘where one prisoner brought to solitary and placed in

another group of cells committed suicide. .Sostre was able

to communicate with this inmate and indeed. was able to

dictate a legal document to him..

Finally, although we do not doubt that ‘‘the erux of the”

_ matter is human isolation,” as Judge Motley observed,

Sostre aggravated his isolation by refusing to participate in

fa‘ group therapy’? program offered each inmate in’ segre-

gation beginning October or Novemher 1968. “¢ Therapy”’

sessions were conducted in groups of about eight per class,

generally one each week or ten days, under the guidance of

a *‘recreation -supervisor,’’ Sergeant Louis Profera. Pro-

hen =u es oe 12:

el ppend ix A.

so

fera.had been trained in group counseling in a six mouth,

40-hour course by a “ps¥chiatrist at the New York State -

Vocational. Institution. Special rules for punitive segre-

gation posted in the segregation unit provided that inmates

in punitive Segregation-would be ‘‘returned. to the semper al

population after demonstrating their willingness to aceept

and adhere to the institutional rules and regulations as

shown by their’participation in group counselling sessions.

.. «Refusal to participate in group counselling is indicative

of. the inmite’s unwillingness to accept and abide by the

rules and regulations of,the institution.’’ Profera’s favor-

able recommendation generally .resulted in a prisoner's

release fr em segregation. Although one prisoner who

testified at trial returned to the geferal population without

participating in group therapy, there js no doubt that there

was significant’ pressure to partieypate. Expert witnesses

-at trial disagr eed as to whether coercion would increase or

decrease the efficacy of group therapy.’ - .

53

,2. Other Conditions of Sostre’s Se aregated

Confine. ment . . | ‘

Sudue Motley heard extensive testimony deseribing such

important details as Sostre’s @diet, his opportunity for.

exercise, the hygienic conditions of his cell, and the possi-

bility for intellectual stimulation. It caw hardly be ques-

tioned that his life in segregation was harsher than it would

_ have be on in the general population, but neither was it

rlearly unendurable or Subhuman or cruel and inbuman in

a constitutional sense. ‘

Thus,. Sostre would not be’ oneei seconds of the main

course. lipon his demand; but there was no testimony that

he would haye had that privilege in the-general population.

He was denied the dessert that would have been available °

.

* See n. 11> urfra. ;

'

.

; 13a_

* 5 ppendix A.

to the general population: but apart from the dessert his

‘ diet still consisted of 2800 to 3300 calories a day.’ Sostre

remained in his cell at all times except fora brief period

once each week to. shave and shower. An hour of exercise

with four or five other, prisoners in a small, enclosed yard,

open to the sky was a daily routine. But the record reveals

that Sostre refused this privilege because he would not

submit to a ‘strip search.’ Officials testified that it was

necessary to subject prisoners to such an examination each |

time they entered the exercise yard to prevent them from

concealing’ on their bodies small bits. of wire or other

material suitable for use as a Wveapon. Fas

Hygienic conditions were at/least minimally adequate to

permit Sostre to remain cleat and healthy. This, Sostre

was allowed to shave and shower with hot water once each

week. The furnishings of his normal-sized (6 ft.’x 8 ft.) ,

eell ineluded a toilet and a face bowl with running’ ¢old

water, and he was provided with soap and a towel.

The strictures on -Sostre’s intellectual fare were severe. :

He could not buy or receive books, magazines or news-

papers, and his access to the prison’s library collection-was

limited to a selection among approximately _ thirty-five

volumes, mostly-‘‘shoot-em-ups”’ as Sostre described them, -

chosen by the prison guards. Still, light from a single bulb,

controlled by the guards and usually turned on early in the

morning and off at 10 p.m., was adequate for reading.» And

although he could’ not attend school or watch television; as

could the inmates in the general populatio® any material

related to the law requested by him would be brought to

his eell.. — - : :

+ Several prisoners who had served time in Green Haven’s \puni-

tive segregation unit testified that more punishing than the depriva-

tion of desserts’ was’ the loss of the opportumities available to the

general -population to receive food packages from the outside. ta -

borrow snacks from other prisoners, and to: earn pay with which

to buy extra food from the prison commissary.

Bp

Ida.

or

se he ae : Appendix A.

- 3. Length of Segregated Confinement

Pursuant to the usual practice at Green Haven, Sostre-

‘ was sentenéed to ‘‘solitary’’ confinement for an, indefinite .

period. According. to New York Correction Law Section,

140, ‘‘submissiveness’’? was to be the touchstone for his

release. Follette testified that Sostre eould have- returned

to the-general population either by successful pasticipation

in group therapy or by agreeing to live by the- rules of the

prison. Sostre’s contention is that he refused to agree to,

obey rules that he considered an infrifgement of his con: —

stitutional rights.. _ i

C. Censorship and Possession of Literature ;

. Defendant Follette censored Sostre’s ‘correspondence

with Joan Franklin of the NAACP, the attorney of reeord

representing Sostre on appeal from his conviction. Follette

regularly excised from letters passing between Sostre and

- Miss Franklin “objectionable” material—anything which |

‘in. his judgement was not rele vant to Sostre’s appéeal.?’? In

.aecordance with Rule 47 of the Inmate Rule. Book whicl?

restricts .inmates’ correspondence to persons en an ap-

- proved mailing list, Warden Follette .in late September,

1968, refused to forward a letter from Sostre to the United

States Post Office Inspector, in which Sostre complained of

Green Haven’s practice’ of not returning t6 “prisoners re-

ceipts for certified mail, The: distriet judge fotnd that”

each of these actions violated Sostre’s: First Amendment

right to freedom of speech. | pita aa

¢ About August 3, 1969, a month after-his release from

~~. Segregation, Sostre. was d@prived of the .use of ‘the prison

exercise yard and the privilege of attending movies because

he* possessed ‘‘inflammatory racist literature’? in-his. cell.

The. gterature consisted of articles written hy Sostre Rim-_

_ self on paper properly in his possession. Most of ‘the

‘punished’ by confinement. to. hi

”

.

«Lppendix A, + .

articles consisted of extracts from magazines ‘and -news-

papers which Sostre was also permitted to have and read in

his cell. The extracts ineluded quotations from, Mao Tse

- Tung, poetry written by a prison inmate, the names of the

officers, , the party program, and ‘rules’ of conduct of the

Black Panther Party; the officers and-oath of allegiance of

the Repuhtic of New-Af rica; a “program”? for Black Stu-

dent Unions; and the poem “If We Must’ Die,’? by Claude

McKay. In addition, guards found in Sostre’s cell an ar-

ticte which he had written himself, entitled ‘‘Revolutionary

' Thoughts.”’ The district court found that Sostre’s punish-

ment for possessing this material constituted another in-

fringement of his freedom of expression.’ !

All.

THe District Court’s OrpER

Upon these ‘findings which we have necessarily sketched, |

dudge Motley on Mav 14, 1970, entered the following order,

dS . § . . bd « e

Which because of. its complexity and importance to thes’

questions we Trust decide, We reproduce in full. The dis-°

trict court subsequently granted a stay of ats order pend-

ing appeal as to the bracketed portions, A stay as to the

remainder of the order was denied, :

It is now Orverep, that defendants Follette, Me-

Gimiis and. .Mancusi, their employees, agents, succos-

sors, and all persons in active concert and. participa-

tion with them be, and they.are hereby, perpetually @l-

joined\and restrained from:

~

—_——.

released ‘from segregation .he was

cell for several days; ostensibly

because “dust” was found an his dell. bars, Although Judge. Motley.

found that. this punishment reprasented “retaliation for his legal

success,” no relief was predicated\on this finding and hefice the.

incident nved not concern ws further. ae oh ee

“On the date Sostre Was |

* l6a

Appendiv A. . , im a

1) Returning plaintiff to punitive segregation for

‘ charges previously preferred against him; ‘

2) Placing plaintiff in punitive segregation or sub-.

jecting him sto any other punishment as ‘a result of

which he losds accrued good time credit or is unable to

“earn good time credit, without:

a. giving him, in advance of a hearing, a written

‘copy of -any charges made against him, citing the

written rule or regulation which it is charged he has

violated; e .

b. granting him a recorded hearing before a dis-

. mterested official where he will be entitled to cross-

. . ° . ~¥ é

examine his accusers and to call witnesses on lis own

"behalf: Be

¢.-gfanting hini the right to. retain counsel or to

‘appoint a counsel substitute; °

d. giving him, in writing, the decision of the hearing ~

officer: in Which is. bri¢fly set forth the evidence upow

which it is based, the reasons for the decision, and the

legal basis for ‘the punishment imposed.”

a

[3) Censoriivg, refusing to mail or refusing to give

to Sostre: 1) Any communication between Sostre and

the follewmg—(a) any court; (b) any public official or

ageney; (¢) anv Ipwyer: (d) his co-defendant in the

criminal matter pending against -him: and, 2) Any

letter-relating to any legal matter to or from any other

intiate who requests the assistance.of Sostre in trans-

tating’ that letter into Bnglish.]

*A panel of this ‘court on July 10; 1970, expedited the appeal

and granted « further stay of subparagraph 2 to the ‘extent that

it was ‘limited to placing Sostre im punitive segregation for more

than three days at ant’ one time or a total of more than ten days, -

pending the hearing of this appeal.

. ad -

e ,

/

lia

A ppendix A.

4) Punishing Sostre for sharing with other inmate ~

his law books, law reviews, and other legal materials,

and from refusing to permit Sostre to assist any other

inmate in. any legal matter as long ax defendants have

not provided any court approved alternative means of

legal assistance for such inmates.

D5) Punishing Sostre for havi ing in his possession

political literature and-for se tting forth his politica!

views orally. or in writing, except for violation of .

reasonable rules approved by the court re culating fre: M3

dom of speech.]

[It is further Oxvexrir that the above named defer:

ants submit, within 90 days from the date of this

order, for approval by this court, proposed rules a: a

regulations governing the follow ing: ;

Tt) the receipt, distribation. diseussion and writing |

- of political literature:

2) al? future Viséiptinary charges and hearings with

respect thereto where the possible punishments ine lude

solitary confinément, punitive seer: ‘gation or any other

segregation, and any other punishment in connection

with which there is loss of, or im: thility to earn, good

time eredit.] :

it is further Orperep that the above named defend-

ants and their agents eredit plaintiff with the 1 124!.,

days of good time credit which he was unable to earn

while w rongfully incarcerated in punitive segregution

from June 25, 1968 to July 2 2, 1969. :

[It ie~frether Onvenep that the plainfiff. Martin

Sostre, recover of the defendants, Warden Follette.

and Commissioner McGinnis the sum of $13.020.00.]

ts ot 3 ; 1Sa e ess : 4

. + Appendix” A. |

IV.

* PUNISHMENT For Pourtican BELIEFS axp Leceau Activities

The question as to the propricty of withdrawing from

incarcerated individuals constitutional privileges enjoyed

by citizens of the community, ‘although troublesome, is not -

~hew to the courts. It is clear that in many respects the

constitutionally protected freedoms enjoyed by ‘citizens-

at-large may be withdrawn or constricted as to state pris-

oners, so far as “justified by the considerations under-

dying our penal system,’ Price y. Johnston, 334 U.S. 266,

— 285.(1948). Federal courts have been reluctant to intrude

themselves into the complex and delicate problems of prison

administration. - Eig., (. S. er rel. Kuight v. Ragen, 337

F.2d 495 (7th Cir.), cert. denied. 380 b. S. 985 (164);

Hatfield vy. Bailleaur, 290 F. 2d 652, 640 (9th Cir. 1961);

Childs v. Pegelow, 321 F.2d 487 (4th Cir. 1963). The time’

is long since past, however. when a court might describe

a prisoner as temporarily “a slave of the state,’’ Ruffin

v. Commonwealth, 62 Va. (21 Gratt.), 790, 796, or treat

him as such. Among those rights wot take from Sostre

when he entered Attica, either ‘expressly or by neces-

sary implication,”’ Coffin v. Reichard, 143 F. 2d 443, 445

(6th Cir. 1944), is freedom from discriminatory punish-

ment inflicted solely because of his beliefs, whether: re-

lizions or secular. Cooper v. Pate, 378 U.S. 546 (1904)

(per curiam) (unlawful to withdraw prison privileges be-

cause of inmate’s religious faith); see Lee y. Washington,

390 US. 333 (1968) (per curiam) (racial segregation) ;

Fulwood v. Clemmer, 206 F. Supp. 370, 373-74 (D.C.D.C.

1962) (religious discrimination). Moreover, the Constitu-

tion protects with special solicitude, a prisoner's ‘access to

the courts. Er parte Hull, 312 U- S. 46 (1941): Johnson v.

Avery, 395 U. S..483 (1969). Accordingly, Sostre’s lengthy

192 -

Appendix A:

confinement to segregation violated due process of law if, as

‘the district. court found, Warden Follette inflicted the

punishment either because of Sostre’s militant political

ideas or his litigation, past or threatened, against Follette

or other state officials. ,

Sostre does not shrink from characterizing himself as-a

“jailhouse lawyer’? and.the record before us does justice to

this label, as does the history of Sostre’s earlier period of

‘~ confinement in New York prisons from 1952-64 follow-

ing his first conviction for selling narecoties. It is not

unré¢asonable to suppose, as the district court apparently

did, that Warden Follétte was aware of Sostre’s Black.

Mushjm activities during that period: of his solitary con-

finement in Attica Prison for four years, resulting from his

religious activism; and of his suecess in securing through

earlier litigation before this court the recognition of certain

constitutional liberties for state prisoners. See Pierce y.

LaVallee, 293 F. 2d 255 (2d Cir. 1961): Sostre v. MeGinnis.,

334 F.2d 906 (2d Cir), cert. denied, 379 U.S. 892. (]964).

Sostre’s version of his June 25, 1968, interview with

Follette, if believed, was a proper basis for Judge Motley ’s

conclusion that Follette committed Sestre to segregation, if

not in retaliation for his black militaney or past litigation,

then at least to squelch Sostre’s threat to take Follette to

court over his censorship of Sostre’s correspondence, Some

substantiation for Sostre’s account might be inferred from

Follette’s summary commitment of Sostre, without follow-

ing the practice described in the New York Department of

Correction’s Employees” Rule-Book (Rule 8.4). requiring

trial by a ‘disciplinary officer or court.”’ | ’

On this evidence, we cannot conclude that the district

judge was “clearly erroneous’ in attributing improper

motives to- Follette, affording.as we mist ‘‘due regard...

- to -the opportunity of the trial court to judve of. the

* eredibility’’ of Sostre and Follette, F.R. Civ. P. 52(a). See

Zenith Radio Corp. v. Hazeltine Research. Inc...395 U. S.

~

20a a

— ndix A.

1a (1969) (rey lew ing court may overturn finding if on the

entire evidence it is left with the definite ; anid firm convie-

tion that a mistake has been made). On the other hand,

_ McGinnis was not privy to Follette’s interview with Sostre.

” The record is barren of any justification for attributing to.

him, in sanctioning Sestre’s continued confine ‘ment, any

more sinister motive than epprepmate deference to the

judgment of Warden Follette. MeGinnis on the record

before us, had no reason to suspect Follette of other than

proper motivation.” :

a :

CreeL‘axp Uxuscan PuxisumMent

_ A reflection of maturing se nsitivity in this country to

the condition of some of our prisons may be seen in the.

distriet court’s finding that deprivations stich as Sostre

“endurtd for a vear may not again be inflicted on. New York

State prisoners for longer-than fifteen dtays, and only then

for serious violations of prison rules. Otherwise, Judge

_ Motley held, such . punishment would run ‘ashoal of the

“Kiehth Amendment prohibition of cruel and unusual pun- -

ishment, as applied to the states through the due process

suarantee of the Fourteenth Amendment, Robinson y.

California, 376 U.S. 660 (1962).

"We respect the outrage, ‘given form and content by

scholarly research and re ‘flection, that underlay the expert

testimony at trial of Sol Rubin, for many vears Counsel

for the National Council on. Crime and De ‘Hinqueneyw, and

Dr, Sevmour ‘Halleck, a psychiatrist at the University of

- Wisconsin with long experie nee in state correctional prac-

“AM Commissioner McXieende knew ‘or should have know n of

he: Teagons gor Sostre’s confinement w: as communicated to him by

Polls tte, see 312 -F. Supp. at 882. who of. course dil not relay

Sostre’s version of the June 25, 1968 interview.

21a ; ‘

pie Appendix A.

tices. “Mr. Rubin testified that- Sostre’s segregated en-

vironment was degrading, _ dehumanizing, - conducive to

inental derangement, and for these reasons ‘4 gross de-

parture”’ from enlightened and progressive contemporary

standards for the proper treatment of prison_immates. Dr.

‘Halleck feared] that the ‘isolation from human contact in

punitive ‘segregation might cause prisoners to hallneinate a

and to distort reality. Long-term isolation might have so,

seriois an impact, in fact, as to ‘“‘destroy’’ a person's

‘mentality’. Dr. Halleck singled out for particular cen- |

sure’ Green -Haven’s “eroup therapy’’ program, whose

compulsory aspects he found repugnant to effective treat-

ment of participants and’ indeed inconsistent With minimal

standards of professionalism among tramed group coun-

sellors.™ :

Nor would candor permi@ us to dismiss these opinions

as aberrational among those- views revealed’ in relevant

sources referred to us by counsel or known to us through

our own research. To the contrary, it would not be mis--

leading to-characterize many of the, opinions of plaintiff *s

experts as fairly representative of the perspective -of ad-

herents to the “new penology,”? see Knuckles NM. Prasse,

302 FL Supp. 1036, 1047-48 (E..D. Pa. 1969), the thrust of °

whese doctrine may be gauged by the preference for the

adjective “correctional” rather than ‘penal’? as more ac-

curatety indicating the proper function of a prison SVs-

tem.” The rapidly rising standards in the field Of penol- *y

" Dr. William C. Johnston, a psychiatrist and Director of Matta-

Wan State Hospital for the criminally insane, With extensive ¢x-

perience in dealing with mentally disturbed prisoners. rejected Dr.

Halleck’s assessment. Dr. Johnston reported that he had in fact

supervised a successful compulsory group counseling program while

Director of Dannemora State Hospital. Dr. Johnston also did

net agree with plaintiff's experts that segregated confinement \, ould

hkely endanger prisoners’ sanity,

'* Hearings on H.R. 6964. H. Subcomm. No. 3, Comm.-on the

Jucictary, 89th, Cong., Ist Sess.. at 2 (May 20, 1965) (testimony

-of Nicholas deB. Katzenbach )__ =

»).)

vee

ehppenidiv A.

oxy and corrections that Mr, Rubjn’ referred to in’ his

testimony are reflected in a growing preeecupation with

institutional strietures and techniques designed to ‘“rein-

tegrate’’ prisoners with society or, in the jargon of the

_ @Xperts, to “provide.” motivation for acquiring at con

‘Ventional role in a nort-delinquent setting.” Conjugal

Visiting, daytime work or educational-release programs,

vocational training, half-way houses, and inniate publiea-

tion of prison newspapers are some of the vanguard

Weapons in the **modern’? approach to prison administra- .

tion, The key concepts are access and involvement of pris-

oners with the free society ‘fon the outside’ Anathema

to this perspective art perhaps more traditional ‘practices

Which subject prisoners to ‘deprivation, degradation, sub-

servience, and isolation,. in an'attempt to. “break” them

and make them see the error of their Ways.’”® It is sug-

'SSee U. S. Burcau of Prisons, The Residential Center: Cor-

rections in the Community (1970), ° i.

"See, e.g., Garabedian, Challenyes for Coutemporary Correc-

tions, 33 Fed. Prob. No.-1, at 3 (Mar. 1969) - Rachin, The Message

Corrections Must Get Across, 34. Fed. Prob. No. 2, at- 3 (June

1970); Summary of The Report of the President's Task Force on

Prisoner’ Rehabilitation (1970), 34 Fed. Prob. No, 3; at 3 (Sept.

1970). We do not ‘ignore New -.York’s active participation in this

reform movement. See N.Y. ¢ ‘orrection Law Art. 26 ( Mchinney

Supp. 1970)- (work release program ). .

15 . ; : os

“Trailitional prisons, jails, and juvenile institutions are highly

impersonal and authoritarian.e Mass handling, countless ways

of humiliating the inmate in order to make-him subservient to

rules and orders) special rules of behavior designed to maintain,

social distance between keepers’ and inmates, frisking of in-

mates, regimented movement te work: ‘at, and’ play, drab

prison clothing, and similar aspects of daily life—all tend to

depersonalize the inmate and reinforce his belief that authority —

‘is to be opposed, not cooperated with . 2 . Such an attitude is,

‘of course, antithetical to successfid reintegration.” -

_« President's Commtission on Law Enforcement and Administra-

tian of Justice, Task Force Re por: Corrections 11 (1967> (here-

ina fter-cited as “Corrections” ¥ a

23a | -

Appendix A.

gested by many observers. that such techniques are count-

er-productive, tending only to instill in most prisoners at-

titudes hostile to rehabilitation, summarized by one author

as “doubt, guilt, inadequacy, diffusion, self-absorption,

apathy [and] despair.?? ” eit |

We do not question, either, the relevance to an inquiry

under the Kighth-Amendment of-opinions which may rep-

resent a progressing sense of humaneness as well as a new

‘alculation as to the efficacy of penal practices. See Trop

V. Dalles, 356 U.S. 86. 10] (1958) (Kighth Amendment in-

vokes “the evolving standards of decency that mark the

progress of a maturing society’’),

For a federal court, however, to place a punishment

hevond the power of a state to impose on an inmate is a

drastic interference Witli.the state’s free political and ad-

ministrative processes, It is not only that we. trained as

Judges, lack expertise in .prison administration, Even a

Jifetime of study in prison administration and several

advanced degrees in the ‘field would not qualify us as a.

federal court to command state officials to shun a poliey

-. that they have decided is suitable because to us the choice —

may seem unsound. or personally repugnant. As Judges,

we are obliged to school ourselves in such objective sources

as historical usage, see Wilkerson y. Utah, 99.0. S. 120

(1870), practices in other Jurisdictions, see Weems y,

United States, 27 U. S. 549 (1910), and public opinion,

see Robinson v. California, 370 U. S. 660, 666 (1962), he-

Toré we may responsibly exercise the power of judicial re-

‘view to declare a punishment unconstitutional under the

‘ighth- Amendment. | Pace sae

te

™ Chief Justice Burger, a persistent critic of our system of

criminal justice Which, places every Protection. around an - accused -

but seems -to abandon him when he is sentenced to prison, recently .

Observed that “a man in a cage needs incentive. motivation, and

something to look forward to.” U.S \ ews and World Report 32

(Dec. 14, 1970). a

. . 2 >

| .

— A.

Accordingly, we have in the past declined to find a

Kighth Amendment violation unless the punishment: can

@properly be termed “barbarous”? or ‘shocking to the. con-

science”? See Church y. Ie Ys strom, 416 FF. 2d 4495451 (2d

Cir. 1969), Although the conditions Sostre endured were 7

severe, We cannot agree ‘with the district court that they

were **s0 foul, so inhuman, and so- violative of basic con-

cepts of deceney,’? Wright v. McMann, 387 F. 2d 519 (2d

Cir. 1967)? as re require that similar punishments be’ lim-

ited in the future to any -particular length of time. Nor

can we agree that Sostre’s own fong confinement—hows ever

contrary’ such prolonged segregation may he to the views:

of some expel rts—would have been ‘‘eruel and ‘unusual’?

had Sostre in fact been confined for the reasons asserted

by Warden Follette, rather than’ on aécount of his beliefs

artd litigiousress, ‘

It is undisputed on this appeal that segregated’ confine-

ment does not ‘itself violate the Constitution: See Burns

Swenson, oe eos a Cir, Aug. 31, 1970) ;

Plates yw Bishop, 409 F. 2d 1185 (Sth Cir.), cert. denied,

396 U.S. 915 (1969); Graham yv. Willingham, 384 F.2d! 307

(10th Ci * 1967): U.S. ex. rel. Knight vy. Ragen, 337 F.2d

425 (7th Se 1964), cert. denied, 380 Uy S. 985 (1965) ;

Krist vy, Smith, 309 F. Supp. 497 (S. D. Ga. 1970) ; Roberts

*. Barbosa, 227 F. Supp: 20 (S. D. Calif. 1964). Indeed,

~we learn that a similar form of confinement is probably

used in almost every jurisdiction ‘inthis country and has

heer described as one of ‘‘the main traditional disciplinary .

oe . of our prison systems, | President’s Commission

ah & F Dias LY, Semson. ing, A us (Sth- — Aug. 31,

1970) ( “base, inhuman, .and barbaric’ Moni Vv. 2 very, 301 F.

Supp. 786 ‘791-92 (M.D. Tenn. 1969) Baer es “debasing, vi

“violates basic standards of human decency” > Holt v. _ Sarver, 309

F. Supp. 362, 380 (E.D. Ark. 1970) | ened excessive, " “shocking

or disgusting’) ; Jordan.v. Fitzharris, 257 F. Sup. 674 (N.D.-Calif.

1966 ) (“shocking and debased” “conditions justify court’ s interven-

tion to “restore the primal rule of a civilized community”).

da

Appendix A, eae -

on Law Enforcement and Administration of Justice, Task

Force Report: Corrections 50-51 (1967): S. Rubin, et al.

The Law of Criminal Corrections 293, (1963). Plaintiff

has directed our attention to currently operative rules in:

other jurisdictions Which limit the duration. of segregated |

confinement, and to- several commentaries recommending

“e- ’ %

or approving such rules. In several states, however, in-~

carceration ‘in segregated cells seems to be for*an indef-

inite period, as ‘it is in New York.*”. The federal practice

aypears to be that prisoners shall be retained in solitary

‘for as-tong as necessary to: achieve the purposes in-

- tended,’’ sometimes ‘indefinitely.’ Furthermore, ‘will.

ful refusal to: obey an order or demonstrated defiance of

eta meintsennne " i :

"* Indeed, the first prisons in this country, widely imitated. in

urope, were intended “to serve as place[s} for reflection ‘in soli-

tude leading to repentance and redemption.” The Eastern State

Penitentiary in Pefinsylvania (1829), where inmates lived; worked,

and exercised without being permitted to talk with fellow prisoners

“was copied abroad perhaps more than any other American inven-

tion.” Corrections 3. ‘See, American Correctional Ass'n, Manual

OK Correctional Standards 13 (3d ed. 1966) [hereinafter cited ‘as |

“anual” |. | All forms of prjson punishment in this country .pale

by camparison’ with those endured by Henri Charriere in ‘the

‘dungeons and: F reich Penal Colony’ described in his book Papillon

(Morrow, 1970). a

"See Tenn. Code Ann. § 41-707 (maximum 30 days solitary

for each offense ) ; Corrections 210 (disciplinary confinement neraxt-

mum 30 days); American Correctional Ass'n, Wennal 418 (punitive

Segregation maximum 30 days); Imerican Lazw Institute, Model

Penal Code § SO4Z (3%) (Proposed Official Draft 1962) (disciplinary:

confinement maxinium 30 days). However, .compiirisons and extra-

polations are hazifrdeus where. factual contexts are lacking. ‘For

example, The . Ainerkkan Correctional Association, *\anig/ 419,

would apparently not Proscribe indefinite. confinement to “adminis=

trative segregation.” The practical distinction intended between

“punitive” and “administra ive” segregation may or may not parallel

that at Green Haven fete See “punitive” and “protective’

segregation. ; * o ;

y * Mo.-Rev. Stat.’ § 216.405. tited in Burns v. Stecison, —— F.

“24 —— €8th Cir. Aug. 31,. 1978); statutes cited elinerican Lazy

Institute, Model Penal Code § 3087.6 n. 13 (Tent. Draft No, 12.

1960). Dine Stat

er

ae

26a ti‘ *

Appendic A. «

2

_personnel acting in line of duty may constitute sufficient’

hasis for placing an imnate in segregation.’”!° Such anal- |

ogolls practices*” do not impel us to the conclusion that the

Mighth Amendment forbids indefinite ‘confinement under

the conditiows enditred by Sostre. for all the reasons as--

serted’ by Warden Follette until such time as the prisoner

agrees’ to abide by prison rules—however counterprodue-

tive asa correctional measure or however personally. ab-

horrent the practiGe.may seem to some of us.

In artving at this conclusion,* we. have considered ©

Bureau ef Prisons, Policy Statement: Inmate Discipline, No.

4400.5A, © 3c, App. B § 1.d (8) (July 2, 1970). .

** The Supreme Court has struck down a choice of punishments |

only when the penalty was authorized in almost no ether civilized.

jurisdiction, Trop v. Dulles,.356 U.S. 86 (1958) ; Weems.v. United

States, 2YWU. S.. 349 (1910), or conflicted with moral. precepts”

“universafly held,” Robinson v. California, 370 U.S: 660 (1962).

See also Jackson v. Bishop, 404 F; 2d 371, 580-(8 Cir. 1968) (use

of strap permitted in only two states, outlawed fn several).

°8 Judge Feinberg expresses the view in his dissent, that “isola-

tion of an adult prisoner for a sharply limited period as punishment

_for.a serious breach of .prison discipline” would be constitutional.

But then he ‘goes on to ask rhetorically whether solitary or segre-

gated confinement “for two years instead of one, or for five years,

or for ten, or more,” would be constitutional. We -have ‘made an

effort to. suggest the .impracticality of setting any ‘specific time

period for segregated confinement, beyond which ‘the punishment .

would be “cruel and unusual.” In some instances, depending upon’

the conditions of the segregation, and the mental and physical health

of the inrnate, five. days or even pne day niight prove to. be’ consti-

tutionally intolérable. | We would ask our ‘dissenting brother in

turn, would nine months; six months, or thrée months of segregated °

confinement be unconstitutional, without reference to the -circum-

stances -of confinement ? “eo Sei aes

Judge Feinberg is also properly_econcerned with “endless solitary

confinement... unless the’ prisoner ‘gives in.’”’ Our résponse

-is that we are concerned also. But one must: ask on what was it

that Sostre was expected to “give in.” He was asked to show a

change in his imransigent defiance. of several prison regulations,

defiance which posed a credible threat to the security of the prison,

"by attending group therapy sessions.” D@es it violate principles of

fundamental decdney to insist that’a prisoner comply. with reason-

able rules applicable to all similarly situated?

. .

Appendix A,

? : : ; a

Sostre’s diet, the availability in his cell of at least rudi.

mentary implements of personal hygiene,** the oppertunity

for exercise® and, for participation ‘in group therapy,”’ tlie

“In response to Judge Feinberg’s ‘dissent, we emphasize that no

one testified that based on his observation ‘or as the result of a

physical or psychological examination: of Sostre, le concluded that

Sostre was being adversely affected or that his physical or mental

health was threatened. We tiote that the record shows that a prison

physician visted Sostre’s ‘segregation unit daily, and at no time did

the physician observe, or did Sostre call to his. attention, any such

effects, : cae : oats

Indeed, the experts before the district court were in conflict

even over. the hypothetical question whether the conditions that

Sostre experienced in segregation would be dangerous to the’ sanity

of “a prisoner.” See pp. 20-21a and in. 11, supra. On the basis of

these conflicting expert opinions, ‘Judge Feinberg observes that the

district court found as a ‘fact’ that these conditions “could only

serve to ..... undermine the sanity of the. prisonér” . . . when

imposed for more than. fifteen days. We-do not agree with out

brother that we are required to declare this “finding” to’ he either

right or wrong, either “clearly erroneous” or adequately supported

by the record and therefore cocrect. We are not concerned here with

conflicting testimony of witnesses to the same wnigue historical event,

—

The question, rather, Is a general one: Whether the Eighth Amend-

“ment absolutely forbids ‘a state to use -A means. of discipline when

there is no evidence of any physical or psychological injury. to

the health ‘of the prisoner Who.- complains of the measure, and

also when the opinions of. the experts as to the effects of the type

of discipline are in conflict. To hold the district court: eithér aight.

or wrong would be tantamount to ruling that either Dr, Halleck |

or Dr. Johnston is’ right, and the other is, wrong. That i$ not

Our function, nor was the function of theedistrict ‘court.’ It isea

judgment among competing, rational polieies,’ a judgment therefore

properly reservéd for decision by state ‘political and adnainistertive

processes. See, e.g:, Ginsberg-v. New York, 390 U. S. 629, 642-

43 (1968).

*° This element distinguishes the instant case from A’rist vy.

Smith, 309 F. Supp. 497, 501 (S. D. Ga., 1970), where the court.

found no constitutional® acceptable justifications for-sdenying sevre-

gated prisoners a chance to exercise. OE , 5

“° In. view of the widely recognized and critical shortage of

Specialists such as psychologists «in prison systems generally, it’ ’

(footnote continued on following page)

o

s

°

s

elim

. ‘

A v -

\ .

. z 7 “ ’

” Ps sf F . e

Appendix A.

. * prevision of at least’ some general reading matter from _,

Te thy prisen library and of unlimited numbets of law hooks.’

an! the constant possibility of communication with other

~ceregated prisons. These factors in combination raised

the: quality of Sostre’s segregated environment several *

notches above those truly barbarous and inhuthane condi-

tions heretofore condemnetl by ourselves and Ry other. .

routs as “ernel and unpsnal," See Ford v. Board of

Vancaers, AG FL 2A 987 (3rd Cir. 1969) (ne running water

for wast J: bread and water diet exept one regular

tal doch third day; held constitutional); Lawduaw \.

« 70 FL 2d 135 (4th Cir. IN), cert. denied, aSS

\ | otnote continued from -previons page

mth! «lefy reality ti discount the valic of the qrotp therapy pre:

m hbecguse of the ««hewhat limited framing and expetionce a

Va keoke. Corrections 20S. * As mated above, pp? Mha-2la mul.

faNtl, copra, the expert testimony at trial helow conflictes}. as lo ¢

. the Wnpect on the effectiveness of CTUUp sesetuars of | ctercing- pris.

mer) jSArticspeatiom, - rt

‘ey... —— ¥. McMann, 387°F 24 519, 321 (24 Cir, 1o87,

~ Peenant alleged cellencrusted with excrement; plaintiff entirely

faked 11 days, then clad only in thin upderwear: windows open

thomg out. subfrerzing fight; prsemer slept on concrete flamer: no

“ag? Aeeel, or toilet paper) se/fancock vo Avery, OL F. Supp. -

“ee om MOK Tenn, 1909) (virtually no light or ventilation: hole

s«- tor wastes flushed irregularly by guards; nowsap, tuwel, or walet

at meyer, feo meals of bread? ome: full meat): Jordan v. Fitcharris,

* 29 EeSapp. 674 (ND. Calif. 1966) (conditions similar to Hncock

am! mewhgityenptisoner sept naked gm cumerete floor). iy

. Sostte dors not allege that he wax arbitrarily. or dliscriminaterily -

Guinithx ° of dlsase® by prison authigrities whik he was scuregate!.

. See Falemod ¥ Clemmer, 206 F. Supp. 370 (D.CD.C. 1962) (plain-

uff, atoony oerethings, unlawfully denied exercise of his teliginn

while gorgated and mnproperly trassferred from privon to a jail

: lewauee of his redigied ) Holt , v- Sarover, HPF. Suy » M2, ao

eat WSEJ) Ark. 1970, i ptiamers subjSeted to arbitrary power af other

.priseners). Ci. Jacksons Bishop, 44 P21 S71, 579 «Sth Cir.

was) 6 fuente for prison antherities or courts to supervise ad-

mhstritiers ¢f carperal punishment so as ta prevent Pxcesses }.

° ~ ye e : °

Pit one ‘ Procepvrat Dee Process

*

~

Appendix A, =

TLS. 920 (1967); Knuckles v. Prasse, 302 F- Supp. 1056

(ELD. Pa, 1969) (400 days segregation held ednstitutional ).

Finally, we cannot agree with dudge Motley that even

if New York might in an appropriate case subject a pris-

oner to the conditions of Sostre’s segregated confinement,

had Follette’s motives heen as he deseribed them, the pun-

ishment woild in any event have been unconstitutionally

dispreportionate to the offense. Were we to rule other-

wise, we would deny to prison authorities the power to use

an entirely ednstitutional means of discipline in response

net only to a credible threat to the security of the, prison,

but in response to a prisoper’s refusal to answer appre-

priate questions put by prison authorities. and-to abey

valid prison refrulations.” . : os

VL

ah divergence. of perspectives similar to these ye have

seen in considertug the Eighth Amendment ixeue ix pre-

sented in anoflicr form by the district court’ order that

Sostre may not be punished in the future in <ueh a way as

to forfeit earned **goad tine’* credit or to loxe the chance

toearn such ervidit-unless be has (a) written notice of the

charges against him; (hb) a reeorded hearing before a dis-

interested official with a chance to crgss-examine ‘adverse .

" » We sitess the sctioumess of the multiple offenses. charged

"against. Sostre by Warden Follette. <ce pp. 1642-45. supra, and

express no Giew ax to the constititiemality of such segregate? com

finentent as Sottre experienced if it were imposed for lesser offemses

' Specifically, wt eNpress no view as te the constitutionality of s<tch

s¢gregated ceomfinement if it had heen impel om account of any

one or any combination of the offenses charged against Sostre other

than all of then. -

30a

‘Appe wdic Ass

- f

.

Withesses and call himuabe in his own behalf; (¢) the right

to retain counsel or counsel substitute: and unless (d) a

written decision is rendered.”

Sost re presses*upen us avariety of cases; relied upon by

the district court and said to be analogous to this case,

in Which federal courts have'required states to square cor-

ners before exacting*a penalty by following procedures —

similar te those mandated by Judge Motley. . Particular

importance is attached to Goldie ra &. Kelly, 397 U.S, 254

(1970), where the Supreme. Court announced ‘that before

ere may terminate welfart payments they mu adopt

‘“‘minimum procedural safeguards”? and — ‘those who

are to‘suffer loss ‘trudimentary due protess,"* including

advaace written notice and a hearing at w hich the welfare

reciyyent may cross-exaniine adverse Witnesses and Je

represented by counsel. In addition, there must, be a writ-

fen statement of reasons for, any Termination, ‘including

some indication of the ev idence Sennporting the adverse

decision. - .

Our recent decision in Escalera v. New ‘York City Mous-

jna Authority, 425 F. 2d 853 (2d Cir 1970), instructed That

a state's withdrawal of the ‘privilege’: - of residing in a

oF public -housing project was onvrous enough to require it to

provide those. affected with a lequate advifnce netice, a

hearing, access te adverse evidence, cross-cxamination of

| adver rse witnesses, full disclosure of rales governing the

Judge Foley-of the Northern District of New York Jhas

pees i the precedural aspect of Judge Motley’s order, I right-\

McMann; -—- F. Supp. @huly 31, 1970). on-rehcaring after

re sar 387 F.2d 519% 24 Cir. 1967). In Carothers vy. Fo! lette, ——-

PF. Supp. -—.(S.D.N.Y, Sept. 8, 1970), Judge Mansfield approved

aspects of these proce dures, remarking that “ any serious charge’

would ‘cequire such “essential elements of fundamental procedural

faimess” as “an opportunity to preseyt evidence befote a relatively

obteoctive tribunal.” : .

. oe a gene

al pendix A.

hearing, anda reasoned decision based solely on the evi-

dence adduced at. the hearing. ;

Somewhat closer in point-to the present case ‘is, Mempo x.

Rhay, 389 U.S. 128 (1967). The court held that representa-

‘tion of petitioners by counsel was essential to the fairness

of their deferred sentencing proceedings,” The lnposition

of sentence had been suspended and the ptitioners placed

on probation. In the proceedings wider review, de fendants

were faced with both sentencing and imprisonment on the

first convictions. for committing’ second offenses while out

on probation. The Supreme Court detergnined that defend.

ants should have *heen represented. by counsel, Legal

i x, the Court reasoned, would have aided petitioners in

“marshalling the faefs"* and might have ensured that im-.

‘portant legal rights were nof lost because inexereised at

that Stage.

~ Petleral court's disagree _ as to the reac h of We wpa to

probation revocation proceedings gene ‘rally. See the ex-

tensive wore of cases in Hewett v. No¥th Carolina, AS

FP. 24 1516, 1222 (4th Civ. i9). In Mewitt the court de-

cided that ‘eouneel Was a necessary compone nt of funda-

mental fairness at a probation revocation hearing, ‘th:

event which makes operative the loss of liberty." hee “use a

trained lawyer might have prevented Yhe adfnission aghins?

defendant of i improper eviderice, and, through appropriate

objections, ¢ xeeyitions, antl @ssignivfents of error, have pre.

served defendant's right to appeal.

Escaleva and Goldberg are persuasive recent authority

that States ‘May not vv oid the rigors of dne process by l; abe |-

ing an action which has serious and onerons cons: “fetices

“In Tescacend ve Burke, 334 U.S. 736 (1948) the -Céurt had

held that an UNTEp TEs ntel de femlant was unfairly prejudice by the

sentencing court's reliance on. ‘assuniptions conceraing his criminal

record whieh were materially untrue.” aera

32a .

; > «lppendix A,

as a withdrawal of a “privilege”? rather than a ‘“‘right.0™

Mempa warns us that’ procedural formality may be re-

quired in: the operation of the crimiualization and -inear-

ceration process beyond the determination of guilt af trial.

Thus, we do not doubt that Sostre’ was entitled te “due”

process of law’? before-he was punished for an infraction

of prison rules. The exaction of segregated: confinement

was onerous indeed,” and the distinetion between a “right”

and a **privilege’’—or, between ‘liberty’? and a ‘‘privi-

lege’’ for that matter—is nowhere more meaningless than

. behind prison walls.” The diffieult question, as always, is

“ what process was due. In answering that question, we may

* not uncritically adopt the holdings of decisions that take

‘ color from contexts where the -shadings are as different

from the instant case as the cases we have dixeussed: é

[Ajs a generalization, it can be said that due proe-

ess embodies the differing rules of fair play, which

through the years, have become associated with differ-

ing types of proceedings. Whether the Constitution

requires ‘that a particular right obtain in a specific

" proeceding depends tipon a complexity of factors. The

nature of the. alleged right involved, the nature of the

proceeding, and the possible burden on that proceeding,-

are all considerations which must be taken inte ae-

- count. | .

Pa! 4

"See Shapiro v. Thompson, 394 &. >. 618, 627 n. 6 (1969); °

ae Sherbert « Verner, 374 U.S. 398 «1 1963); Speiser ©. Randall,

357 U.S. 513 (1958) Slonaeher vo Rd of Educ, 3530 US. 551

~ 11956). See generally, Van Alstene, The Demise of the Right-

Privilege Distinction in-Constitutional Law, 81 Hare. 1 Kez.

1439 (1968). |

2 CF. Coffin v.. Reichard,.143 F241 443, 445 (6th Cir. 1944) °

( pritoner entitled tye y rit of habeas corpus if deprive d of right

lich makes imprisonment more burdensame than law allows}.

See Note,.The Supreme Court, 1968 Tesm, 83 Harv, L. Rev.

, 93. 197. (1969). : ote

?

ath 9

ae oderad

Appendix A.

Heunah v. Larche, 363 C8. 420, 442 (1960).

_ Beyond the process of guilt determination and initial in-

carecration, courts have dixplaved gveater feluctanee to

import all: the trappings of formal due process. Thus, a

panel of this court has recently held that forma! trial-ty pre

_due process is not a requirement ‘in connection with a

parole release determination. Menechino ¥. Oswald,

F. 2d —-(1970)." Like the relationship bet ween Mene-

chino atid the parole board, Follette's relation to Sostre

- Should nat be viewed as adversarial in the Satie Sense that

a criminal-trial is adversarial. Certainly, formal rules of -

evidence would be entirely inappropriate at s disciplinary

proceeding. To dispose sensitively and. earef ully of each

prisoner's unique case with due regard for the éffect of

€ach decision on the total fabrie of the prison comtunity.

prison authorities must have wide acvess to relevant in- *

formation.” Sinee, in addition, there is no likelihood that

substantial rights would be sacrificed if a prisoner failed.

for example, to raise a Proper abjection or to take a timed v

appeal, the need for legal skills is less aeate here than in

Mempa, Townsend, or Hewett, Moreover; the evidenre as

to whether the prizonerAias Violated a prison ‘regulation’

is likely to be simpler, mofe precise, and more readily at

. hand than, for example, the évidenes bearing on the ques-

tion whether welfare payments should be terminated.

There is.correspondingly less need for CrOss-eXatiination

and calling of witnesses, SA

Most important, we think it inadvisable for ‘a federal

court to pass judement one Way or another as to the truly

*

“ Followed in Lewis v. Rockefeller, ——~ F.2) - (Sept. 1,

1970). Cf, Sperling v. Fitzpatrick, 426 F.2d 1161 (2 Cir. 1970,

+,

© For similar reaGhi the Court in Williams v. New York, 337

UL S. 241 (1949), found po denial of due process when the appel

lant was scitenced§ on the basis of “information supplied by wit-

fiesses with whom the accused had not been contr mted and-ds to

whom he had nu-opportenity for cross-eXamination.~

Sie

Appendix AL

: . ; . : °

eS ; hag :

decisive consideration, whether formal due process require

ments would be likely to help or to hinder in the state’s

‘endeavor to preserve order and discipline in its prisons

and to return a rehabilitated individual to society. [It would

he too siinplistie to disassociate the impact of punistliment

ineted out after a disciplinary hearing from the method

‘by whfch the hearing itself is conducted. As one court has

observed : “The dssociation between men in correetion

iustitutions is closer and more fraught with physical danger

and psychological pressures than is almost any other kind

of association between human beings.’ Edwards v. Sard, .

2B. Sapp. 977, 981 (D.D.C. 1966). Lt is sad but true that

the study. of the prison subculture by psychologists and

sociologists has until recently been largely neglecteel.

These who have lobked into the problem, however, do not

vainsay the volatility of relationships among prisoners and

prison officials. See, rh ae Corrections 46-ATY Gibbons, .

Changing the Law Break: r 200-12 (1965). We would not

presume to fashion a constitutional harness of nothing

more than owir guesses. It would be mere specrlation for

us to decree -that the effect: of equipping prisoners with

mere elaborate constitutional Weapons against the admin-

istration of discipline by prison authorities would be more-

soothing to the prison atmosphere and. rehabilitative of

the prisoner or, on the other hand, more disquieting and

destructive of remedial ends. "Phis is a yudgment en-

ye . - . » . »

triisted to state officials, not -federal judges.”

We are particularly unwiding to interfere with state

administrative processes when reliable, detailed informa-" ~

=

os

* Peaintiff was not systematically denied safeguards afforded

orto a transfer to a different state institytion. See

Baxstrom v.filerold, 383-U.S. 107 (1966): Shone v. Maiae,. 406

F.2d S44 st Cir: 1969): Bolton v. Harris, 395 F.2d 642 (D.C.

Cir. 196814. Schuster v. Herold, 410 F.2d 1071 (2d Cir.), cert.

denied, 3%6 U.S. S47 41966). His. rehance “on those cases is

Hoan-prisoners

-- ,

MisplaceyY.,

30a

: al ppendix iA.

tion or empirical studies are as seanty as they are onthe’

subject of prison disciplinary procedures. See Correctious

at 16; D. Glaser, The Effectiveness of a Prison and Paroli

System 172 (1964) (** prison discipline . . . has not re-

“ceived extensive objective research by anvonté’’). Judge

Learned Hand wisely instructed us, ‘[elonstitutions are *

- deliberately made ‘difficult of amendment; mistaken’ read-

ings of them cannot easily be corrected. Moreover, if they

could be, constitutions: must -not degeherate into cade

jnecums or codes: when they begin to do so, it iS a sign

of a community unsure of itself and seeking protection — -

against its own misgivines.”? The Spirit of Liberty 179 —

(1952). | : jh

-Analogies and reconimendations ealled to our attention

do not eo far te advance Sostre’s position. | Neither the.

Model Penal Code ner the Manual of the-American Corre¢-

tional Association would require confrontation and cross-

examination, calling of Witnesses by the prisoner, counsel

or counsel substitute, or a written statement of evidence

and rationale.” “Similarly, Rhode Iskand has voluntarily

adopted new disciplinary procedures for-its prisons, under:

court supervision, Morris vic Travisoio, 310 F.Supp. S97

(DRA. 1970), which iafelude provisions for a hearing,

advance written notice, and assistance by a’ prison officer,

‘“. but no other of the formal safeguards required by Judge

Motley’s injunction. ~ Sostre” has referred us to. rules

adopted for the Missouri State Penitentiary, under which

prisoners are assisted during a disciplinary proceeding by

.

eunill.

- 37 See American Law Institute, Model. Penal Code .§ 304.712)

(Proposed Official Draft 1962) (before inflicting punishment,

@ warden to be advised by disciphnary committee after “hearing”

Where prisoner would appear after receiving ‘fhotice of charges):

American Correctional’ Ass'n, Wayral*409° (expeditious hearing,

adeqfate investigation, regular channel fer “appeal, written report

of the infraction Tound ‘and .disposition ). ,

a

Sba

Sa - Appendix A.

a member of the prison staff and where there; inust be a

Written synunary of the disciplinary proceeding, including

a statement of relevant evidence. Personnel Information

Pamphlet: Riles and Proe cedures 3-4 (Sept. 1967 Ag: ain,

however, there ix no provision for calling witnesses. or

cross-examinition. © | :

Indeed, it appears that,« eamong those practiées known to

us, only in the federal correctional system must a formal

proceeding, including each’ of the elements in the jdistriet

court’s mandate, precede forfe iture of ‘good time allow-

anées. Bureau of Prisdus, Policy Statement: Withhald ing

Forfeiture, and Restoration of Good Time (No. 7400.6 See.

1, 1966). Notably, however, these formalities need wof

accompany discipline that results in the ‘withholding of

good time credit, as Judge Motley would requirg. ;

We therefore find ourselves in disagreement ‘ith Judge

Motley’s conclusion that each of the procedural elements -

incorporated in her mandatory-injunetion are necessary

constitutional ingredients of every proceeding resulting in

serious discipline of a prisoner. In this rejecting Judge

Motley’s conclusions, however,” we are not to be understood

as disapproving the -judgment of many courts that eur.

constitutional scheme does. not- contemplate’ that seciety

may ¢ommit lawbreakers to the capricious and arbitrary

—

~ Accord, Burns v. Stevenson, ° . (Sth Cirs August

St, 1970): Plaintiff, an inmate of the Mieseen’ State “Penjtent} jary,

as summarily committed, without a prior hearing, to segreg gated

comfnement that was to last’ more than three years: An irivestiga-

tive report was not filed until more thah.a month after Burns's

coufinementt. At review. hearings held six. months after-he was

-cegnnmutted,, and agai shortly Tefore his release, Burns appeared .

but did not confront adverse witnesses, was not assisted, and

apparently was not permstted to present evidence. . The court

fetuid ne due process yiolatton. j ,

' Ne =

ine

/ b=. N

ora

/ .d

Appendix A. a,

‘actions of prison officials.’ If substantial deprivations are

to _be visited upon a prisoner, it is wise that such action:

should at least be premised on facts vationally determined,

This is not a concept without meaning. In-most cases it

would probably be. difficult. to find an inquiry minimally

fair and rational unless the prisoner were confronted with

‘the aceusation, informed of the evidence agamst him, see

Armstrong v. Manzo,.- 380 U.S. 945, 552 (1965) ; ; Mullane v.

Central Hanover Bank ff Tr ust Co., 389 U.S. 306 (1950), —

afforded a reasonable’ opportunity to explain his actions.*

_ dee Nolan v. Scafati, 306 F. Supp. 1 (D. Mass. 1969) OWy-"

“zanski.¥. ). ** See also, Shelton v. Board of Parole, 388 F.2d

567, 576 (D.C. Cir. 1967) (en bane}. Cf. Thompson v. Louis-

rille, 362 U.S..199 (1960) (conviction supported by no evi-

dence violates due process) ; U.S. ex rel. — v. Pate,

.

.

*“A first tenet’ of our governmental, religious, and ¢éthi¢al

. tradition is the intrinsic worth of every individual, no matter how

degenerate. It is a radical departure from that.tradition to subject

a defined class. of persons, even criminals, to a ‘regime in which

their right to liberty is determined by officials wholly unaccountable -

3 the exercise of their power. ’ Corrections 83. See Hirsch-’

kop Mulemann, The-Unconstitutionality. of Prison Life, 55 Va.

L. Rev. 793, 834 (1969). (discipline should be’ based-on “proven

facts” and should be “ration lly related to the objective. sought”). |

‘The Court in Escoe v. Zerbst, 295 U.S. 490, 493 (1935)

(Cardozo, J.) interpreting the federal probation law, adopted a

similarly flexible solution: “Clearly the’ end and aim of an appear-

anée before the cotitt must be to enable an accused probationer. to

expl: in away the accusation, . . . This does not-mean that he may

insigf upon a tréal in any strict sense. .-. . It does,mean that there ,

shall be an inquiry so fitted in its range to the needs of the occasion

as te justify the conclusion that discretion has~not. heen abused PY

the failure. of the inquisitor to carry the probe deeper.”

- : Om appeal, ‘the order of the district’ court dismissing the com- .

plaint in Nolan was reversed with instructions to take evidence to

determine whether avy “assurances of elemental fairness” had i

fact been afforded in the disciplinary action that was the object of

plaintiff's suit. —— F.2¢ (Aug: 14, 1970).

- ;

: : °

conti

ee

38a

, Appendix A.

e

401 F.2d 55, 57 (7th Cir, 1968) (‘‘thetrélevant facts... must

not be... capriciously or unreliably determined ’’) + Dian vy.

California Dept.of Corrections, 400 F.2d 340, 342 (9th Cir.

: 1968) : Williams ¥V. Patterson, 389 F.2d 374 (10th Cir: | 1968) ;

Howard v. Smyth, 865-F.2d 428. (4th Cir.) cert, dented, 385

“U.S. 988 (1966) (arbitrary. and serious. punishment of.

activities closely related to “first amet ndme nt freedoms) :

Jones v. Rivers, 838 F.2d 862, 874 (4th Cir: - 1964); Hyser v.

Reed, supra, 318 F.2d at 242 (basic fairness requires that

federal parole not be revoked arbitrarily) ; U. S. ex rel.

A Wakeley ‘ve. Pennsylvania, 247 F. Supp. 7% 12 (B.D. Pa.

1965) (courts: in these cases must locate the -fSline that

acparates ‘mere matters-6f discipline from arbitrary and

cape viens disregard of human Fights”). =

Pe “VIE

Ris Hts oF CoMMUNICYMfIOoN AND Expression

A, cies ne =) 2 ee (

The distaste With whieh some observers view protonge l

segregated, confinement attaches as well ta that kind, of-

isolation | flowing from restrictions on and. censorship of

pr isoners’ correspondence :.

—

The harm censorship does -to rebsbilitatton enannot

he gainsaid. Inmates lose contact with the outside

world and beggme wary of placing intimate thoughts —

"De fendyfits have ap pended to their brief on appeal new rules. -

me} regul ations recently promulgated by the New York Department,

of “Correction and. eff: sctive October 19,1970, governing, among

other things, brisoner discipline in all state cotrectional institutions

\shich dppear to provide some new procedural safeguards. ° We

consider it l@appropriate to comment on the constitutional adequacy

‘ot the new procedures for: they were ——— after the events be-

fore. us an this appeal. .

eet Come 39a -

Appendix A.

or criticisms of the pfison in- letters. The ‘artificial

increase of alienation from socicty is ill advised.*

The values commonly associated with: free expression—- .

an open, democratic marketplace of ideas, the self-develop-_

ment of individuals through self-expression, the alleviation .

of tensions by their release in harsh words rather, than.

hurled objects —these values. ‘that we esttem in a free’

society. do not turn. to dross in.an unfree one.. ‘Letter

writing ‘keeps the: inmate in contact with. the outside

world, helps to hold tm check some of thes morbidity and

: hopelessness: produced by prison life and isolation, stimu- =

lates his more natural and human impulses, and otherwise

may make contributions to better’ mental ‘attitudes and

-reformation.”’ Palmigiano v. Fravisono, — F. Supp. —

(D.R.I.. Aug. 24, 1970). - Suppression of -dive rsity and

dissenting Views is: probably not.less apt in a, prison than,

elsewhere to. hasten the stagnation and bineizucratization -

of. the institution* that indulges in. it. See T. Emerson,

Toward a General’ Theory of the First . Amendment 3-15

(1966), rg

Whatever wisdom Hep re. might be in such. reflection, ‘we

cannot say with requisite certitude that the traditional and.

common practice of prisons in imposing. many kinds of |

controls on the correspondence of inmates, lacks Suppoya

in any_ rational ‘and constitutionally acceptable coneg

a prison system. See McCloskey ve. Maryland, 3X

EI pgs IE ale \ ait ice

(2, 74-75, (4th Cir. 1964) CS ontrol of the mail to and from -

inmates is an‘essential ad junct of prison. -administration e

See also, Diehl v. Wainwright, ies F 2d 1309 (5th -¢

~“

A970); Abernathy v. ‘Cunningham 338 a Fs 2d 779 (4th Cir.

1968) ; United States. v. Stahl,393 E. 101: (7th Cir.) cert.

denied, 393 U S879 (1968) ; o arey W. Settle, 351 F.2d 483.

° \ =

s -

*3 Singer; Ce? -sorship of Prisoners’ Mail and the see er, 56

AB., 4.J. 1031 (1970).

a

. sy . os

a

, Ee ae ete oe ? ;

‘ Mh .- ;

; ; am 8S . = oe

— ¥ . . 7 " . Appendix re Ms be : . P

eos : a * z ; ‘

425 iwereir, ty We note that Sih«tre tlid net contest

a Validity of Warden Follette’s actiog in strikife the

nan ofthis gixter Trom the list of Sostre’s authored cor -

2 . + respondents after it was fece tne dt heat he Wiis txing? Wetteps

; nate sister ‘as Vhicles for unauthorized cobre-.

~*~ ° "+ Kpondetive, SH fu 4 xupra, “Discipline. aml prison onylér .

ate suficiont interests fo jnstit Y stch rtvuletion ineklental

—* * to the contest of prinoners” speech. See Moraes’, Coaper,

\*: + Vel BN9): Brennan, Fhe Sapreme.Coart aid the”

T= ie ° Me 2s Fiolige Lifer pretation ug the First Jerr nd im: wf, m .

Nyt Mere. Lo Ree WU ods). +2 a ae a

SS f Mui qeuchin te both dowie ard the ease law, hiwever® ge '*

a> Petters adhlresged to amtirts, public officials, wr ah attornes

- 5 whew at prisometetmttemrs the lexalityof vither"his eriags?

Seg r 2 tl cone igtion or the conditions of hix ites tevration, Sew,

: ee *'e.w.. Soha wh Ve ude mt, US, ist (18N)): Cochran ve fii

a. * Ravwsas, NE US, 2G MM): Be parte ‘Hall, H2US. M6

ait oi STIs; Cah mga ®. Ts wow, HH F.2d 90, 907 (4th ir.

> \} “1905) ete censorship pesmitted of mail between inmates

“5k, awl court w ith jurisbetiin to hear prisoner's cong plainits) ;

Lf 2g Mt losken & Maraland, supra: Stilleer vy. Rhay, 322 ee ee

<i. . HE SIG (Oth Cir), cart, denied: 9B US. $20 (19637 Open. -

A F wnalde acorns to the courts ix ‘asic to, all other richt<

2 : ee eee aD | To” the Civil fights Act ). Ut Wwonld be ina pfire-

“25 printe gn constitutional erofimls, ironic, anil.irrational te

jeFieitt «drastic eprtuilment of constitutional rights -in the

oe = = BAme of puhi<lnentand rehabilitation, while denying pris.

‘ome ts an fnli Opyortanity to pursue, their apipegls andspost-

. * er on ~ .

: Viet me yedies, The wimeonas scope of discretion av.*

, A a e < rs . a ~~ ~ - - se : e . *

. >

. ,* ss o . : :

¥ 'Resfections on the extent and caricter of privmers’ corre-

é Steep hened send c8ar math ior seneership in n@atywm theyts hae *

s Wino. Iew regarihea! as issherean mrident.” in the “conndiiact dof “yeml-

i qo tist ets ‘nM gud the captred ol craninetre tats, activities, preeceupa- .

° tee and other felatharships thergin.” Ler y Vahaslé ~352 F 24

—— “WU UT1 Sth air, PaG5). ° a 2. .* |

tig e . oe : ve - - 3

* ’ ; P

, < . e .

* *

>, - *

‘ % “ .

. 2 =a : R -

> ‘4 a = ; . ] . °

; . . P as “* . = * oe . fe

. ° . ” - : ° ~ te

s Atte

. e e - *

. x Pe *

j ¥< ~~ e

. z °

Ee ei a ee “ p o- — *@

. Pa

; : Hla” ‘

7 * Appendix A. ; s Pak ,

‘cordixd prison authorities also heizhtens the importance of

permitting free and uninhjbited*dece<< by prisoyers te beth

adjpinistrative and judicial forums for the Purpose of seek-

ine redress of grievances against state officers. The im-

portance, of these *rights of aceess suggests the need for

fiidelines both venerous and epecifie enough to afford pre,

, ° teetion avainst the reality or the chilling thipat of admin.

he istrative inf ringement.- ; <a, =

4 Thus, we de net believe #. would unnecessa ily hatuper

prison admigistration to forbid prison authoriNes to de» ”

dete material from, withhald, or. refuse to mail Fe

* nieation between an inmate and “his attorney: see Burne.

v. Sieresen, F.2d —— (Sth Cir, Ang. 31, 1970) {pre

terting correspondence with the ACLU», or any court: ©

or any puldic official,*un'ess it gam he demonstrated that

‘a privateer has clearly abusefl his rights of arcess. —:

ously, the transuiftal of contraband or laying plans Tor

some unlawful Scheme would constitate such an abnse,

/

* In addition, if it were clear that a prisoner's reeita- . 2

taon of complaints about Li confinement in otherwise pro-

tected cartyspondynee were a meré pretext to ac@omplish

his sale metyating purpose of communicating instead adaont

stricted mptters, then prison officials may block the -in-

mate's scheme by deleting that portion of sucli a commmani-

cation unrelated to the complaints,” Ste Carothers v.- Fol.

* Tetley F. Supp. —— (S.D.N.Y. filed Juja ts, 1974):

In ve Ferquson, 35 Calif. 2d G63, 361 P2d 417, cert. denied

sub nom. Ferguson v. Heinze, 368 US. 864.(1961). In such

a-case, the new! to*restrain the abuse outweighs the danger |

‘that prison authorities niay by = \* design

hamper the prisoner's access. _-- ° ‘

~ On the other hand, if a communication is property in-

tended to ailyance a pfisenet’s effort to-sewuty redress

— for alleged thuses, no interest would fustify dWetifize ma- +

‘tevial thonght by prison authorities to be irrelevant te

.

=

. : nh 42a = ? « 5 m5 . i

A py wdix A.

thie Prisoners complaint: . The danger that an official will

hapraperly substitute dis Judgment for that.of the cor-.° .

. fespondent’s then -preponderates. For siwilar , reasons,

prison officiads niay Wetwrthheld, -refase to mail, or delete >

material Prot otherwisis protected comfnunciations merely

because they believe the albevations to be repetitious, false,

-Or tuglicions. Cee Nolan v. Scafati, - baie Fo% ha ~ (Ist

Cig, 1975) (alisent some countervailing interest other than we

that prisener’s letter contained *“Yes.? authorities may not

prevent immate from secking lersrsal assistance); Fualwodd x ‘

Clomarer, 206-F. Supp. 370, 377 (DD M2) (right to

seek redress of grievances was abridwed by. punishonent

for alleged false. accusations about prison conditions in.

prisoner's letter ‘of coutplaint to public officials),

Accordingly, we agroe with Judge Moiley that it was

- - Improper for Warden Follette tp delete material from eer- eee

tespotdence between Sastre and Wie attorney merely be-

- cause Foliette thought the material irrelevant Yo Sostre’s ae

appeal of dis.conviction, We beliciw it’was also Wproper .

for Pollette.to refuse te mail a letter of complaint to the |

"Postal Inspector, We leave a more precise tlelineation of — -

oe boundaries of this protection, far future cases, ‘We

Heed omy add that qwhén We say there may be cases which ;

WIN present <preial cirevinstanees that would Jjnstify delet.

ing ‘material from, withholding, or refasingsto “mail com- +

IMunietions with courts. attorneys, ald public officials, we

necessarily tule that prixou officials” may apes amb tedd-

a outgoing ané incoming cayrespondence to -aad fron

prisoners. : ;

ws * .

.

BR... Paisower Leaal. Aid : at ‘ - oe

Liluson v. Avery, 393 US. 483 (1969), instructs that

ae “s fe gee: 7 ; o- . ee P

Stites wust permit ‘prisoners to help fellow inmates pre-

pare habeas conpux petitions, subject to ceasondble regu. |

> lafionvalsent a sufiicient showing be the State that through’ *®

. : ‘2 ° . * ae .

a ”

: iia. ee

a : od pp udir A. *

some other means it Provides prisoners with.an adequate

substitute for: the “jailhouse law yer.” Cf. Ba parte Hult,

12 US. OG (1941) (state mMy mot regtire that habeas’

petition be appreved by a corrections official ‘to see that

* it was?‘ properly drawn’): Gilmore < Lyuch, —— F. Supp.

—- (N.D. Calif., filed May YS. 1970) (3-judee eourt)-

(woefulby inadequate yrison law library held tnlawfulls

rest ricts, prisoners” dce@ss ta.courts). The failure of any

suelf showing in this case makes it mandatory that Ney

-.¥ork permit prisoner aid to the eXtent required by ahs-

saw, *dolnson’s explicit permission to states reasonabhly to

- -reculate thie right, however, Validates the Green Haven

rule’ requiring prisoners to apply to the Warden for pwr-

inission to help other inmates with’ lewal ctivities, There

would le z Violation Of Johisau ony if the Warden denied

permission, or if the conditions on whieh he rranted it

were unreasonable. J ; : . ig

Since Sostre never requestes permission: there is na

cause for an injtnection te enfo ee the Johnson rule, -We

“ASSUME that permission would bye f£ranted as “a matter of

COUPS®, subject only ta reasonable conditions. Nor “an

We eorsider wireasonable te Green Haven rile forbidding -

prisoners from sharine their, personal Taw hooks with one

another, “This regulation.would not prohibit’ Sostre, for”

. - . eee

example, from recommending legal source material to other.

inmates. AWe do not. see how they would be uncdialy lnar-

- deged by” being required to, aequire the books through

te emanate ad

* Nor does Johnson sanction inter-prison legal aid among pris-

mers. Some slight incremental value might he Hiscermed were the

fight to aceess to courts extended ¢o as to embrace a right to the

aid of jailhouse lawxers wherever they might be incarcerated. Any

gain, however would he outweighes! by the comsequental, added

interference with prison discipline and the danger that mare ag

gTess&e¢ prisoners would abuse their expanded power. A co<dgfend-

ant stands in nb ghetter- position tran any Other jailhouse lawyer in

this respect. * Ai Re .

° ‘

és

- py media A <

- prisom officials’ rather than directly from Sostre. See Gil-

eae nore \. Laneh? supra (upholding prsén rule prohibiting

ri; i phe raining te other prisoners). Ina Closely. rel: ated

- situatio n, we held that a prisoner could’ he refuses peer-

Mission te keep Slaw books"? in his cell where there was no,

ser ation he was denied use of the prison library. Williams

a | Mins, ts ’ td 3G Q ma (Cir. 1SMi33). We cannot ignore

the cone orn of prison offic ialx that strong-willed inmates

- jailhouse lawyers from Keeping in their cells legal mate~

tight exaet hidden and perhaps non-monetary fees in’ re

> turn for nominally fee -privileges at the inmates? private

lentline library. see . }

> oe. os ~ .*

te . Pos ne <Sinn oft Lite ralure and M: ve Eepre S510 af BDe-

* e . ? ~ aw J ~ .

% li, Is Vv “ =

Our holding. that prjsoners inmay not be panished for. theig’

> che cas pe rnfit punishmengdor the mere eX pression wf those Jelie is.

> One enn harelly ;

. - » ston. ef. Fudirood SE Temmey. 20 F®, Supp. S70) (DD.

lh. In the absenes of arbitrariness or discrimination.

7 seu lacksan Y. Godivin, 40 F2d av) (ath Cir’ 168): : Rivers

-* + ie 2 PRanste r, OOO FR, a om (4th Cir, 166): Sewe liv. Pe a low,

+e : ne mR P2d 23 (2a it, Gh), we lo net sav on this’ record

eS tharw arden Polle tte would have « xee waded his lexitimate

he

Thus, ‘le ‘yal material . might he acquir™! either fren the prison

ee library through the prisoner s own eut-lg sourees, or ®ven frean

“ste lintel f with prior appre: al of prise edtictals.

os

' The authoritarian “bass” inniate is ne chimera. See po

tiows. The Court in Jahason \ elrery, 393 CLS 483. “4ASS 7

recognized that p@ison writ writers might occasion: lly menace viewed.

o hecipline, See alse flat f ce fd \ Railleaur. ay F. A (32, 37 ! ‘lr

. Cird qwert. demeel, 268 FS: 862 CIOL) (testimeny of prison offi

e . -~ - . . ~ . .

. cals that rules restricting access ta law look. were ‘designed tw

forestall aggressive. inmates from slemiuating weaker ones}:

.

* -

eakrof We liefs apart from their expres. .

.

Ine ligts enrtiess the” necessary corollary thi uo owe minis net .

P . . : >

45

Appendiy a —— -

authority if he had confiseated the writings that ‘gnardk .

found in Sostre’s cell following -his-release from. seqreca-

tion. Whatever doubts we niechit have as te the wisdem- of

. seizing anu immate’s politieal writings. we would net ‘Tightly

overturn a warden’s judgment that possession of- the writ-

ines tniecht subvert prison diseipline if there existed the

risk of theif circulation amon other prisomers.’

However, Sostre -was punished simply for payttine, his

thoughts on paper. with no prior warning aml ne hint that’

he intended to spirit ‘the writings outside his cell. ‘Té sane-

tier suet punishment, “even though in thy judgment of ,

prison officials the writings wei “inflammatory? "sand

“racist,” ds if the instaht case, would permit prison au-

thorities te manipulate and crush thoughts unde® the phase

af regulation. The indimidating threat of. future similar e

“punishment would chill a wide rapee of+ prisoner expres

-slon, noe Himited to that expression avhic h Follette night in

* fact Ve cim dayigereus enough to discipline. The danger of

undetected discriminatory panishnient af ideas is partieu- -—

larly aeute. in the absence of statutory standards te stride

the: exercise of Foflette's diseretion. Sed. et. Co. y, . é

Lowisiana, stall ty ~~ & . ah, oe a (Ito): Ne Tengiede r , St Sal. x o*

“SUS US. “7 (1939).. Amv real threat te prison secnrfty

that Nostre's PHasSesS Og of his writings might hawesposed?

could have been mef by ‘eonfiseation: rather than purtish-

nent, See Sheltow v. Ti ‘ker, M4 U.S, 479 (19007, Lax

. -

_-+-——— --—__. _ — all

= * . me .

bad .

- - -

™A case of suppréssion woukl? however, Pquire us te decide

the Tolew: mee of such doctrines as the “clearand present danger” =

» test” that courts have. relied npon in other contexts te decide the

vadidity of restraints operating dircetly upset the comtent of speech.

See Scheack v. V wited State a, 2 US. 47 1919) ; Dow Y Parker

3) F.2d S16, 822 (3rd Cir, 19S) Ev [tjo "Rtiiy the profithition

of religious literatur:, the prison officials piust prove that the ltera-

‘Ture creates a4 cher anil present danget of... some . .-. substantial

interference with the orderty functioning of ‘the institutien™):

Knuckles’ v. Prasse, 302 r Supp. 1936 6D. Pa. 1%): Beaks "

*v. Havvacr, 234 F. Supp. 27 (ED. Va. son}. .

rad

»

i ’

. re ~ .

. e - . ¥ ‘

. 7 4oa ;

~ 2 Appendix A:

ra . | oo) VEY: ee,

CONCLUSION | -s

» : * z e

= aoell fe PL ; — :

Beciuse of thetnature. of this case, the multitude and

lev *s considered opinion and the injunctive and’ other:

lief er: anted, we have -been compelled’ to engage in this

protracted. exegesis. In light-of what. we. have set. forth

eur conelusfons- follow.

: o +f.

aT he oe

witty fie B \ a ‘o

f. Although not necessary ta the dispokition of Sostre's

complaint, the distriet court held’ that sederal elements of

‘trial. oe procedure, enumerated in its tder, were. re-

quired by due process in every instance Af prisoney dis-

a caiple xity of claims raised and the extent of Judge get

cipline, resulting In witholding of good time credit: to the’

prisgner or loss of his opportunity to earn good time. Be-

cause of the importance of the question to the-state of New

York, and the pti asiet V with whith similar questions are

being Ittigated j 1 district courts of this jurisdiction, we

are compelted ta say that the district court Was in error.

All of the ele iments of due process récited by the district

-eourt are not necessary to ‘tlie constitutionality of every

disciplinary action taken against a prisoner. In light

of chs, we reverse the district’ sourt insofar as. it enjomed

defendants and othe ‘rs from so disciplining Sostre that he

’ foses ace rned 2 Roi time credit or is unable to earn food

time eredit without full compliance with alt the procedural

sigps'set forth in Judge Motley’s injunction. We do not

“thereby imply that diseipline-in New York prisons may -be

adiinistered ark) rarily or capriciously. We would not

liehthe condone7the ahse nee “of such basie safeeuards

avainst arbitrariness as adequate. notice, an “opportunity

for the prisoner to rebly to charges lodged against him,

and a reason: uh le iInvestivation. into the relavant. facts—at

”

Appe ndia Al.

least in cases of substantial disciplime. However, as con-

.- + sideration of Sostre’s -case- (loes* not ‘properly -raise any

-question whether New York prisons regularly 0 r syste me

atically ignore mittimal due nrocess reqitirements, we Must

reverse the order of the district court that defendants sub-

- init for its-approval, proposed rules and regulations gov-

-erning future’ disciplinary actions. In this connection, we

+. +. note that New York State has recently promulgated piles:

and regulation < governing prison discipline. which appear

to give inmates new procedural protections.”

». The refusal to mail Sosire's letter to the Post Office -

Inspector, complaining of «prison practices, clearly in--

Fringed Sostre’s Fourteenth Amendment sights. gVe also:

affirm Judge Motley’s order insote ar as it enjoms defend.

ants Follette and) MeGinnis, their “emplavees, agents,

SUCEE ssors, And all’ persons in active concert and. participa-

tion with ‘them, froin deleting material from, refusine to

-* -anait or refusing to give to ‘Sostre: (1) Any. communication

hefween Sostte and the following—(a) any court: (b) any

public official or aveney: or (¢) any lawyer—with respect

to either hits eriminal cotiviction or.any comp ‘laint he may

have Concerning the administration of the prison where fie

is incarcerated. We reverse, however, insofar-as gates:

Motley enjotned nonarbitrary. restraint of communication

“Tetween Sostre and his-eo-defendant in the erhuainal’ in

- ‘pending against him. % 7 {. ‘

> , ag

‘3. There’ is ito cause for an iajanetion to, gra ee the -

principles annowmneed in Johnson v. Arery, supra, since no

- Infractions of those. prinaiples have.been shown. Johnson ;

cheery permitted reasofiable rules regulating the con-

dat of imuates-in assisting Other inmates mm legal pareo-

coodings: Sostre has*net proved that the sules regulating

en — .

— v

“* See note 42, supra. = eee

-

4 5 2. Sa =

" - ; ; —

eb ppr gti ae . : ¥

his right ty assist other prisoners in-their lewal affairs

Were unreasonable and that his punishment. was for violat-

ing’ such rules, Therefore, we ust reverse the district

court insofar as it enjoined interferences with Sostre’s

translation of letters of felow-immates sinee he had failed == ®.

focomply with the rile requiring that fie seek -permission

of the'warden: For the same reason, we reverse the in-

Junction ferinst punishing’ Sostre for sharine with other

intuates: his Jaw hooks, daw reviews, and-other leva mate-

rials, and from refusing’ to permit Sostre te assist any

other inmate in any degal-matter. . ;

eds We have heli that Sostre was improperly punished

' for Possession of coustifutionally. proteeted Hterature. We

perceive noe reason, however, to sit political speech apart

from other kinds of constitutionally protect@l speech” We

therefore modify the district court order s6 as to enjoin

defendanis. Pollette nl MeGinnis, their employees, agents,

suevessdrs, and all persons in active-concert and participa-

tion-pith then, from puntshing Sostre for having literature

‘in his possession and for setting forth his Views’ orally or

In Writing, except for Violation of reasonable regulations. *

We do not hereby enjoin Olieiads from taking reasonadle.

Measures to prevent prisoners from inciting disturbanees -

and otherwise to protect ‘the security and order of New

Yark ‘prisous, consistent with prisoners” rights tv freedom:

of expression, Also’ we do not believe that there is any

need for the ext raordinary procedure requiripe defendants

_to submit: rules “aid regulations governing the reeeipt, @is-

*% A e * . ite ‘ es & ° i. =

‘tribution, discussion and writing of political literature for

the-approval -of the district court.

os Ate

». We-have no reason to coneltide that New York prison —

- offieials will not abide by- the constitutional rights of pris-

oners as we define them today. We have .refused to set -

:

4 : . -

ce

b. bere Pim Credit, ; ; ; .

. ‘Meare Damages : ne - : .

~ 49a

Appendix ~A.

<

e z <

aside Judge’ Motley’s fins lings that W senee n Follette oleae

fully commnitted Sostre to segregated confineme ‘nt because ;

_ OF his legal activities and belie ‘fs... W arden Follette, how-

ever, is deceased and we perceive no threat that others avill

cate his roper: conduet. Aceordingly WO Vie

duplicate Shis amproper condu » We,

‘that portion of the district court-order whieh enjoined

defendants and others from returning Sostre. to, punitive’

segregation for charges previously pre ferred against’ him.

Since we have’ he Id the it Sostre was ‘talwetults ‘conifine d

to punitive segregation on account of his. political be ltefs

and legal activities, we agree with Judge Motley ’s corde Y Fe-

——s Sostre to be erédited with 12412 3 days of eamed

**good time.”’ *Sostre may. not @&e penalized bécaute of his |

firme “iit Segregation by remaiwing incarcerated longer or

by becoming eligible for parole “seed than fe otherwise

would. We do not consider the argument that Sostre may

hot have earned thé eredit even if he had remained in the

veneral pepuliition to be of substanee. Whe ther he would

or would not have’ éarned - it, “is pare speculation. - Since

Sostre’s cohstitutional righty have been violated, We re-

solve. the dofibt in. his favor. Moreover, this Is the rote ‘

Feasible. Way to ensure that Sostre i is not av: un unlawfully,

pe malized by arbitrary action?

All-parties seem to agree uperr.two principles with which

_ We also ere m accord. | First, Section 1983. authorizes ro-

_ covery of compensatory, and, in an appropriate case

*Tn gr anting this relief to Sostre, we do-not resolve the quéstion

eee a claim: for telich groum led solely on the contention’ that,

good time er€dit was uncanstitution: lly withheld or forfeited would;

standing alone, support an action umder 42-U he . § 1983, without.

comphance with the exhaustion requirement of 28 USC . § 2254(b},

(c). See _?p. 5a, Supra.

z

a

* oa

fo Se Appendix A, . ;

_ tive “damages against an individual for the unjustifiable

Violation ‘of constitutional rights “under color’’ of state

law. - Wonroe \ v. Pape,.365 U.S. 167 (1961); Basista v. Wer,

340 F.2d 74 (3rd Cir. 1965). . This liability, however, is”

entirely per ‘sonal in nature intended to be satistied out of

the individual's own pocket. . Moreover, the -doctrine of

soVvercion immunity, ds codified by ‘the, I: leventh. Amend-

“ment, bars the eX Xxaction of a fine from a. state treasury

Without the state's consent, at least on account of tortious”

actions committed by its agents ander the cireumstances of

this case. Larson vy. Domestic & Fore ign ie 337 U.S.

O82. bores Westh: ry v. Lisher *, 009 F. hae 4 (Dy. Me;

1970). .: * |

it iothews from these principles? that although Sostre

Witx entitled to compensatory .damages | against, Warden

Wolléttess F oletie’y successor as warden, who had no part

Whatsoever in. F ‘ollette’s wrongful conduct against Sostresp

- incurred no personal money responsibility: upon. Foflette +

death. We note also that ng application was made in f! i¢

court helow to substitute ; any -party who could be held-ré-

sponsible to assume Follette’s dbligation to Sosthe, Rule 25

_ FRO Civ. P. if such a- party existed, Accordingly, the Tre Is

= party before: us. against: whom appropriately to award:

daniages.*.”

vee sent administr: ative aia als, defend; ints are not: entitked ‘fo

[6 protective immunity froma judgment for damages that has been .

Xt ‘nded to judge ‘Se Pi 1ET SON ¥. Ray, . 386 t. 5. 547 ( 1967), and ‘les QIS-

wlators | Teme y Vv. Brandhovr, 341 U:S. 367: (1951), Fébson ¥.

‘He me, 3535 F.2d 129 (2d Cir. 1966). ae

? Judge Motley awarWed $25.00 compe nsatory damages per day’

se every day that Sostr spent in” segregation. (372 days ) ora

total of $9,300. In view oF the ‘conditions ot Sostre’s segregati idsr, *

“y -hich we have described. this amount is not unreasonable. Inradldi-

‘tian, she awarded $3,270 in punitive damages. - -

7 We do not now decide the question, riot passed on below and

eoneer briefed nor argued orally on this- appeal, ‘whether plaintiff

May Vet recover damages against a party not before 1 us.

‘ - ‘ °

¥

* 390) L 7 Rhee ~9T0 (1969). 4 e i ‘

*

Su. —_ . = Caen ‘ . - ——

dla ? Le

ee a ee Appendix A

H . : :

: oe * s

- In any event, we are persuaded to’ reverse the award of;-

punitive damages, Warde n_Folletté’s improper conduct in

_ segregating Sostre so far as Seog reflected no ‘pattern

‘-of such be havior by himsclf or by other officiats.: The de-

‘terrent impaét of a Pa ae would be of minifnal’

use. See Greeny. W olf Corp., 406° Fd 361. 303 es irr.

LOGS), CC ert. denied stu) noun. Trost r , Singe ré ¢ ON, Green,

Lt iy appropriate, Test bur a etion: today he mistunde rstood ;

that we disclaim any imtent by thts decision tét condone,

ignore, of discount the, de ‘plorabletand counte 1] moductive

eonditions of many ‘of this country’s jails and prisons. VV

strongly suspect. that miany traditional and still wide spren ud

pe nad priictices, including some which we have touched on

in this cast; take an enormous toll, not Just of the prisoner

who inust toler ate the dat whatever Bs to’ his humanity

and prospects for a narmal future life, but also of the so-

Gaiety where prisoners re turm angry and resentful. Nev Y-

theless, we would forget at our pertt-and af the peril

Owr free governmental process, that we are federal judges

reviewme decisions made in due course by oilicets of a,

sOvercion state. W e have inferpreted and applicd the law

as it appears-to.us in light of tempor: Uy circumstances

and enduring ee We do not doubt the ie temitude-of

the task ahead before ‘our. correctional sVetequs become

acceptable and effective from a correctional, social atid

humane viewpoint, but tlie proper tools for the job do nat

tie with’a remote federal court. . The se nsitivity ta Jocal

nuance, opportunity for daily perse rverance, and the human

ang! nionetary resources required lie rather with legislatocs,

executives, and citizens in their communities. Spe, .taeste r-

dam, The Supreme Court and the Rights of Suspects in

‘Criminal C ases, 45 N.Y-U.L.Rev. (85, 810 (1970).

We wish to express. our eee SEN to, Nostre’s ap-

pointed® counsel, Victor Rabinowitz, Kristin. Booth lon

and David Raesenberg, for their thorough “and excelent

presentation of this appeal. Pee )

%

; 52a\ |

; Append ix \A.

LuMsarp, Chief Judge (concurring): nv! $e 23

_T concur in Judge Kaufman’s thorough opinion except

as to Section VI regarding Procedural Due Process. While

_ “I agree in reversing those provisions’ of paragraph 2 of

. the order of the district court, F see no need to express any

‘opinion on what the New-York State authorities should do

. When detertnining whether-or not to withhold-or withdraw

we good time credit, or the general principles which should

" .govern such situations. . es

“Waterman, Circuit Judge (coneurrjng): _ :

I concur in each of the results reached in the majority |

opinion. N evertheless, | am concerned that the discussion

there with reference to Due Process rights of a state pris-

oner who is threatened with-loss of good time credit or with

"a loss of the chance to earn such credit -because of an al-

leged infraction of ‘prison rules would seem inaccurately

to poftray the obligation of a federal court asked to “in-

terfere with state administrative processes’” on constitu-

tional grounds. I submit that it is our duty, mandated by

the U. S. Constitution, authorized by-Congress,' and de-

manded by conscience, to strike down any practice sanc-

tioned by a State which does not conform to at least mini-

mally acceptable lavels of due process. The court, aptly

noting that. appellant has asked ‘us to determine what -

Fa process. is constitutionally due hin, -a-convicted and im-

% risoned felon, declinés to deterniine the ‘truly decisive

issue cause it lacks empiric information.2. While I most

~ * See, e.g. 42 U.S.C. -§ 1983: . |

a. may be that despite this disclaimer in the majority opinion

We have in fact decided that minimum standards are not met if the

prisoner is not at least confronted with an accusation, informed of

the evidence against him, and is afforded a ‘reasonable opportunity

to explain his actions. See pp. 32a, 37a,:46a-47a, supra. However,

it does seem clear that decision aS to what are wholly acceptable

minimum standards is left for another day through case-by-case

- development: : . aes

mn

%

gs

_ 53a

Appendix A. 2°

assuredly agree that studies and surveys and the presenta-

tion thereof to. us might provide further information, of

value in balancing competing interests, their absence should

never mean that the federal courts will ignore or condone '

‘state activity obviously violative of individual rights when —

that activity. is indulged in under the guise of preserving .

order. os

Saritn, ¢ ‘rcuit Judge (concurring in part and dissenting

"in part) : oe . er a

/ I agree with most of Judge Kaufman’s thoughtful and.

thorough opinion, but disagree + ‘in two respects and there-

fore dissent in part.

I agree with Judge Feinberg that the distriet court’s find-

ing that Sostre’s segregation for more than one year was

eruel and unusual punishment is supported by the record.

Punishment of a nature found likely to bring about an in-

‘mate’s insanity should be proscribed whether or not it is”

shown to have succeeded in doing so in the particular case,,

and whether or not it could be alleviated by ‘submission.’

This requires also, it seems to me, that recovery against

McGinnis be upheld. The court found (and Judge Kaut- |

man’s ‘opinion emphasizes, page 4a and page 2Ga) that

- McGinnis had been fully informed as to Sostre’s long seg-

regation, a finding supported by the Follette de :position’

testimony and exhibits, and had done nothing to terminate

it ‘although empowered to do so, and although he knew

Follette had kept-men in segregation for periods as long

as four and five-vears in the past. Follette was lable in

‘damages to Sostre for violation of his civil rights, and I

would rule that McGinnis was properly held also lable:

I would not, however, assess exemplary in addition to’ com-

pensatory damages against M¢Ginnis under these circum-

stances.

‘

dda .

Appendix A.:

, = . - - *

-

Frmnserc, Circuit J udge (dissenting and concurring) :

e Because Lagree with most of the exhaustive majority

opinion, | regret that I find it necessary to dissent from

the treatiient of the cruel and unusual punishment point

‘and from the reversal as to defendant. McGinnis? As’ to

the former, the majority opinion reaches three results,

from each of which I dissent. The most important of these

-Is the refusal to, hold that there must be a definite limit

on how long a prisoner may be kept in punitive segregation,

or solitary confinement... The majority holds that for

‘‘serious’’ offenses, the Constitution requires no limit so

-. long as the prisoner has the option of submitting to prison

discipline. Second, the majority holds that Sostre’s alléged °

offenses considered together would have been ‘*serious,’”

if Warden Follette-had acted for proper motives. Third,

even though the warden’s: motives Were ‘‘improper,’’ the

‘majority refuses to rule that Sostre’s punishment was cruel -

a -

and unusual. . :

Before considering these three aspeets of the majority

opinion, it must be emphasized. that Sostre was segregated

for over a year and, as Judge Motley noted, would in all.

likelihood still be effectively isolated but for the interven.

tion of the district court. ~There is an intimation in the

majority opinion that Sostre was not effectively, eut- off

‘from usual diy to day contact with other human beings,? but

the district judge’s opinion makes clear that he.was. The

x

* See, eg, “[WJe cantiot agree [that*the conditions Sostre en-

dured] require that similar punishments be limited in the future to

any particular length, of time,” p.- 24a, supra; “|T ihe Eighth

Amendment [does not forbid] indefinite confinement under the con-

ditions endured by Sostre for all the reasons asserted by Warden

Follette until such time as the prisoner agrees to abide *by prison

Tules,.”” p. 1663, supra.

*“[H]e-was not as isolated in his segregation as ‘solitary’ would

imply,” see p. 5a, supra. ;

doa

Appendix A.

; ‘ he ai =

district judge, and the majority both agree that ‘‘the crux

of the matter is human isolation,’’ and the district court

opinion sets forth in melancholy detail the conditions that,

were imposed upon Sostre and the reasons w hy. 1 will not

repeat thé here except to note that the full vindictive |

flavor of defendants’. treatment of Sostre is indicated by .

. one incident, relegated. to a footnote in the majority opin-

ion. The day after Judge Motley ordered Sostre’s release

from over a year of segregation, he was: again disciplined

for having ‘‘dust on _his cell bars,’’ This caused him to

miss the regular July “4th celebration, which would have

brought him in contact with prisoners froin another part of

the prison, such contact being permitted only once a year

on July 4. Judge Motiey found that the punishment was

‘imposed upon Sostre in retaliation for his -legal success.

before her.

The district judge found that the isolation imposed on.

Sostre was ‘‘dangerous to the maintenance of sanity’’ and.

** ‘could only -serve to destroy completely the spir rit and

undermine the sanity of the prisoner.’ ” 312 F. Supp. 863,

868, 871 (S.D.N.Y..1970), quoting Wright v. McMann, 387

F.2d 519,526 (2d Cir. 1967). This was a finding of fact:

The judge also concluded as a matter ‘of law that “subj ject-

ing a prisoner to the demonstrated risk of the loss of his

sanity as punishment for. any offense in prison is_ plainly

cruel and unusual punishment as judged by the present

standards of decency.’’ Jd. at 871. The majority opinion

does not make explicit whether it overrules the judge’s find-—

ing of fact, although it hints that it does.’ But in order to

reverse the district court on this issue the majority must

hold either that Judge Motley’s finding of fact is clearly

-. erroneous or that, even if. true, the punishment imposed

on Sostre did not amount to cruel and unusual punishment

asa matter of law. Neither holding would be justified.

i See. p. Ma, supra. % -8

50a ‘

“Appendix -

As to the first, it is difficult to’ see <a Judge Motley’s

. factual finding that Sostre’s: isolation threatened sanity

‘ : eould be characterized as ele: arly erroneous... T estimony. at

ao trial from experts with’ inpressive eredentials clearly sup-

ported that finding. Dr.‘ Halleck, in response to‘a hypo-

‘thetical question outlining the -conditions of Sostre’s

punishment, stated that they could undermine the pris-

oner’s sanity. Sol Rubin supported that view. It‘is true

| that Dr. Johnston, testifying for the State, disagr eed. But.

nce —— while the district judge, as trier of fact, was free to believe :

~ the experts for plaintiff or for: defendants, we may do

neither. The trial judge chose to believe the former, and I

‘do. not see how her finding on this evidence can de chaiée-

terized as clearly erroneous. — - er:

On the second assumption, what the majority does is to

wre that Sostre’ *s lengthy, unlimited isolation, which was

| de aNeerous”’ to. his sanity, docs’ not violate the eighth

emma Le * amendment. -With deference, I disagree, The standard for -

determining ‘cruel and unusual: punishment”’ has been ex-

pressed in a number of ways, all imprecise ;‘e.e., ‘the wan-

ton infliction of pain,’? Louisiana ex rel. Francis v. Res-

weber, 329 U.S, 459, 463 (1947) : conduct which ‘‘shocks. the.

a most fundamental instincts of civilized man,’ id. at. 473

(dissenting opinion); a method of punishment which vio-

lates the “evolving standards of decency that mark the

progress of a. maturing society,’? Trop v. Didles, 356 U.S.

86, 101 (1958). These notions are, of course, subjective to

some extent. W hat may be safely said is that the amend .

--ment prohibits *‘a hard core of inhuman conduet,’’ see S4

Harv. L. Rev. 456, 457 (1970). There is no, doubt, as’ the

majority concedes, that a prisoner is not & constitutional

‘pariah: Were that not the case, there would be no basis for

/ the holding that the first amendme nt was v iolated hea ve, But

the eighth iunendment, , no less than the first,” prdtects

Sostre.' Its command i is both spacious and changing.

_

\

ae ‘ Through ‘“ due process clause of the fourteenth amendment.

See Robinson v. California, 370 U.S. 600 Sater

.

57a

e Appendix A,

The fact that solitary confinement ‘for an pices Oo. ----—

riod has historically been accepted as-a_viahle inaitcaeet ?

of prison’ discipline does not prevent ‘us from. finding. that

it violates: the: gighth amendment. What ‘might once have

heen acceptable does not necessarily - ‘determine wliat is -

: cruel and unusual’? today. Recently, the Eighth Circuit

‘has held that whipping by. strap is proseribed, although

it had eer been a familiar prac Jackson v. Bishop, -

404 F.2d 571 (Sth Cir, 1968). Sao, oe court emphasized

only a aye years ago that the eighth amendment ‘is not

fastened to.the obsolete.’’ See Wright v. McMann, supra, »,

887 F.2d at 525, quoting Weems v. United States, O17. US. A ‘

849, 378 (1910). In. this Orwellian age, punishment that

endangers sanity, no less than physieal injury by the strap, J

is prohibited by the Constitution. Indeed, we have learned

to our sorrow in the last few decades that true inhumanity

secks to destroy the psyche rather than merely the “bady.

The jnajority’ opinion emphasizes that after. all Sostre coule

have’ obtained releas@ from isolation, at any time. by agree- .

ing to abide by the rules and to cooperate. Perhaps that”:

_is s6,*but that does not change the case. That response4’

could be made were a prisoner kept. in solitary for ce

years instead of .one, or for five years, Or for ten, or more

The possibility of endless solitary contiucenk 3 is still there,

-unless the prisoner ‘gives in,’ -The same observation

could be made if Sostre were tortured until he so agreed,

~ but no one would argue that toxture is therefore permitted. .

The point is that.the means used to exact submission must -

be constitutionally acceptable, and, the threat of. virtually

endless jsolation that endangers, sanity is not.

The crucial holding of thie majority opinion is the retaaal

to put any limit upon the period of solitary confinement. .

It is the unusual duration and tye open-ended nature of the

isolation that the district could and the experts regarded

as inflicting the worst psychological harm. Accor dingly, as

we did in Wright v. McMann, supra, 387 F.2d at 526, I

gy

\

.

\

‘

v

DSa‘

Al ppendix :

would hold that the selidiiiinedi hove, “which could only |

serve to destroy completely the spirit and undermine the

- sanity-of'the prisoner,’’ runs afoul of the eighth amendment.

The second fuidamental reason why I differ with the

-Inajority opinion stems from the contrast between what it

‘finds necessary: to decide and w hat it refuses to decide.

As indicated above, | the majority states in an extentled

dictum that if the warden’s motives had been proper, the, |

combined effect of Sostre’s alleged violations would have

been ‘‘serious” enough to justify the harsh ptnishment

he received, Thus, the majority stresses ‘‘the seriousness’.

of ‘the niultiple offenses charged against Sostre” and-ex-

presses ‘‘no view as to the constitutionality of such segre-

‘gated confinement if it had been imposed on account of any-

one -or -any combination of. the offenses charged against

. Sostre other than all of them:’’ But the fact’-is that two

_ of the allegedly serious ‘‘multiple offenses’? were Sostre’s

refusal to desist from preparing. legal papers for, a co-

defendant and his possession of six tables of contents tern

from issues of the Harvard Law Review. I would not hold

-unconstitutional the isolation of an adult prisoner for a

sharply limited period as ‘punishment for a serious breach -

of prison discipline, e:g., what the majority calls ‘‘a credible

. threat to the security of the prison,” see p. 1665, supra.

But these two offenses were simply not grave enough to |

| sali ‘the extremely severe punishment visited upon’

_ Sostre. Accordingly, the excessiveness of the. penalty for

“these two alleged transgre ssions would alone violate the

‘eighth amendment’s proscription of cruel and ifhusual

punishment, and I would say so: :

Finally, while the majority reaches out-to decide, that |

Sostre’s confinement would have been constitutional under

a hypothetical set of facts, it refuses to rule that his pun- .

ishment was cruel and unusual ey en though it was actually

et Sno eee ee

. Appendix A.

‘meted out for improper reasons. It is true that ree

| majority also leaves open the. constitutionality of stich

‘confinement as Sostre experienced,” if imposed ‘for

“‘lesser offenses.’? The inconsistency of this approach is

apparent since if such confinement, in the. majority’s

view, :could ,ever be so excessive a penalty as to be un--

consfitutional, it should be declared so when there was no

basis for the confinement at all. oe

In sum, keeping Sostre in solitary for over a year nee

~“ernel and unusual punishment?’ because (1) the length

and open-ended nature of his confinement. threatened

* sanity; ( 2) two of the alleged offenses ywére so minor as to.

make the penalty constitutionally disproportionate; and

( 3) the ostensible reasons were a pretext for vindictive

action. I also agree. with Judge. Smith’s’ opinion with

regard to defendant McGinnis. For ‘the reasons and to ;

theextent set forth above, I dissent. ;

Hays, Cw cugt Judge, dissenting (with whom ee Moore Cs

concurs) ;

I dissent from the affirmance of any grant of haut

relief or damages. 5 -

“In deciding this case the majority have overlooked an

fundamental guiding principles. The first is.that although:

"persons serving: sentences’ in. prison for crime are not to —

be denied all constitutional protections, there are ‘signifi-’

cant differences between the constittitional. rights’ stich

prisoners may assert and the constitutional rights of those

who are’ free from prison restraints. For example, _al- | :

though the majority holds that Sostre is protected by the.

Constitution in his right orally to set: forth his political

6

opinions to his fellow prisoners, it may a that even they

eal

a)

,

- 60a

eee Appendix ie

would-balk at’a claim that the. Constitution gave Sostre

the right, similar .to.the right which he would have:if he

were free, to assemble the inmates and harangue them with

revolutionary political doctrines. As the Court of Po alae

of the Fourth Circuit said. in McCloskey v. Maryland, 337

2d 72, 74 (4th Cir, 1964), persons in- prison have “no

judicially enforceable right to propagandize within the

prison walls . . .’? The other fundamental principle which

receives’ short shrift at the hands of. the majority is that _

the federal’ courts should be extremely hesitant to. take

over the administration of state prisons. We have. said

that the federal ‘courts should refuse to inteffere with the

internal affairs of state prisons except in the most extrenie

rase involving ‘ ‘conduct that shocks the conscience? ”? or

Where the aéts of prison ‘officials ‘are, ‘ ‘barbarous.’.’”

Church v.Hegstrom, 416 F.2d 449, 450-51 (2d Cir. 1969)

(citations omitted). . See also Wright “¥, McMann, 387

F.2d O19, 527-28 (2d Cir. 1967) (Lumbard, Ch. J.,:con-

curring) ; Sostre v. McGinnis, 334 F.2d 906 (2d. Cir:), cert.

~ denied, 379 U. 8. 892 (1964); Jackson v. Bishop, 404 F.2d -

971, 577 (8th Cir. 1968) (Blackmun, C.J.).° Correction.

atithorities must have wide discretion in matters of in-

ternal prison administration. —Smith-v. Schneckloth, 414 -

F.2d 680, 681 (9th Cir. 1969) ;. Beard: v. Lee, 396 F2a

749, 751 (5th Cir. 1968); Lee v. Tahash, 302 F.2d- 970,

971-72 (Sth Cir. 1965); McCloskey ve Maryland; supra at

44; Sostre v. McGinnis, supra-at’ 908. Their decisions

in Watters, of prison discipline should not be disturbed

when they are supported ly ‘evidence and-do not result in

shocking deprivations of fundamental] human rights. See

Wright v. McMann, siipra. - Can it eames

In the -present case’ Warden Folléette testified that

Sostre’s punishment «was hased upon (1). defiance of Fol- :

lette’s order to desist from preparing legal papers, (2)° re-

a e

f ; tee '" * Gla

Appendiz A.

° ° ° @

: ‘-

°

f usal to answer pr oper questions,’ QB >). statements’ ahout his-

impending libe ‘ration, and (4) possession of several items

of contraband in his cell.’ Sostre did not even deny the

truth,of the first three of these accusations and the fourth

was -suppqrtéd by “ample evidenve: Nevertheless Judge

Notley aes Follette’s findings ‘and téstimony and

found that Sostre Ww as not —— for any. of these- in-

’ fractions: |

Observance of the correct, ind pitaciibes would lead

in this casé te reversing the trial court = respect to all

- relief granted.

.

.

\*

aT ‘ . ; i.

bes ites Say {

‘Iti order to maintairi discipline prigon inmates niay be’ re quired

to answer questions fully. and completely. See United Stdtes ex.

rel.’ Sperling vs. Fitzgerald, 426 F2d 1161, 1165 (2d Cir,- 1970)

(Lumbard, Ch. J., a | Se Bos

if oes ‘ ae i .

a

eo ba 62a

~*~ Appendix B.

UNITED STATES DISTRICT COURT

SoUTHERN District or, New York

. 68 Civil 4058

%

vr

. ~~,

.

* Martix Sostre, . is

Pe Plaintiff,

against .

Netson A. Rockrrencer. Governor of the State of New

York, Patw BD. McGixxis, Commissioner of Correction

of the State of New York. Vixscest Maxcest: Warden of

Attica Prison, and Haroty W. Fouverte; Warden of |

Green Haven Prison,

Defendants.

. a

* vv

-

Opixiex aNp Orver Daten May 14, 1970*

Constance Baker Mortrey, DQ.

_oThis is @ civil rights action, 42 U.S.C. ¢ 1983, 28 US.c.

> 145(3),. brought “by plaintiff, Martin Sostre, an “* Afro-.

- American citizen of the United States’’ and resident of

(ireen Haven Prison against the Giovernor of New York,

the Commissioner of ( ‘orrections and the Wardens of two

NewYork State prisons.’

Mr. Sostre is mo stranger to the New-York State prison

system, having already served twelve Vearg, 1952-1964,

four of which were spent in solitary confinement at Attica

State Prison for Black Muslim activity (T. 3.7; 160-166).

Ii is also no stranger to the federal courts with his civil

rights complaints against New York prison officials (T. 4).

fe seeured for Black Muslim prisoners their rights to-cer-

¢ * This opinton is reported at 312 F. Supp. 863.

63a mas eed

Appendix I.

tain unrestricted religious liberties during-his: prior inear-

cerations Pierce, Sostre, Sa Varion “« La Vallee,, 292

PF. 2d 255 (2d Uir. 1961) and Sostre y. MeGinnis, 334 F. 24

“906 (2d Cir.), cert. den. 379 U.S. Su? (1964). His earlier

legal activity also resulted in the elimination of some of

the more outrageousiy inhumane aspects of solitary con-

finement in some of the state's prisons? (‘T. 163, 167).

Martin Sostre is again in prison.” This time he is there

‘pursuant to a sentence of 30-40 years, to be followed by a

one year sentence and a sentence of 30 days for contempt

. of court, imposed upon hin hy the Supreme Court of New

York, Erie County. on Maré 18. 1968. (Def, Proposed

Finding of Facet No. 1 and Exh. A.) ahs

On the day of his sentence, he was immediately taken.

to Attiea PMson where he remained overnight in a el]

block whieh contained no other prisoners ¢T. 5-6, 157-158).

The next anorning, he. was taken in & *‘one-man draft*’

to Green Haven Prison (T. 6,.538), According to the

Deputy Warden ‘in charge of Attica (the warden: a de-

fendant here, being on vacation). he sought Nostre‘s

removal froin that prison ax soon as possible (T. 520).

He, therefore, called tlie offiee of thie Commissioner of

Corrections of the State of New York and spoke to the

Deputy Commissioner who approved the. transfer (T.

920-521; Def. Proposed Finding *of Fact No. 11). ~The

Deputy Warden of Attica testified vaguely and Without

substantiation as follows: **1 thought it was best for the ‘

interests of the inmate and for the state that -this man he

transferred to another institution’* (T. 521).

Immediately after his arrival at Attica, Sostre bedan a

legal battle for reversal of his conviction. He sought to

mail an ‘application, for a certificate of reasonable doubt to

the state court which he had prepared prior to sentener:

but the guard at Attica refused to mail the application

(T. IS1-182. 638-640). |

64a.

Appendix Bo. : .*

The next day, Nostre found himself in solitary confine-

nent in (ireen Haven enete he remained for several davs

“(T.S-9,11: PL Exh. 37 at 2: Det: I *roposed Finding of Fact

No. 13)., He was then pe Fel bora to join the general popu-

lation and to mail his applic ation for a certificate of rea-

sonable doubt (7. Oe VOU), ’ aot.

_ However, shortly thereafter, on June 25, 1968, Sostre was

baick in solitary.confinement (now called ‘minitive segye-

gation’ by defendants). He remained in such confinement

until July 27 1969, whe ‘no he was returned’ to the general

population pursuit “toa teliporary restraining order is-

sued by this court in fle present acfion, followed by a

preliminary, injunetion. 309 FP, Supp. 611 (S.DINLY. Sept.

“4, 1969). A trial followed upon which were established the

faéts found herein and, upon which the relief f granted in

this opinion is based. .

On -fune 24, 1968S, Sestre placed in the prison mail box

for nailing to his atterney-p letter with handwritten legal

motions and other papers ‘attached. One of these was a

motion for change of veriue of the trial of his codefendant,

Mrs. Geraldine Robinson, who had not vet been tried, from

rie County (Butfaloy (T. 50, 53: PL Exh. 17). Te was

called to the office of defendant Follette, Warden of Green *

Haven Prison, who had the papers on his’ desk. The War-

den asked Sostre whether he kad a‘license ta practice law,

to which he replied in the negative (T.51). The Warden

admittedly denied Sostre the right to*prepare legal papers .

for his codefendant, since he was not a dicensed attorney,

and flatly refused to-mail out the motion papers (Def.

\Proposed Finding of Facts No. 2425: T. 1240-1241).

At the same time, Warden Follette questioned Sostre

about a reference in his letter,to his attorney about an

_ organization. known as RNA. (Republic of New Africa)

‘“Iwcause defendant Follefte-was conéerned about a state-

ment in plaintiffs May 19, 1968-Tetter to his sister’? (Def.

j

.. : 65a

- Appendix B.

‘Proposed Finding of Fact No. 28; T; 1241-1242; PL. Eh.

20K). This statement reads: : \

“As for me, there is no doubt in my mind whats9-

ever that i will be out soon, either by having my

appeal reversed in the courts or by being liberated hy

the Universal Forces of L cp oa The fact that the

mititarists of this country dre being defeated in Viet

Nam and are already engaged with ‘an escalating re-

bellion in this country by the oppressed Afro-Anieri-

can people and their white allies are sure signs that

the power structure is on its way out. They are now

in their last days and soon they won't be able to

oppress anybody because they themselves will. be bhe-

fore the People’ s courts to be punished for their

erimes against humanity as were the German war

* —eriminals at Nuremberg.’? (PL Exh. 19; Def.. Pro-

posed Finding of Faet No. 28.)_ °

ial

It is undisputed that as a result of plaintiit's refusal to

cease and desist from ‘practicing law’? in the institution,

and his refusal to answer, questions about R.N.A., and

because of the statement in plaintiff’s letter to his sister

that ‘the would be leaving the institution, soon,’’ defend-

ant Follette decided to plaée plaintiff in the punitive seg-

regation, unit (Def. Proposed Finding of Fact No. 31;

T. 1248-1249). re,

~The proof also established: 1) plaintiff received no prior

written noice of the above charges which resulted jin his

segregation; 2) there was no record made of the diseus-

sion with‘the Warden; 3) defendant McGinnis, the Com.

missioner of Corrections, was notified of plaintiff's con-

finement and the reasons therefor -but took no action

(T. 692-700; Pl. Exh. 29, 29A-F); 4) -plaintiff was not

charged with violence, attempting to eseape, incitement to

riot or any similar charge ; and 5). plaintiff remained in

~~

3

‘66a

Appendix DB.

segregation from June 20, 1968 until released by order of

this court, more than a vear later, on July 2, 1969,

The parties have stipulated that as a result of solitary

, Confinement for more than a year, Sostre has lést ‘1241,

dats of **good time’? credit, siniee under the rules a pris-

ener in solitary cannot earn good time [N. Y. Correction

“ Law (6 220, 234 (McKinney. 1968); Pl. Exh. 1 at 5, PI.

Exh. 31; Reply Brief of Def. at 20]. I

a

‘There is-also no-veattispute as to the conditions: which.

“Obtained in punitive segregation during plaintiff's year-

long stay. There Was only one other person incarcerated

in the same group of cells. as plaintiff (about four out of

thirteen months) -from August 14, 1968 to Decomber 20,

1968 ( Def: Proposed Finding of Fact No. 55: T. 97-98).

- One prisoner brought to solitary and placed in another

sroup of cells committed suicide the next day (T. 127-

151, 400-406, °793, 839, 899-896, 905-906). Plaintiff was

deprived of second portions of food (‘P. 887-888) and all

desserts as a punishment tor the entire time (Def. Pro-

posed Finding of Fact No. 41). He remained in his cell

for 24 hours per day. He was allowed one hour per day

of recreation in a small, completely enclosed yard. Sostre

refused: this privilege because it Was conditioned upon

submission, cach day, to a mandatory “strip frisk’? (eom-

pletely naked) which included a rectal examination (Def.

Proposed Finding of Facts Nos. 34-38; T. 88-90). He was

permitted to shower and shave with hot water only once

a week (Def. Proposed Finding of Facet No. 34). He

Was not permitted to use the prison library, Tead news-

papers. see movies, or attend school or training programs

(T. 91-93, 96-97). He was: not allowed to work (T. 91).

Prisoners in the general population who work are able to °

earn money with which they may purchase items from the

O72 ; =

Appendix BL.

prison commissary, or purchase bodks, or subscribe to

newspapers (T. 93). Prisoners in punitive segregation

liave access to only a few novels and ‘shoot-’em ups”?

Selected for them (T. 92- 95). But, as plamtiff and defend-

ants* counsel put it, the crux of the matter is human isola-

tion—the loss of “yrouys privi leges”? (T: 87-88, 1654166).

Release from segregation is wholly within the discretion

_of the Warden. However, a recommendation from a non-

professional, so-called, group therapy counsellor might

help (T. 134-136, 388, 773-774. 917, 921).

. This court finds that punitive segregation under the

conditions to which plamtiff was sulijected at Green Haven

ix physically harsh, destructive ‘of, morale, dehumanizing

in the sense that it is needlessly degrading, ard dangerous

to the maintenance of sanity when continued for more

than a short period of time which should certainly not

exceed 15 days (T. 300, 317-320).

After plaintiff was sent to solitary confinement on June

_ 25,1968, his cell was searched. The Warden alleged in

an affidavit filed on July 3, 1965. that the search revealed

contraband. This consisted ‘of: 1) a letter from a eourt

belonging to another inmate (whieh plaintiff was translat-

ing into Spanish for that other inmate) (T. 66-67; Pl. Exh-

21); and 2) two small pieces -of emery paper (Pl. Exh.

di, at 2; T. 683-684). A Disciplinary Report dated June

29, 1968 (Pl. Exh. 22-C) reeords that plaintiff was repri-

‘manded for possessing the letter.. There is no similar

report regarding the emery paper, although the Warden

alleged both items were found at the same time (Pl. Exh,

37, at 2).. The Warden claims that the eme ry paper was

‘adaptable for the fashioning of a key or lock picking

.tool’’ (Pl. Exh. 37 at 2). Plaintiff denied ever having

seen the emery paper before frial (T. 65-67). The court.

believes plaintiff ’s testimony for the following reasons:

1) plaintiff was already in punitive segregation when the

‘emery paper was allegedly found in his cell: 2) the Disei-

me

ee

-

‘ i aan <3

— ; Appendix B.

plinary Report of pwn 25, 1968 does-not contain this

charge (Pls Exh. 22 2-C); 3) the first written recordation

of any such charge against’ Sostre does not appear until

October 29, 1968, shortly: after Sostre filed his pro se éom-

plaint in this action en October 15, 1968 (Pl. Exh. 29- I);

4) defendants have not requested this court to make. any

finding with respect to the emery paper in their proposed

findings of fact. On June 25, 1968, search of Sostre’s cell’

also revealed that he was lending his law books to other

inmates, ‘after removing therefrom a stamp identifying

these books (which turned out to be copies of the Harvard

Law Review) as belonging to Sostre:-(Follette Dep. 62-64,

117). This along with the two preceding charges was one

of the charges originally put forth by defendants as a

reason for Sostre’s cofinement but dropped upon the trial

(T. 1248-1249, 683-684). ¢. 7

The day: after plaintiff? s conbt-eedied release from

segregation, July 3, 1969, he was again disciplined. This

time he was charged with having dust on his cell bars.

The punishment was to confine him to his cell for several

days. Again, plaintiff denied this charge, claiming he was

so charged and punished in order that he: would miss the

regular July 4th celebration. This ce lebration weuld have,

brought Sestre in contact Witll prisoners from another part

of the prisén. Such contact is- permitted only onee a‘ year

on July 4+ (7. s 9). This court finds that this charge

anid punishment were Imposed upon Sostre in retaliation

for his legal suéeess: ' é

On or about August 3, 1969, plaintiff Was again disci-.

plined for having ‘Sinflammatory- racist literature’? in his

cell.’ The punishment was deprivation of vard and mevie -

pe ivilewe ‘s for 60 days (T. 74-77, 1071-1073). The so-ealled

inflammatory 3 racist literature’* consisted of handwritten

political artieles by Sostre, some of whie ‘h contained ex-

cerpts from articles printed in ne Wspapers and magazines -

in general circulation in the prison (T. S207; Pl. Exh.

| seal

Appendix iB.

23) and lists of oflecrs of the Black Panther Party aide

th@ Republic of New Africa, copied from similar articles

“in Esquire and other magazines (T. 72).

All of plaintiff's letters’ to and’ from his attorney, Joan

F ranklin, were censored by the Warden. He excised: ther¢-

from everything which he believed was ‘not directly re-

lated to Sostre’s immediate case (Pl. Exh. 3, 4, 7, 8, 10, 12,

13, 14, 19-23, 29-30, 33-38~ Follette Dep. ag 69, 70, 136,

139). And a letter to the Postal Inspector of the United

States Post Office complaining about’ plaintiff’s failure to

receive receipts for certified mail was also not- mailed hy

-the Warden (Pl. Exh. 41; T. 35).

This court finds from all of the facts and circumstances

of this case, as set forth above, tliat Sostre was sent to °

pimnitive segregation and kept there until released by court

order not because of any serious infraetion: of the rules

of prison discipline, or even for any minor infraction; but

because Sostre was being punished spe¢ially by the: War-

den because of his legal and Black Muslim activities dur-

ing his 1952-1964 incarceration, bee: use of his threat to

“file a law suit against the Warden to secure his right to

unrestricted correspondence With his attorney and to aid

his codefendant (T. 52; Def. Post Trial Brief at 20, 32)

and because he is, unquestionably, a black militant who

persists in writing and expressing his militant and radical

idea: is in prison (T. 71-77, 1: 316- 1319; Pl. Exh. 237.

I. Crven AND Unusu AL PUNISHMENT

.

Plaintiff claims that his confinement to punitive segre-@

gation for an indefinite period-of time amounted to eruel

aud unusual - punishment forbidden by the -Kighth and

Fourteenth Amendments to the Constitution, arising not’

only from the reasons for his eonfinement and the Icagth

_ of his e¢onfinement, -but also from the conditions. of his

-confinement.? This court agrees and so holds. ‘ See Meright

v. McMann; 387 F. 2d 519 (2d Cir. 1967)..

dee : * - - @0a: a or

“Appendix B.

Prisoners at Green Haven may prepare legal papers

for themselves, There is no rule 6f the prison which

prohibits inmates from preparing legal papers for. their

non-inmate codefendants. However, the rules do bar in-

Inmates except upon approval of the’ warden, ‘from assist-

ing ‘‘other inmates in. the preparation of legal papers.”’

(Pl. Exh. 1, Rule 21, Inmates’ Rule Book.) The Warden

claims he relied upon the decision of the New York Court

of Appeals in Brabsan vy, Wilkins, 19 N.Y. 24 433 (1967),

in denying ‘plaintiff the right to prepare and mail out.a

motion for his codefendant and in punishing him for this

act. In Brabson, the majority expressly refused to fol-

‘low the decision of the District Court in Johnson vy. Avery,

252 F.Supp. 783 (M. D."Tenn.. 1966), upholding the right

Of agstate prisoner to prepare a‘ federab writ of habeas

corpus for another -state prisoner. [i Johnson, the

prisoner-plaintiff. who had prepared the writ had been

sent to solitary confinement. He was ordered released.

by the District Court. Subsequent to the filing of this law

suit® ( October 1 9, 1968) the United States Supreme Court,

on February 24 1969, affrmed the District Court’s decision

in Johnson We Avery, supra, aff'd 393 U.S. 483 -(1969),

rev’ng 382 F.2d 353 (6th Cir. 1907 ).” :

The fact that the Warden continiéd to -confine Sostre

to punitive segregation after: the Supreme Court's deci-

sion in Johnson Vv. Avery, supra, on February 24, 1969,

-anakes it eledr that although the Warden assigned as a

reason for such confinement. the fact that Sostre pre-

pared. a motion for a codefendant, this was not a bona fide

reason for such confinement. But even if Follette did

in fact, discipline plaintiff in 1968 for preparing a mation

for his codefendant in violation of the dictates of Brabson,

this court holds that the punishment imposed upon SNostre .

for this offense, which was indéfinite confinement to” puni-

tive segregation, was so disproportionate to the offense

Hine al

A ppendis B.

committed as to amount to cruel one unusual punishment.

Weems v. United States, 217 UL S. 349 (1910); Fulwood v.

Clemmer, 206 F. Supp. 370°(D. C. D. C. 1962). It ds clear

from all of ‘thet facts in this ease that but for the. interven-

tion.of this court (which released Sostre from confinement

after more than a year) Sostre would, in all likelihood,

still be in punitive seer egation for this alleged offense.

The Warden ckaimed ‘that he assigned Nostre te punitive

segregation because Sostre refused to answer ‘fully and

truthfully’? questions put to him by the Warden about the

meaning of the letters R.NLA. (PL. déxh. 1, Rule 12.Inmates*

Rule Book). - The court dishelieves that aihiguous ‘claim.

But even if this were true, assigninent to punitive segreg

tion for an indefinite period of: time for this infraction of

the rules is likéwise so disproportionate to the charge, as

to be clearly barred by the Eighth Ameridment prohibition

against disproportionate punishment.

_ The court also holds that ‘the totality of PRPs

stances to which Sostre was ‘subjected for more than ‘a ve

was cruel and unusual punishment when tested aS

“the evolving standards of decency that mark the progress

of a maturing society.’’ Trop v. Dilles, 356 U. S. 86, 101

(1958) (Opinion of Warren, C. J.).. Accord. Jackson \

Bishop, 404 F. 2d 571, 579 (8th Cir. 1968) ; Jordan v. Fitz-

— 207 F. Supp. 674, 679 (N. D. Cal. 1966). See Wright

. McMann, supra; The Ameri€an Correctional Associa-

ao Manual of Correctional Standards, “414-415 (Srd ed.

1966); The American Law Institute, Model Penal Codi

§.304.7(3) (Preposed Official Draft 1962) ; Note, The Prob-

lenis of Modern Penoloqgy: Prison Life and Prisoners’

Rights, 53 Iowa L. Rev. 671, 672 (1967); T..511).

; “TT [his condemnation of segregation is’ the exper renee

years ago of people gomg stir crazy, especially in segrega’

‘tion’? (T. 320). The conditions which undeniably existed

in punitive segregation at Green Haven, this court finds,

“could only ‘Serve to destroy completely the spirit and -

o

Y. Appendix B.

undermine the Sanity of the prisoner,” Wright v. McMann,

supra, at 926,-when iinposed ‘for more ‘than fifteen days. +

Subjecting a prisének to the demonstrated. risk of the loss

of his sanity as punishment: for any offense in prison is _

- plainly cruel ahd unusual punishment as judged. by present’:

stanttards’ of dleceney, Cy. Da parte Medley, 4 U.S. 160,

167-170 (1898), In order to be constitutional, punitive

segregation as practiced in Green. Haven must be limited, «|

to no more than fifteen days and may be imposed only: for

“serious infractions of the rules: Me ;

II. ProceDuran, Der Process -.

Plaintiff claims that his confinement toe segregation for

morethan i year was effected in violation of his right not

‘to be deprived of: his lilkerty. without due process of law. |

a as guaranteed by the. Fifth and Fourteenth Amendments

a the Federal: Constitution, in that: 1) he was sentenced |

to such confinement for-offenses which under the rules of ..

the prison did not constitute offenses: 2) with respect to’

the charge inyol¥ing the emery paper there wasato proof

that hé-had such paper in his possession °) he Wd not

receive advance written notice of the charges 4) he Kas

denied the right to ‘assistance of counsel or a counsel sub-

stitute; 5¥ hee was denied the right ta call Witnesses, in

rebuttal of. the charges; 6) he Was denied the right to

confront or cross-examine Witnesses; 7) there were no

written records of the, disciplinary proceedings against him.

other than-a notation of the cha rges, plaintiffs plea, and

“defendants? stdumary determination of galt 33 8) the right

to appeal dnd the: ability to make” a, meaningful ‘appeal \

4g were denied asa result of the omission of his right to \

counsel, to call and cross-examine Witnesses, and to have a

written record. Lgl . wea s.

_ AS a result Of -his confinement, plaintiff lost 12414 days

of, good time which might~otherwise have been ‘applied.

J

|

'

Gee, a Ba

Appendix B..

both to hasten consider ation of his eligibility for parole

and in igre, his release on parole, N. Y: Correction

Law §§ 230, 803 (McKinnty 1968).

; fi recently, the Supreme Court reiter ited the firmly-

established due process principle that w here governmentat

action may seriously injure an individual, and the reason-

-ableness’ of that action depends on fact findings, the evi-

dence: ‘used to prove the governme nt’s case-must be dis-.

closed to the individual so that he has an opportunity to

show that it is untrue. T he individual must also have the

right to retain-counsel. ~The decision-maker’s conclusion

must rest solely’on the legal-rules and evidence adduced

‘at: the hearing. In this connection, the decision-maker

should staté the reasons for his determination and indicate .

the ev idenc ‘© upon which‘he ‘relied. Finally, in such cases,

the high Court rule d, an impartial decision-maker is essen-

~ tial. Goldberg v. Kelly, Us 3. —— (1970); accord,

Escaleray. New Fork City Housing - Authority (Nos; 3 33226-

33229) (2d Cir. April 29,°1970). =. i

This court holds that’ plaintiff was, in effect, ‘<sen-.

tence d’’ to more than a year in punitive segregation with-

*. out the minimal procedural, safeguards required for the

‘imposition of such drastic punishment upon a prisoner,

- This punishment not only caused plaintiff physical depri--

vation, needJess degradation, loss of work, training and

self improveme nt opportunities, and -ni¢ital suffering, but

aaterially affected the.lengtl of time he must serve > under

‘his court- imposed+sentenee. 9% * *

Before plaintiff could have been constitutionally. “sone

teneed’’ to punitive segregation, he: was entitled to: 1)"

written notiee of the charges against him (in advance _ a

hearing) which’ designated the prison rule violated; 2) a

hearing before ‘an’ impartial official at which he he a the

right to cross-examine his accusers and ¢all witnesses im

remattal; 3) a written record of the hearing, decision, rea-

4S

.

\4

re ita

Appendic B,

sons therefor and evidence relied upon; and 4) retain

counsel or a Gauunsel substitute.

A prisoner carries with him te prison his right to pro-

cedural due process which ‘applies to charges for which

he. may receive punstive segregation or any other punish-

ment for which earned good time eredit may be revoked

or the opportunity to earn good time eredit is denied.

Therm is no place in our system of law -for reaching the

result which occurred here without the safeguards listed

above. Mem pa x. Rhay, 289 U.S. 128: (1967 ): lu re Gaalt.

osc U.S. 1 (1967); Keut v. United States. 382 U. &. 34,"

294 (1966) gd lewett v. State of North Carolina, 415 F. 2d

1316 (4th Cir. 1969); Shone v. State of Maine, 406 F. 2d

“S44 (1st Cir.), racated as moot, 396-U. S. 6 (1969): cf.

Talley 7. Ste phe WS, "247 F. Supp. 682, oso (RK. p® Ark.

1965).* Prisoners do not lose all of their rights under the

Constitution when setiteneed to prison. Washington ¥-

Lee, 263 F, Supp. 327 (M.D. Ala. 1966), aff 'd- per curiain.

390 U.S. 333 (1968); Sostre ¥. UeGinnis, 334 F. 24 324 F.

2d 906 (2d Cir.), cert. den., 379 U.~ S. 892° (1964); Piereé,

Sostre, SaMarion.v. La Vallee, 293 F. 2d 233 (2d Cir.

1961). * And basie constitutional rights cannot be sacrificed,

even in the case of prisoners, **in the interest of adminis-

trative (fiicieney.”’ United States ex rel. Marcial v. Fay, .

247 =F. 2d 662, 669 (2d-Cir. 1957). cert denied, 355 . &.

915 (1958): Burns v. Sur ison, 288 F.Supp. 4(W. D. Mo.

158), wrod ifir d, 00 F, Supp. 759 (OW. D. Mo. 1969). See

President *s Commission on Law Enforcement and Admin.

istration of Justicé, Task Force Report: Corrections, 82.83

(1967): PBesident *s (‘ommission on Law Enforeement and

Administration of Justice, The Challenge oF Crime in a-

Free Society. 18] (1967). See also Barkin, The Emer-

"In the? relate] cose of Jackson v. Bis lop, 40H ¥. 21 71 (Sth

ir 198). the Eiehth ¢ ‘revit imstracted the districe court to en-

‘ A » @&

mr dy Use of the strap.

oa

/ ani Appendir BL =)

gence of Correctional Law aud the Awareness of the Riahis

of the Couricted, 45 Neb. Le Rev. 669 (1966): The Ameri-

can Law Institute, Wodeb Penal Code. © 304.712) (Pre-

posed Official Draft 1962). :

III. Access to Coverts axp-Puceuec Orrictars

_ The ‘efusal to mail the certitieate of reasonable doubt

- immediately after plaintiff arrived at Attied and immedi-

_ ately after his arrival at Green Haven was not .such -an

unreasonable restriction of plaintiff’s rights as to require

a finding of unconstitutional action by defendants in this

respect. The certificate of redsonable doubt was mailed

shortly after plaintiff's arrival at Green, Haven, “Ap-

parently, the few days involved did not defeat plaintiff *s

‘Tight to file such a certificates since-no claim is made that

- the delay interfered with the. timeliness of its filing.

There is no quéstion that defendants cannot unreason-,

ably ‘restriet the right of plaintiff to apply toe the state |

court for” — cy. Joliuson v. elrery, supra; Ex parte

Hull, 312 U.S. 46 (A941). A) right-of access to the

courts is one se the rights a prisoner clearly retains. It is

a precious right, and its ashninistrative ‘ly unfettered exer-

ise may be of incaleulable importance in_ the protection

-of richts « Ven more precious.”* ( ‘Aeman v. Peyton, 362

Pr. 2d WD. 907 (4th Cir.), cert. den., 385 tv. s » (TMi).

See, Stiltner v. Rhay. ao? F. 3d 314. S16 (9th ¢ r. 1963).

ceri, den. sub wom., Stiltuer v. Washingtoii, 376 7 Ss. fro

(164). s ‘ s<

‘ Warden: Follette censored mail to and from pkaintitt” .

counsel by excising therefrom whatever. in his judgment.

was not relevant to plajntiff’s case. In stippert ef hix-

position, the Warden relies upon Brabson vo Wilkins, p>

N.Y. 2d 433 (1960). which upheld the right ef the prior ,

Warden at Atfica Prison to intercept and withhold from

al ppendix LR. -

a, prisoner communications to and from an attorney deal-

ing With matters other than ‘legality of detention and

treatinent ces In short, the prisoner could write to

his attorney about legal matters and treatment only. Brab-

son, supra, at 437. The court in Brabson had also limited

the prisoner's right to write to executive ollicials to **eom-

plaints of unlawful treatment”, but it placed no limitation

on anything written to a court by a prisoner. Jd. .

-Plaintiff contends that defendants? arbitrary and capri-

cious action with respect to his correspondence with his

attorney vidlated not only his Fourteenth Amendment

right as recognized by the case Jaw but also his Sixth

Amendment right to the effective assistance of couns »}.

This court agrees with, and adopts; the bibding! ond

rationale, of the three dissenting judges (Keating, Ruld,

Van Voorhis) in Brabson. supra. Judge Keating, who

Wrote the ilissenting opinion, said: |

I Ieli¢ve that these limitations -as well as the an:

thority given the Warden unnecessarily. interfere with

and endanger this prisoner's right to comimrnicate

with his attorney and govermnental officials having

either jurisdiction over the penal system or the. power

and authority to correct conditions existing therein...

. ee ae :

. Judges and courts are not the only persons or

‘ agencies capable of granting relief to prisoners ¢om-

plaining about the ewality of. their treatment. or

*. detention. For this reason, 1 see no basis for «dis-

‘tingnishing between letters to courts, to the prisoner's

attorney oy to government officiats. In all of these

cases only the recipients of the letters should be per-

mitted to determine Whether the contents avarrant their.

~

Tia

| ppendix B.

intervention and not the’ very person whose *jurisdie-

tion and conduct are’ being questioned.

- : * * *

Exactly how the exercise of this right. will under-

niine prison discipline and authority is not made clear

The Attorney General alleges that ‘prisoners would

be able to carry on unauthorized activities through

“ comnanic ations from prisoners to their attorneys and’.

thence to third parties.’? Uncensored ¢ ommnunications,

however, presently occur on personal’ Visits to the.

prison by the prisoner’s attorney and members of his -

family, without any apparent undermining of prison

discipline. In any‘event, tlie right of a prisoner to

unexpurgated communications with. his attorney is so

significant that itgoutweighs the danger of frustration

of prison rules regarding outside activities in the rare.

case where an attorney—an officer of the court—would

assist a prisoner in avoiding legitimate prison regu-

lations. ;

+

Judge Keating then went on to reiter ate, 2 as other courts

had, that prisoners do retain certain ‘constitutional rights

in prison: -

The right of an individual to seck relief from egal

tre: atment or to complain about unlawful conduct does

not end when the doors of a prison close behind him.

True it is that a person sentenced to a period of con-

finement in a penal iistitution is necessarily deprived

of many personal liberties. Yet there are certain

‘rights’so necessary and essential to prevent the abuse

“of power and -iJlegal condyet that not even a prison

sentence can annul them., As this court onee observed,

‘An individual, onee validly convicted ‘and placed

under the jurisdiétion of the Department of Cor-

eae A ppendix Bi.

~~

rection * is not to be divested of all the. soit

and unalter ‘ably abandoned. and forgotten Ty the re-

mainder of society.’ EP, ople ex rel. Brown ¥. Johu-

ston, 9 N, x, 2d 482, 485, 215 N.YS. 2d 44, .46, 174

N. BK. 2de725, 726).

Among the rights of which he may not be deprived

ix the right to communicate, without interfe ‘rence, with

officers of the. court and governmental offic ials ; with

those persons capable of responding to calls for assist-

ance, No valid reason, ‘other. than the shibhole th of

prison (liseipline, has been adv anced for the denial of

this right in the case before us. | believe that courts

sheuld look behind i Inappropriate slogans so often of-

fered up as ‘excuses for ignoring or abridging the

constitutional rights, of our citizens.

19 N. Y. 2d at 438 440. See also, Fulwood vy. Clemmer,

206 FL Supp. 340, 376 (D.C.D.C. 1962): Burns v. Swe ‘USONs

300) F. Siipp. 759, 762.7W. D. Mo. 1969).

Mor the foregoing reasons, Warden Follette’s refusal

to mail plaintiff’s-letter to the United States Postal -In-

Spector was also improper es

IV. -Freepom or Por. ITICAL FE XPRESSION

laintif?’s ye

i is Te-

lease from sala: wii ‘nt on July 2, 1969, plaintiff

was charged with the possession of contraband found in

\hont a month-after this court ordered

his cell. This consisted of political literature, such as a

list of officers of the Black Panther Party and Republic

of New -Afriea, and’ ‘* Revolutionary Thoughts’ put on

paper by plaintiff. Some of this matter was copied from

bei ‘Wspapers and magazines Which had: heen legally —

eukurly cireulated in the prison (TT. 71-77: Pl. Exh. 2:

This information was characterized by the. Deputy W Boe

as racist and, consequently, contraband (T. 1071-1073).

\.

Appendix B. :

The Deputy W ardep found plaintiff gtuity of possession

of such contraband and punished him by the denial of 60

days of yard time and movies (T. 1071- 1072; Pl. Exh.

29E). This action on the part ‘of defendants must. be

considered in conjunction with the Warden's sending

Sostre to solitary confmement initially heeause of the state-

ment ‘made in,the letter to “his sister and because of

. Sostre’ s refusal-to answer juestions about R.N. A. Thus. ;

considered, there is no room for doubt that Sostre’s tréu--

bles with defendants’ steni-net-fromelgs acts.or threats to.

prison security, but from iis political thoughts and beliefs,

as expressed in the literature he reads and tte letters he.

Writes (Pl Exh. 29, 29A- 29F;).< Sostre was not charged

with organizing a chapter of R.NLA . in prisian, making in-

This text is long and has been trimmed here. Open the source document for the complete record.