Sellars v Beto Petition for Writ of Certiorari

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William Turner Oral History

    IN THE SUPREME COURT OF THE UNITED STATES

October Term 1971

NO.

CALVIN SELLARS and FRED ARISPE CRUZ, individually 
and on behalf of all others similarly situated,

Petitioners,
vs.

DR. GEORGE J. BETO, Director,
Texas Department of Corrections,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WILLIAM BENNETT TURNER 
ALICE DANIEL 
12 Geary Street
San Francisco, California 94108

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
STANLEY A. BASS 
10 Columbus Circle 
New York, New York 10019

FRANCES T. FREEMAN JALET 
5135 Val Verde Lane 
Houston, Texas 77027

Attorneys for Petitioners



TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES....................................  iii

OPINIONS BELOW ..........................................  1

JURISDICTION     2

QUESTION PRESENTED ......................................  2

CONSTITUTIONAL PROVISIONS INVOLVED .......................  2

STATEMENT OF THE C A S E ..................................  3

STATEMENT OF FACTS ......................................  4

REASONS FOR GRANTING THE WRIT OF CERTIORARI.............  8
Introduction ........................................  8
I. This Case Presents An Issue Of Exceptional 

Importance To The Correctional Phase Of The 
Criminal Process. It Is An Issue That Has 
Never Been Decided By This Court And That 
Requires Resolution By This Court To Guide 
The Lower C o u r t s ..............................  11

II. The Court Below Followed An Inappropriate 
Standard Of Judicial Review At Variance 
With The Standard Followed In Other Circuits 
In Cases Of Alleged Prisoner Mistreatment . . . .  16

CONCLUSION............................................. 19

l i



TABLE OF AUTHORITIES

CASES Page

Barnes v. Hocker, No. R-2071 
(D. Nev. Sept. 5, 1969) 13

Barnett v. Rodgers, 410 F .2d 995 
(D.C. Cir. 1969) 18

Brabson v. Wilkins, 19 N.Y.2d 433, 
227 N.E . 2d 383 .(1967) 18

Brooks v. Florida, 389 U.S. 413 (1967) 13
Brown v. Peyton, 437 F .2d 1228 
(4th Cir. 1971) 18

Carothers v. Follette, 314 F .Supp. 1014 
(S.D. N.Y. 1970) 16

Courtney v. Bishop, 409 F.2d 1185 
(8th Cir. 1969) 8

Dearman v. Woodson, 429 F.2d 1288 
(10th Cir. 1970) 15

Ford v. Board of Managers, 
407 F .2d 937 (3d Cir. 1969) 8

Fulwood v., Clemmer, 206 F .Supp. 370 
(D. D.C. 1962) 16

Haines v. Kerner, 404 U.S. 519 (1972) 9, 12, 14
Hancock v. Avery, 301 F.Supp. 786 
(M.D. Tenn. 1969) 13, 15

Holt v. Sarver, 442 F.2d 304 
(8th Cir. 1971) 15

Holt v. Sarver, 300 F.Supp. 825 
(E.D. Ark. 1969) 13

Jackson v. Bishop, 404 F .2d 571 
(8th Cir. 1968)

3, 15, 
17, 18

16,

Jackson v. Godwin, 400 F .2d 529 
(5th Cir. 1968) 18

Jenkins v. United Gas Corp., 
400 F.2d 28 (5th Cir. 1968) 3

Johnson v. Avery, 393 U.S. 483 (1969) 3, 13, 18
Jordan v. Fitzharris, 257 F.Supp. 674 
(N.D. Cal. 1966) 13, 15 , 16

Krist v. Smith, 309 F.Supp. 497 
(S.D. Ga. 1970), aff'd 439 F .2d 146 
(5th Cir. 1971) 8

ill



CASES Page

Landman v. Peyton, 370 F .2d 135 
(4th Cir. 1966) 18

Landman v. Royster, 333 F.Supp. 621 
(E.D. Va. 1971) 8, 15, 16

Marbury v. Madison, 1 Cranch 137 (1803) 19
McDonald v. Board of Election Commissioners, 
394 U.S. 802 (1969) 3

In re Medley, 134 U.S. 160 (1890) 12
Morales v. Schmidt, F.Supp. , 
11 Cr. L. Rptr. 2061, No. 71-C-29 
(W.D. Wise. April 6, 1972) 12

Morris v. Travisono, 310 F.Supp. 857 
(D. R.I. 1970) 9

Novak v. Beto, 320 F.Supp. 1206 
(S.D. Tex. 1970) 3

Novak v. Beto, 453 F.2d 661 
(5th Cir. 1971) 4

Robinson v. California, 370 U.S. 660 (1962) 16
Sostre v. McGinnis, 442 F .2d 178 
(2d Cir. 1971) 8, 13, 18

Trop v. Dulles, 356 U.S. 86 (1958) 13, 14, 15
Washington v. Lee, 263 F.Supp. 327 
(M.D. Ala. 1966), aff'd 390 U.S. 333 (1968) 3

Weems v. United States, 217 U.S. 349 (1910) 12, 14, 15
Wright v. McMann, F.2d , No. 35572 
(2d Cir. Mar. 16, 1972) 9, 16, 18

Wright v. McMann, 387 F.2d 519 
(2d Cir. 1967) 13

Wright v. McMann, 321 F.Supp. 127 
(N.D. N.Y. 1970) 15

STATUTES, RULES AND REGULATIONS

28 U.S.C. Section 1254(1) 2
42 U.S.C. Section 1983 3
Fed. R. Civ. P. 23 3
American Correctional Association,
Manual of Correctional Standards, 415 (1966) 8

xv



STATUTES, RULES AND REGULATIONS Page

Federal Bureau of Prisons 
Policy Statement No. 7400.5 
(Nov. 28, 1966) 9

Model Act for the Protection of Rights 
of Prisoners of the National Council on 
Crime and Delinquency, 18 Crime and
Delinquency 4-14 (Jan. 1972) 10
New York Department of Correctional 
Services Regulations, 7 N.Y.C.R.R.
Sections 300.1-301.9 9

President's Commission on Law Enforcement 
and Administration of Justice, Task Force 
Report, Corrections (1967) 10

Rules of the California Director 
of Corrections, ch. 4, art. 5
(Mar. 7, 1972) 9

San Quentin Institution Plan for the 
Administration of Inmate Discipline 
Ch. IV, Sec. ID-IV-06 9
Standard Minimum Rules for the Treatment 
of Prisoners of the United Nations, 
Section 31, 2 N.Y.U.J. Int'l. L & Pol. 
314-32 (1969) 10

OTHER AUTHORITIES

Goldfarb and Singer, Redressing Prisoners' 
Grievances, 39 Geo. Wash. L. Rev. 175 (1970) 10
Hirschkop and Milleman, The Unconstitutionality 
of Prison Life, 55 Va. L. Rev. 795 (1969) 9, 10
Singer, Confining Solitary Confinement: 
Constitutional Arguments for a "New Penology" 
56 Iowa L. Rev. 1251 (1971) 10

v



IN THE SUPREME COURT OF THE UNITED STATES ,

October Term 1971

NO.

CALVIN SELLARS and FRED ARISPE CRUZ, individually 
and on behalf of all others similarly situated,

Petitioners,
vs.

DR. GEORGE J. BETO, Director, 
Texas Department of Corrections,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Petitioners pray that a writ of certiorari issue to 
review the judgment of the United States Court of Appeals for the 
Fifth Circuit entered December 9, 1971.

OPINIONS BELOW

The majority and dissenting opinions of the United 
States Court of Appeals for the Fifth Circuit, whose judgment 
affirmed in part and reversed in part the order of the district 
court, are reported sub nom Novak v. Beto at 453 F .2d 661 and are 
set forth in the Appendix at pages la-68a. The opinions of judges 
of the Court of Appeals dissenting from and concurring in denial 
of rehearing en banc are reported at 456 F .2d 1303 and are set 
forth in the Appendix at pages 69a-84a. The opinion of the United 
States District Court for the Southern District of Texas is 
reported at 320 F .Supp. 1206 and is set forth in the Appendix at 
pages 85a-105a.

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JURISDICTION

The judgment of the United States Court of Appeals for 
the Fifth Circuit was entered December 9, 1971. Petitioners 
timely moved for rehearing and rehearing eri banc, which was denied 
March 8, 1972. Jurisdiction of this Court is conferred by 
28 U.S.C. Section 1254(1).

QUESTION PRESENTED

Whether the majority of the court below erred in 
upholding, as consistent with the Eighth and Fourteenth Amendments, 
the peculiarly harsh conditions of solitary confinement imposed in 
Texas prisons —  where such conditions (including indefinite 
confinement for 24 hours a day in a wholly dark cell, a bread and 
water diet and no bedding) are not inherent in the nature of 
solitary confinement, are inflicted by prison officials without 
statutory authorization, are imposed for minor rule violations 
and other non-violent conduct, and the officials offered no 
justification whatever for such unusual conditions.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Eighth and Fourteenth Amendments 
to the Constitution of the United States.

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 as
follows:

", . .nor shall any State deprive any person of 
life, liberty, or property, without due process 
of law; nor deny to any person within its 
jurisdiction the equal protection of the laws."

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STATEMENT OF THE CASE

This is a class action brought pursuant to 42 U.S.C.
Section 1983 by Texas prisoners confined under the jurisdiction of

1/
the Texas Department of Corrections. In the district court the 
plaintiffs presented two issues: (1) whether officially provided
legal assistance was adequate to assure Texas prisoners access to 
the courts and so justify a total prohibition of legal assistance 
among prisoners; and (2) whether the peculiarly harsh conditions 
of solitary confinement imposed in Texas as punishment for any 
prison rule infraction, including non-violent behavior such as 
mutual legal assistance, constituted cruel and unusual punishment 
in violation of the Eighth and Fourteenth Amendments. The district 
court denied all relief. Novak v. Beto, 320 F.Supp. 1206 (S.D. 
Tex. 1970).

On appeal, the United States Court of Appeals for the 
Fifth Circuit unanimously reversed the decision as to the 
prohibition of prisoner legal assistance, holding that under this 
Court's decision in Johnson v. Avery, 393 U.S. 483 (1969), the 
state had not met its burden of providing adequate alternatives to 
assure access to the courts. However, a divided court affirmed 
the decision as to the constitutionality of the conditions of

1/ Plaintiff Ronald Novak died in prison after the trial of this 
case. Plaintiff Fred Cruz was granted habeas corpus relief 
in an unrelated case and, although the Texas Attorney General 
has appealed, Cruz was released from prison on March 9, 1972. 
Plaintiff Calvin Sellars is still incarcerated. This case 
was brought as a class action pursuant to Fed. R. Civ. P. 23, 
and has been so treated by the courts below (see, e.g. la,
85a). Release or death of any individual member of the class 
does not, of course, render the action moot. See, e.g., 
Washington v. Lee, 263 F.Supp. 327 (M.D. Ala. 1966 ), aff1 d
390 U.S. 333 (1968); cf. McDonald v. Board of Election 
Commissioners, 394 U.S. 802, 803 n.l (1969); Jackson v. Bishop, 
404 F.2d 571 (8th Cir. 1968); Jenkins v. United Gas Corp.,
400 F .2d 28 (5th Cir. 1968). That solitary confinement is 
very much a live issue for members of the class is evidenced 
by the fact that 2,816 of them were subjected to it in less 
than one year (see 53a).

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solitary confinement administered in Texas. Novak v. Beto, 453
F.2d 661 (5th Cir. 1971). Petitioners timely moved for rehearing 
and rehearing eri banc, which was denied on March 8, 1972, six 
judges dissenting (see opinions in the Appendix at pp. 69a-84a).

STATEMENT OF FACTS

The Texas Department of Corrections (the "TDC") includes
14 separate prison facilities and, at the time of trial, about

2/
12,700 prisoners (Tr. 501, 633, 658). Solitary confinement is
frequently used as disciplinary punishment in all 14 facilities
of the TDC (P.Exh. 1, int. 26; P.Exh. 5; P.Exh. 9; D.Exh. 18;

3/
Tr. 655-56). It is used to punish a wide range of prisoner
conduct. The disciplinary "offenses" for which solitary
confinement has most often been imposed are "laziness - refusal
to work", "disrespectful attitude", "vulgar language" and similar

1/conduct (D.Exh. 17), and it has frequently been imposed for

2/ Numbered references preceded by "Tr" are to pages of the
transcript of trial held December 15-19, 1969. Petitioners 
proceeded in the Court of Appeals in forma pauperis and on 
the original record, and citations herein are to the original 
transcripts and exhibits, which have been certified to this 
Court.

3/ Citations to exhibits introduced in evidence are abbreviated 
as follows: "P.Exh. 1, int. 26" refers to plaintiffs'
Exhibit 1, interrogatory no. 26. Citations to other exhibits 
are similarly abbreviated.

4/ As dissenting Judge Tuttle pointed out:
". . .while one might assume that solitary is
usually reserved for the most recalcitrant of 
prisoners, it is apparent from this record 
that such confinement may be meted out at any 
time for any offense, regardless of its gravity, 
with no objective standards, and often summarily 
without a hearing" (33a).

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violation of a Texas prohibition against any form of legal
5/

assistance among prisoners.

In Texas, as elsewhere, a prisoner in solitary 
confinement is isolated from the general prison population and 
cannot participate in the institution's work, educational or 
vocational training programs (Tr. 25, 103), religious services 
(Id.), communal meals and contact with other prisoners (Tr. 24, 
28), and pastimes such as television, radio and movies (Tr. 22-23). 
These deprivations are perhaps inherent in the nature of solitary 
confinement or isolation. But in Texas a prisoner is subject 
to additional conditions of solitary confinement that are 
extraordinarily cruel and severe. As succinctly described by 
Judge Tuttle, dissenting from the judgment below:

"A person sentenced to solitary is kept 
in a bare, pitch black cell on a bread and 
water diet. The cell has a barred iron gate 
backed up by a wooden door to keep out all 
light and prevent contact with those in the 
hall. He is fed only two slices of bread 
and water each day and one full meal every 
72 hours, [footnote omitted] This treatment 
can continue for up to fifteen days, at 
which point he is kept in the same cell,
[footnote omitted] but with the solid door 
open to let in the light and is fed regular 
meals for two days. This process may then 
be repeated again. As the record reveals, 
inmate Bobby Brown was kept in solitary for 
a period of about seven weeks. Another 
prisoner spent nine weeks in solitary within 
an eleven month period.

5/ The prohibition struck down by the Court of Appeals was
absolute -- thus, prisoners were prohibited from (a) writing 
a writ for another prisoner (Tr. 13), (b) lending or borrowing
legal materials or books (P.Exh. 1, int. 13; Tr. 258, 279, 
325-26, 329), (c) possessing another prisoner's legal
materials or books (Tr. 161-62, 325-26, 329), (d) talking to
other prisoners in the "writ room" (P.Exh. 1, int. 5; Tr. 39), 
and even (e) orally advising other prisoners about elementary 
matters of legal procedure, such as in which district court 
to file a habeas corpus writ (Tr. 588-89). The prohibition 
applied regardless of whether particular prisoners actually 
needed legal assistance, regardless of the fact that no 
compensation was requested or paid for the assistance rendered 
and regardless of whether institutional activities were in any 
way interfered with by the specific legal assistance rendered.

5-



"In addition to the bread and water diet, 
the cell is barren of furnishings except for 
a combination toilet-washbasin and a steel 
bunk. The bunk, however, has no mattresses, 
sheets or pillow. Though the prisoner is 
provided with a blanket, the inmate has no 
clothes, no shoes, only a cloth gown and, 
except when taken to the shower, he spends 
all of his time in the cell. While there he 
has no access to hot water; he is not allowed 
to have a comb or eyeglasses and, upon 
release from solitary, the inmate's head is 
shaved, bald. " (31a-32a)

During his confinement for 24 hours a day in a completely dark 
and barren cell on a bread and water diet, without clothes or 
bedding, the Texas prisoner is also denied all means of occupying 
his time or mind: he has no opportunity to exercise or access to
open air (Tr. 24, 103); he is not permitted correspondence with 
family, friends or lawyer (Tr. 23; P.Exh. 1, int. 23); no visits 
are allowed (Tr. 24); and the prisoner is allowed no reading 
material of any kind (Tr. 28, 104).

Given these conditions, it is not surprising that
suicides and self-mutilations occur in solitary in Texas (Tr. 33,
566). Indeed, the officials acknowledge that solitary endangers
life, seriously diminishes a prisoner's strength and threatens
his health (Tr. 525-26, 566; P.Exh. 2, p. 5; D.Exh. 14, pp. 19-20,

6/
23). In view of these risks, the officials routinely deprive 
prisoners in solitary of regular clothes, comb and eyeglasses on 
the ground that these necessities may be used as "weapons" or for

Vself-mutilation or suicide (Tr. 552-53).

6/ Although the prisoner in solitary is cut off from all outlets 
in the prison for releasing normal anger, resentment, and 
aggressions (Tr. 554-55), he is not seen by a psychologist, 
psychiatrist or counselor before, during or after confinement 
to solitary (Tr. 26, 103, 559-60, 564).

7/ This is done regardless of any trace of violence or suicidal 
tendency in any prisoner's background. Indeed, all the 
deprivations of solitary confinement apply uniformly to all 
prisoners placed therein, regardless of any prisoner's 
individual background, his criminal record or the disciplinary 
offense he is punished for (Tr. 553-54).

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At trial, the plaintiffs showed numerous instances of
confinement to solitary in these conditions, for an array of
disciplinary "offenses," most having to do with rendering or
receiving legal assistance or with other non-violent behavior.
The record also contains expert testimony by the former Director
of Classification of the TDC, who testified that solitary
confinement is "destructive of human personality" (Tr. 359); that
it is "retributive punishment" (Tr. 361); that it does not aid in
rehabilitation and that it actually destroys the objective of
imprisonment -- to create a desire to conform to the rules of
society (Tr. 359, 376). The plaintiffs also presented
uncontradicted psychiatric testimony that solitary confinement as
administered in Texas does not help to change the attitude of
recalcitrant prisoners (Tr. 423-24); is psychologically damaging
and hardens criminal attitudes (Tr. 443); and is "unnecessarily

£/damaging, unnecessarily punitive" (Tr. 431). The officials 
offered no evidence to justify the particular conditions of 
solitary imposed in Texas, and the Director of the TDC testified 
that he knows of no study showing that solitary is effective in 
reforming the attitudes of recalcitrant prisoners (Tr. 657).

No Texas statute authorizes either solitary confinement 
in general or the particular form of solitary challenged here 
(Tr. 657).

8/ Although psychiatrists employed by the TDC disagreed that 
confinement in solitary had intensified one plaintiff's 
symptoms of chronic schizophrenic reaction, they offered 
no alternative explanation for such symptoms. One TDC 
psychiatrist conceded that he would not recommend solitary 
for a mentally ill person like the prisoner (Tr. 482), and 
also admitted that a TDC psychologist predicted that the 
prisoner would attempt suicide or self-mutilation if 
subjected to solitary confinement (Tr. 483).

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Introduction
This case presents the question whether, as dissenting 

Judge Tuttle said below, "this form of solitary violates the 
Eighth Amendment" (63a). Petitioners do not here contend that 
prison officials may not in appropriate circumstances isolate 
dangerous or disruptive prisoners from the general prison 
population.

The conditions challenged in this case are not inherent
9/

in solitary confinement or isolation and go far beyond what is
necessary or appropriate to serve any legitimate penal purpose.
The majority of the panel of the Court of Appeals said that it was
"deeply troubled" by the peculiarly harsh conditions of Texas-
style solitary confinement (8a). Indeed it should have been,
because the precise conditions (a) violate the standards set for

10/
prisons by the American Correctional Association; (b) are

REASONS FOR GRANTING THE WRIT OF CERTIORARI

9/ The extent to which the conditions of solitary confinement 
in Texas impose extraordinary deprivations not inherent in 
such form of confinement is outlined at pp. 5-6, supra. The 
validity of Texas-style solitary cannot be defended by 
reference to lower court decisions stating that confinement 
in less onerous conditions is not "per se" cruel and unusual, 
e.g. Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir. 1971); 
Courtney v. Bishop, 409 F.2d 1185 (8th Cir. 1969); Ford v. 
Board of Managers, 407 F .2d 937 (3d Cir. 1969); Krist v.
Smith, 309 F.Supp. 497 (S.D. Ga. 1970), aff'd 439 F.2d 146 
(5th Cir. 1971).

10/ The American Correctional Association flatly condemns use
of a dark cell. Manual of Correctional Standards, 415 (1966)
(P.Exh. 10, p. 415; Tr. 557-58). The Manual also requires a 
diet with a minimum of 2100 calories a day, which the bread 
and water diet does not approach (P.Exh. 10, p. 420).
Further, the Manual requires regular exercise in the open 
air (Id.). Indeed, the Manual seriously questions the 
utility of solitary confinement in general:

"Perhaps 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." (I<3. at 413).

The court in Landman v. Royster, 333 F.Supp. 621, 647 (E.D.
Va. 1971), held that the bread and water diet constituted 
cruel and unusual punishment, noting the strong disapproval 
of the practice by the American Correctional Association 
and stating that it is "both generally disapproved and 
obsolescent. It is not seriously defended as essential to 
security."

-8-



rejected by experts in the field of corrections; (c) would
12/

not be tolerated in any federal prison; (d) fall below the
13/

standards of other states; (e) violate the Standard Minimum

11/

11/ James V. Bennett, former Director of the Federal Bureau of
Prisons and recognized by Texas officials as an authority in 
the field (Tr. 538), has testified that use of the bread and 
water diet "is an archaic and discredited system" which has 
"no effect" except that it "complicates the man's health 
problem." Hirschkop and Milleman, The Unconstitutionality 
of Prison Life, 55 Va. L. Rev. 795, 838 (1969). The expert
testimony presented in the instant case condemned other 
specific conditions of Texas-style solitary, noting social 
isolation (the deprivation of meaningful human contact), 
partial sensory deprivation (darkness) and semi-starvation 
(the bread and water diet) (see, e.g., Tr. 403, 456).

12/ Prisoners in disciplinary confinement in federal prisons 
have lighted cells and receive the regular diet of three 
meals a day (Federal Bureau of Prisons, Policy Statement 
No. 7400.5 (Nov. 28, 1966); P.Exh. 11); are permitted regular 
exercise in the open air (Id. ; Tr. 421); are given regular 
institution clothes and a mattress and bedding (Id.); are 
permitted to maintain personal hygiene as in the general 
prison population; are allowed comb, eyeglasses, etc. (Id.); 
and retain their correspondence and visiting privileges 
unless there is a special and compelling reason for denying 
them (Id.).

13/ The district court in this case recognized that the
conditions of solitary in Texas do not meet the standards 
of other states (100a). While petitioners do not have 
authoritative information as to solitary conditions in all 
states, counsel for the petitioner in Haines v. Kerner,
404 U.S. 519 (1972), conducted a survey (summarized in the
Reply Brief of Petitioner in Haines, filed Nov. 30, 1971, 
p. 2, n.l) showing that of 28 responding states 4 had 
abandoned the practice of solitary confinement; of the 
remaining 24 all used lighted cells and provided mattresses, 
etc.
Several states have specific regulations governing conditions 
of solitary or segregated confinement. For example, the New 
York Department of Correctional Services Regulations, 7 N.Y. 
C.R.R. Sections 300.1-301.9, described by the court in
Wright v. McMann, ___ F .2d ___, No. 35572 (2d Cir. Mar. 16,
1972), mandate, inter alia, adequately lighted cells, 
regular institution diet, access to legal materials and 
regular correspondence and visiting privileges. Similar 
regulations are in effect in California, see Rules of the 
Director of Corrections, ch. 4, art. 5 (Mar. 7, 1972) 
(requiring meals supplying 2,500 calories per day and daily 
exercise periods); San Quentin Institution Plan for the 
Administration of Inmate Discipline, Ch. IV, Sec. ID-IV-06 
(lighted cells, bedding, clothing, correspondence, etc.); 
and in Rhode Island, see Morris v. Travisono, 310 F.Supp.
857, 868-70 (D. R.I. 1970) .

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Rules for the Treatment of Prisoners of the United Nations;
15/

(f) are severely criticized by scholars; (g) are inconsistent
with the recommendations of the President's Commission on Law

16/Enforcement and Administration of Justice; and (h) are outlawed
by the Model Act for the Protection of Rights of Prisoners of the

17/
National Council on Crime and Delinquency.

This Court should grant certiorari to review the 
decision that so bitterly divided the Court of Appeals because 
(1) the case presents an issue of exceptional importance to the 
correctional phase of the criminal process, an issue that has 
never been decided by this Court; and (2) the court below followed 
an inappropriate standard of judicial review at variance with the 
standard followed in other circuits in cases of alleged prisoner 
mistreatment.

14/

14/ The Rules are summarized in 2 N.Y.U.J. Int'1. L & Pol. 314-32 
(1969). Section 31 of the Rules flatly condemns "punishment 
by placing in a dark cell" as "cruel, inhuman or degrading." 
Other provisions of the Rules, although not specifically 
addressed to disciplinary confinement, prescribe adequate 
diet, bedding, exercise, etc.

15/ See, e.g., Singer, Confining Solitary Confinement:
Constitutional Arguments for a "New Penology", 56 Iowa L.Rev. 
1251 (1971); Goldfarb and Singer, Redressing Prisoners 1 
Grievances, 39 Geo. Wash. L. Rev. 175 (1970); Hirschkop and
Milleman, The Unconstitutionality of Prison Life, 55 Va.
L. Rev. 795 (1969) .

16/ The Task Force Report on Corrections (1967), in its Standards 
for Institutions for Felony Offenders, requires that 
prisoners in disciplinary confinement "be given a daily 
exercise period and a regular diet with a minimum of 2100 
calories per day" (p. 210).

17/ See 18 Crime and Delinquency 4-14 (Jan. 1972). The Council's 
distinguished committee of correctional authorities provided 
in Section 3 of the Model Act that a prisoner in solitary 
confinement "shall receive daily at least 2500 calories of 
food in the normal diet"; that the solitary cell "shall be 
adequately lighted" and equipped with bedding; that the 
prisoner shall not be deprived of normal prison clothing; 
and that his right to communicate with his attorney shall 
not be abridged.

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I. THIS CASE PRESENTS AN ISSUE OF EXCEPTIONAL IMPORTANCE 
TO THE CORRECTIONAL PHASE OF THE CRIMINAL PROCESS.

IT IS AN ISSUE THAT HAS NEVER BEEN DECIDED BY THIS COURT AND 
THAT REQUIRES RESOLUTION BY THIS COURT TO GUIDE THE LOWER COURTS.

As Judge Wisdom said in dissenting from denial of 
rehearing en banc:

"1[I]n view of recent tragic incidents in 
this Nation's prisons and of the frequent 
assertions of the inadequacy of our penal 
systems', factors conspicuously recognized 
by the panel majority, it would seem that 
the 'exceptional importance' of this case 
cannot be denied. Moreover, on a carefully 
tried and meticulously detailed record this 
case raises the exceptionally important issue 
of the constitutionality of the Texas form 
of solitary prison confinement in a broad 
context -- the prison system of one of the 
most populous states and the largest state 
within the continental limits of the United 
States" (72a).

Six judges dissented from denial of rehearing en banc, and the 
various opinions in the court below illustrate the troubling legal 
and moral considerations raised by this case. As Judge Tuttle 
put it:

"Not only do these conditions demean the human 
dignity of the inmate involved, but as they 
reflect the extent to which society will go 
in punishing its prisoners, they affect us all.
. . .[H]ow we treat these particular individuals
determines, to a large extent, the moral fibre 
of our society as a whole and if we trespass 
beyond the bounds of decency, such excesses 
become an affront to the sensibility of each 
of us" (38a-39a).

Judge Wisdom called attention to another reason why
this case is "important in a very real sense, to each member of
our society because of a condition all too familiar to our
society -- recidivism" (79a). The majority of the court below,
however, ignored society's interest in having prisons achieve
their rehabilitative goal, by approving conditions that were
shown to have "a totally negative impact on any hope for

18/
rehabilitation."

18/ (63a, dissenting opinion of Tuttle, J.). See references to
the record at p. 7 , supra.

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"what constitutes a cruel and unusual punishment has not been
exactly decided." Weems v. United States, 217 U.S. 349, 368
(1910). As Judge Wisdom noted below, "This statement is as true
today as it was in 1910" (73a). It is particularly true as to a
prisoner's Eighth Amendment protection against mistreatment while 

19/
in prison.

This Court has never ruled on the extent of Eighth
Amendment protection of prisoners. In Haines v. Kerner, 404 U.S.
519 (1972), the Court held that the prisoner stated a claim and
was entitled to a hearing on allegations that he was placed in
onerous conditions of solitary confinement. And in In re Medley,
134 U.S. 160 (1890), the Court held that imposition of a
relatively short period of solitary confinement' in connection with
a death sentence was constitutionally infirm as an ex post facto 

20/
law.

While Haines and Medley indicate that prisoners are 
entitled to some relief against oppressive conditions of 
confinement, the Court has never really addressed itself to 
application of the Eighth Amendment to the correctional phase of

Despite the undoubted importance of the issue here,

19/ In a very thoughtful recent opinion on prisoners' rights, 
one federal judge lamented that the decided cases provide 
"virtually no guidance to a federal district court" in 
resolving the issues; "I discover in the cases scarcely a 
single beam or joist in a framework of principles within 
which a particular constitutional challenge to a particular
prison regulation can be decided." Morales v. Schmidt, ___
F .Supp. , 11 Cr. L. Rptr. 2061, No. 71-C-29 (W.D. Wise.
April 6, 1972).

20/ As Judge Tuttle noted in this case, the conditions of
solitary criticized in Medley were "less onerous than those 
here under attack" (39a).

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the criminal process. Consequently, the lower courts have been
without guidance in applying "the evolving standards of decency
that mark the progress of a maturing society," Trop v. Dulles,
356 U.S. 86, 101 (1958); Weems v. United States, 217 U.S. 349,
373 (1910); and the principle that the Eighth Amendment protects
"nothing less than the dignity of man." Trop v. Dulles, supra,
356 U.S. at 100.. A number of lower courts have held that
particular conditions of solitary confinement constitute cruel and

22/
unusual punishment. Other lower courts have upheld certain
conditions of solitary confinement, although not conditions as

23/
egregious as those presented here. No coherent Eighth

21/

21/ In Johnson v. Avery, 393 U.S. 483 (1969) , the Court struck
down the "jailhouse lawyer" prohibition that led to the 
prisoner's confinement in maximum security, but did not 
consider the conditions of maximum security. Cf. Brooks v. 
Florida, 389 U.S. 413, 415 (1967), where the Court said that 
the disciplinary confinement there was "a shocking display 
of barbarism which should not escape the remedial action of 
this Court," and held involuntary the prisoner's confession 
after being subjected to the confinement.

22/ See Wright v. McMann, 387 F .2d 519 (2d Cir. 1967), on remand
321 F.Supp. 127 (N.D. N.Y. 1970), aff'd___F.2d ____ (2d Cir.
1972); Hancock v. Avery, 301 F.Supp. 786 (M.D. Tenn. 1969);
Holt v. Sarver, 300 F.Supp. 825 (E.D. Ark. 1969); Barnes
v. Hocker, No. R-2071 (D. Nev. Sept. 5, 1969); Jordan v. 
Fitzharris, 257 F.Supp. 674 (N.D. Cal. 1966).

23/ See authorities cited in note 9, supra. Indeed, it is 
instructive to note the factors that the Second Circuit 
thought raised disciplinary confinement in New York "several 
notches above those truly barbarous and inhumane conditions" 
condemned in other cases as cruel and unusual. See Sostre 
v. McGinnis, 442 F .2d 178, 194 (2d Cir. 1971). The court
referred to six factors: (1) the prisoner's diet, which was
the same (except for dessert) as in the general prison 
population; (2) the availability of implements of personal 
hygiene; (3) the opportunity for exercise in the open air;
(4) the opportunity to participate in group therapy; (5) the 
availability of reading matter from the prison library and 
unlimited law books; and (6) the constant possibility of 
communication with other prisoners. In addition, the court 
pointed out that the prisoner always had adequate light for 
reading (Id_. at 186), full access to legal materials (Id. ) 
and a diet of 2800-3300 calories a day (Id.). Further, the 
court found that a physician visited the prisoner every day 
(Id. at 193, n.24). With only the exception of implements 
of personal hygiene, none of these mitigating factors is 
present in the instant case.

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Amendment principles have emerged from the decisions of the lower
courts. We believe that the Court's decisions in Trop v. Dulles,
supra, and Weems v. United States, supra, supply the basic
principles that govern in this case. But the inability of the
lower courts to apply the principles with any uniformity to the
various conditions of solitary confinement, as well as the split
in the court below, clearly require definitive resolution by this 

24/
Court. Nor will there be a better opportunity to address the
issue because, unlike Haines v. Kerner, supra, the present case 
comes to the Court not on bare allegations of the complaint but 
"on a carefully tried and meticulously detailed record" (72a).

The majority of the court below surely placed an 
arbitrary and unjustifiable restriction on the reach of the 
Eighth Amendment by holding that cruel and unusual punishment 
requires a showing of "the deprivation of basic elements of 
hygiene" (,10a). As Judge Wisdom pointed out in dissenting from 
denial of rehearing eri banc, "To read the earlier cases in this 
area as drawing a line of demarcation based on the presence or 
absence of soap and toilet paper is to misread these cases and 
to misconceive the thrust of the Eighth Amendment" (74a). In 
short, we believe that the Eighth Amendment, as the principal 
protector of prisoners against mistreatment, has broader scope 
than as construed by the majority of the court below. All of the 
previously articulated formulations of cruel and unusual 
punishment would condemn the conditions of solitary confinement 
in this case. Thus, the conditions are so out of keeping with

24/ As Judge Tuttle noted,
"[Tjhis is an area of the law which will 
present close and perplexing questions for 
future decisions. I feel, therefore, that 
this fully tried clear-cut issue deserves 
the most careful consideration the court 
can give it" (67a-68a).

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"evolving standards of decency" (Trop, supra) as to be "shocking
25/

to the conscience." Further, the conditions here run afoul of
the rule that

"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 purposes for which it is used."
Weems v. United States, 217 U.S. 349, 370 
(1910) .

See also Dearman v. Woodson, 429 F.2d 1288, 1290 (10th Cir. 1970);
Landman v. Royster, 333 F.Supp. 621 (E.D. Va. 1971); Hancock v.
Avery, 301 F.Supp.' 786 , 791 (M.D. Tenn. 1969); Jordan v.

26/
Fitzharris, 257 F.Supp. 674, 679 (N.D. Cal. 1966).

25/ Cf. Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968), holding 
unconstitutional the use of the strap as disciplinary 
punishment. The court in Landman v. Royster, 333 F.Supp.
621, 647 (E.D. Va. 1971), relying in part on Mr. Justice
(then Judge) Blackmun's reasoning in Jackson, held the bread 
and water diet cruel and unusual, finding that it is a 
"prolonged sort of corporal punishment" and that "The purpose 
and effect of such a diet is to discipline a recalcitrant by 
debilitating him physically." A New York federal court 
believed use of a dark cell was "unquestionably" cruel, but 
noted that the officials had discreetly discontinued its use 
just prior to trial. See Wright v. McMann, 321 F.Supp. 127, 
136 (N.D. N.Y. 1970), aff'd___F.2d (2d Cir. 1972).

26/ The majority of the court below completely disregarded the 
"unnecessary cruelty" aspect of the Eighth Amendment's 
proscription. Yet there was no showing by the prison 
officials that any of the specific conditions of Texas-style 
solitary is necessary to achieve any legitimate prison 
purpose. As Judge Wisdom pointed out below, "This record is 
totally barren of any justification for this form of solitary 
confinement" (78a).
In light of society's overriding interest in having prisons 
more effectively reduce recidivism, one element in the Eighth 
Amendment calculus should be the effect of the conditions on 
rehabilitation. As Judge Tuttle noted, the conditions here 
have "a totally negative impact on any hope for 
rehabilitation" (63a), and the uncontroverted expert 
testimony was that the conditions of solitary were anti- 
rehabilitative. One of the important circumstances 
considered by the court in Jackson v. Bishop, 404 F.2d 571, 
580 (8th Cir. 1968)(Blackmun, J.), relying on the testimony 
of James V. Bennett, was that the disciplinary measure 
involved there "frustrates correctional and rehabilitative 
goals." See also Holt v. Sarver, 442 F .2d 304, 310 (8th Cir. 
1971)(emphasizing need for "an affirmative program of 
rehabilitation").

-15-



disregarded another aspect of the Eighth Amendment —  the
27/

principle of wholly disproportionate punishment. Not only
are the conditions of Texas-style solitary unduly harsh, they are 
used to punish relatively harmless behavior such as "laziness," 
"disrespectful attitude" and giving and receiving legal 
assistance —  as- dissenting Judge Tuttle remarked, "a striking 
example of overkill" (54a). Reference to the kind of conduct 
punished is required because "A punishment out of all proportion 
to the offense may bring it within the ban against 'cruel and 
unusual punishment.'" Cf. Robinson v. California, 370 U.S. 660, 
676 (1962).

In short, the issue presented by this case is not only 
of exceptional importance to the correctional process; its 
resolution by this Court is plainly needed for the guidance of 
the lower courts.

II. THE COURT BELOW FOLLOWED AN INAPPROPRIATE STANDARD 
OF JUDICIAL REVIEW AT VARIANCE WITH THE STANDARD FOLLOWED 
IN OTHER CIRCUITS IN CASES OF ALLEGED PRISONER MISTREATMENT.

The Court of Appeals not only adopted an unduly 
restrictive "hygienic" test of cruel and unusual punishment; 
it followed a standard of judicial review that is inappropriate 
in cases of this type. Despite the extreme and extraordinary 
deprivations visited on the prisoners, that "deeply troubled" the 
majority, the court below did not require the officials to offer 
any justification whatever for the conditions used in Texas

Finally, the majority of the court below completely

27/ Lower courts have frequently applied this principle to
in-prison punishments. See Wright v. McMann, ___ F .2d ___,
No. 35572 (2d Cir. Mar. 16, 1972), aff'g in part 321 F.Supp.
127, 145 (N.D. N.Y. 1970); Jackson v. Bishop, 404 F.2d 571, 
577-78 (8th Cir. 1968); Landman v. Royster, 333 F.Supp. 621 
(E.D. Va. 1971); Carothers v. Follette, 314 F.Supp. 1014 
(S.D. N.Y. 1970); Jordan v . Fitzharris, 257 F.Supp. 674 
(N.D. Cal. 1966); Fulwood v. Clemmer, 206 F.Supp. 370, 379 
(D. D.C. 1962) .

-16-



solitary. There is no evidence in the record that any of the
unusual elements -- e.g. dark cell, bread and water diet, no
bedding and no recreation -- is either useful or necessary for
any legitimate prison purpose. The officials offered nothing,
not even their own opinion, to show that the particular conditions

28/
serve any useful penal purpose. Instead of requiring evidence
justifying the conditions, the Court of Appeals and the District 
Court relied on the "good faith" of the prison officials. Thus, 
the District Court's only articulated principle for judging cruel 
and unusual punishment was to "rely on the good faith of Dr. Beto 
and other prison officials to effect the spirit of the 
Constitution" (102a); and the Court of Appeals refused to inter­
vene "absent a showing of bad faith on the part of prison 
officials" (26a). This is tantamount to decreeing that prison 
officials, unique among American administrative officials, are 
not accountable to principles of law -- an impression that this 
Court should promptly correct.

We believe, with Judge Wisdom and the other dissenting 
judges below, that where such extreme deprivations are imposed 
on prisoners, the proper standard of judicial review requires 
officials to

"submit some justification in terms of 
deterrence, maintenance of order, 
rehabilitation, or other correctional goals, 
for the means employed here. Given the 
undisputed conditions. . .it is reasonable 
to require prison officials to submit at 
least some justification so that the Court 
may intelligently assess their exercise of 
discretion. . . [This] is to insure that
judicial review does not operate in a vacuum 
but is based on a thorough assessment and 
weighing of competing values" (78a) (emphasis 
in original).

28/ Compare Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968),
where whipping was "the primary disciplinary measure used," 
the warden made a showing that facilities for alternative 
measures were limited and the officials testified that 
whipping was actually needed to preserve discipline and that 
it was effective in meeting this need.

-17-



Other circuits have required officials to justify their
action in similar circumstances. Thus, in Wright v. McMann,
F .2d ___, No. 35572 (2d Cir. Mar. 16 , 1972), where the court
struck down the disciplinary punishment as disproportionately
severe, Judge Lumbard said that "While the area of discretion
of prison officials is exceedingly broad, it is not limitless. . .
The word 'discretion' is not talismanic." The court in Wright
held that disciplinary segregation was unjustified where the
officials offered no evidence showing that such treatment was
necessary or appropriate. See also Brown v. Peyton, 437 F .2d

29/
1228 (4th Cir. 1971); Barnett v. Rodgers, 410 F .2d 995 (D.C.

30/
Cir. 1969); Jackson v. Bishop, supra, notes 25, 26, 28;

31/Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968); cf. Johnson 
v. Avery, 393 U.S. 483, 486 (1969). After all, "our
constitutional scheme does not contemplate that society may 
commit lawbreakers to the capricious and arbitrary actions of 
prison officials." Sostre v. McGinnis, 442 F .2d 178, 198 (2d Cir. 
1971); Landman v. Peyton, 370 F .2d 135, 141 (4th Cir. 1966). But 
unless officials are required to submit some justification for 
the particular conditions involved in this case, the approach of

29/ "While the judgments of prison officials are entitled to
considerable weight because they are based upon first-hand 
observance of the events of prison life and upon a certain 
expertise in the functioning of a penal institution, prison 
officials are not judges. . . .  We do not denigrate their 
views but we cannot be absolutely bound by them." 437 F.2d 
at 1232.

30/ Allowing some administrative discretion "does not eliminate 
the need for reasons imperatively justifying the particular 
retraction of rights challenged at bar." 410 F.2d at 1001.

31/ "[A]ny further restraints or deprivations in excess of that 
inherent in the sentence and in the normal structure of 
prison life should be subject to judicial scrutiny." 400 
F.2d at 535. Cf. Brabson v. Wilkins, 19 N.Y.2d 433, 440, 
227 N.E.2d 383, 386 (1967), where dissenting Judge Keating
remarked concerning the "shibboleth" of prison discipline 
that "courts should look behind inappropriate slogans so 
often offered up as excuses for ignoring or abridging the 
constitutional rights of our citizens."

-18-



the court below, relying on the "good faith" of the officials, 
gives no protection to prisoners against capricious and arbitrary 
punishments. Such an approach to judicial review is especially 
dangerous to our constitutional system where the officials are not 
acting pursuant to a statute enacted by a legislature, which might 
represent a considered judgment of the citizenry. Here, where the 
prison officials- impose punishments unauthorized by any statute, 
they must be judicially held accountable to principles of law, so 
that ours remains a "government of laws, not of men." Marbury v. 
Madison, 1 Cranch 137, 163 (1803).

CONCLUSION

For the reasons stated, the petition for a writ of 
certiorari should be granted.

Respectfully submitted,

h j j j J L L. ̂
WILLIAM BENNETT TURNER 
ALICE DANIEL 
12 Geary Street
San Francisco, California 94108

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
STANLEY A. BASS 
10 Columbus Circle 
New York, New York 10019

FRANCES T. FREEMAN JALET 
5135 Val Verde Lane 
Houston, Texas 77027

Attorneys for Petitioners

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