Haines v. Kerner Brief for Petitioner

    Supreme Court, 1
i i l e r

I JUL 15 1911
memmmi ,-t> c p K
.S'EAVErt, U-twv

IN THE

Supreme Court of the United States

OTTO I. KERNER, FORMER GOVERNOR, 
STATE OF ILLINOIS, et al,

Respondents.

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

No, 70-5025

FRANCIS HAINES,

Petitioner,

v.

BRIEF FOR PETITIONER

O f  Counsel:
J a c k  G r e e n b e r g  
J a m es  M. N a b it .T I T  
Wil l ia m  B. T u r n e r  
A l ic e  D a n ie l  
Ma x  S t e r n

S t a n l e y  A . B ass

10 Columbus Circle 
Room 2030
New York, N.Y. 10019

Attorney for Petitioner

Washington, D. C. - TH IEL  PRESS - 202 • 393-0625



(i)

TABLE OF CONTENTS

Page

OPINIONS BELOW ...........................................................................  1
JURISDICTION...........................   2
CONSTITUTIONAL AND STATU­

TORY PROVISIONS INVOLVED.............................................  2
QUESTIONS PRESENTED ............................................................ 3
STATEMENT OF THE CASE ....................................................... 3
SUMMARY OF ARGUMENT......................   6
ARGUMENT:

I. The Conditions of Solitary Confinement in the Illinois 
State Penitentiary, as Administered to a Partially Dis­
abled Sexagenarian Prisoner Under the Circumstances 
of This Case Constituted Cruel and Unusual Punish­
ment in Violation of the Eighth and Fourteenth 
Amendments........................................................................... 7

II. Petitioner Was Unconstitutionally Deprived of Proce­
dural Due Process of Law in the Prison Disciplinary 
Proceedings.............................................................................  18

CONCLUSION..................................................................................  23

TABLE OF AUTHORITIES
Cases:
Barnes v. Hocker, No. R-2071 (D. Nev. Sept. 5, 1 9 6 9 ) ...............  10
Barnett v. Rodgers, 410 F.2d 995 (D.C. Cir. 1969) .................... 12
Bivens v. Six Unknown Named Agents of the Federal Bureau

of Narcotics,__ U .S.___ , 39 U.S.L. Week 4821 (June
21, 1971) ....................................................................................  9

Blyden v. Hogan, 320 F. Supp. 513 (S.D. N.Y. 1970).................  21
Boddie v. Connecticut, 401 U.S. 371 (1971)...............................  18
Borden’s Farm Products, Inc. v. Baldwin, 293 U.S. 194

(1934)...................................................... ....................................  13
Bransted v. Schmidt, 324 F. Supp. 1232 (W.D. Wis. 1971) . . . .  19



Brooks v. Florida, 389 U.S. 413 (1967) .................................  8, 10, 17
Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1971) .......................  14
Bums v. Swenson, 288 F. Supp. 4 (W.D. Mo. 1967)  ............  15
Bums v. Swenson, 430 F.2d 771 (8th Cir. 1 970 ).........................  7

Carothers v. Follette, 314 F. Supp. 1014 (S.D. N.Y. 1970) . . .  15, 20
Clay (Ali) v. United States, ___ U.S. ___, 39 U.S.L. Week

4873 (June 28, 1 9 7 1 ) ................................................................. 23

Clutchette v. Procunier, No. C-70-2497 A.J.Z. (N.D. Cal.
June 21, 1971)...........................................................................21, 22

Conley v. Gibson, 355 U.S. 41 (1 9 5 7 )..................................... .. . 13
Cooper v. Pate, 378 U.S. 546 (1 9 6 4 )............................................  9, 13
Counselman v. Hitchcock, 142 U.S. 547 (1892) ......................... 21

Dearman v. Woodson, 429 F.2d 1288 (10th Cir. 1970) . . . . . . .  14
Dioguardi v. Durning, 139 F.2d 774 (2d Cir. 1 9 4 4 ) ....................  5
j$ritsky v. McGinnis, 313 F. Supp. 1247 (N.D. N.Y. 1970) . . .  15
Escoe v. Zerbst, 295 U.S. 490 (1935)................. .........................  19
Gardner v. Broderick, 392 U.S. 273 (1968)................................  21, 23
Garrity v. New Jersey, 385 U.S. 493 (1 9 6 7 )................................  21
Giles v. Maryland, 386 U.S. 66 (1 9 6 7 ).......................................   . 22
Goldberg v. Kelly, 397 U.S. 254 (1 9 7 0 )........................................18, 23
Goolsby v. Gagnon, 322 F. Supp. 460 (E.D. Wis. 1971) ............  19
Hahn v. Burke, 430 F.2d 100 (7th Cir. 1970), cert, denied,

401 U.S____(Apr. 26, 1971)...................................................... 19
Hancock v. Avery, 301 F. Supp. 786 (M.D. Tenn. 1969).......... 10, 14
Holt v. Sarver, 300 F. Supp. 825 (E.D. Ark. 1969) .................... 10
Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark.), aff’d, 4iPF.2d

M . (8th Cir. May 5, 1971) ......................................................  17
Houghton v. Shafer, 392 U.S. 639 (1968)..................................   . 9
Inmates of the Cook County Jail v. Tierney, No. 68 C-504

(N.D. 111. Aug. 28, 1 9 6 8 )........................................................   . 17
Inmates of the Maine State Prison v. Robbins, Civil No.

11-187 (D. Me., filed August 31, 1970) . ................................. 15

Page



(H i)

In Re Korman,___F .2 d ___ , 9 Cr. L. Rptr. 2161 (7th Cir.
May 20, 1 9 7 1 ).............................................................................  21

In Re Kinoy, 2Z i F. Supp. ‘1^2, 8 Cr. L. Rptr. 2327 (S.D.
N.Y. Jan. 29, 1971)................. ...................................................  21

In Re Medley, 134 U.S. 160 (1890) .............................................  8
Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)......................  13, 15
Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1 9 6 8 )......................  12
Johnson v. Avery, 393 U.S. 483 (1 9 6 9 )................................  8, 14, 22
Jones v. Wittenberg, 323 F. Supp. 93 (N.D. Ohio 1 9 7 1 )............  17
Jordan v. Fitzharris, 257 F. Supp. 674 (N.D. Cal. 1 9 6 6 ).......... 10, 11
Joseph v. Rowlen, 402 F.2d 367 (7th Cir. 1968)......................... 18
Knuckles v. Prasse, 302 F. Supp. 1036 (E.D. Pa.), aff’d, 436

F.2d 1255 (3rd Cir. 1 9 7 1 ) ........................... .............................  10
Krist v. Smith, 309 F. Supp. 497 (S.D. Ga. 1970) ......................  11
Lee v. Washington, 390 U.S. 333 (1968) .....................................  8
Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) . . .  8
McGautha v. California,___U.S____ , 39 U.S.L. Week 4529

(May 3, 1971) ........................................................................ .. . 22
McNeese v. Board of Education, 373 U.S. 668 (1963) ...............  18
Mathis v. United States, 391 U.S. 1 (1967 )................................... 21
Melson v. Sard, 402 F.2d 653 (D.C. Cir. 1 9 6 8 ) .........................  21, 22
Mempa v. Rhay, 389 U.S. 128 (1967) ...................... ................. 19, 22
Miranda v. Arizona, 384 U.S. 436 (1966 )........................... .. 21, 23
Monroe v. Pape, 365 U.S. 167 (1961) ..........................................  9, 18
Morris v. Travisono, 310 F. Supp. 857 (D. R.I. 1970)............... 20, 22
Nolan v. Scafati, 430 F.2d 548 (1st Cir. 1970) ............................  19-20
People v. Dorado, 62 Cal. 2d 338, 398 F.2d 361, 42 Cal.

Rptr. 169, cert, denied, 381 U.S. 937 (1 9 6 5 ) ........................  21
People ex rel. Conn v. Randolph, 35 111. 2d 24, 219 N.E.2d

337 (1966) ...................................................... ................ .. 20
Piccirillo v. New York, 400 U.S. 548 (1971 )................................  21
Picking v. Penn. Ry. Co., 151 F.2d 240 (3rd Cir. 1 9 4 5 ) ............  5
Robinson v. California, 370 U.S. 660 (1962)................................  8

Page



Rodriguez v. McGinnis, 307 F. Supp. 627 (N.D. N.Y, 1969),
rev’d , ---- F .2 d ----- (2d Cir. Mar. 16, 1971).............................  15

Screws v. United States, 325 U.S. 91 (1945)................................  17
Simmons v. United States, 390 U.S. 377 (1968) .........................  21

Sinclair v. Henderson, 435 F.2d 125 (5th Cir. 1971) .................  12
Sostre v. Rockefeller, 312 F. Supp. 863 (S.D. N .Y .).................... 15
Sostre v. M cG innis,^! F.2d £Z f (2d Cir. Feb. 24, 1971) 11, 14, 19
Spevak v. Klein, 385 U.S. 511 (1967) ................................... .. 23

State ex rel. Johnson v. Cady, 185 N.W.2d 306 (Wis. 1971) . . .  19
Talley v. Stephens, 247 F. Supp. 683 (E.D. Ark. 1965)............... 15
Trop v. Dulles, 356 U.S. 86 (1 9 5 8 ) ...............................................  9

Uniformed Sanitation Men’s Association v. Commissioner,
392 U.S. 280 (1 9 6 8 )...................................................................  23

United States v. Jones, 207 F.2d 185 (5th Cir. 1953)...................  17
United States v. Wade, 388 U.S. 218 (1 9 6 7 )................................  22
United States ex rel. Campbell v. Pate, 401 F.2d 55 (7th Cir.

1968) .................................................................................................  18

United States ex rel. Hancock v. Pate, 223 F. Supp. 202
(N-D. 111. 1963).................................................... .....................  14, 20

Washington v. Texas, 388 U.S. 14 (1 9 6 7 ).......... ..........................  22
Weems v. United States, 217 U.S. 349 (1 9 1 0 ).............................. 9, 14
Wilkerson v. Utah, 99 U.S. 130 (1878)..........................................  9
Williams v. Illinois, 399 U.S. 235 (1970) ......................................  13
Wright v. McMann, 321 F. Supp. 127 (N.D. N.Y. 1970) ..............  13
Wright v. McMann, 387 F.2d 519 (2d Cir. 1 9 6 7 )......................  10, 15

Statutes:
28 U.S.C. § 1254(1)     2
42 U.S.C. § 1983 ...............................................................................  2, 9
111. Rev. Stat. ch. 38 § 7-1 .........................................................   20
111. Rev. Stat. ch. 38 §7-13 ............................................................  20
111. Rev. Stat. ch. 38 § 12-1 ............................................................  20
111. Rev. Stat. ch. 38 § 12-3 ...............    20

(iv)
Page



111. Rev. Stat. ch. 81 §37 (repealed) ............................................. 13
111. Rev. Stat. ch. 108 § 1 1 8 ........................... ...............................  20

Maine Rev. Stat. P.L. 1971 Chapter 397 (June 4, 1971),
Amending Title 34, § 709 ................................................................. 16

Regulations:
Federal Bureau of Prisons,. Policy Statement 2001.1 (Feb.

19 ,1968)........................................................     21

Federal Bureau of Prisons, Policy Statement 7400.5, app.
A (Nov. 28, 1 9 6 6 ) ..............................................     16

Federal Bureau of Prisons, Policy Statement 7400.6 (Dec.
1, 1966) ........................................................................................  20

Missouri State Penitentiary Rules and Procedures, Personnel
Information P am phlet............ .................................................15, 20

New York Department of Correctional Services, Regulations
for Special Housing Units (effective Oct. 19, 1970) ............... 15

Other Authorities:
American Correctional Association, Manual of Correctional

Standards (3d ed. 1966)...........................................................  16, 20
American Law Institute, Model Penal Code, Article 304.7(2)

(proposed official draft 1962).................................................. 20
2A Moore, Federal Practice f  12.08 (2d ed. 1968)................. .. 13
Note, Beyond the Ken o f  the Courts: A Critique o f  Judicial 

Refusal To Review the Complaints o f  Convicts, 72 Yale 
L.J. 506 (1 9 6 3 )..........................................................................  17

Opinion of New York Attorney General, 8 Cr. L. Rptr. 2486
(Feb. 11, 1971)............................................................................. 21

President’s Commission on Law Enforcement and Adminis­
tration of Justice, Task Force Report: Corrections (1967) . . .  7

Turner, Establishing the Rule o f Law in Prisons: A Manual 
for Prisoners’ Rights Litigation, 23 Stan. L. Rev. 473 
(Feb. 1971)

(v)
Page

17



IN THE

Supreme Court of the United States

No, 70-5025

FRANCIS HAINES,

Petitioner,

v.

OTTO J. KEENER, FORMER GOVERNOR, 
STATE OF ILLINOIS, et al.,

Respondents.

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

BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the Court of Appeals affirming the 
dismissal of petitioner’s civil action is reported at 427 F.2d 
71 (1970), and is printed in the Appendix at pp. 65-66. 
The opinion of the United States District Court for the 
Eastern District of Illinois is not reported, and is set forth in 
the Appendix at pp. 58-60.



2

JURISDICTION

The judgment of the Court of Appeals was entered on 
May 25, 1970, and a timely petition for rehearing, with sug­
gestion that it be heard en banc, was denied on June 19, 
1970. The petition for writ of certiorari was filed on 
September 17, 1970, and was granted on March 8, 1971. 
401 U.S. 954. The jurisdiction of this Court is invoked 
under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United 
States provides, in pertinent part:

“No person shall. . .  be compelled in any criminal 
case to be a witness against himself, . . . ”

The Sixth Amendment provides, in pertinent part:
“In all criminal prosecutions, the accused shall enjoy 

the right. . .  to have the Assistance of Counsel for 
his defence.”

The Eighth Amendment provides:
“Excessive bail shall not be required, nor excessive 

fines imposed, nor cruel and unusual punishments 
inflicted.”

The Fourteenth Amendment provides, in pertinent part:
. nor shall any State deprive any person of life, 

liberty, or property, without due process of law;. . . ”
This case also involves 42 U.S.C. § 1983 providing a right 

of relief in damages and in equity for violations of constitu­
tional rights.



3

QUESTIONS PRESENTED

1. Did the District Court err in dismissing, without 
requiring an answer or holding a hearing, a complaint filed 
by a state prisoner, pro se, against prison officials, which 
raised grave constitutional questions concerning alleged 
mistreatment?

2. Did the conditions of solitary confinement in the 
Illinois State Penitentiary, as administered to a partially dis­
abled, sexagenarian prisoner under the circumstances of this 
case, constitute cruel and unusual punishment in violation 
of the Eighth and Fourteenth Amendments?

3. Was petitioner unconstitutionally deprived of funda­
mental procedural safeguards in the prison disciplinary pro­
ceedings?

STATEMENT OF THE CASE

Taking as true the allegations of the complaint, as they 
must be on a motion to dismiss, the facts are as follows:

Francis Haines, petitioner, has been since 1939, and still 
is, an inmate of the Illinois State Penitentiary, Menard 
Branch, serving a life sentence for burglary.

On March 10, 1968, Haines, who was then 66 years old 
and 30% permanently disabled,1 and two other inmates, 
Moore and Doherty, who were then approximately 30 years 
of age, were assigned to the Inside Yard Gang. One of the 
defendants herein, Paul T. Duncan, was the officer in charge 
of that work detail. (A. 14)

'The disability was due to the following foot injuries: Left foot— 
2nd, 3rd and 4th Cuboid Bones and 3rd Metatarsal fractured, which 
resulted in an Ankylosis in the Cuboid Bones. Rights foot—vertical 
fractures in the heel bones, discernable only by an X-ray in a specific 
position of the foot. Haines added that he had been awarded com­
pensation in a hearing before the Illinois Industrial Commission for 
these injuries. (App. 14).



4

Haines and the two younger inmates engaged in an argu­
ment in which it seemed to Haines that Moore was urging 
and inciting Doherty against Haines. Several times it was 
said by both Moore and Doherty that the “Young Blood” 
was taking over and that the “Old Blood” like Haines was 
“done”. After this argument had proceeded for a time, 
Haines returned to work and obtained a shovel for loading 
cinders on a truck. He banged the shovel on the concrete 
outside the Yard Gang Shack, in order to dislodge a clod of 
dirt. (A. 14)

When he entered the shack, Doherty and Moore resumed 
the argument, during which time Moore was very emphatic 
that the “Young Blood” such as he were taking over and 
that Haines had better watch out or he would be hurt. (A. 
15)

A little later, Haines entered the bathroom and the other 
two inmates approached him in a threatening manner and 
resumed the argument. Following a provocative comment 
from Doherty, Haines hit him with the shovel, inflicting cuts 
on his head. Moore and Haines then scuffled briefly. After 
Officer Duncan took Doherty into the back room to attend 
his injuries, Moore kept making dire and foreboding threats 
to Haines to the consequences of his acts. Inmate Orlando, 
No. 34527, witnessed these events subsequent to Haines’ 
hitting the shovel on the concrete. (A. 15)

Subsequently, Officer Rogers, another defendant herein, 
took Haines to what is known in the institutional vernacular 
as the “hole” or solitary confinement, which in recent years 
the officials call isolation. (A. 15)

Rogers took Haines before Officer Russell Lence, another 
defendant herein, who was disciplinary officer that day. 
Haines refused to explain his actions other than to say that 
he had hit Doherty with the shovel. He was locked in an 
isolation cell until a report could be had from Duncan. (A. 
15-16)

When this report was obtained, Lence and Rogers called 
Haines before them again and read the report to him. Haines



5

objected to statements of Duncan that he had hit the shovel 
on the Yard Gang Shack floor, and refused to discuss the 
statement of Duncan that he had engaged with the other 
two men. Lence wanted to know why Haines would hit 
Doherty and stated that it had been twenty-eight years since 
Haines had been in the “hole.” When Haines refused to talk 
to these officers he was given fifteen days punishment in 
isolation, from March 10 to March 25, 1968. (A. 16)

This isolation, “hole,” or solitary confinement consisted 
of dark cells, and the only difference Haines could see in 
the intervening twenty-eight years between his trips to it 
were as follows: he was given three (3) blankets instead of 
two to sleep on a concrete floor; there had been a toilet 
installed instead of toilet buckets formerly used; he received 
(2) slices of bread every morning and evening, along with a 
noon meal, instead of the four (4) slices of bread formerly 
received. No articles of hygiene were furnished to him, and 
his false teeth became so rancid he had to leave them out. 
No towel or soap was furnished.2

Following his stay in isolation, Haines was demoted, with­
out any hearing, to “C” grade under the institution’s “Pro­
gressive Merit System,” which entailed the loss of certain 
unspecified “privileges,” including Commissary. (A. 16, 17) 
His chances of obtaining release on parole may also have 
been adversely affected.

As a result of his confinement in the “hole,” Haines suf­
fered great physical anguish and pain to his feet and circu­
latory trouble in his legs, due to being forced to sleep on 
the concrete floor. (A. 18)

2Given the liberal construction due this pro se complaint, Dio- 
guardi v. Durning, 139 F.2d 774 (2d Cir. 1944); Picking v. Penn. Ry. 
Co., 151 F.2d 240, 244 (3rd Cir. 1945), it may be fair to infer, that 
Haines was also deprived of contact with the outside, recreation, 
reading, writing, showers, and periodic examinations by a member of 
the medical staff.



6

On July 1, 1968, Haines filed a complaint in the United 
States District Court for the Eastern District of Illinois, 
seeking damages, declaratory judgment and such other and 
further relief as justice and equity may require, against 
officers Duncan, Russell Lence, Rogers, and Sheets (the 
Commissary officer), the members of the Progressive Merit 
System of the Illinois State Penitentiary at Menard, the 
Director of the Illinois Department of Public Safety, who 
allegedly made the rules and regulations pertaining to the 
Illinois State Penitentiary, and the former Governor of the 
State of Illinois, who allegedly was superior to all of the 
other defendants, and could have cured all defects in then- 
actions by executive order. (A. 7-19)

On defendants’ motion to dismiss (A. 20-24), the District 
Court dismissed the action without any hearing (A. 58-60), 
and the Court of Appeals affirmed (A. 65-66), stating that—

“State prison officials are vested with wide discretion, 
and discipline reasonably maintained in state prisons 
is not subject to our supervisory direction.”

On March 8, 1971, this Court granted Haines’ petition 
for a writ of certiorari.

SUMMARY OF ARGUMENT

I.

When prison officials violate the paramount federal con­
stitutional right of prisoners not to be treated like animals, 
without justification, the federal courts may not abdicate 
their remedial jurisdiction, clearly conferred by Congress, 
on the ground that “discipline reasonably maintained in 
State prisons is not subject to our supervisory direction.” 
The pro se complaint in this case sufficiently stated a claim 
of “excessive” or “unnecessary cruelty” constituting uncon­
stitutional “cruel and unusual punishment,” so as to preclude 
summary dismissal by the District Court without requiring 
an answer from defendants or holding an evidentiary hearing, 
if necessary.



7

II.

Among the fundamental rights retained by prisoners are 
their privilege against compelled self-incrimination and their 
right to assistance of counsel. Without adequate protection 
of these rights in a prison disciplinary proceeding where the 
misconduct alleged also constitutes a prosecutable offense, 
prisoners are effectively denied their rights, guaranteed by 
Due Process, to a meaningful opportunity to explain away 
the accusation. In this case, plaintiff was precluded from 
presenting a substantial claim of self-defense, as either a 
complete defense or in mitigation of punishment.

ARGUMENT

I.
THE CONDITIONS OF SOLITARY CONFINEMENT IN 
THE ILLINOIS STATE PENITENTIARY, AS ADMIN­
ISTERED TO A PARTIALLY DISABLED, SEXAGEN­
ARIAN PRISONER UNDER THE CIRCUMSTANCES OF 
THIS CASE, CONSTITUTED CRUEL AND UNUSUAL 
PUNISHMENT IN VIOLATION OF THE EIGHTH AND 
FOURTEENTH AMENDMENTS.

The broad power of a State to maintain discipline in its 
prisons is not here challenged, nor is the validity of the prac­
tice of solitary confinement, per se, drawn in question in the 
instant case.3 Rather we raise, in Point I, only the narrow

3See, e.g., Bums v. Swenson, 430 F.2d 771 (8th Cir. 1970). 
Although solitary confinement has been described as one of “the 
main traditional disciplinary tools” of our prison systems, President’s 
Commission on Law Enforcement and Administration of Justice, 
Task Force Report: Corrections 50-51 (1967), the Manual of Correc­
tional Standards of the American Correctional Association contains 
a candid recognition by prison officials themselves that “ [p]erhaps 
we have been too dependent on isolation or solitary confinement as 
the principal method of handling the violators of institutional rules. 
Isolation may bring short-term conformity for some, but brings 
increased disturbances and deeper grained hostility to more.” Id., at 
413. It has long been recognized that solitary confinement cannot



8

issue whether, absent a showing of justification for the 
specific incidents of confinement in this case, the totality of 
dehumanizing, degrading and debased circumstances imposed 
upon an elderly, partially disabled, prisoner for fifteen days, 
in a dark cell, with three blankets to sleep on a concrete 
floor, a toilet, but no towel or soap or any articles of 
personal hygiene, two slices of bread morning and evening, 
along with a noon meal, and where his false teeth became 
so rancid he had to leave them out, violated petitioner’s 
paramount federal constitutional right to be free from cruel 
and unusual punishment.4

As this Court stated, in Johnson v. Avery, 393 U.S. 483, 
486 (1969),

“There is no doubt that discipline and administration 
of state detention facilities are state functions. They 
are subject to federal authority only where para­
mount federal constitutional or statutory rights 
supervene. It is clear, however, that in instances 
where state regulations applicable to inmates of 
prison facilities conflict with such rights, the regu­
lations may be invalidated.”5

In Brooks v. Florida, 389 U.S. 413 (1967), this Court 
rejected, as involuntary, a state prisoner’s confession to 
participating in a riot, which was obtained after he had 
been confined in a punishment cell for fourteen days under 
extremely onerous and disgusting conditions, which included

be considered a mere custodial matter, and that it can cause mental 
illness, induce suicidal tendencies, and interfere with the possibility 
of rehabilitation. See, In Re Medley, 134 U.S. 160, 167-68 (1890).

4 The command of the Eighth Amendment banning “cruel and 
unusual punishments” is applicable to the States by reason of the 
Due Process Clause of the Fourteenth Amendment. Louisiana ex rel. 
Francis v. Resweber, 329 U.S. 459, 463 (1947); Robinson v. Califor­
nia, 370 U.S. 660 (1962).

sThe Court there relied upon Lee v. Washington, 390 U.S. 333 
(1968), in which the practice of racial segregation of prisoners was 
held invalid to the extent that it could not be justified by “the neces­
sities of prison discipline and security.” Id., at 334.



9

restricted diet, no bed or other furnishings, no external 
window, and lack of contact with the outside. The per cur­
iam opinion observed: “The record in this case documents 
a shocking display of barbarism which should not escape 
the remedial action6 of this Court.” Id., at 415.

This Court has said that “ [t]he basic concept underlying 
the Eighth Amendment is nothing less than the dignity of 
man.” Trop v. Dulles, 356 U.S. 86, 100 (1958). The guar­
antee is a flexible one, drawing its meaning from “the evolv­
ing standards of decency that mark the progress of a 
maturing society.” Id., at 101. Weems v. United States, 217 
U.S. 349, 373 (1910) “The Eighth Amendment expresses 
the revulsion of civilized man against barbarous acts—the 
‘cry of horror’ against man’s inhumanity to his fellow man.” 
Robinson v. California, 370 U.S. 660, 668, 676 (1962) 
(Douglas, J. concurring). Although these notions may appear 
to be somewhat subjective, a more precise and judicially 
manageable standard was articulated long ago; “ [I]t is safe 
to affirm that punishment of torture . . . and all others in 
the same line of unnecessary cruelty, are forbidden. . .” 
Wilkerson v. Utah, 99 U.S. 130, 136 (1878) (emphasis 
supplied).

The lower federal courts, which have been presented 
with constitutional challenges to medieval dungeon-like con­
ditions in some of the worst solitary confinement cells, have 
recognized the States’ legitimate interest in maintaining 
prison discipline, but have not hesitated to strike down 
instances of hard core “inhuman treatment,”7 which go far 
beyond the actual necessities of discipline and security.

6“Remedial action,” in the form of damages or equitable relief, 
has been explicitly authorized by Congress, in 42 U.S.C. § 1983, for 
deprivation of constitutional rights “under color of” state law. Cf. 
Monroe v. Pape, 365 U.S. 167 (1961); Cooper v. Pate, 378 U.S. 546 
(1964); Houghton v. Shafer, 392 U.S. 639 (1968). See also, Bivens 
v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 
__ U.S____ , 39 U.S.L. Week 4821 (June 21, 1971).

7Trop v. Dulles, supra, at 100 n. 32.



10

See, Wright v. McMann, 387 F.2d 519 (2d Cir. 1967); 
Knuckles v, Prasse, 302 F.Supp. 1036, 1061-62 (E.D. Pa. 
1969); affd, 436 F.2d 1255 (3rd Cir. 1971); Hancock v. 
Avery, 301 F.Supp. 786 (M.D. Term. 1969); Holt v. Sarver, 
300 F.Supp. 825 (E.D. Ark. 1969); Jordan v. Fitzharris, 
257 F. Supp. 674 (N.D. Calif. 1966); Barnes v. Hocker, No. 
R-2071 (D. Nev. Sept. 5, 1969).8

In Wright v. McMann, supra, the Second Circuit reversed 
the dismissal, without a hearing, of a prisoners’ complaint 
about unsanitary and degrading conditions in a solitary con­
finement cell in New York’s Clinton Prison, and said:

We are of the view that civilized standards of 
humane decency simply do not permit a man . . .  to 
be deprived of the basic elements of hygiene such as 
soap and toilet paper. The subhuman conditions 
alleged by Wright to exist in the “strip cell” at 
Dannemora could only serve to destroy completely

8 There were some differences among the particular circumstances 
involved in the above cited cases. For example, Hancock, Jordan and 
Knuckles involved cells without light, while in Holt, Wright and 
Barnes the cells were lighted. In Barnes, the inmate slept on an iron 
bunk, while in Jordan he had a canvas mat, in Knuckles they had 
blankets on the floor. In Brooks the inmate was fed pea and carrot 
soup three times per day; in Hancock he was fed one regular meal 
and bread twice; in Holt he received a wholesome and sufficient but 
unappetizing diet; in Barnes, Jordan and Wright, they apparently 
received the regular institution diet. In Brooks and Holt the cells 
were overcrowded, while Jordan and Hancock involved true solitary 
confinement. In all the cases, the prisoners were deprived of the 
minimal comforts and institutional privileges that may make prison 
life tolerable for a flexible man. Significantly, none of the cases 
involved the imposition of such onerous conditions upon a partially 
disabled, elderly man, as here.



the spirit and undermine the sanity of the prisoner. 
The Eighth Amendment forbids treatment so foul, 
so inhuman and so violative of basic concepts of 
decency.9

The Court of Appeals did not rule out the possibility “that 
in exceptional circumstances it might be necessary to take 
from a prisoner all objects with which he could harm him­
self or others,” but it observed, “apparently no determina­
tion was made that this particular prisoner was or would 
have become violent.” That question of fact was left for 
resolution upon remand. 387 F.2d at 526 n. 15.

In Jordan v. Fitzharris, supra, the District Court declared 
that—

“When. . . the responsible authorities in the use of 
the strip cells have abandoned elemental concepts of * 5

9 The Second Circuit’s recent en banc decision in Sostre v. 
McGinnis, 4fTF.2d 12? (2d Cir. Feb. 24, 1971), is not to the con­
trary. In - Sostre, the Court enumerated six factors raising the 
prisoner’s confinement “several notches above those truly barbarous 
and inhumane conditions condemned elsewhere (id., at M ) .  They 
were: (1) the prisoner’s diet, which was the same (except for 
desserts) as in the general prison population; (2) the availability or 
rudimentary implements of personal hygiene; (3) the opportunity for 
exercise in the open air, compare, Krist v. Smith, 309 F. Supp. 497, 
501 (S.D. Ga. 1970); (4) opportunity to participate in group therapy;
(5) availability of reading matter from the prison library and unlim­
ited numbers of law books; and (6) the constant possibility of com­
munication with other prisoners. In addition, the Court pointed out 
that the prisoner always had adequate light for reading (id. at /££), 
full access to legal materials (id.) and a diet of 2800-3300 calories 
a day (id. at l£Je>). Further, the Court noted the absence of any tes­
timony that solitary threatened the mental or physical health of the 
inmate and found that a physician visited him every day (id. at 133. 
n. 24). Finally, the Court said that the prisoner aggravated his con­
finement by refusing to participate in group therapy (id. at /?T ) 
None of these factors explicitly relied upon by the Second Circuit is 
present in the instant case. In virtually every feature, Illinois-style 
solitary fails the test, particularly in view of petitioner’s age and phy­
sical disabilities. As the Court in Sostre observed, in n. 23, “In some 
instances, depending upon the conditions of the segregation, and the 
mental and physical health of the inmate, five days or even one day 
might prove to be constitutionally intolerable.”



12

decency by permitting conditions to prevail of a 
shocking and debased nature, then the courts must 
intervene promptly . . .  to restore the primal rules of 
a civilized community. . . . ” Id., at 680.

And, in Sinclair v. Henderson, 435 F.2d 125, 126 (5th 
Cir. 1971), the Fifth Circuit observed:

“Although federal courts are reluctant to interfere 
with the internal operation and administration of 
prisons, we believe that the allegations appellant 
has made go beyond matters exclusively of prison 
discipline and administration; and that the court 
below should adjudicate the merits of the appellant’s 
contentions of extreme maltreatment.”

We recognize that some form of isolation of severely 
troublesome or violent prisoners is occasionally needed in 
order to maintain order, and we concede that prison officials 
have an area of administrative discretion in dealing with 
inmates who are in fact disruptive. However, as one Court 
of Appeals has said,

“acceptance of the fact that incarceration, because 
of inherent administrative problems, may necessitate 
the withdrawal of many rights and privileges does 
not preclude recognition by the courts of a duty to 
protect the prisoner from unlawful and onerous 
treatment of a nature that, of itself, adds punitive 
measures to those legally meted out by the court.” 
Jackson v. Godwin, 400 F.2d 529, 532 (5th Cir. 
1968).

Thus, while prison officials are entitled to some administra­
tive leeway, this “does not eliminate the need for reasons 
imperatively justifying the particular retraction of rights 
challenged at bar.” Barnett v. Rodgers, 410 F.2d 995, 
1000-1 (D.C. Cir. 1969).



13

The record in this case10 is entirely barren of any indica­
tion by the State of Illinois that the unusually11 cruel 
inhuman conditions imposed upon Haines, over and above 
the mere fact of isolation, were actually necessary for the 
preservation of order, or specifically, to contain this partic­

10 The District Court dismissed the pro se drafted complaint 
without, requiring any answer from the defendants, either as to the 
truth of their alleged acts, or in justification therefor, and without 
giving Haines any hearing. However, as Professor Moore has stated 
the rule, “ [A] complaint should not be dismissed for insufficiency 
unless it appears to a certainty that plaintiff is entitled to no relief 
under any state of facts which could be proved in support of the 
claim.” 2A Moore, Federal Practice f  12.08, at 2271-74 (2d ed. 
1968). Accord, Conley v. Gibson, 355 U.S. 41, 45-46 (1957). More­
over, “ [I] t is inexpedient to determine grave constitutional questions 
upon a demurrer to a complaint, or upon an equivalent motion, if 
there is a reasonable likelihood that the production of evidence will 
make the answer to the questions clearer.” Borden’s Farm Products 
Co., Inc. v. Baldwin, 293 U.S. 194, 213 (1934) (Stone & Cardozo JJ., 
concurring). See also, Cooper v. Pate, 378 U.S. 546 (1964). With 
the assistance of counsel, and the testimony of penological experts, 
e.g., Jackson v. Bishop, 404 F.2d 571, 575 (8th Cir. 1968), Haines, 
as well as the defendants, will have an opportunity, upon remand, to 
develop all of the facts fully on the record in the District Court. 
After the trial upon remand, in Wright v. McMann, supra, Judge Foley 
remarked that the record is “revealing and eye-opening . . .  a por­
trayal of the real thing; it is prison life as it is . . .  a facet of New 
York State prison discipline kept covered too long from the public 
view.” 321 F. Supp. 127, 131, 132 (N.D. N.W. 1970).

11 It is interesting to note that the relevant 1867 Illinois statute, 
quoted in the complaint (A. 12), which has since been repealed, spe­
cifically characterized, as “unusual punishment,” “solitary confine­
ment in a dark cell and deprivation of food except bread and water 
until such convict shall be reduced to submission and obedience” 
(former ch. 81, § 37). Of course, the antiquity of this barbaric 
practice does not insulate it from judicial scrutiny. As recently as 
1970, this Court reiterated “ [t]he need to be open to reassessment 
of ancient practices other than those explicitly mandated by the Con­
stitution.” Williams v. Illinois, 399 U.S. 235, 240 (1970). “ [N]ew 
cases expose old infirmities which apathy or absence of challenge has 
permitted to stand.” Ibid., at 245.



14

ular prisoner, who had not been in the “hole” for the past 
twenty-eight years.

“A punishment may be considered cruel and unusual 
when, although applied in pursuit of a legitimate 
penal aim, it goes beyond what is necessary to achieve 
that aim; that is, when a punishment is unnecessarily 
cruel in view of the purpose for which it is used.” 
Weems v. United States, 217 U.S. 349, 370 (1910) 
(emphasis supplied); Dearman v. Woodson, 429 F.2d 
1288, 1290 (10th Cir. 1970); Hancock v. Avery, 
301 F. Supp. 786, 791 (M.D. Tenn. 1969); Jordan 
v. Fitzharris, 257 F. Supp. 674, 679 (N.D. Cal. 
1966).12

There is neither allegation nor evidence that Illinois con­
siders it essential or even useful to confine an elderly, 
partially disabled man alone in total darkness, to deprive 
him of rudimentary articles of personal hygiene, a bed, fresh 
air, exercise, and medical attention, and to severely restrict 
his diet. Indeed, practices in other jurisdictions, which are 
of “substantial probative value” in ascertaining whether a 
particular restriction is necessary to some penal interest,13 
tend to show that treating a man like rubbish, under the 
dehumanizing conditions of solitary which existed here, is 
not only unnecessary to accomplish the purpose of isola­
tion, but is also futile and self-defeating, and interferes with 
the primary objective of rehabilitating offenders.14

12 The imposition of such severe mistreatment for exercising the 
basic right of self-defense, would seem to be an impermissible penalty 
for engaging in legally protected activity, cf. Sostre v. McGinn# supra, 
or at least such grossly excessive punishment in relation to Haines’ 
“offense,” as to violate the “precept of justice that punishment for 
crime should be graduated and proportioned to offense.” Weems v. 
United States, 217 U.S. 349, 367 (1910). See, United States ex rel. 
Hancock v. Pate, 223 F. Supp. 202, 205 (N.D. 111. 1963).

13Brown v. Peyton, 437 F.2d 1228 (4th Cir. 1971).

14A survey questionnaire (Appendix “A” to this Brief) has been 
mailed to each State’s Department of Corrections, inquiring as to the 
use and conditions of solitary confinement in state prisons. The

!



15

For example, the New York regulations, which were 
drafted in the context of litigation,15 establish minimum 
standards for segregated confinement and provide for ade­
quate bedding, hygiene, food, recreation, correspondence 
and visiting.16 The Missouri regulations, also drafted during 
the course of litigation,17 require heat, ventilation, and 
natural and artificial light in “seclusion” cells, and, further, 
provide for rules that are the same as in the general popula­
tion.18 The State of Maine, in response to a lawsuit,19 
recently amended its statute governing solitary confinement 
to provide that “adequate sanitary and other conditions 
required for the health of the inmate shall be maintained,” 
that “a sufficient quantity of wholesome and nutritious 
food” shall be supplied, that medical examinations be con­
ducted every twenty-four hours20 and reports filed, and that
replies received so far indicate that the particular degrading circum­
stances presented in the case at bar are not at all widespread. The 
complete results of the survey will be provided to this Court as soon 
as they are available.

15 See, Wright v. McMann, 387 F.2d 519 (2d Cir. 1967), on remand, 
321 F.Supp. 127 (N.D. N.Y. 1970); Rodriguez v. McGinnis, 307
F. Supp. 627 (N.D. N.Y., 1969); rev’d ,_____ F.2d ______(2d Cir.
March 16, 1971); Sostre v. Rockefeller, 312 F.Supp. 863 (S.D. N.Y. 
1970), affd in part and reversed in part, 4 4 1  F.2d (2d Cir.
Feb. 24, 1971), fjjritsky v. McGinnis, 313 F.Supp. 1247 (N.D. N.Y. 
1970); Carothers v. Follette, 314 F.Supp. 1014 (S.D. N.Y. 1970).

16New York Department of Correctional Services, Regulations for 
Special Housing Units, pt. 301 (effective Oct. 19, 1970).

17Burns v. Swenson, 288 F.Supp. 4 (W.D. Mo. 1967).

18Missouri State Penitentiary Rules and Procedures, Personnel 
Informational Pamphlet.

19Inmates of the Maine State Prison v. Robbins, Civil No. 11-187 
(D. Me. filed Aug. 31, 1970).

20Some conditions of confinement may so contravene civilized 
standards that even if their “infliction is surrounded by appropriate 
safeguards,” Talley v. Stephens, 247 F.Supp. 683, 689 (E.D. Ark. 
1965), which are absent here, it will not save the practice from con­



16

if “ the recommendations of the prison physician or consult­
ing psychiatrist are not carried out by the warden, a report 
thereof, with the reasons therefor, shall be forwarded by the 
warden to the Director of Corrections.”21 The Federal 
Bureau of Prisons, too, has mandated relatively humane con­
ditions for segregated confinement.22 See also, AMERICAN 
CORRECTIONAL ASSOCIATION, MANUAL OF COR­
RECTIONAL STANDARDS 414-15 (3d ed. 1966).

The aforementioned developments underscore the stark 
fact that judicial intervention to protect the paramount 
federal constitutional rights of prisoners to be treated as 
human beings, as opposed to animals, has been necessary,

stitutional infirmity. See Jackson v. Bishop, 404 F.2d 571 (8th Cir. 
1968), where the Arkansas practice of whipping prisoners, as a dis­
ciplinary measure, was held to run afoul of the Eighth Amendment, 
notwithstanding the promulgation of safeguards. In an opinion by 
Circuit Judge, now Justice, Blackmun, the Court of Appeals stated. 
“The strap’s use, irrespective of any precautionary conditions which 
may be imposed, offends contemporary concepts of decency and 
human dignity and precepts of civilization which we profess to 
possess; and . . . also violates those standards of good conscience and 
fundamental fairness enunciated by this court. . . . Id., at 579.

21P.L. 1971, Chapter 397 (June 4, 1971), Amending Title 34,
§ 709, Rev. Stat.

22U.S. Bureau of Prisons, Policy Statement 7400.5, app. A, at 2 
(Nov. 28, 1966) provides in part:

“The quarters used for segregation shall be well ventilated, 
adequately lighted, appropriately heated and maintained in 
a sanitary condition at all times. . . .  All inmates shall be 
admitted to segregation (after thorough search for contra­
band) dressed in normal institution clothing and shall be 
furnished a mattress and bedding. In no circumstances shall 
an inmate be segregated without clothing except when 
prescribed by the Chief Medical Officer for medical or 
psychiatric reasons.. . . [Segregated inmates shall be fed 
three times a day on the standard ration and menu of the 
day for the institution. . . . Segregated inmates shall have 
the same opportunities to maintain the level of personal 
hygiene available to all other inmates. . . . ”



17

not only to provide individual redress,23 but also to get pri­
son officials moving to attain minimum constitutional 
standards in practices, facilities and services. E.g. Holt v. 
Sarver, 309 F. Supp. 362, 385 (E.D. Ark.),affd, 4 4 ^  F.2d 

(8th Cir. May 5, 1971); Jones v. Witttffflerg, 323 
F.Supp. 93 (N.D. Ohio 1971).24 It appears that the so-called 
“hands o ff’ doctrine,25 under which the courts, including 
the Seventh Circuit below, granted prison officials a virtual 
“immunity from judicial scrutiny led to a tradition of law­
lessness in the corrections phase of the criminal process.”26 
It is, therefore, imperative that the courts cease to ignore 
valid claims by prisoners of unconstitutional treatment, 
which threaten their life and what little liberty they possess.

“Although it might, indeed, be the easier course to 
dismiss this amended complaint as to these defend­
ants, we cannot flinch from our clear responsibility 
to protect rights secured by the Federal Constitu­
tion.”27

2 3 In view of the coercive effects of confinement in a punishment 
cell under unsanitary and degrading conditions, which this Court 
found in Brooks v. Florida, supra, the granting of affirmative relief 
from such treatment may operate, not only to enforce the Eighth 
Amendment, but also to protect a prisoner, who is also a potential 
accused, against forced self-incrimination. Cf. Screws v. United States, 
325 U.S. 91 (1945); United States v. Jones, 207 F .2d 185 (5th Cir. 
1953).

24In finding the conditions in the Toledo jail to be unconstitu­
tionally cruel, the District Court there said: “The cruelty is a refined 
sort, much more comparable to the Chinese water torture than to 
such crudities as breaking on the wheel.” 323 F.Supp., at 99.

25 See, Note, Beyond the Ken o f the Courts: A Critique o f  Judicial 
Refusal to Review the Complaints o f  Convicts, 72 Yale L.J. 506 
(1963).

26Turner, Establishing the Rule o f  Law in Prisons: A Manual For 
Prisoners’ Rights Litigation, 23 Stan. L. Rev. 473 (Feb. 1971).

27Inmates of the Cook County Jail v. Tierney, No. 68 C 504 (N.D. 
111. Aug. 28, 1968, Hoffman, J.)



18

As this Court appropriately observed in McNeese v. Board 
o f Education, 373 U.S. 668, 675 n. 6 (1963):

“We yet like to believe that wherever the federal 
courts sit, human rights under the federal Constitu­
tion are always a proper subject for adjudication.”

This case should, therefore, be remanded to the District 
Court28 for the purpose of developing the record more fully, 
so that it can be determined whether Haines was actually 
subjected by prison officials to “excessive” or “unnecessary- 
cruelty”, in violation of Eighth Amendment standards.

II.
PETITIONER WAS UNCONSTITUTIONALLY DEPRIVED 
OF PROCEDURAL DUE PROCESS OF LAW IN THE 
PRISON DISCIPLINARY PROCEEDINGS.

“ ‘[Wjithin the limits of practicability’ . . .  a state must 
afford to all individuals a meaningful opportunity to be 
heard if it is to fulfill the promise of the Due Process Clause.” 
Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis 
supplied). In Goldberg v. Kelly, 397 U.S. 254, 262-63 
(1970), this Court said:

“The extent to which procedural due process must 
be afforded the recipient is influenced by the extent 
to which he may be ‘condemned to suffer grievous 
loss’ . . . and depends upon whether the recipient’s 
interest in avoiding that loss outweighs the govern­
mental interest in summary adjudication. . . .’

28In view of the fact that neither the District Court nor the Court 
of Appeals reached the question of how far along the chain of admin­
istrative command liability extends, petitioner has not briefed that 
issue here. However, on remand, that matter would be appropriate 
for inquiry. See generally, Monroe v. Pape, 365 U.S. 167,187 (1961): 
“Section [1983] should be read against the background of tort 
liability that makes a man responsible for the natural consequences of 
his actions.” See also, Joseph v. Rowlen, 402 F.2d 367, 370 (7th 
Cir. 1968) (“good faith” no defense to arrest without probable 
cause).



19

[Consideration of what procedures due process may 
require under any given set of circumstances must 
begin with a determination of the precise nature of 
the government function involved as well as of the 
private interest that has been affected by govern­
mental action.’”

Many years ago, this Court observed, in an analogous 
context:

“Clearly the end and aim of an appearance before 
the court must be to enable an accused proba­
tioner to explain away the accusation. . . . This does 
not mean that he may insist upon a trial 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 
to justify the conclusion that discretion has not been 
abused by the failure of the inquisitor to carry the 
probe deeper.”29

The lower federal courts, which have been presented with 
claims for procedural due process in prison disciplinary pro­
ceedings, where substantial deprivations such as solitary 
confinement or loss of parole eligibility or good time are to 
be visited upon a prisoner, have adopted a similar approach. 
See, Sostre v. McGinnis, AA't- F.2d (2d Cir. Feb.
24, 1971) (facts should be “rationally determined” and 
prisoner should be “afforded a reasonable opportunity to 
explain his actions”); United States ex rel. Campbell v. Pate, 
401 F.2d 55, 57 (7th Cir. 1968) (“the relevant facts. . . must 
not be . . . capriciously or unreliably determined.”); Nolan

29Escoe v. Zerbst, 295 U.S. 490, 493 (1935). See also, Mempa v. 
Rhay, 389 U.S. 128 (1967). In an opinion by former Justice Clark, 
sitting as a Circuit Judge, the Court of Appeals, in Hahn v. Burke,
430 F.2d 100, 104 (7th Cir. 1970), cert, denied, 401 U .S ._____
(Apr. 26, 1971), held that the Due Process Clause guarantees to state 
probationers a “reasonable opportunity to explain away the accusa­
tion.” Accord, Goolsby v. Gagnon, 322 F. Supp. 460, 464 (E.D. Wis. 
1971), Bransted v. Schmidt, 324 F. Supp. 1232, 1236 (W.D. Wis. 
1971), and State ex rel. Johnson v. Cady, 185 N.W.2d 306 (Wis. 
1971) (State parolees entitled to the same “reasonable opportunity 
to explain away the accusation”).



20

v. Scafati, 430 F.2d 548 (1st Cir. 1970) (“sufficient safe­
guards” necessary where punishment “sufficiently great”); 
Carothers v. Follette, 314 F. Supp. 1014 (S.D. N.Y. 1970) 
(“an opportunity to present evidence before a relatively 
objective tribunal” is required); Morris v. Travisono, 310 F. 
Supp. 857 (D.R.I. 1970) (consent decree embodying wide 
range of procedural safeguards).30

On its face, it might appear that Haines was afforded an 
opportunity to explain his actions. A careful examination 
of the underlying circumstances, however, reveals that the 
choice was illusory, and that he was effectively precluded 
from presenting his substantial claim of self-defense.31

Where, as here, the disciplinary infraction charged also 
constitutes a prosecutable offense,32 an inmate who elects 
to discuss the matter with prison authorities risks possible 
self-incrimination.33 On the other hand, if he elects to stand 
on his constitutional right to remain silent, and he is 
unrepresented, then he is precluded from explaining his

30See also, Federal Bureau of Prisons, Policy Statement No. 7400.6 
(Dec. 1, 1966); Missouri State Penitentiary Rules and Procedures, 
Personnel Information Pamphlet pp.1-7; President’s Commission on 
Law Enforcement and Administration of Justice, Task Force Report: 
Corrections 86 (1967); American Law Institute, Model Penal Code, 
Article 304.7(2) (Proposed official draft 1962).

31 111- Rev. Stat., ch. 38 §§7-1, 7-13; United States ex rel. Hancock 
v. Pate, 223 F. Supp. 202 (N.D. 111. 1963).

32I11. Rev. Stat., ch. 38 § 12-1 (assault), § 12-3 (battery).

33I11. Rev. Stat., ch. 108 § 118 provides in pertinent part: “When 
any crime is committed within any division or part of the penitentiary 
system by any person confined therein, cognizance thereof shall be 
taken by any court of the county wherein such division or part is 
situated having jurisdiction over the particular class of offenses to 
which such crime belongs. Such court shall try and punish the person 
charged with such crime in the same manner and subject to the same 
rules and limitations as charged with crime in such county.” A 
prisoner’s fear of potential prosecution for crimes committed in 
prison cannot be considered speculative. See, e.g., People ex rel. 
Conn. v. Randolph, 35 111. 2d 24, 219 N.E.2d 337 (1966).



21

actions. His dilemma is even worse than the normal 
Miranda34 situation, where the accused loses nothing by 
remaining silent.

It may be true, as a matter of law, that any statements 
Haines would have made under those coercive circumstances, 
and without prior admonitions as to his constitutional rights 
concerning counsel and self-incrimination, would have been 
inadmissible in any future criminal proceeding based upon 
the conduct for which he was being interrogated. See, 
Garrity v. New Jersey, 385 U.S. 493 (1967);Melson v. Sard, 
402 F.2d 653 (D.C. Cir. 1968) (relying upon Simmons v. 
United States, 390 U.S. 377, 394 (1968)); Mathis v. United 
States, 391 U.S. 1 (1967).34 35

However, absent an assurance that his statements could 
not be used against him, it cannot be assumed that Haines 
was aware of any implicit “use immunity”36 he would enjoy 
if criminal charges were brought against him. Cf. Gardner 
v. Broderick, 392 U.S. 273, 278-79 (1968).

34Miranda v. Arizona, 384 U.S. 436 (1966).

35 See also, People v. Dorado, 62 Cal. 2d 338, 398 F.2d 361, 42 
Cal. Rptr. 169, cert, denied, 381 U.S. 937 (1965); Blyden v. Hogan, 
320 F. Supp. 513 (S.D. N.Y. 1970); Clutchette v. Procunier, No. 
C-70-2497 AJZ (N.D. Cal. June 21, 1971); Opinion of New York 
Attorney General, 8 Cr. L. Rptr. 2486 (Feb. 11, 1971) (Miranda 
warnings required in prison disciplinary proceedings where misconduct 
constitutes a crime); United States Bureau of Prisons, Policy State­
ment 2001.1 (Feb. 19, 1968) (requires warning of rights, including 
counsel and protection against self-incrimination).

36If this Court eventually holds that “transactional immunity” , 
which was never offered to Haines, is constitutionally required, then 
Haines had even further justification for refusing to waive his privilege 
against compelled self-incrimination. See generally, Piccirillo v. New 
York, 400 U.S. 548, 562 (1971) (Brennan J. dissenting); In Re Korman,
_____ F .2d______, 9 Cr. L. Rptr. 2161 (7th Cir. May 20, 1971); In
Re Kinoy Testimony, J Z £ F .  Supp. 4 * 1 , 8 Cr. L. Rptr. 2327 
(S.D. N.Y. Jan. 29, 1971); Counselman v. Hitchcock, 142 U.S. 547, 
586 (1892).



22

Haines could have been afforded a realistic opportunity 
to explain his actions, under a number of alternative 
methods. The officials could have advised him that any 
statements made by Haines in the prison disciplinary pro­
ceedings would be inadmissible in any subsequent criminal 
proceeding, thereby removing any legitimate fear of incrim­
ination. Cf. Melson v. Sard, supra.31 Or, Haines could have 
been afforded representation by another person,37 38 who 
would be able to relate Haines’ version of the events in 
question without the personal risk of incrimination.39 Or, 
the officials could have investigated further and obtained 
favorable information from inmate witness Orlando. Cf., 
Washington v. Texas, 388 U.S. 14(1967)■, Giles v. Maryland, 
386 U.S. 66 (1967).

Barred from any of these alternative protections, Haines 
was effectively deprived of a meaningful opportunity, 
guaranteed by due process, to present a valid defense to the 
disciplinary charge, on the issues of both guilt and severity 
of punishment. This case should, therefore, be remanded to 
the District Court for a determination of the extent to which 
Haines’ injuries, from confinement in the degrading punish­
ment isolation cell for fifteen days, resulted from the denial 
of fundamental procedural safeguards in the prison disci­
plinary proceedings.40

37But see, Note 36, supra.

38See, Mempa v. Rhay, 389 U.S. 128 (1967) (counsel); United 
States v. Wade, 388 U.S. 218, 238 n. 27 (1967) (counsel substitute); 
Johnson v. Avery, 393 U.S. 483 (1969) (inmate legal assistance); 
Morris v. Travisono, 310 F. Supp. 857, 872 (D.R.I. 1970) (staff 
member advocate).

39Clutchette v. Procunier, supra; cf., McGautha v. California,_____
U .S ._____ , 39 U.S. L. Week 4529, 4540 n.20 (May 3, 1971).

40Haines also has apparently claimed that his punishment of 
solitary confinement cell and demotion to “C” grade was based in 
part upon his refusal to discuss the shovel incident with officials. 
However, he may not constitutionally be subjected to such a drastic 
penalty for refusal to waive his constitutional privilege against com-



23

CONCLUSION

When the Courts summarily close their doors to valid 
prisoners’ claims of violations of their paramount federal 
constitutional rights, involving extreme maltreatment and 
procedural unfairness, a climate is created in which horren­
dous at^yfes are permitted and encouraged to flourish in the 
nation’s penal institutions, with calamitous results for the 
rehabilitative process. We do not suggest that the federal 
courts should be prime movers in the growing prison reform 
movement. However, where prisoners are subjected to hard 
core inhuman treatment, and are denied fundamental pro­
cedural safeguards, which deprivations are not justified by 
the necessities of prison discipline and security, and which 
infringe upon constitutionally protected liberties, then the 
courts must exercise their remedial jurisdiction, clearly con­
ferred by Congress, to establish a due process minimum 
level of human dignity and procedural fairness, below which 
the states may not go.

pelled self-incrimination. Cf., Spevack v. Klein, 385 U.S. 511 (1967); 
Gardner v. Broderick, 392 U.S. 273 (1968); Uniformed Sanitation 
Men’s Association v. Commissioner, 392 U.S. 280 (1968). It cannot 
fairly be said that Haines “waived” his fundamental right to remain 
silent after acknowledging that he had hit Doherty with the shovel. 
As this Court observed, in Miranda v. Arizona, 384 U.S. 436, 445 
(1966):

“The mere fact that he may have answered some questions 
or volunteered some statements on his own does not deprive 
him of the right to refrain from answering any further 
inquiries until he has consulted with an attorney and there­
after consents to be questioned.”

Since the defendants did not provide a statement of their reasons for 
their harsh disciplinary action against Haines, compare, Goldberg v. 
Kelly, 397 U.S. 254, 271 (1970), it must be assumed for present 
purposes, until clarified upon remand, that Haines was penalized for
an impermissible reason. Cf., Clay (Ali) v. United States,_____ U.S.
_____ , 39 U.S. L. Week 4873, 4875 (June 28, 1971).



24

For the foregoing reasons, the judgment below should be 
reversed, and the case remanded to the District Court for 
further proceedings.

Respectfully submitted,

Stanley A. Bass 
Attorney for Petitioner

Of Counsel:
Jack Greenberg 
James M. Nabrit, III 
William B. Turner 
Alice Daniel 
Max Stern
July, 1971



la

APPENDIX A

Gentlemen:
The questions which appear below deal with the use and 

conditions of solitary confinement in state prisons. This 
information will be presented to the United States Supreme 
Court during an appeal scheduled for the Fall of this year. 
Your answers, when compiled with those of the forty-nine 
other states will enable the Court to view this important 
issue from a national perspective. We will appreciate your 
candid and prompt reply.

Thank you.
Steven Burton

Questions
A. State:______________________
B. Official Title of Answering Party:

1. Solitary confinement is presently used in our State 
Prisons. Yes ( ) No ( )

2. Solitary cells are, lighted ( ) without light ( )
3. Prisoners in solitary are provided with: (check where 

appropriate)
(a) bed ( ) (f) wash bowl ( )
(b) mattress ( ) (g) towel ( )
(c) running water ( ) (h) other elements of per-
(d) soap ( ) sonal hygiene ( )
(e) toilet ( ) (i) clothes ( )
Comment:

4. Prisoners in solitary receive
(a) psychiatric visit ( )
(b) physician visit ( )
(c) shave and shower—daily ( ); weekly ( );

none ( ); if other, please explain______



2a

(d) exercise or recreation daily ( ); weekly ( ); 
none ( ).

(e) regular diet ( ); limited diet ( ); bread and 
water ( ).

5. Prisoners in solitary are permitted
(a) to communicate with other prisoners
(b) to receive mail
(c) to send mail
(d) to have reading material: Legal ( ) non-legal ( )

6. Maximum time spent in solitary
(a) 1 week ( ); 2 weeks ( ); a month ( ); 

unlimited ( ).
(b) requirement for release:______ ____________

7. Reasons for prisoner being sent to solitary
1 ._____________________________________
2. ____________________________________________________________

3 ._____________________________________
Please Return to: Steven Burton

142 Baker Hill Road 
Great Neck, N.Y. 11023



\\