Finney v. Arkansas Board of Corrections Court Opinion

    emo from

\ James M. Nabrit, III

\
At bached i s a f a l I  s e t o f  op-’ ni oris in  the Mutt o caseas fo llo w s :

1 . Molt ~ri  - 300 F . Supp. Oop
—

2 . Molt I I  ■- 309 F.Supp . 3*2, ax r irn e d  l>h2 F?d 3 Oh

3. Molt I I I - 3 63 F. Ou' vf .  l ? h , rev e rse d  POM FA2d IFli

Uir Finns y  - 2dL0 F .Sapo. 251, a : f ir r .e d  SU°- 7 .2d 71x0

To: Steve Ralston
Jack Greenberg Joe] Berger 
Eric Schnapper Lynn Walker 
Stan Bass

JMN-m/nl
11/2 9 /7 7



194 505 FEDERAL REPORTER, 2d SERIES

R obert FIN N E Y  et al., A ppellants,
V.

A R K A N SA S HOARD OF CORRECTION  
and Terrell Don H utto et a t ,

A ppellees.

Jam es C. ELLINGBURG, A ppellant,
v.

D ouglas NOLAN, Individually and as an 
E m ployee of the C um m ins Unit, A rk­
ansas D epartm ent of C orrection, Appel- 
On*.

Jam es C. ELLINGBURG, A ppellant,
v.

K enneth G. TAYLOR. Individually and as 
a Correctional Officer, A rkansas Board 
of Correction, et a t . A ppellees.

Jam es C. ELLINGBURG, Appellant,
v.

Dan SEW ELL, Individually and as a  Po­
lice Captain, Texarkana, A rkansas, 
Police D epartm ent, et a t ,  A ppellees.

Jam es C. ELLINGBURG, A ppellant,
v.

Terrell Don HUTTO, C om m issioner of 
Correction, State of A rkansas, e t  a t .  

A ppellees.
N os. 73-1745, 74-1202, 74-1205, 71-1330. 

71-1361), 74-1406, 74-1612 and 
74-8102.

United States Court of Appeals, 
Eighth Circuit.

Submitted June 10, 1974.
Decided Oct. 10, 1974.

Rehearing and Rehearing En Banc 
Denied Nov. 4, 1974.

In cases in which distric t court had 
retained continuing jurisdiction to su­
pervise the improvement in state peni­
tentiary system which had been found to 
be unconstitutional, the District Court 
for the Eastern District of Arkansas, ,J. 
Smith Henley, Chief Judge, entered fu r­
ther  orders and determined tha t  it was 
no longer necessary to retain jurisdic­
tion of the case and prisoners appealed. 
In related cases, state penitentiary pris­

oners’ petitions for individual relief 
were denied by the District Court for 
the ' Eastern District of Arkansas, .J. 
Smith Henley, < 'hit-! Justice, Garnett 
Thomas Eisele, and Oren Harris, JJ-, 
and by the District Court for the West­
ern District of Arkansas, Paul X Wil­
liams. Chief Judge, and prisoners ap­
pealed. The Court of Appeals, Lay, Cir­
cuit Judge, held tha t the Arkansas peni­
tentiary system was still unconstitution­
a l ; directed tha t certain corrective ac­
tion be taken with respect to inter alia, 
housing, racial discrimination, physical 
abuse, and rehabilitative programs; held 
that findings of fact should have been 
entered with respect to dismissal of 
claims for individual relief on behalf of 
two prisoners; that, other prisoners did 
not state claims for individual relief; 
and that the district court should have 
retained continuing jurisdiction.

Affirmed in part, reversed in part 
and remanded.

1. P risons 0^ 4
Although there is no such thing as 

a perfect prison system, tha t  fact does 
not relieve prison officials of their duty 
to make their  system a constitutional 
one in which the human dignity of each 
individual inmate is respected. U.S.C. 
A.Const. Amend. 8.

2. P risons C=»4, 12, 13
Continuing constitutional deficien­

cies at state penitentiary, including 
problems of housing, lack of medical 
care, infliction of physical and mental 
brutality and torture  upon individual 
prisoners, racial discrimination, abuses 
of solitary confinement, continuing use 
of trusty guards, abuse of mail regula­
tions, a rb itrary  work classifications, ar­
bitrary disciplinary procedures, inade­
quate distribution of food and clothing, 
and total lack of rehabilitative programs 
required retention of federal court’s ju­
risdiction over the matter and the grant­
ing of further relief to the prisoners. 
U.S.C.A.Const. Amends. 8, 14; -12 U.S. 
C.A. S 198.”,.



195FINNEY v. ARKANSAS HOARD OF CORRECTION
C ite  n s  no.-) ]\

3. Prisons C=17
If state choses to confine peniten­

tiary inmates in barracks, some means 
must be provided to protect those in­
mates from assault and physical harm hv 
other inmates. U.S.t '.A.Const. Amend. 8.

1. Prisons C=17
Fact that there was some compli­

ance with previous court order which re­
quired state prison officials to provide 
for the safety of inmates was not suffi­
cient and court should devise a program 
to immediately eliminate the overcrowd­
ing of prison barracks and to ensure the 
safety of each inmate. U.S.C.A.Const. 
Amend. 8.

5. Prisons 0=17
Lack of funds is not an acceptable 

excuse for unconstitutional conditions of 
incarceration. U.S.C.A.Const. Amend. 8.

6. Prisons C=17
In case involving conditions of state 

prison, district court should satisfy i t ­
self that no additional prisoners would 
be confined at the prison if their  con­
finement would result in continued over­
crowding and perpetuation of conditions 
which failed to provide optimum safety 
and sanitation for every inmate. U.S. 
C.A.Const. Amend. 8.

7. Criminal Law C=1213
Transfer of juvenile offenders to 

state prison constituted cruel and unusu­
al punishment where unconstitutional 
conditions existed at the state prison. 
U.S.C.A.Const. Amend. 8.

8. Reform atories C=9
State prison officials would be en­

joined from transfe rr ing  any juveniles 
from reformatory to state prison until 
constitutional infirmities within the 
state prison were removed. U.S.C.A. 
Const. Amend. 8.

9. Prisons C =i7
Lack of funds or facilities can not 

justify an unconstitutional lack of com­
petent medical care and treatment for 
state prison inmates. U.S.C.A.Const. 
Amend. 8.

!M 11U ( l 'J T I)

10. P risons C=17
Where state prison did not provide 

basic emergency medical service, much 
less any assurance of more complete 
medical treatment when necessary, dis­
trict court would be directed to hold ad­
ditional hearings and to delineate, with­
in specific terms and time limitations, 
not only an overall long-range plan for 
improvement of facilities a t the prison 
but an immediate plan to update all 
medical equipment at the facilities, to 
ensure tha t every inmate in need of 
medical attention would be seen by qual­
ified physician when necessary. U.S.C. 
A.Const. Amend. 14.

11. Prisons C=>4
State prison officials who had pre­

viously been made aware of impropriety 
of armed trusty  system would be or­
dered to, within a few months, complete­
ly phase out its armed trusty  system. 
U.S.C.A.Const. Amend. 14.

12. Crim inal Law  0=1213
Prison inmate working conditions, 

under which inmates were, a t times, 
forced to run to, from, and while a t  work, 
were required to race with other crews 
in performance of the same type of work 
and occasionally required to run in front 
of moving vehicles or ridden horses and 
under which a man who worked too 
slowly or refused to work lost his enti­
tlement to statutory good time and faced 
solitary confinement, were unconstitu­
tional. Ark.Stats. § 46-120 et seep; U. 
S.C.A.Const. Amend. 8.

13. C onstitutional Law C=272
Administrative segregation, when 

limited to three days’ duration pending 
disciplinary action for rule infraction, 
fell within correctional discretion and 
did not violate due process. U.S.C.A. 
Const. Amend. 14.

14. Crim inal Law C=1213
Minimal line separating cruel and 

unusual punishment from conduct that 
is not is the difference between depriv­
ing a state prisoner of privileges he may 
enjoy and depriving him of the basic nc-



j

*

1 :

j.

505 FEDERAL REPORTER, 2d SERIES196

cessities of human existence. U.S.C.A. 
Const. Amend. 8.

15. l ’risons C=13
Prisoners placed in punitive solitary 

confinement must not be deprived of ba­
sic necessities including light, heat, ven­
tilation, sanitation, clothing and a prop­
er diet. U.S.C.A.Const. Amends. 8, 14.

16. P risons C=12
Where evidence indicated th a t  disci­

plinary committee of state prison often 
acted in a summary manner displaying 
an a ir  of hostility towards the inmates 
before it, district court properly ordered 
that future disciplinary proceedings be 
begun within three days of the occur­
rence of the alleged offense, tha t all 
hearings, to the extent possible, be held 
between the hours of 6:00 a. m. and 
6:00 p. m., and that they be reported in 
such a manner tha t a reviewing authori­
ty could determine what had transpired. 
U.S.C.A.Const. Amend. 14.

17. C onstitutional Law C=272
M inimum assurance of due process 

requires tha t state prisoner subjected to 
disciplinary proceedings be given w rit­
ten notice of charges a t least 24 hours 
prior to the hearing, be given a quali­
fied right to call witnesses, and be given 
a written statement of the factual basis 
for the decision. U.S.C.A.Const. Amend. 
14.

18. Prisons C=13
Officer who invokes prison discipli­

nary measures should not.be allowed to 
sit  on the committee to review the m at­
ter. U.S.C.A.Const. Amend. 14.

10. Criminal Law  0=1213
Lack of rehabilitative programs at a 

state prison could, in the face of other 
conditions, be violative of the Eighth 
Amendment. U.S.C.A.Const. Amend. 8.

20. Prisons 0=1
Where state prisoners were faced 

with constant th reat of physical and 
mental abuse if their work or conduct 
fell below arbitrary  standards, where 
they were left almost no time for self- 
advancing activities or recreation, and

where rehabilitative programs were not 
generally available, prison officials 
would be required to submit to the couit 
an overall program for treatment and 
rehabilitation of the inmates a t the state 
prison and a t  state reformatory. U.S.
C.A.Const. Amend. 8 ; Ark.Stats. S 46- 
116.

21. P risons C=4, 13
District court properly enjoined 

prison officials from interfering with 
Black Muslim religious practices, from 

n# prisoners in maximum scout 
rity, and from discriminating in such 
areas as inmate classification, job as­
signments, privileges, personal appear­
ance, and disciplinary proceedings. U. 
S.C.A.Const. Amend. 14.

22. Prisons 0=12
Inadequate resources cannot justify 

failure of state prison system to hire 
black employees and to give them posi­
tions of responsibility. U.S.C.A.Const. 
Amend. 14.

23. Prisons C=12
State prison system would be re­

quired to adopt an affirmative action 
program directed toward the elimination 
of all forms of racial discrimination in 
the hiring and promotion of prison per­
sonnel. U.S.C.A.Const. Amend. 14.

24. P risons C=1
If deemed necessary, inspection of 

outgoing or incoming mail in the pies- 
ence of state prison inmate is never 
objectionable.

25. Convicts C=1
Prisoner does not shed his basic 

constitutional rights a t  the state prison 
gates. U.S.C.A.Const. Amend. 14.

26. C onstitutional Law C=82
State prisoners’ F i r s t  Amendment 

right should not be restricted by govern­
mental interference unrelated to any le­
gitimate governmental objective. U.S. 
(!.A.Const. Amend. 1.

27. Prisons C=4
Neither state prison’s interest in in­

vestigating persons who may wish to 
visit a prisoner, nor the fact tha t some

\
I

!
I

f
l
i

i
I
t
<
c
<•'
oi
n

.T

v
fi



KINNEY v. ARKANSAS HOARD OF CORRECTION
< *ih* ;is .1o."

people do not wish to receive mail from 
prisoners, nor allegation that some peo­
ple, because of their criminal back­
ground, have no right to correspond 
with prisoners, was sufficient to justify 
prison requirement that prisoners not 
correspond with any persons who have 
not previously given their  consent to the 
prison to be sent such correspondence. 
U.S.C.A.Const. Amend. 1.

28. C onstitutional Law  C=82
Person does not forfeit his F irs t  

Amendment rights  simply because he ac­
quires a had reputation and a state pris­
oner does not lose the protection of the 
First Amendment simply because those 
with whom he wishes to communicate 
are disreputable in the eyes of the 
prison administrators. U.S.C.A.Const. 
Amend. 1.

29. Federal Civil Procedure 0=2264
It was error for trial court, which 

was hearing cases brought by state pris­
oners who alleged unconstitutionality of 
the treatment which they were receiving 
in state prison, to fail to make specific 
findings of fact with respect to individ­
ual relief sought by the prisoners, even 
though no requests lor such findings 
were made. Fed.Rules Civ.Proc. rule
52(a), 28 U.S.C.A.

30. Courts 0=406.1 (7)
District court’s error in failing to 

make findings of fact did not deprive 
Court of Appeals of jurisdiction to re­
view the record. Fed.Rules Civ.Proc. 
rule 52(a), 28 U.S.C.A.

31. Courts 0=406.1(7)
An appellate court is in a position 

to render a decision in the absence of 
findings of fact by the lower court if 
the record itself sufficiently informs the 
court of the basis of the trial court’s de­
cision on the material issue or if the 
contentions raised on appeal do not turn 
on findings of fact. Fed.Rules Civ.Proc- 
rule 52(a), 28 U.S.C.A.

32. Courts 0=106.9(1)
Although Court of Appeals mav re­

view a decision in the absence of written 
findings of fact, it may not make such

197
r  CM Mil ( l!)7l)

findings of fact on its own. Fed.Rules 
Civ.Proc. rule 52(a), 28 U.S.C.A.

33. Courts C=400.6( 12)
Federal Civil Procedure C=22«l 
It was prejudicial error for trial 

court to fail to make findings of fact 
with respect to denial of release to state 
prison inmates who alleged tha t  they 
were wrongfully assaulted by prison 
guards and suffered loss of good time 
and that, in one case, inmate suffered 
loss of good time because he was unable 
to work due to foot ailment, as such 
complaints stated claims upon which in­
dividual relief could possibly be proper. 
Fed.Rules Civ.Proc. rule 52(a), 28 U.S 
C.A.

34. Civil R ights 0=13.12(6)
Although state prisoner is not enti­

tled to have his record expunged or cor­
rected simply because the full panoply of 
due process procedures was not granted 
to him, where the challenge is made that 
good time was arbitrarily  taken away 
without any supporting evidence what­
soever, the prisoner states a valid claim 
for relief. U.S.C.A.Const. Amend. 14; 
42 U.S.C.A. $ 1983.

35. C ontem pt C=20
Where, although trial court deci­

sions had indicated disapproval of armed 
trusty program at state prison, where 
there had been no specific order to dis­
continue that program, prison officials 
would not be held in contempt for fail­
ing to phase out the system.

36. C ontem pt 0=21, 23
Before contempt may lie, the parties 

must have actual knowledge of the order 
and the order must be sufficiently spe­
cific to be enforceable.

37. Federal Civil Procedure 0=664
It was e rror  for district court to 

refuse to file petition, in which state 
prisoner sought damages from prison of­
ficials because of an alleged conspiracy 
to murder him, because the court 
deemed petition frivolous on its face; 
the complaint should have been filed 
and, if the district court was still sa tis­
fied that it was frivolous or failed to

j

i

i



505 FEDERAL REPORTER, 2d SERIES198

state a claim for federal relief, district 
court should enter an appropriate judg­
ment. 42 U.S.C.A. § 1982.

28. Civil R ights C=>12.2(1)
Physician's  report which stated 

that, although food service supervisor at 
state prison had tubercular condition, he 
was of no danger to others sustained 
dismissal of prisoner's petition which 
sought injunctive relief against the food 
service commissioner. 42 U.S.C.A. § 
1982.

2!). P risons 0 = 4
Fact that state prison inmate has 

violated the criminal law, is generally 
uneducated, and is in poor health, is no 
justification for inhumane treatment 
and brutality as segregation from socie­
ty and loss of one’s liberty are the only 
punishment the law allows. U.S.C.A. 
Const. Amend. 8.

On Petition For Rehearing
to. Courts 0=100.1 (22)

Appellate court is not a fact-finding 
court and must necessarily render its 
decisions on the evidence and record be­
fore it; it cannot receive new evidence.

41. Courts 0=100.9(15)
Trial court is the only court 

equipped to test evidentiary compliance 
with a court order and the only forum 
in which to raise any allegations of con­
tinuing deficiencies in that compliance.

12. Courts 0=100.9(15)
Where, over one and one-half years 

af te r  district court entered rulings deal­
ing with disciplinary procedures in pris­
ons and prison mailing regulations. 
United States Supreme Court issues de­
cisions on the subjects, it was for dis­
trict court, on remand from Court of 
Appeals, to judge, on the basis of the 
Supreme Court decisions, whether the 
disciplinary procedures and mailing reg­
ulations were in compliance with those

‘ T l i r  I lo iio i .il. li-  K D W A R I )  .1. D E V  I T T ,  
(M iiiT  J u d ^ c . I *11 il«*«i S ta te s  l> is t r i( ‘l ( \ u i r l  
fu r t lic  I >ixl r id  of M in nexo ta, s it t in g  by des- 
i;;nn t ion.

guidelines and it was not for the Court 
of Appeals to make that determination.

48. Prisons C=4
Prison mailing regulation which has 

no specificity is unconstitutional.

Philip E. Kaplan, Little Rock, Ark., 
for appellants in No. 72-1745.

0. II. Hargraves, Asst. Atty. Gen., 
Little Rock, Ark., for appellee in No. 
72-1715.

Before LAY and HEANEY, Circuit 
Judges, and DEVITT, District Judge.*

LAY. Circuit Judge.
In August 1972, the United States 

District Court for the Eastern District 
of Arkansas rendered its decision in this 
class action brought by Arkansas prison­
ers against the members of the Arkan­
sas State Board of Correction, Terrell 
Don Hutto, the Arkansas Commissioner 
of Correction, and other prison officials. 
The petitioners are inmates at the Cum­
mins Prison Farm and the Tucker Inter­
mediate Reformatory. The petitions 
challenge the Arkansas prison system as 
a constitutional system of correction. 
Seven of the petitioners have appealed.** 
They assert error in the district 
court’s findings. We reverse in part 
and remand the case to the district court 
for fu r ther  proceedings consistent with 
this opinion.

This case had its origin in prior liti­
gation. In 19(19 the district court gen­
erally reviewed prison conditions in Ar­
kansas and requested prison officials to 
suggest possible remedial measures. 
Holt v. Server, 200 F.Supp. 825 (E.D. 
Ark.1909) (Unit 1). In 1970, a f te r  ex­
tensive hearings concerning Cummins 
and Tucker, the d is t r ic tco u r t  found that 
conditions and practices at both institu­
tions were such that confinement in ei­
ther constituted cruel and unusual pun-

*+ T l i i s  eo i i r t  on i ts  ow n  m o t io n  Inis eonsnli* 
s ev en  o t h e r  a p p e a l s  o f  a n  A rk a n s a s  

i n m a te ,  . l am e s  ( \  K l l in ^h n r ‘£. to  lie eoitshl- 
ereil w i th  th e  I'inm  // ease .

isI 
Fi- 
St: 
F
i

nix
ed 
em. 
t u t . 
bo 
y  Oil
[
t<
ti
II
tl,
\v 
al 
go 
to; 
th 
tii 

209 i 
T h is  
ed t). 
tion , 
sa la­
th at 
stitut

repori 
ing th
Sarvei
1971).

The 
report 
tional 
her oi 

! 1971, i

! I. T h e
low in -

I T  |l,
and
char:
work
and
th e  i 
nisei I 
‘•onfii 
Minin' 
t a kin;
Sir'll Pi 1 
Mren; 
w ith



FINNKY v. ARKANSAS HOARD OF
1"ill* M S  M:, l-'.LIil l!H I HIT It

COR RUCTION 199

ishmcnt, prohibited by the Kighih and 
Fourteenth Amendments to the United 
States Constitution. Holt v. Sarver, :i0!) 
F.Sttpp. 2(12 ( K.D.Aik.l‘>70) (Unit 11).

In Holt II, the district court recog­
nized that not all of the reforms direct­
ed could be accomplished overnight. It 
emphasized that removal of the unconsti­
tutional conditions and practices would 
be required in a m atter of months, not 
years. It stated:

[T]he obligation of the Respondents 
to eliminate existing unconstitu- 
tionalities does not depend upon what 
the Legislature may do, or- upon what 
the Governor may do, or, indeed, upon 
what Respondents may actually be 
able to accomplish. If  Arkansas is 
going to operate a Penitentiary Sys­
tem, it  is going to have to be a system 
that is countenanced by the Constitu­
tion of the United States.

209 F.Supp. a t 1185.
This court affirmed Holt I I . We direct­
ed the district court to retain jurisdic­
tion for a period no longer “ than neces­
sary to provide reasonable assurance 
that incarceration therein will not con­
stitute cruel and inhuman punishment.

and to require an up-to-date 
report on the progress made in eliminat­
ing the constitutional violations. Holt v. 
Sarver, 442 F.2d 204, 209 (8th Cir. 
1971).

The district court received a progress 
report on July 19, 1971. It held addi­
tional hearings in November and Decem­
ber of tha t year. On December 20, 
1971, it ruled tha t “great progress’’ had

been made but tha t many problem areas 
remained, so it retained jurisdiction. In 
September of 1972 the district court ob­
served that it was continuing to receive 
“a constant stream of complaints” from 
the inmates a t Cummins indicating that 
the defendants were still violating the 
court’s initial and supplemental decrees.1 
The court ordered a fu rther evidentiary 
hearing. Lengthy hearings were con­
ducted in December, 1972, and January, 
1972. More than 20 inmates testified. 
Numerous defense witnesses also testi­
fied. The court denied individual relief, 
but granted petitioners a second supple­
mental decree enjoining certain practices 
of the Department of Correction. The 
district court also determined that it 
was no longer necessary to retain ju r is ­
diction of the case. It  is from this de­
cree tha t the petitioners have appealed.

Practice and Procedure Under S 1983
[1] We recognize tha t the district 

court has received literally hundreds of 
complaints from Cummins prisoners and 
that until prison conditions change, the 
steady stream of prisoner complaints 
will continue. We arc mindful as well 
of the administrative burden placed 
upon the Arkansas prison officials who 
must respond to individual grievances. 
We further realize tha t the judicial 
process often fails to provide needed re­
lief promptly. Surely prisoners are also 
aware of the slowness of the judicial 
process, but until conditions change, 
prisoners have no recourse but to take 
their constitutional complaints to the 
courts.-’ Bv now state correctional au-

I. The cour t  noted ;it (lint t ime lici t tin* fol­
lowing clmrgcs were being made :

IT | l in t  inm ates  a re  being beaten, cursed, 
and abused by employees having them in 
charge;  tha t  inm ates  assigned to field 
work a re  being forced to trot or  mil  to 
and from work and to run  tip and down 
the rows while w ork in g ;  th a t  inm ates  ac ­
cused of rule vio lat ions nee sentenced to 
confinement in isolat ion in an a rb i t r a ry  
m an n er ;  tha t  homosexual a s sau l t s  are  
taking p lace :  t h a t  inm ates  have been a s ­
signed to tasks  beyond th e i r  physical  
s t r en g th :  th a t  inm ates  a re  not provided
with p roper  medical a t t e n t io n ;  and  tha t

they  a re  being re ta l ia ted  ag a ins t  or 
th rea tened  with re ta l ia t ion  for a i r ing  the ir  
g rievances to the C ourt .

Record a t  -1” ”>.

2. In C ruz  v. Roto, -Kir. C .S .  dill .  !»2 S.Ct. 
KITH. :;i R.Kd.l'd 9Ud (1079),  the Suprem e 
C o u r t  faced a case in which a p r isoner 's  
complaint had been dismissed w ithou t  a 
hear ing  o r  findings. T h e  Court  s a id :

Federa l  cou r ts  sit not to superv ise  prisons 
but to enforce the  c o n s t i tu t iona l  r igh ts  of 
all "persons ,” including prisoners. We 
a re  not unm indfu l  th a t  prison officials 
m us t  be accorded la t i tude  in the adminis-

I

\
|
f
i
l

(
;

i



:I

I

200 .')().') FEDERAL REPORTER, 2d SERIES

thorities should have provided facilities 
and programs consistent with constitu­
tional standards. As the respondents 
urge, there is no such thing -as a per­
fect” prison system, hut this does not 
relieve respondents of their duty to make 
their  system a constitutional one in 
which the human dignity of each indi­
vidual inmate is respected.-1

Substantive Review
We turn  now to a consideration of the 

district court’s decree and its supporting 
memorandum opinion. It has been said 
many times tha t  the courts possess no 
expertise in the conduct and manage­
ment of correctional institutions. This 
court has long recognized tha t  it is only 
in the exceptional case where the inter­
nal administration of prisons justifies 
judicial supervision. On the other hand, 
courts need not he apologetic in requir­
ing state officials to meet constitutional 
standards in the operation of prisons.

The district court found tha t  signifi­
cant progress and improvements had 
been made at both the Cummins and 
Tucker institutions since Holt II. It 
noted a “changing attitude and e ffo rt” 
on the part  of the Arkansas Legislature, 
the present governor of Arkansas, his 
predecessor, the Board of Correction, the 
Commissioner and many employees of 
the institutions. The court found that 
those practices complained of in Holt II 
were now not officially approved or 
sanctioned. The district court did ac­
knowledge that some constitutional defi­
ciencies still existed and on that basis 
granted the class certain additional in­
junctive relief. However, the court

.................... prisnu affa ir* , ami tlisit prison-
it s  iHMvssnrily a rc  to appropriat**
roll's mi<l r rp i la t io n x .  I »i 11 persons in
prison, like oilier individuals. Iiavr tin' 
ri;dU to petit ion the 1 o n  eriiinent for re­
dress of gricviiiMT.s which, of course, in ­
cludes ’-access of p r isoners  to the  cour ts  
for t h e  purpose id* p resen t ing  th e i r  com­
p la in ts ."  Johnson  v. Avery, .tlt-t I .^- Is.,. 
is.1 I S !l S . t ’t. TIT. TIM. 'Jl U.Kd.'Jd T I S | :  
K \  pa r te  Hull, rtlli I ' .S .  Alt;. AIM | til s . n .  
f,|(l. ( II I .  SA I,.I'M. 10-'!I|. See also
Younger  v. (iil inore. Hit L .S .  l-» 1MJ S M I-

found no need to retain jurisdiction of r:
the case. a.

[2] This court recognizes the diffi­ bi
cult issues the district court has passed .'lOD
upon since the commencement of this lit­ The
igation in IOCiM. We are nevertheless senci
compelled to find on the basis of the It ol
overall record tha t there exists a con­ sas .
tinuing failure by the correctional au­ mate
thorities to provide a constitutional and. provi
in some respects, even a humane environ­ assau
ment within the ir  institutions. As will mates
be discussed, we find major constitution­ Comn
al deficiencies particularly a t Cummins !

j that l
in housing, lack of medical care, inflic­ 1 were
tion of physical and mental brutality 1' disrep
tint! to rture  upon individual prisoners, i

i deploy
racial discrimination, abuses of solitary i

' In t
confinement, continuing use of trusty in 107
guards, abuse of mail regulations, arbi­ j a reali
t ra ry  work classifications, a rb i tra ry  dis­ ! heritor
ciplinary procedures, inadequate distri­ i Cor reel
bution of food and clothing, and total 1 strong!
lack of rehabilitative programs. We are j so-calle
therefore convinced that present prison overcro
conditions, now almost five years after howevet
Holt I, require the retention of federal i

i I'/c yea
jurisdiction and the granting of further 1

barrack
relief. i without

/ ’ h i/s ico l Fo cilit ics mately i
* in each

forth a detailed description of “ life in 
the barracks” at the Cummins and Tuck­
er Farm s:

A barracks is nothing more than a 
large dormitory surrounded by bars; 
the barracks are separated from each 
other by wide hallways, and the com­
plex of hallways is referred to as the 
“yard.” At the present time the bar-

■JAO, ::<> I,.IM.'_M l l ' J I .  nff'g t ii linore v.
I.yncli. AIM K.Supp. IMA tNUt'nl.).

/,/. ItlA I'.S. Ill Ml! S.t’t. at 1US1 : -we
illsn iiaincs v. Kci-ncr. -101 1 -S. ulM. MJ S. 
Cl. AMI, .-.(I b.Kd.’Jd tio” ( IMT’J ).

3. The ndininist rat ivc hurden placed upon I In; 
state by this never-ending stream ot S IM-S.J 
iniu.’ite complaints should encourage it to 
adopt more effective prisoner grievance pro­
cedures. ('/. Inmate tlrievanco I'rocedures, 
South Carolina .................. of Corrections
t imt:i>.

Mr. Hut 
cannot 
more tha 

Some
undertak- 
is under 
facility, 
rooms fo 
° f  the (i 
The new 
in the bar 
imum see 
bouse 8 0  t, 

While II 
sary to co 
II, the r, 
overcrowdi

4- In this r, 
U is |||,. 
that bill • 
world jie

505 F. 2,1



racks house more than 100 men each 
assigned without reward to anything 
but rank and race.

:50!) K.Supp. at 276.
The court also described the total ab­
sence of personal safety and security.
It observed that if the State of Arkan­
sas chose to confine penitentiary in­
mates in barracks, some means had to be 
provided to protect those inmates from 
assault and physical harm by other in­
mates. At the trial of tha t case, then- 
Commissioner Sarvcr “ frankly admitted 
that the physical facilities a t both units 
were inadequate and in a total state of 
disrepair that could only be described as 
deplorable.” 4-42 F.2d a t  208.

In the report submitted to' the court 
in 1971, Commissioner Hutto expressed 
a realization of the problem he had in­
herited when he said: "The Board of
Correction and this Administration feel 

. strongly that the greatest problem in the 
so-called barracks is the problem of 
overcrowding.” Despite this realization, 
however, and the passage of more than 
1V-. years, there is continued use of the 
barracks and continued overcrowding 
without adequate supervision. Approxi­
mately 125 to 125 men are still confined 
in each of the various barracks despite 
Mr. Hutto’s concession that the barracks 
cannot be successfully operated with 
more than 60 to 80 inmates.

Some major improvements have been 
undertaken. A minimum security unit 
is under construction at  the Cummins 
facility. I t  will provide individual 
rooms for each of 248 inmates. Many 
of the trusties will be housed there. 
The new unit will reduce overcrowding 
in the barracks. In addition a new max­
imum security unit has been built to 
house 80 to 90 inmates.

While these improvements were neces­
sary to comply with the decree in Holt 
II, the record indicates that serious 
overcrowding has not been eliminated

}

4. In  this regard t 'o m niiss ioner  l i u t t o  s t a le d :  
I t  is the experience of th is  A d m in is t ra t ion  
th a t  only  ad equa te  supervis ion  by free- 
world personnel can ami will a s su re  in-

t
u .

mates still occur.4 Moreover, relief will 
apparently be short-lived, for the tes ti­
mony reveals tha t inmate population in­
creases each year.

[4-6] When a state confines a per­
son by reason of a conviction of a crime, 
the state must assume an obligation for 
the safekeeping of that prisoner. One 
means of protecting inmates from each 
other is provision of adequate physical 
facilities. Long-range plans provide no 
satisfactory solution to those who are 
assaulted and physically harmed today. 
The fact tha t assaults and physical inju­
ries have diminished does not demon­
stra te  compliance with the court’s decree 
of four years ago. The fact that there 
is some compliance is not good enough. 
As long as barracks are used respond­
ents must  assure tha t they are not over­
crowded and are safe and sanitary  for 
every inmate. There can be no excep­
tions. Upon remand, the district court 
shall meet with counsel and the respond­
ents to devise a program to eliminate 
immediately the overcrowding of the 
barracks and to ensure the safety of 
each inmate. Lack of funds is not an 
acceptable excuse for unconstitutional 
conditions of incarceration. An immedi­
ate answer, if the state cannot otherwise 
resolve the problem of overcrowding, 
will be to transfer  or release some in­
mates. The district court shall also sa t­
isfy itself tha t  no additional prisoners 
will be confined at the Cummins Prison 
Farm  if their confinement will result in 
continued overcrowding and perpetua- 
tion of conditions which fail to provide 
optimum safety and sanitation for every 
inmate.

[7 ,8 ]  One fu r ther  problem arises 
from the overcrowding and inhumane 
conditions a t Cummins. Youthful of­
fenders confined at Tucker, the reforma­
tory, have been transferred  to Cummins, 
the adult facility, because they posed

m ates  personal securi ty  ami sa fe ty  w heth ­
e r  w ork ing  in the fields or  elsewhere.

Record  at

505 F. 2d—13»/a



202 .->05 FEDERAL REPORTER, 2d SERIES

!

i!

disciplinary problems for Tucker person­
nel. At Cummins the youths are housed 
either in solitary confinement for their 
own protection or placed in the genet al 
prison population. As .Judge Henley ob­
serves, one could seriously question 
which is worse. Apparently, some such 
transfers  have been completed quite 
summarily. The petitioners state that 
Tucker offers better conditions of con­
finement with greater possibilities for 
rehabilitation. They contend tha t  any 
transfer  to Cummins, since it amounts 
to a material change in their  conditions 
of confinement, must be accompanied by 
procedures consistent with due piocess. 
The trial court agreed and granted some 
relief by requiring hearings on retrans­
fer within a shorter period of time and 
at more frequent intervals. We need 
not pass on the due process issue for we 
feel that the transfer  of juvenile offend­
ers to Cummins is cruel and unusual 
punishment while unconstitutional condi­
tions continue to exist there. We there­
fore direct the district court to enjoin 
any transfers  from Tucker to Cummins 
until the constitutional infirmities with­
in the latter institution are removed.

Medical and Dental Facilities and Care 
The respondents, through the testimo­

ny of Mr. Lockhart and Commissioner 
Hutto, agree tha t the medical facilities 
within the Arkansas correctional system 
are totally inadequate.

| <) ] At the time of the hearings, no 
physician, dentist or psychiatrist was 
employed by Cummins, although Mr. 
Hutto testified that a full-time doctor 
was being hired. A number of Cum­
mins inmates are either mentally or 
emotionally disturbed. These people aie, 
as the district court found, “dangerous 
to themselves and to their  keepers and 
other inmates and tend to keep other in­
mates in states ol unrest and excite-

5. T h e  A rk a n sa s  Hoard of Correc tion  sought 
mil a com m it te r  composed of seven physi- 
cions, four pharmacologists ,  one hospital ail 
m in i s t r a to r  ami one psychologist to visit the 
medical facili ties of the A rk an sas  prison s y s ­
tem and m ake reeomtnendations. 'I 'heir ce­

ment.” Holt v. Hutto, 3G3 F.Supp. 104, 
200 ( E.D.Ark. 1973). In addition the 
district court found that many inmates 
have serious physical ailments which 
render confinement in the ordinary pe­
nal institution unbearable for them and, 
in the case of contagious diseases, dan­
gerous for others. The district court 
found that deficiencies have existed and 
continue to exist but tha t ‘ the Depait- 
mont has done the best that it could in 
the area of medical services with the re­
sources at its command.” 3G3 F.Supp. 
at 200. We find the problem to be much_ 
more complex and serious than this, and 
assuming the deficiencies are of a con­
stitutional nature, we again cannot 
agree tha t lack of funds or facilities jus­
tify lack of competent medical care.

Subsequent to the decision in Holt II, 
Dr. T. II. Wortham, a member of the 
Board of Correction, requested the Ar­
kansas Department of Health to evaluate 
the medical tacilities of the Depaitmcnt 
of Correction. Its report, which was of­
fered in evidence, is a comprehensive 
and detailed study encompassing the 
whole health delivery system, including 
the future workload, the facility needs 
and recommended action. The report 
s tates:

One basic assumption is made upon 
which this study is built. I t  is this: 
the primary purpose of the correction 
system is to rehabilitate inmates so 
tha t they become productive citizens 
and a basic level of medical care is a 
necessary part  ot the rehabilitation 
process. This assumption includes the 
notion that a poor state of physical or 
psychological health will detract from 
rehabilitation efforts. Also included 
in this assumption is the concept that 
medical facilities, acceptable in quality 
and quantity, are a necessary part or 
[ .sic 1 providing this level of medical 
care/'

port para l le ls  llial of tin- D ep a r tm en t  of 
H eal th .  They  s ta le d  :

All tnenihers of the visiting team consider 
that  all inm ates  have a hash- right to med­
ical. dental  and psychological diagnosis,  
study and t rea tm en t .  We also l e d  that  it 
is hash- that  rchah i l i ta t ion  is the  goal of



r  I i\ A rJ i v.
< III- JIN .14).]

The report itself illuminates a total dcfi

AKI\AiSSAS BOARD OF CORRECTION
('ill- ii-. "Kir, I'.LM |>i| ( IJI7I, 203

ciency in both manpower and equipment 
resources. We highlight only some of 
those deficiencies found to exist a t  Cum­
mins :

1. Lack of sufficient personnel to 
s taff  the facility on a 21-hour basis 
with free world help. Along with the 
added staffing, salary increases arc 
necessary to retain those now cm-

' ployed.
2. The equipment is completely inad­
equate to continue present operations 
at an acceptable level.
•3. There is a tremendous need for 
more professional assistance. The 
lack of a physician at more frequent 
intervals places an unreasonable bur­
den upon the present employees since 
they are called upon to do work which 
they are not qualified to perform.
4. Better transportation is needed if 
the present operation is maintained. 
There is an immediate need for an 
ambulance. The time and effort in­
volved in transfers  to Little Rock is 
very time consuming for the already 
overworked staff. In addition, it has 
resulted in 4 escapes during the peri­
od studied. .

There is no registered professional 
nursing supervision at either of these 
medical facilities. Also, data gathered 
strongly suggests that in some cases a 
physician is not responsible for some 
of the medical care which is rendered. 
Therefore, even if only temporary 
medical care was offered at  these fa­
cilities, the standards for licensure as 
an infirmary would not be met.

Some definitive, non-temporary, 
medical care is provided at  Cummins. 
The length ot stay of admitted pa-

prisons r a th e r  Ilian punishm ent .  \ \Y  be­
lieve tha t  a fact of basic wholeness of the 
person is an interest  in his physical  self 
‘""1 this in te res t  should he s t im ula ted .  6

6. At the T u ck e r  In te rm ed ia te  Reform atory  
the report  relates in p a r t  a s  follows:

-Medications a r e  ob ta ined from the C um ­
mins un i t  as needed. T h e re  is a p p a re n t ly

tients indicates that the medical unit 
could be better defined as a hospital. 
If the Cummins unit is, in fact, a hos­
pital and not ;m infirmary, deficien­
cies exist in all major areas of the li­
censure regulations.

Hospital requirements for physi­
cians’ care, nursing, medical records, 
patient accommodations, diagnostic 
and treatment service, dietary serv­
ices, and physical facility are all sig­
nificantly lacking.

In fact, some patients appear to not 
be under the care of a physician, there 
is no professional nursing, required 
medical records are only partially 
maintained, basic laboratory and x-ray 
services are only partially available, 
no professional dietary service is pro­
vided, and a great many facility and 
enviionmental standards are not cur­
rently being met.

The Committee summarized:
Cuirent facilities do not meet state 

licensure standards.
Diagnosis and treatment of emer­

gency and acute illness is not ade­
quately provided for due to a lack of 
facilities, equipment, and only part- 
time availability of professional medi­
cal staff.

Efforts  of the Rehabilitative Serv­
ices unit arc not fully coordinated 
with efforts of the other medical dis­
ciplines.

Convalescent care and chronic ill­
ness treatment is provided in State 
Health facilities located in Little Rock 
and Booneville. A security problem is 
related.

Construction of adequate medical 
care facilities is justified on the basis 
of workload. 8

no resource iivtiiltihlo for s teri le  supplies 
for t rea tm en t  of injuries .

An in terv iew  w ith  the T u c k e r  medic dis­
closed the following se rious problems :
1. Luck - of  personnel  a t  the i n f i r m a r y : 
there  p resently  is no o th e r  posit ion a u th o ­
rized and  the sa la ry  level is to ta l ly  made- 
qunte  lo a t f r a e t  qualified personnel.

X - ray  facili ties a r e  needed.



r,0.'> FEDERAL REPORTER, 2d SERIES204
The record additionally shows that 

there are no dentists a t  Cummins 0 1  
Tucker. When a dentist does visit, no 
restorative work is done. Although the 
evidence indicates tha t prisoners who 
need major dental work, such as extrac­
tions, are taken into the dentist a t  Pine 
Bluff, the record likewise shows that 
none of the 12<)0 inmates a t  Cummins 
had made such a visit for a period of at 
least eight months prior to the district 
court hearing.

| 10] The long-range studies conduct­
ed by the Board of Correction were 
made over two years ago. Mr. Hutto 
testified tha t a complete medical facility 
was to be built in the future. There is 
no question that Commissioner Hutto 
and the Board of Correction feel tha t 
they “ mnst have a full service medical 
and dental program, even to the point of 
restorative medical and dental problems.” 
Nevertheless, on the present record, 
we are convinced that they have 
achieved little more than a study and a 
hope to improve the present inadequate 
care. This court fully realizes, as did 
the district court, tha t  this is a difficult 
problem for the Board of Correction and 
prison officials. In the meantime, how­
ever, 1200 inmates are continuously de­
nied proper medical and dental care, and 
individuals with contagious diseases, as 
well as some who are mentally and emo­
tionally ill, are a t large in the general 
prison population. There is not even ba­
sic emergency service, much less any as­
surance. of more complete medical t rea t­
ment when necessary. We think it  in­
cumbent upon the court to hold addition­
al hearings and to delineate within spe­
cific terms and time limitations not only 
an overall long-range plan but an imme­
diate plan to update all medical equip­
ment a t all facilities, ensuring tha t  ev­
ery inmate in need of medical attention 
will be seen by a qualified physician 
when necessary. We refer the court to 
the comprehensive decree of Chief Judge

'I'll!' ile n (iiI <-<|iii|>in<*iit is  n n lii|u n li'< l m ill 
in  l ic n l  of
I. Ki|ui]iini-nt fur t r e a t i n g  lacera t ions  is 
en t i re ly  inai lequate.

Johnson, in Newman v. Alabama, .549 h . 
Supp. 278, 28(3-288 (M.D.Ala.1972), as a 
guide.

Inmate Guards
[11| Perhaps the most offensive 

practice in the Arkansas correctional 
system at the time of Holt 11 was the 
use of armed trusties as prison guaids. 
As recently as 19G9, fully 90 percent of 
the security force of the Arkansas prison 
system consisted of such inmate guards. 
They virtually ran the prison. They sold 
desirable jobs to other prisoners and 
trafficked in food, liquor and drugs. 
There was no way to protect prisoners 
from assaults if the trusty guards per­
mitted them. Several months af te r  the 
district court ordered abolition ot the 
trusty system in Holt 11, Commissioner 
Hutto reported:

T h e  Trusty  System of armed guards 
has not in fact been dismantled at ei­
ther Cummins or Tucker. The efforts 
which have been made have succeeded 
reasonably well in removing much of 
the power formerly held by the trus­
ties and placing this power into the 
hands of civilian personnel. Armed 
Trusties are being used on the towers 
a t both Tucker and Cummins and arc 
used to guard outside work forces. 
This is done, however, under the di­
rect. supervision of a civilian supervis­
or, who is present at all times with 
the work forces. Trusties have been 
removed completely from any respon­
sibility or authority regarding inmate 
job assignments, promotions and de­
motions, and all disciplinary matters 
are handled by free world personnel. 
Even in institutions where there is a 
large number of experienced em­
ployees there is the constant dangci 
tha t “ trusted" inmates exercise subtle 
influences on s ta ff  in the area of job 
assignments and discipline. In a sys­
tem such as this where there is still 
some shortage of employed personnel

r,. Iailioniliirv i-i|uilitiit*iit is i m i l t o
IMTforin mul im* Irs ls.



205HNNEY v. ARKANSAS HOARD OF CORRECTION
< It «• Us o<)», I

and many of these have little or no ex­
perience, this problem is more acute 
and, realistically, one must admit that 
this is a daily problem with which we 
have to deal. ( Emphasis added).
The record is deficient in updating 

this report. However, the inmate com­
plaints make it appear tha t the Commis­
sioner’s 1971 report represents the s itu­
ation as of January  1973. Apparently 
some use of t rusty  guards continues at 
this time. This court affirmed the dis­
trict court’s opinion in Holt II. with em­
phasis on the admonition tha t trusty 
guards were not to perform prison jobs 
which ordinarily would be performed by 
free world personnel.

In Holt I I  the district court found the 
use of field guards objectionable. I t  ob­
served :

The system of field guards and the 
system of using trusty  long line riders 
and inmate pushers go hand in hand, 
and the combination of the two is one 
of the things tha t makes the field 
guard system so dangerous to rankers. 
Field guards are much less likely to 
fire on a ranker or on a group of 
rankers in the immediate presence of 
a civilian long line supervisor than 
they are in a situation where the 
rankers are actually being worked by 
other inmates. I t  appears to the 
Court that the answer, however unpa­
latable it may be. is to eliminate the 
positions of long line rider and inmate 
pusher and to put each long line under 
the immediate charge of one or more 
free world people.

309 F.Supp. a t  384.
Although the district court in Holt II  
found the use of t rus ty  guards in the 
towers less objectionable, tha t did not 
mean that it was to be continued.

We feel the time for dismantling the 
entire system has long passed. The dis-

7. Tim court  s t a t e d :

Those employees have in general  been re ­
cruited lo c a l ly ; they  a rc  poorly paid by 
modern s t a n d a rd s ;  they have  bad l i t t le  
t r a in ing  or  exper ience ;  m any of them are 
uncultured  and poorly educated ; some of

Cd 101 ( 1071)

tr ic t court shall order that it be com­
pletely phased out within a few months.
I ’ln/nicul and Alrntal lirultrlil//

The district court supplemented its 
decree of December 80, 1971, by staling:

(g) Without limiting the generality 
of the term “cruel and unusual pun­
ishment” appearing in Paragraph -1 of 
the Court’s Supplemental Decree of 
December 30, 1971, tha t  term is now 
defined as including the infliction 
upon any inmate of the Department of 
Correction of any unreasonable or un­
necessary force in any form, the as­
signing of any inmate to tasks incon­
sistent with his medical classification, 
the use of any punishment which 
amounts to torture, the forcing of any 
inmate to run to or from work, or 
while a t work, or in front of any mov­
ing vehicle or animal, and the inflic­
tion of any punishment not authorized 
by the Department’s rules and regula­
tions.

In its memorandum order the district 
court pointed out that Commissioner 
Hutto, Superintendent Lockhart and the 
other high-level officers were qualified 
for their iobs and were attempting to 
perform well. However, the court ex­
pressed concern over the lower echelon 
of prison personnel.7 The court’s find­
ings and discussion concerning habitual 
harassment of inmates bv prison per­
sonnel, through physical and mental 
abuse, covers several pages of its opin­
ion. As the court indicates, the con­
tinuing presence of instances of brutality 
is

. particularly significant here 
in view of the long history of b ru­
tality to inmates of both Cummins 
and Tucker tha t  was practiced for 
so many years and that has been 
described in detail in earlier opinions

tliom a re  qu i te  young. perhaps  too young 
to lie i n p o s i t i o n  of  a u th o r i ty  over con­
v ic ts ;  some of them  are  quick tempered. 
If  one adjective is to lie used to describe 
tbeni,  ir would be "unpro fess iona l .”

8<>3 F -Supp . a t  1101.



206
505 FEDERAL REPORTER, 2d SERIES

of this Court and the Court of Ap­
peals.

1563 F.Supp. a t  212.
U nquestionably  the D epartm ent of 
C orrection has adopted a po c. 
dem ning all form s o f ^ u s e o f . n m a L .  
C om m issioner H utto  issued  h is  pohc> 
m em oranda p roh ib itin g  P yh* ‘ c 
o f in m ates” in D ecem ber o f 1971. N 
crth e less, there is  evidence as ot U m  

ary  1973 th a t excess ive  force, v e ib a l 
abuse and variou s form s o f torture an 
inhum ane punishm ent continue.

The district court demonstrated a 
keen perception and understanding 
how conflicts arise between prison I>e - 
sonnel and inmates. The court points 
out tha t  the overall working conditions 
and prison environment provide a fu t i le  
J r o l l  to.- continued . h * ; and ».oU- 

„ t  earlier deereos. Altho»«h U» 
distric t court did not find the prwoi 
working conditions so harsh cons i
tute cruel and unusual punishment in 
S l a v e s .  it ol,nerved th a t  the tnn.aten 
on the “hoe squads” are m p m e d  to 
work long hours under constant I 
ding;, that a t  times inmates are a . - 
signed to work at tasks beyond then 
strength or medical ability; and that 
older or weaker inmates are requned to 
keep up with the younger inmates a t  ai- 
duous tasks under th rea t of disciplinary 
proceedings. The court found evidence 
tha t the inmates arc a t  times still foioc 
to run to and from work or while at 
work, and that some crews arc re q u u u  
to race with another crew in the P 
formance of the same type- oi 
The record indicates tha t  the in * •
have been required to run in front of 
moving vehicles or ridden horses. I >- 
S l y ,  even af te r  Holt II, a young boy 
named Willie Stewart was given a w  
dai, sentence. On tha t  day he was put 
through all forms of mental am Ph>'* C; 
torture, ending when the guards shot at 
his feet and inadvertently lolled lun . 
This “treatment,” according to Mr H u t­
to, has stopped. Unfortunately it took
the life of a young prisoner, l a th o  <

tr, n c c n m i )  l S I l  1L.

In addition to physical abuse the 
record reveals tha t the prison personnel 
a t all levels employ profane, threatening, 
abusive and vulgar language, toge the  
wUh racial slurs, epithets, and sexual 
and seatalogical terms when addressing 
inmates. Conduct prohibited by official 
prison rules is freely engaged in.

i p i i  We have discussed previously 
the departmental obligation to protect

j l a  to  » M  >»«* ^  “ d
tal abuse by the correctional s taff  and 
other inmates. The continued infliction 
of physical abuse, as well as mental dis­
tress degradation, and humiliation by 
correctional authorities demonstrate 
that mere words are no solution. Sue 
unlawful conduct by correctional peison- 

1 is of major significance leading to 
this court’s finding that the present 
correctional system in Arkansas is stih 
unconstitutional. For this reason. £  
well as thus.- stated elsewhere, the d.s 
tr ic t court shall retain jurisdiction and 
take if it deems advisable, additional e - 
idence on those conditions of confine-

• xnent. hiring policies, working conditions 
and disciplinary measures which must 
be changed in order to provide a con­
tinuing prophylaxsis against such c u d  
and inhumane treatment.

This court finds that the piesent 
working conditions are unconstitutional 
and must be radically changed If a 
man works too slowly or refuses to work 
he not only loses his entitlement to s ta t­
utory good time (Ark.Stat.Ann. s 
120 et seq. (1973)), but faces solitaiy 
jonfinom oit *  wdl.
echelon personnel are given th t  p0* \  
impose additional mental punishment y
threatening solitary confinement to
those who do not work to then  s, - ‘ 
tion. Arbitrary power is thus placed 
the hands of persons obviously lacking 
the discretion to exercise it  wisely. Ab­
sent evidence of qualified supervisors 
for the work crews, a possible solution is 
t() deprive the line guards of this power. 
The district court should review these 
conditions bearing in mind this co u i ts

* U ̂  nAiivi



FINNEY v. ARKANSAS BOARD OF CORRECTION
c i t e iin non tutu m i  ( 207

and treatment for the prison population 
and the resultant physical and mental 
abuse.

Maximum Seen r it ;/

One of the principal grievances in 
both Holt I and Holt II  concerned the 
intolerable conditions in the old maxi­
mum security units at Cummins. Since 
Holt II, a pew facility has been con­
structed alleviating to a great extent 
problems of sanitation and overcrowd­
ing- Some problems remain, however. 
One such problem is the practice of plac­
ing inmates awaiting disciplinary hear­
ings in punitive, solitary confinement. 
This court has previously held that soli­
tary confinement is not, per se, cruel 
and unusual punishment.* Burns v. 
Swenson, 430 F.2d 771. 777-778 (8th 
Cir. 1970) cert, denied, 404 U.S. 1002, 
02 S.Ct. 743, 30 L.Ed.2d 751 (1972). 
Under certain circumstances, such con­
finement can violate the Eighth Amend­
ment. This fact was demonstrated in 
the original Holt decisions.

[13] Complaint is made by prisoners 
who are placed in isolation for “adminis­
trative segregation,” pending discipli­
nary action for rule infraction. Judge 
Henley limited this segregation to three 
days’ duration. 363 F.Supp. a t 207. 
It e find such administrative segregation 
as limited by the trial court to fall with­
in correctional discretion and not to vio­
late due process. We assume, of course,

8. At the same time we cannot  help lair ob­
serve th a t  a recent s tu d y  conducted h.v the 
-National Advisory Commission on Crim inal  
Just ice led to the following observation  by 
that  g ro u p :

The Commission recognizes th a t  the field 
of corrections can n o t  ye t  be persuaded to 
give up the p rac t ice  of so l i ta ry  confine­
ment as  a d isc ip l inary  measure ,  ftut the 
t oimnission wishes to record its view th a t  
the practice is inhum ane  and in the long 
run bruta l izes those who impose it as it 
brutalizes those upon whom it  is imposed. 

Report on Corrections. T h e  N at ional  Advi­
sory Committee on C r im ina l  Ju s t ic e  yttand- 
ards and Coals,  p. 32. .

9- Nee, c.rj.. L an d m an  v. Roys ter ,  333 F .S upp .  
b-1 ( E. L>.\ a.111 < 1), where  the  co u r t  consid­
ered a bread and w a te r  diet :

tha t  if disciplinary action is not taken 
against the inmate for lack of evidence, 
full privileges will be restored and tiny 
good time he would have earned ir the 
opportunity had been available will be 
credited to him.

[14, 15] In the punitive wing, we 
note the prisoners are denied the regular 
prison diet. “Grue” is the term applied 
to the tasteless, unappetizing paste-like 
food which is served to prisoners in soli­
tary confinement as a form of further 
punishment. In Holt /, the district 
court found tha t  grue constituted a nu­
tritionally sufficient diet. 300 F.Supp. 
a t  832. The procedure followed by pris­
on authorities when an inmate is placed 
on grue, however, makes tha t  conclusion 
dubious. The prisoner receives one full 
meal a t least every three days and six 
consecutive full meals every 14 days. At 
the end of tha t period, he is given a thor­
ough physical examination. I f  medical 
reasons dictate a regular diet then it is 
ordered. Otherwise the prisoner is con­
tinued on this punitive treatment. This, 
in itself, indicates an awareness of pos­
sible dietary insufficiencies. There ex­
ists a fundamental difference between 
depriving a prisoner of privileges he 
may enjoy and depriving him of the ba­
sic necessities of human existence.9 We 
think this is the minimal line separating 
cruel and unusual punishment from con­
duct tha t is not. On remand, the dis­
tr ic t  court’s decree should be amended to

T h e  prac t ice  is therefore  both generally  
d isapproved and  obsolescent even w ith in  
th is  penal system. I t  is not seriously de­
fended as essential  to securi ty .  It 
a m o u n ts  therefore to a n  unnecessa ry  in­
f l ic tion of  pain .  F u r th e rm o re ,  ns a tech­
n ique  designed to b reak  a m an 's  sp i r i t  not 
j u s t  by denial of physical com forts  but  of 
necessi ties , to  the  end th a t  his powers of 
resis tance  d iminish, tin- bread  and  w a te r  
d ie t  is inconsis tent  with  c u r re n t  m inimum 
s ta n d a rd s  of  respect for h um an  dignity. 
T h e  Court  has  no d if f icu lty  in de te rm in ing  
t h a t  it is a violation of the eighth am end­
ment. J a ckson  v. l i ishop, -101 F.2d ."71 
(Nth Cir.  1 lifts) ; W right v. M eM ann, 321 
F .S u p p .  127 (X .D.N.Y. 111701. 

hi. a t  (117.

I

t

It

I

i !

i \i ■!



208 505 FEDERAL REPORTER, 2d SERIES

ensure tha t prisoners placed in punitive 
solitary confinement are not deprived of 
basic necessities including light, heat, 
ventilation, sanitation, clothing and a 
proper diet.

Disciplinary Process
The district court reviewed the disci­

plinary procedures employed in the A r­
kansas prison system and found them 
lacking in several particulars of due 
process. It granted a measure of in­
junctive relief. We agree with the re­
lief granted, but in view of the Supreme 
Court’s subsequent decision in Wolff v. 
McDonnell. 418 U.S. 539, 94 S.Ct. 2968, 
41 L.Ed.2d 925 (1974), we feel more is 
required.

[1 6 1 The district court found that 
the disciplinary committee often acted in 
a summary manner displaying a decided 
a ir  of hostility toward the inmates be­
fore it. Accordingly, the court ordered 
that future disciplinary proceedings 
must be begun within three days of the 
occurrence of the alleged offense. It 
also ordered tha t  all hearings, to the ex­
tent possible, be held between the hours 
of 6:00 a. m. and 6:00 p. m., and that 
they be reported in such a manner that 
a reviewing authority could determine 
what had transpired. 368 F.Supp. at 
207-208.

[1 7 1 The petitioners on appeal ob­
ject to the following aspects of the disci­
plinary procedure now in force: I I )  the 
possibility tha t the same person who 
wrote the disciplinary may sit in judg­
ment. (2) the absence of a r ight of con­
frontation, (3) lack of sufficient prior 
notice of charges, and (4) the lack of 
any duty upon the “court” to explain the 
basis for the result reached. In Mc­
Donnell, the Court held tha t prison dis­
ciplinary proceedings must contain the 
following safeguards: (A) written no­
tice of charges a t  least 24 hours prior to 
the hearing; (B) a qualified right to

10. M c lh m n c ll  m akes H e a r  tlmt prison a u ­
thor i t ies  may rejeet the  p r isoner ’s request
to eall witnesses where securi ty  problems

call witnesses,lH and (C) a written state­
ment by the committee of the factual ba­
sis for its decision. These procedures 
constitute the minimum assurance of 
due process.

[181 There is evidence tha t on occa­
sion the same officer who invokes disci­
plinary measures sits on the committee 
to review the matter. This practice has 
been unanimously condemned by those 
courts which have considered it. United 
States ex rel. Miller v. Twomey, 479 F.
2d 701, 715-716 (7th Cir. 1973); Sands 
v. Wainwright, 357 F.Supp. 1062, 1084- 
1085 (M.D.Fla.), vacated, 491 F.2d 417 
(5th t ’ir. 1972); United States ex rel.
Neal v. Wolfe, 346 F.Supp. 569, 574-575 J 
(E .D .Pa.1972): Landman v. Royster,
333 F.Supp. 621, 653 ( E.D.V a.1971); 
Clutchettc v. Procunier, 328 F.Supp. |  
767, 784 (N.D.Cal.1971). As stated in 
Morrissey v. Brewer, 408 U.S. 471, 92
S.Ct. 2593, 33 L.Ed.2d 484 (1972), with 
reference to parole revocations: “The
officer directly involved in making rec­
ommendations cannot always have com­
plete objectivity in evaluating them.”
Id. at 486, 92 S.Ct. a t 2602. The dis­
tric t court should bar the charging offi­
cer from sitting in judgment on his.owp 
complaint in disciplinary proceedings.

Rehabilitation
In Jackson v. Indiana, 406 U.S. 715,

738, 92 S.Ct. 1845, 32 L.Ed.2d 435 
(1972), Mr. Justice Blackmun stated:
“At the least, due process requires that 
the nature and duration of commitment 
bear some reasonable relation to the 
purpose for which the individual is com­
mitted.” Id. a t 7.38, 92 S.Ct. a t 1858.
The Supreme Court has recognized reha­
bilitation as one of the ends of correc- > 
tional confinement. ' See, c. </., Procunier 
v. Martinez, 416 U.S. 896, 412-413, 94 
S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). 
Arkansas statutes as well stipulate that 
efforts  should be directed toward the re­
habilitation of persons committed to the

f

might arise. It is xuggexteil when this oe-
i-n rs  l ic it  n ff ie in lx  m a k e  e le a r  I lie m in im  fur
l im n in g  the reiinesl . t i l  S . t ’t. at Ltnso.



FINNEY v. ARKANSAS HOARD O F CORRECTION
<'it** :»> K.1M l!»» ( li»7n 209

stitutional care of the Department of 
Correction.11

[19, 201 In Holt. II, the district court 
said that the lack of rehaldlitative pro­
grams could, in tin* face of “other con­
ditions,” he violative of the Eighth 
Amendment. - With this we agree. 
Furthermore. we find that those 
other conditions persist. Convicts in the 
Arkansas system • are forced to labor 
long hours under arduous conditions. 
They are faced with constant threats  of 
physical and mental abuse if their work 
or conduct falls below often arbitrary  
standards. They are left almost no time 
for self-advancing activities or recrea­
tion, and the testimony of prison offi­
cials indicates tha t even if time were 
available, rehabilitative programs are 
generally not available. The Commis­
sioner has testified concerning the build­
ing' trades apprenticeship program and 
ttfe increasing opportunity for basic 
schooling. However, these programs at 
Cummins are still very limited, accom­
modating a relatively small number of 
inmates. We thus deem it necessary 
that the respondents be required to sub­
mit to the court an overall program for 
treatment and rehabilitation of the in­
mates at both Cummins and Tucker.

Racial Discrimination

[21] When Holt I I  was before the 
district court in 15)70, racial discrimina­
tion was a serious problem within all the

institutions operated by the Arkansas 
Board of Correction. Living facilities 
were se.v» egated at that time and there 
was convincing evidence of racial dis­
crimination in other areas of prison life 
from job assignments to class status. 
The court ordered immediate elimination 
of all racial discrimination. Hy the time 
the district court heard this case, there 
had been a marked improvement in this 
regard. Living facilities, with the ex­
ception of the punitive segregation wing 
at Cummins, were integrated. Nonethe­
less, the court found that discrimination 
still pervaded other facets of prison life. 
Accordingly, the district court again en­
joined racial discrimination in several 
particulars, including: (1) interference 
with Black Muslim religious practices: 
(2) segregation of prisoners in maxi­
mum security, and C!) discrimination in 
such areas as inmate classification, job 
assignments, privileges, personal appear­
ance, disciplinary proceedings and pun­
ishments. With this we agree, but once 
again we find that the court’s decree 
stops short of its intended goal.

The court specifically found that the 
more intangible forms of racial discrimi­
nation could not be eliminated until the 
Arkansas Department of Correction was 
integrated. This is especially true in 
the areas of job classification and disci­
plinary proceedings, where preconceived 
ideas and often unconscious prejudices 
may seriously affect an inmate’s life.

H. A rk .S la t .A m i.  5 -Kl-lHi (1!>7::> :
Classif ication anil t r e a tm e n t  program s.—- 

Persons committed  to ' the in s t i tu t iona l  
care of  the D epar tm en t  shall  he dealt  with 
humanely with e t lo r ts  directed  to the ir  re­
habilitation. F o r  these purposes, the De­
par tm ent  m ay  es tablish  p rog ram s of c las­
sif ication and diagnosis ,  education ,  ease 
work, counselling and p sych ia tr ic  therapy,  
vocational t r a in in g  and guidance  work, 
and l ib ra ry  and rel igious se rv ices ;  o ther  
rehabilita tion p rogram s o r  services as  mav 
he ind ica ted ;  and shall in s t i tu te  priH-e- 
dures for the s tudy  and  c lassif ica t ion  of 
inm ates ;  provided, however , th a t  the  
Commissioner shall, with  the approval  of 
the Hoard, establish rules and  regulations 
for the assignm ent of inm ates  to the v a r i ­
ous programs, services and work activi t ies  

505 F. 2d—11

Id' the D epar tm en t ,  and  inm ates  in the in ­
s t i tu t io n s  of the D epar tm en t  may p a r t i c i ­
pa te  in and benefit  from the vocational, 
educational  an d  rehab i l i ta t ion  services of 
the respective in s t i tu t io n s  solely with in  
the rules and regu la t ions of the  D e p a r t ­
m en t  as  de term ined by the Commissioner, 
subject to appeal  and review by the  Hoard 
o r  a des ignated  review board in acco rd ­
ance with procedures that  shall  lie e s t a b ­
lished therefor  by the Hoard. Women in ­
m ates  committed  to the D epa r tm en t  shall  
he. housed separa te ly  from men. W ork 
ass ignm ents  b.v women inm ates  shall  be 
made by the Commissioner u n d e r  rules 
and regu la t ions p romulgated  by the Hoard, 
and an y  con tac t  of women pr isoners  with 
male inm ates  shall be u nde r  d irec t  s u p e r ­
vision of the Hoard. I

j



FINNEY v. ARKANSAS BOARD OK CORRECTION 911
( ’ill* IIS I'.

to tlio suppression of expression ;m<i toe 
limitations imposed were no greater 
than neeessar.v to aeeomplisti that objec­
tive. If deemed necessary inspection of 
outgoing or incoming mail in the pres­
ence of an inmate is never objectionable. 
However, any kind of censorship regula­
tions carry a heavy burden. The dis­
trict court should review the mail regu­
lations under the standards set out in 
Martinez. See 94 S.Ct. a t 1811 et seep

[25, 261 The petitioners’ second com­
plaint concerns the mailing list require­
ment, whereby a prisoner may not corre­
spond with any person who has not pre­
viously consented. This procedure a f­
fects potential correspondents whenever 
prison officials refuse permission to in­
clude a name on the list. However, it 
more directly places prior restraint on a 
prisoner’s freedom to correspond with 
whomever he chooses. I t  is now' well 
settled that a prisoner does not shed his 
basic constitutional rights  a t the prison 
gate. Cruz v. Beto, 405 U.S. till), 92 S. 
Ct. 1079, 81 L.Ed.2d 268 (1972);
Haines v. Kernel-, 404 U.S. 519, 92 S.Ct. 
594, 30 L.Ed.2d 142 (1972); Wilwording 
v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 
30 L.Ed.2d 418 (1971) ; Younger v. Gil­
more, 404 U.S. 15, 92 S.Ct. 250, 30 L. 
Ed.2d 142 (1971); Lee v. Washington, 
390 U.S. 333, 88 S.Ct. 994, 19 L.Ed.2d 
1212 (19681; Cooper v. Pate. 378 U.S. 
546, 84 S.Ct. 1733, 12 L.Ed.2d 1080 
(1964); Screws v. United States, 325 
U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 
(1945); Ex Parte  Hull, 312 U.S. 546, 61 
S.Ct. 640, 85 L.Ed. 1034 (1941). While 
it has been recognized that these rights 
and immunities do not always assume 
the same form in prison tha t  they do in 
free society, Wolff v. McDonnell, 418 
U.S. 539, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 
935 (1974), they are, nonetheless, pres­
ent. We need go no fu rther to recognize 
that a prisoner’s F irs t  Amendment right 
should not be restricted by governmental 
interference unrelated to any legitimate 
governmental objective.

[27] At trial, prison officials of­
fered three justifications for the ap-

LM l!ll (1!>7I
proved mailing list procedure. First, 
they urge tha t those to whom a prisoner 
writes may wish to visit him anil the 
mailing list procedure gives them an op­
portunity to investigate potential visi­
tors beforehand to determine whether a 
visit should be permitted. Second, they 
contend that some people, because of 
their  criminal background, have no right 
to correspond with prisoners. Finally, 
they state that some people do not wish 
to receive mail from prisoners. Apply­
ing the Martinez test, we find these jus­
tifications wanting.

I 28 | If prison officials have a valid 
interest in investigating potential visi­
tors, obviously that interest may be pro­
tected by less intrusive means, such as 
the submission of a visitors’ list. We 
are not persuaded tha t  all correspond­
ents need to be investigated on the 
chance tha t  some may visit. It is equal­
ly unavailing to argue that some per­
sons, because of their  criminal reputa­
tion, have no business communicating 
with prisoners. A person does not for­
feit his F irs t  Amendment rights simply 
because he acquires a bad reputation. 
In like manner, a prisoner does not lose 
the protection of the F irs t  Amendment 
simply because those with whom he 
wishes to communicate are “disreputa­
ble” in the eyes of the prison adminis­
trators. This is not to say that when 
questions of institutional security are 
involved, officials may not be justified 
in limiting correspondence on a particu­
lar basis. We simply find this excuse 
too broad to justify  application of the 
mailing list system to all inmates. In 
Martinez, the Supreme Court said that 
ju s t  as Post Office officials could not 
examine all mail for evidence of crime, 
prison officials could not censor all mail 
for that purpose. The analogy is appar­
ent. Finally, the fact tha t some people 
may not wish to have a prisoner write to 
them or their children cannot justify  
this system. If a person does not wish 
to receive prisoner mail, he may so noti­
fy the prison, and then prison officials 
may be justified in refusing to send fur­
ther  mail. The present broad regula-



mam

2 i q  505 FEDERAL REPC

The assistant superintendent in charge 
of the disciplinary court .testified that, 
with the exception of a non-vo'ting black 
minister, no blacks had ever sat in judg­
ment on the disciplinary court, although 
a t  the time of trial fully 48% of the in­
mate population was black. A compila­
tion of disciplinary proceedings leads to 
an unmistakable inference of racial dis­
crimination, be it intentional or not. In 
the area of job classification and admis­
sion to the few available rehabili ta te  c 
programs, the same inference arises, for 
blacks occupy the menial positions while 
the more desirable programs are domi­
nated by white inmates. Cf. Smith v. 
Board of Education of Morrilton, 805 
F.2d 770 (8th Cir. 1900).

[2 2 1 Very little has been accom­
plished in the recruitment of black em­
ployees. Those who have been hired as­
sume, with slight exception, no position 
of control, influence or even persuasion. 
Resources, according to Commissioner 
Hutto, will not permit offering salaries 
sufficient to a t trac t  the qualified indi­
viduals he seeks. We need only repeat 
tha t  inadequate resources cannot justify 
the imposition of constitutionally prohib­
ited treatment. Even assuming qualified 
blacks cannot be found, we arc not per­
suaded that an alternative such as estab­
lishing a program in which blacks could 
be trained until qualified is not \iable.

[2.21 On remand the district court 
should amend its decree to include an a f­
firmative program directed toward the 
elimination of all forms of racial dis­
crimination. In doing so it should con­
sider the standards now employed in the 
hiring and promotion of prison person­
nel. The court must assure itself that 
those standards are reasonably related to 
proper correctional goals and not de­
signed to preserve institutional iaciul 
discrimination.

12. I 'e ti l iu iiers (In mil seek f u r th e r  relief on 
prison noiil regtiliilinim on uppenl.  However 
in a consoliilateil appeal  hy .lames l-.lling 
luirg. No. Tl-Kh'SO. the regu la t ions  a re  fu r  
t iler  chal lenged. Nee in fra .

KTKK, 2d SERIES

Mail Hr uniat ions
The petitioners in the trial court also 

contested restrictions placed upon the 
use of the mails.1" Inmate correspon­
dence is divided by Arkansas prison of­
ficials into three classes: privileged,
general and special purpose. Privileged 
correspondence involves mail to or fiom 
courts, federal and state officials and in­
mates’ attorneys. General correspon­
dence includes mail between a prisoner 
tint! friends or business acquaintances. 
Special purpose correspondence is de­
scribed only as mail to or from persons 
not qualifying under the general or priv­
ileged categories.

The petitioners challenge that provi­
sion which allows prison officials to 
open and search privileged mail and to 
open and read general and special pur­
pose correspondence. They also chal­
lenge the “approved mailing lis t’’ proce­
dure whereby a prisoner must submit 
the name of a potential correspondent j 
for approval both by the intended colic- j 
spondent find prison ofticials befoie he 
may send or receive mail from that poi­
son. The district court considered these 
issues a t length but ordered only that 
privileged correspondence be examined 
in the presence of the inmate.

121 ] In Procunier v. Martinez. 410 i 
U.S. 390. 04 S.Ct. 1800, 40 L.Ed.2d 224 
(1974), the Supreme Court considered a 
challenge to the California prisons’ mail 
censorship policies.1:1 Basing its deci- j 
sion on the infringement of “liberties of 
free citizens . . - implicated in ;
censorship of prisoner mail’’ ra ther  than ! 
on the right of the prisoners themselves ; 
to be free from unnecessary interference j 
with their communications, the Court j
held tha t censorship of prison mail is 
justified only if the particular regula- ; 
tions were necessary to fu r ther  a sub- , 
stantial government interest unrelated j

j

13. T h e  (list r ie l rm irt 'x  <>|• t■■ ion wits w ritte n  ill 
ii lim e  p r io r  to (lie  Su p re m e  ( 'm i l l ' s  d eris io n  | 
in  M a r l in e ;  nm l .1/ e / lm ii ie / / .

to 1 1 1
limit
than
tive.
outgi
ence
How.
tion.s
triet
latio
M an

plain 
men I 
spon 
viou 
feet: 
prist 
cluck 
m or 
pris. 
who 
sett! 
basil 
gate 
Ct. 
Hail 
594, 
v. S 
30 I 
mor. 
Ed.2 
390 

. 1212  
540. 
(19i 
U.S. 
(19  
S.Ct 
it h. 
and 
the 
free 
U.S. 
935 
cut. 
that 
shot 
into 
go\

fere



212 505 FEDERAL REPORTER, 2d SERIES

tion, however, is not justified by this 
eventuality.

We conclude that the test  of Martinez 
has not been met by the mail list pioce- 
dure employed in Arkansas and direct 
the district court to order its elimina­
tion.
Failure to Make Specific Findings

1291 The district court, while g ran t­
ing injunctive relief to the class, denied 
singular relief to the individual petition­
ers. The district judge stated tha t  he 
would make specific findings as to an 
individual petitioner only upon individu­
al request. No requests were made, but 
on appeal petitioners cite as one ground 
of e rro r  the district court’s failure to 
make specific findings.14

[30-32 1 We find that this was error. 
Rule 52(a) of the Federal Rules of Civil 
Procedure requires the district court to 
make findings of fact in each individual 
case. The burden should not be upon 
the petitioner to request specific find­
ings when it is incumbent upon the 
court to make the findings in each indi­
vidual case.15 The district court’s error 
does not deprive this court of jurisdic­
tion to review the record.10 However, 
the absence of specific findings does 
make appellate review more difficult.

[33,311 We think that Willie Mont­
gomery and Larry Gray stated claims 
upon which individual relief could possi­
bly be proper. The testimony of Willie 
Montgomery indicates tha t he was 
wrongfully assaulted by prison guards 
and that, although the correctional em­
ployees were discharged, Montgomeiy 
was sentenced to the maximum security 
unit and suffered loss of good time. As 
for Larry Gray, he alleges tha t he is un­
able to work due to a foot ailment. He 
complains of receiving disciplinaries re­
sulting in loss of good time and class 
status. In Wilwording v. Swenson, 502 
F.2d 844 (8th Cir. 1974), we pointed out 
that an individual is not entitled to have 
his record expunged or corrected simply 
because the full panoply of due process 
procedures was not granted to him piioi 
to the effective date of McDonnell. The 
Supreme Court made it clear in Mc­
Donnell tha t the procedural due process 
requirements set forth therein were not 
retroactive. However, where the chal­
lenge is made that good time was aibi- 
trarily  taken without any supporting ev­
idence whatsoever, the prisoner states a 
valid claim for relief. Wilwording, sti- 
pni. This we construe to be the pri­
mary th rus t  of the complaints of Mont­
gomery and Gray and we feel that it

14. We were informed in oral a rgum en t  that  
pe t i t ioners '  ennnsel  fai led to comply with  the 
c o u r t ’s request ami failed to notify  the in ­
m a tes  t»f t in1 necessity of seeking individual  
specific findings. W e hes i ta te  to condemn 
counsel  for this oversight because of the 
t rem endous service which they  have per ­
formed in processing these complex cases. 
W e a re  told th a t  th is  w as an oversight and 
not in tentional .

15. T h is  requirement ltill ills a threefold p u r ­
pose:  (1) to aid appe l la te  review by a f fo rd ­
ing it c lea r  and concise s ta te m e n t  of the b a ­
sis for the co u r t ’s decision. Cross v. I'aslc.v. 
•Jti" K.'.'il S24 (Nth Cir .  1959) : (2) to make 
the  decision of the  court def in ite  to aid in 
fu tu re  app l ica t ion  of the d oc tr ine  of rex ju- 
il ti 'it I it ; and (3) to cause  the tr ia l  judge  to 
fully anil conscientiously consider  the basis 
for  bis decision.  Coiled S ta le s  v. I’.irnbnch, 
| OO K.0 ,1  :\~S (Silt Cir .  IlMiN). None ol 
these purposes is fulfil led when a court dis­
misses a claim o r  cla im s for  relief without 
specified  f indings.

5. F ind ings  of fact  by the d is t r ic t  court, 
while required by Rule 5 2 ( a ) .  a re  not ju r is ­
dict ional  in an  appel la te  court .  An appellate 
cour t  may render  a decision in th e i r  absenec 
if it feels th a t  it is in a posit ion to do so. 
Westley v. S ou thern  R.v. Co., 2nd F.2d INN 
( l i b  Cir .  1d57l : Morris  v. Will iams, l i b  1'. 
n,| TOP, (S t It Cir. 1915). It is in a position 
to do so when e i ther  of two fac to rs  arc 
present : ( I I  the record itself  sufficiently
in form s the court  of the  bas is  for the  trial 
c o u r t ’s  decision on the m a te r ia l  issue, or 
(I)) the con ten t ions  ra ised 0 1 1  appeal  do not 
tu rn  on findings of l a d .  Sec Ill'llri'ill!!/ .1 
W righ t  \  Miller. Federal  1 T a d  ice and ITo- 
cedure  § 2577 at <ibb-7<H) (1971).

W hile  this court may review a decision in 
the absence of fac tual  findings, il may not 
make its own findings of fact.  See Lee v. 
|Sei„ |"!l F.2d 521 (5 th  Cir.  19791; I ’avis 
v. Coiled  S la te s ,  122 F.2d I I P.9 L5th Cir. 
|!)7lt) ; Irish v. Coiled  S ta les .  22 . 1 1'—d 
(bill Cir.  111551.

Wil-
spot
OS.
oth<
cri’t
app.
whi

Tin 
V. 

cast 
Jan 
or. 
diti 
the 1 
cert 
Son 
Elli 
doe 1 
mis 

I: 
sen  
are 
ante 
the 1 
mat 
rect 
Tut 
ass I 
The 

'1 
v. 
ii 
li
r
a
ft
i.

c
G
(
S 1
t ’
(i
!
a
(
t

n
n
li



FINNKV v. ARKANSAS HOAR’) O F CORRECTION
('ill* IIS

was prejudicial e rror to fail to make 
specific findings in their  individual eas­
es. Denial of individual findings to the 
other petitioners, however, was harmless 
error for. as we review their  appeals, it 
appears they did not state a claim upon 
which relief could be ('ranted.

The Ellingburg Petitions 
We have consolidated with the Finney 

case the several pending appeals of 
James C. Ellingburg, a Cummins prison­
er. Most of his petitions relate to con­
ditions of confinement a t Cummins and 
therefore present issues of common con­
cern with our discussion in Finney. 
Some of the district court rulings in the 
Ellingburg cases adopt Judge Henley’s 
decision in Finney  as the basis for dis­
missal.

In 74-1369, petitioner Ellingburg as­
serts, inter nlin, tha t  Cummins inmates 
are prohibited from giving legal assist­
ance to one another. It appears that 
there is one attorney available for in­
mate consultation at Cummins (the 
record is silent as to the situation at 
Tucker) but that he is not permitted to 
assist the prisoners in civil litigation. 
The Supreme Court in McDonnell said: 

The right of access to the courts, upon 
which Avery  was premised, is founded 
in the Due Process Clause and assures 
that no person will be denied the op­
portunity to present to the judiciary 
allegations concerning violations of 
fundamental constitutional rights. It 
is futile to contend tha t  the Civil 
Rights Act has less importance in our 
constitutional scheme than does the 
Great Writ. The recognition by this 
Court that prisoners have certain con­
stitutional rights which can be pro­
tected by civil r ights actions would be 
diluted if inmates, often “totally or 
functionally illiterate,” were unable to 
articulate their complaints to the 
courts. Although there may be addi­
tional burdens on the Complex, if in­
mates may seek help from other in­
mates, or from the inmate adviser if 
he proves adequate, in both habeas 
and civil r ights actions, this should

213
-M I1. '  (1(1711

not prove overwhelming. At present 
only one inmate serves as legal adviser 
and it may be expected tha t other 
qualified inmates could be found for 
assistance if the Complex insists on 
naming the inmates from whom help 
may be sought.

94 iS.Ct. a t  2986.
Upon remand the district court should 

re-examine procedures relating to in­
mate assistance to satisfy the alterna­
tive requirements of Johnson v. Avery, 
393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 
718 (1969). Cf. McDonnell v. Wolff, 
483 F.2d 1059, 1064-1066 (8th Cir. 
1973).

[35,36] In 74-1202, Ellingburg 
seeks to hold prison officials in con­
tempt for failing to phase out the armed 
trusty guard system in the towers and 
for failing to completely segregate dis­
eased prisoners from the general prison 
population. W’e have now issued specif­
ic directions concerning these conditions. 
The district court’s earlier opinions 
strongly implied tha t these measures 
should be taken, but until today there 
has been no specific order to tha t effect. 
Refore contempt may lie* the parties 
must have actual knowledge of the order 
and the order must be sufficiently spe­
cific to be enforceable. United States v. 
Di Mauro, 441 F.2d 428, 439 (8th Cir. 
1971). The appeal is dismissed.

In 74-1205, Ellingburg disputes the 
type of medical care received for his tu ­
berculosis and other alleged ailments. 
The district court deferred to the judg­
ment of prison medical personnel. This 
was the subject of an earlier petition 
dismissed as failing to state a claim for 
relief under $ 1983. This court a f ­
firmed the dismissal. See Ellingburg v. 
Loyd, 491 F.2d 728 (8th Cir. 1974). 
This appeal is dismissed.

In 74-1330, Ellingburg attacks the 
prison mail, regulations.1* For the rea­
sons discussed above we find the district 
court’s dismissal of this claim erroneous. 
We reverse and remand this claim with 
directions tha t it be considered by the

17. On ap p ea l  lie e r ro n e o u s ly  confuses  tliis case with  his appea l  in 71-1 “ On.



MH

505 FEDERAL REPORTER, 2d SERIES

district court in accord with our opinion 
above.

In 74-1400, the petitioner complains 
about the safety of inmates; he sets 
forth specific facts on appeal. We dealt 
with this overall concern above, and 
since the g e n e r a l  relief afforded there is 
applicable here, the judgment of dismis­
sal should be affirmed as modified by 
our prior discussion.

[37] In 74-8102, Ellingburg v. Sew­
ell, petitioner seeks damages by reason 
of an alleged “conspiracy” to murder 
him. The district court. The Honorable 
Paul X Williams presiding, refused to 
file the petition since the complaint was 
deemed frivolous on its face. We disap­
prove this procedure of failing to file 
petitions in the court record. See. Jones 
v. Lockhart, 484 F.2d 1192 (8th Cir. 
1973). This was error and the com­
plaint should be filed. If the district 
court is still satisfied tha t the complaint 
is frivolous or fails to state a claim for 
federal relief, an appropriate judgment 
should be rendered. The court’s refusal 
to file the complaint is set aside.

138] In 74-1G42, petitioner appeals 
from the denial of separate injunctive 
relief on his allegation that a correction­
al employee, A. A. Lucas, the Food Serv­
ice Supervisor at Cummins, had an ac­
tive tubercular condition. On August 
14, 1974, the distric t court denied relief 
relying on a report from David Critten­
den, M.D., Mr. Lucas’ physician, which 
states tha t  although Mr. Lucas has a tu ­
bercular condition he is no danger to 
others and recommends that he be al­
lowed to continue as a prison employee. 
The district court's  dismissal was prop­
er. See Cates v. Cicconc, 422 F.2d 92(1 
(8th Cir. 1970). Ellingburg’s petition 
for a writ of mandamus to provide an 
immediate hearing in this case is dis­
missed as moot.

The appeals in 74-1330, 74-13(59 and 
74 8102 are reversed and remanded in 
accordance with the directions made. 
The appeals in 74-1202, 74-1205, 74- 
1642 and 74-1406 are ordered dismissed.

214

Retention of Jurisdiction
The two Ellingburg appeals tha t  are 

-remanded for reconsideration, 74-1330 
and 74-1369, are hereby ordered consoli­
dated with the Finney  case so tha t the 
propriety of the mail regulations and 
the adequacy of legal assistance may be 
determined at the same time as the Fin­
ney challenges are heard on remand.

This case and the individual Elling­
burg appeals remanded herein are to be 
retained by the district court for the 
holding of additional evidentiary hear­
ings. The district court, if  it  deems it 
necessary, should call its own witnesses 
in order to fully explore the viable alter­
natives in meeting respondents’ immedi­
ate responsibility to eliminate the un­
lawful conditions which now exist in the 
Arkansas prison system. The district 
court may consider appointing federal 
monitors or a committee of lawyers or 
other responsible citizens to assist in 
eliminating the present practices of 
physical abuse and torture. Cf. Inmates 
of Attica Correctional Facility v. Rock­
efeller, 453 F.2d 12 (2d Cir. 1971). We 
do not suggest tha t the district court 
must do this, we merely recommend it as 
worthy of consideration in light of the 
history of these cases. The district 
court must decide whether continued 
abuse of its process and of its decree re­
quire such measures.

We regret the continued court super­
vision required by our decision since we 
are aware of the tremendous docket load 
under which the district court labors. 
We realize that the district court’s opin­
ions in Holt 1 and Holt II  viewed uncon­
stitutional conditions in a state prison 
system in an unprecedented light. Our 
opinion here is in no sense intended to 
detract from our recognition of the con­
scientious and responsible manner in 
which the district court has undertaken 
its task. The problems it continues to 
encounter in these decisions are monu­
mental. Our decision is intended to 
reinforce its view in a newly developed 
area of constitutional law. Our continu­
ing confidence and respect for the dis-
v



■ ITttrf.

FINNEY v. ARKANSAS
<’ilt* :is

trict court gives us assurance ttiat a 
suitable end will be quickly attained.

! 19 | Based on the overall record be­
fore us, it is our firm conviction that 
the Arkansas correctional system is still 
unconstitutional. We are fully cogni­
zant of the considerable progress which 
has been made by the Board of Correc­
tion with the minimal resources at hand. 
However, we confront a record and fac­
tual history of a sub-human environment 
in which individuals have been confined 
under the color of state law. The effort 
to make some amelioration of those con­
ditions will simply not suffice. The fact 
that an individual has violated the crim­
inal law, is generally uneducated and in 
poor health is no justification for inhu­
mane treatment and brutality. Segrega­
tion from society and loss of one’s liber­
ty are the only punishment the law al­
lows.

Affirmed in part  and reversed in 
part; the cause is remanded to the dis­
trict court with directions contained 
herein.

On Petition for Rehearing

PER CURIAM.

Respondents have filed a petition for 
rehearing and alternatively for a re­
hearing en banc. They allege that this 
court’s opinion is factually and legally 
erroneous in all respects. The basic- 
thrust of their  complaint is that, the 
latest evidentiary hearing preceding this 
appeal occurred 21 months before this 
court’s opinion was handed down and 
that the opinion fails to reflect the facia 
as they are now. The respondents list 
a long line of physical improvements and 
changes primarily directed toward up-

I. O ur  innilciiiniitiim of tlu> mnil ing . ri-gtiln- 
Tiuns. I»iirtii-ulnrly iix it lo t  to tin- m lu ir i-  
■uciir of a limiting list, is Ji.-mlly muni. Tin- 
distr ict  cou r t 's  ea r l ie r  opinion discusses the 
regulations til length. Ottr remand for re­
considerat ion of the regulat ions u nde r  / Y orn - 
nirr  al lows the O epar tm ent  of Correc tion  the 
■same flexibili ty recognized in I ' r ix t in i i r .  A

BOARD OF CORRECTION 9J.5
l-M'd Itll (I!I7I>

grading the glaring medical deficiencies 
set out in the prior record. The re­
spondents' brief on rehearing slates I hat 
since the district court’s opinion they 
have as well invoked a grievance proce­
dure, instituted rehabilitation programs, 
improved security measures, broadened 
inmate assistance programs and are in 
compliance with seven of the major con­
cerns condemned in this court’s opinion. 
At this stage of the proceeding we can 
only express our sincere hope that this 
is true.

[-10-4.11 This court is aware that 
major improvements have been taking 
place within the Arkansas Correction 
System since the evidentiary hearings. 
However, an appellate court is not a 
fact-finding court and must necessarily 
render its decisions on the evidence and 
record before it. I t  cannot receive new 
evidence. One of the fundamental rea­
sons this court ordered a remand of this 
case to the district court was to allow 
the district court the opportunity to Hike 
additional evidence concerning interim 
improvements in the prior deficient pro­
cedures and practices. The trial court 
is the only court equipped to test eviden­
tiary compliance and the only forum in 
which to raise any allegations of contin­
uing deficiencies. Our remand was ad­
ditionally based on the fact tha t two de­
cisions of the Supreme Court of the 
United States, Wolff v. McDonnell, 418 
U.S. 5.19, 94 S.Ct. 29G3, 41 L.Ed.2d 915 
(1974), and Procunier v. Martinez, 41G 
U.S. 19G, 94 S.Ct. 1800, 40 L.Ed.2d 224 
(1974), shed new light on disciplinary 
procedures and mailing regulations.1 
Both of these decisions were handed 
down over a year and one-half a f te r  the 
district court’s rulings on these areas.

sillily of tin* Sii|iri.iu(. C o u r t  opinion ili-mim- 
s l r a i l ' s  licit  all mailing lists an* not nc irs-  
sa ri ly  <*niideninrd. S e e  I ' l u r u n i e i , s t i /n i i  at 
1S1I et n«m|. ' However,  \\<‘ filial a re*;ula- 
tion which has no .specificity as  enforced by 
respondents ,  in violation of tin* cons t i tu t ional  
principles laid down in I ' r o r im ic r .



•*r

216 r)0.r) FEDERAL REPORTER, 2d SERIES

It is for the district court to j 1 1 cige on 
the basis of these decisions whether the 
disciplinary procedures and mailing reg­
ulations are in compliance with the 
guidelines set forth in those decisions. 
As was our earlier observation the stand­
ards set forth in the district court’s 
earlier decree did not fully contemplate 
the limits set out later in Procunicr and 
McDonnell.

We do not consider it  too great a bur­
den on the Board of Correction and pris­
on officials to require them to make an 
evidentiary showing in the district court. 
If, as urged, there is now constitutional 
compliance, it should be fairly simple 
for respondents to demonstrate it to the 
district court. Once the district court 
is convinced that constitutional s tand­
ards, as we defined them, have been met, 
it  may terminate its jurisdiction of the 
case. We recognize tha t the sooner the 
distric t court may discharge its ju r is ­
diction of the case, the better it  is for 
everyone.

Without minimizing the other areas 
discussed in this court’s opinion, our 
major concern related to (1 ) the over­
crowding in t h e  barracks and the mull i- 
larelcd problems this breeds, (2) the 
lack ol medical supervision and etptip- 
ment. including proper supervision and 
treatment of the emotionally ill, and (.'!) 
the continuing evidence of physical and 
mental brutality.

I f  overcrowding and its subhuman ef­
fects have been eliminated,'- the respond­
ents can easily demonstrate this by a f­
fidavit. If  changes in the medical t rea t­
ment and facilities have raised them to

conformity with constitutional s tand­
ards, this, too, can be demonstrated by 
documentary proof. Notwithstanding 
some diminution in the physical and 
mental brutality, revealed in the f irst 
Hutto  cases, the district court concluded, 
based on the evidence of 21 months ago, 
tha t it was still necessary to further en­
join such abuse. Respondents now say 
that this has come to an end and that 
security is such that it  is unfa ir  to still 
appraise the prison system in this light. 
Yet prisoner complaints continue to be 
filed alleging verbal abuse, assaults and 
beatings on inmates by those in authori­
ty. Petitioner Ellingburg has filed a 
motion in response to this motion for 
rehearing. In his motion he alleges that 
on October 14, Superintendent Lockhart 
announced to some 500 or more inmates 
' tha t appeals court ruling is nothing 
but a bunch of shit and don't mean noth­
ing.” He alleges tha t  on October 17 an 
incompetent inmate, one Herschel 
Spears, was physically assaulted and 
beaten by an inmate yard security m a n ; 
tha t on the same date three inmate floor 
walkers assaulted another inmate. We 
do not assume the tru th  of these allega­
tions; however, il any of the allegations 
are true if is continuing proof that glar­
ing constitutional deficiencies still ex­
ist. The truth of these allegations is 
for the district court to determine. We 
found sufficient basis in the previous 
record to justify  fu r ther  federal ju r is ­
diction to determine what steps must 
be taken to assure an end to physical 
and mental abuse.

The respondents' motion for rehearing 
is overruled.

2. H ow ever ,  based upon th e  show ing made by th e  re sp o n d en ts  in th e i r  pe t i t ion  for  rehearin; 
th is  would seem  no t  to be the  ease.



A ---

I
1

FINNEY v. HUTTO
Cit« as  4)0 F.Supp. 231 (107(i)

mrfi.i in

251

Robert FINNEY (I^awrence J. Holt) 
et al., Petitioners,

v.

Terrell Don HUTTO, Commissioner of 
Correction, State of Arkansas, et al., 

Respondents.
No. PB-69-C-24.

United States District Court,
E. D. Arkansas,

Pine Bluff Division.

March 19, 1976.

Individual and class actions were 
brought by Arkansas convicts against 
s ta te  prison officials, asserting violation 
of constitutional rights. A judgm ent in 
favor of the convicts, 309 F.Supp. 362, 
was affirmed and remanded, 442 F.2d 
304. On remand, there was another dis­
trict court disposition, 363 F.Supp. 194, 
and it was affirmed in part and reversed 
in part  by the Court of Appeals, 505 F.2d 
194. Again on remand, the District 
Court, Henley, Circuit Judge, Sitting by 
Designation, held th a t  the mere fact tha t 
an inmate, claiming to be sick, is re­
turned to his place of work without be­
ing put to bed or given a “lay-in” for the 
day is not enough automatically to justi­
fy conviction by a disciplinary commit­
tee. Major disciplinary procedures 
whereby neither accused nor the charg­
ing officer was permitted to be present 
during taking of testimony or to cross- 
examine were not violative of due proc­
ess, in view of explanation of such proce­
dures. Confinement of more than two 
men in a single cell in punitive isolation 
or administrative segregation is uncon­
stitutional in nonemergency situations. 
Use of “grue ’ as food in prison is uncon­
stitutional. The policy of sentencing in­
mates to indeterminate periods of con­
finement in punitive isolation is unrea­
sonable and unconstitutional.

Relief granted; attorney fees and 
certain costs awarded.

1. Prisons e=>4, 13 
In areas of prison administration

and security, classification of inmates, 
prison discipline, and the like, much must 
be left to discretion of prison administra­
tors, but if court finds constitutional 
deprivation, court has power to intervene 
and devise appropriate relief. 42 U.S. 
C.A. § 1983; U'.S.C.A.Const. Amend. 14.

2. Prisons e=»17
Question whether prison is unconsti­

tutionally overcrowded requires regard 
to quality of living quarters and to 
length of time which inmates must 
spend in their living quarters each day, 
and requires determination whether in­
stitution as a whole is overcrowded and 
whether individual housing units within 
institution are overcrowded.

3. Prisons <s=» 17
State owes to its convicts a constitu­

tional duty to provide them reasonable 
and necessary medical and surgical care, 
and this duty extends to field of mental 
health and to other fields of health care. 
42 U.S.C.A. § 1983; U.S.C.A.Const.
Amend. 14.

4. Prisons c=»l7
Except in cases of emergencies, need 

or desire of a prison inmate for medical 
service a t  particular point in time must 
be balanced against legitimate institu­
tional interests of prison administration.

5. Prisons <e=17
Prison inmate who becomes ill or 

honestly thinks tha t  he is sick should not 
lie discouraged from seeking medical a t ­
tention by fear of being exposed to ma­
jor  disciplinary proceedings should per­
son who examines him conclude that 
there is nothing serious the m atter with 
him; mere fact th a t  inmate is returned 
to his place oi work without l>eing put to 
!>ed or given “ lay-in” for day is not 
enough automatically to justify convic­
tion by disciplinary committee.
6. Prisons o=>4

State prisoner is not required to ex­
haust administrative remedies, including 
grievance procedures, before seeking ju-

I



110 FEDERAL SUPPLEM ENT252

dicial relief under 1871 civil rights s ta t ­
ute. 42 U.S.C.A. § 108.'?.

7. Prisons <5=9
Reasonable use of force by prison 

authorities is not only permissible but 
positively required on occasions. 42 U.S. 
C.A. § 1983.

8. Constitutional Law <5=272
Major disciplinary procedures in 

prison, whereby neither accused nor the 
charging officer was jjermitted to be 
present during taking of testimony or to 
cross-examine were not violative of due 
process, in view of explanation of such 
procedures. 42 U.S.C.A. § 1983; U.S.C. 
A.Const. Amend. 14.

9. Prisons <5=13
Placing of prison inmates in punitive 

isolation or solitary confinement as pun­
ishment for violation of prison rules is 
not necessarily unconstitutional, but may 
be, depending upon duration of confine­
ment and conditions thereof. 42 U.S. 
C.A. § 1983; U.S.C.A.Const. Amend. 14.

10. Prisons <5=13
Confinement of more than two men 

in single cell in punitive isolation or ad­
ministrative segregation was unconstitu­
tional under nonemergency conditions. 
42 U.S.C.A. § 1983; U.S.C.A.Const.
Amend. 14.

11. Prisons <^17
Use of “grue” as food in prison was 

unconstitutional. 42 U.S.C.A. § 1983; 
U.S.C.A.Const. Amend. 14.

12. Prisons « = 13
Policy of sentencing inmates to inde­

terminate periods of confinement in pu­
nitive isolation was unreasonable and un­
constitutional. 42 U.S.C.A. § 1983; U.S. 
C.A.Const. Amend. 14.

13. Prisons <5=13
In view of changes in conditions of 

confinement in punitive isolation, maxi­
mum sentence of 30 days was constitu­
tionally permissible. 42 U.S.C.A. § 1983; 
U.S.C.A.Const. Amend. 14.

14. Prisons <5=12
Where inmates of “third wing” of 

prison, housing inmates who could not 
safely lie kept in general prison popula­
tion, were lietter off in some respects 
than inmates of other wings but were 
not as well off as inmates in general 
population and suffered deprivations 
tha t  general population inmates did not 
suffer, Constitution required tha t status 
of third wing inmates be evaluated and 
reevaluated periodically in order to de­
termine whether or not particular in­
mates could safely be returned to gener­
al population or should be transferred to 
other institutions. 42 U.S.C.A. § 1983; 
U.S.C.A.Const. Amend. 14.

15. Prisons <5=4
Muslim inmates of prison building 

were entitled to same, but no greater, 
privileges in area of religious worship, 
including visits by clergymen, as were 
accorded to inmates of building who pro­
fessed other religious faiths, and if in­
mate was being held legitimately under 
maximum security conditions of confine­
ment, his exercise of religion was neces­
sarily somewhat more circumscribed for 
legitimate security reasons than in other 
cases.

16. Prisons <5=4
Free world ministers desiring to pay 

religious calls on inmates of prison build­
ing were subject to reasonable security 
measures such as reasonable searches for 
weapons or other contraband, but re­
strictions imposed on visitation could not 
be unreasonable or purposely designed to 
discourage ministers from outside world 
from visiting maximum security inmates 
or other inmates. 42 U.S.C.A. § 1983; 
U.S.C.A.Const. Amend. 14.

17. Civil Rights <5=13.17
Conduct of prison administrators as 

challenged by civil rights suit was op­
pressive, falling within “bad faith” ex­
ception to American rule under which, 
generally, attorney fees are not recover­
able, and attorney fees, for appointed 
counsel, were thus allowable, as well as 
certain costs of litigation, to be borne by 
State Department of Corrections rather

tha
U.S

J.
lip
peli

Ji
Ark
Las
Ark

II
Desi

T1 
fore 
of l 
A rk . 
194 ( 
of t 
F.Su 
man: 
ceedi 
to in 
tutio, 
exist! 
piena! 
Arka 
agen<

Pei 
have 
circtn 
now 
print! 
Come 
meml 
Corrc 
en t oi 
ment. 
of the 
Jurisd 
§ 134: 

Pur. 
hearir:

!. The 
dealii 
opinii 
III ."  
F.Su 
as H  
1970).

2. The 
early



253

'g” of 
id not 
opula- 
s poets 

wore 
enoral 
ations 
Id not 
status 
1 and 

lo de- 
ir in- 
re ner- 
'•od to 
1983;

ilding 
eater, 
rship, 
were 

> pro- 
if in- 
under 
lfine- 
:eces- 
d for 
other

<> pay 
ouild- 
■urity 
•s for 
L ro­
ll not 
■ed to 
world 
nates 
1983;

rs as 
s op- 

ex- 
hich, 

ovcr- 
i nted 
II as 
,e by 
ither

FINNEY v. HUTTO
Cite as 410 K.Supp. 251 (1070)

than by prison officials personally. 42 
U.S.C.A. § 1983; 28 U.S.C.A. § 2412.

Jack Holt, Jr., Philip E. Kaplan, Phil­
lip H. McMath, Little Rock, Ark., for 
petitioners.

Jim Guy Tucker, Atty. Gen., S tate  of 
Arkansas, Robert A. Newcomb, Jack T. 
Lassiter, Asst. Attys. Gen., Little Rock, 
Ark., for respondents.

HENLEY, Circuit Judge, Sitting by 
Designation.

These consolidated cases are now be­
fore the court pursuant to the mandate 
of the Court of Appeals in Finney v. 
Arkansas Board o f  Correction, 505 F.2d 
194 (8th Cir. 1974), reversing the decision 
of this court in Holt v. Hutto, 363 
F.Supp. 194 (E.D.Ark.1973),1 and re- 
manding the litigation for further pro­
ceedings. The remand requires the court 
to inquire again into the federal consti­
tutionality of practices and conditions 
existing and prevailing in the principal 
penal institutions administered by the 
Arkansas Department of Correction, an 
agency of the State of Arkansas.

Petitioners are Arkansas convicts who 
have been convicted of felonies in the 

i circuit courts of the State and who are
now confined in the Department. The 
principal respondents are Correction 
Commissioner Terrell Don Hutto, the 
members of the Arkansas State Board of 
Correction, A. L. Lockhart, Superintend- 

j ent of the Cummins Unit of the Depart­
ment, and R. G. Britton, Superintendent 
of the Tucker Intermediate Reformatory. 
Jurisdiction is predicated upon 28 U.S.C. 
§ 1343(3) and 42 U.S.C. § 1983.

Pursuant to the remand extensive 
hearings have been held,2 and in mid-Au-

5
i

i
i
:

1. The court has written three "Hole" opinions 
dealing with the Arkansas prison system. The 
opinion above cited is frequently called "Holt 
III." Holt I appears as Holt v. Sarver, 300 
F.Supp. 825 (E.D.Ark. 1969). Holt II appears 
as Holt v. Saner, 309 F.Supp. 362 (E.D.Ark. 
1970), affd, 442 F.2d 304 (8th Cir. 1971).

2. The hearings extended from January through 
early July, 1975. Initial hearings were con-

gust, 1975 the court accompanied by 
court [tersonnel and counsel on Ixitli sides 
visited the principal units of the Depart­
ment and also visited the new Reforma­
tory for Women which was then nearing 
completion in the City of Pine Bluff, Ar­
kansas.

The cases before the court are in part 
class actions brought by and on behalf of 
inmates of the Department generally, 
and in part individual complaints of par­
ticular inmates. In view of the large 
number of complaints tha t  have been 
consolidated, this opinion will be con­
fined to the class claims in which peti­
tioners seek for themselves and other in­
mates similarly situated declaratory and 
injunctive relief with respect to alleged 
institutional conditions and practices 
which they claim deprive inmates of 
rights protected by the Constitution of 
the United States. Inmate claims of 
personal deprivations, including claims 
for money damages, will be dealt with 
later. The cases collectively will gener­
ally be referred to herein as “ the case” 
or as “this litigation.”

The Department administers three 
principal institutions and a number of 
recently established off-stations. The 
principal units are the Cummins Unit, a 
maximum security farm type prison lo­
cated in Lincoln County, Arkansas; the 
Arkansas State Reformatory for Women 
located on the Cummins property; and 
the Tucker Intermediate Reformatory lo­
cated in Jefferson County, Arkansas. 
The off-stations are the Alcohol ic/Nar- 
cotic Rehabilitation Center located on 
the grounds of the Benton S tate  Hospi­
tal a little more than twenty miles from 
Little Rock, Arkansas, a Work Release 
Center and a Pre-Release Center also lo­
cated a t  the Benton S tate  Hospital; the

ducted by the court personally. Later hear­
ings were by agreement held before a United 
States Magistrate, and the testimony heard by 
him was taken, transcribed, and filed as depo­
sitions in the case. In a final hearing conduct­
ed by the court personally the testimony of 
certain expert witnesses was taken in connec­
tion with a mental health program recently 
adopted by the Department.



254 110 FEDERAL SUPPLEMENT

Blytheville Work Release Center located 
in Mississippi County in the northeastern 
part of the State; and the Department 
of Correction Livestock Production Cen­
ter located near Booneville in Logan 
County in northwestern Arkansas.

No claim has been made tha t  any un- 
constitutionalities exist in any of the off- 
stations. While the Women s Reforma­
tory is involved in the case to some ex­
tent, the court is principally concerned 
with conditions and practices a t Cum­
mins and Tucker.

[1] In approaching the issues before 
it  the court recognizes tha t  it should not 
embroil itself unreasonably in the affairs 
of the Department; in areas of prison 
administration and security, the classifi­
cation of inmates, prison discipline, and 
the like, much must be left to the discre­
tion of the prison administrators. The 
court is concerned ultimately with con­
stitutional deprivations, and if it  finds 
th a t  such deprivations exist or have ex­
isted, the court has the power to inter­
vene and devise appropriate relief. See 
K elly v. Brewer, 525 F.2d 394, 399 (8th 
Cir. 1975), and the numerous cases there­
in cited.

Overcrowding
The court first considers whether the 

principal units of the Department are 
now overcrowded to a point of unconsti­
tutionality. The m atter was discussed in 
Finney v. Arkansas Board o f  Correction, 
supra, 505 F.2d a t  200—02.

As to the Women’s Reformatory, the 
court found, on the basis of its own ob­
servation of th a t  facility in August, 
1975, and of the fact tha t the new Wom­
en’s Reformatory had still not been com­
pleted and put into use as of mid-Febru­
ary, 1976, th a t  the institution was hope­
lessly overcrowded. And on February 
18, 1976 the court entered an order di­
recting tha t  the institution be closed and 
the inmates transferred or released not 
la ter than June 30 of the current year.

Since th a t  order was entered, Commis­
sioner Hutto has indicated compliance 
with it and has stated publicly th a t  the

June 30 deadline will give the Depart­
ment no trouble. The court hopes that 
the new Reformatory will be completed 
and put into use substantially before 
June 30.

[2] Turning now to Cummins and 
Tucker, the court recognizes a t the out­
set tha t  the serious overcrowding of a 
prison operates adversely on inmate 
safety, morale, and welfare, on the se­
curity and good order of the institution, 
and on the administration of the prison 
in general. The question of whether a 
prison is overcrowded to the point of 
unconstitutionality involves more than 
determining how many square feet of 
living space are allocated to individual 
inmates. Regard must be had to the 
quality of the living quarters and to the 
length of time which inmates must 
spend in their living quarters each day; 
further some small housing units al­
though cramped may be more comforta­
ble and livable than more spacious quar­
ters.

The question of overcrowding actually 
involves two questions: First, is the in­
stitution as a whole overcrowded? 
Second, are individual housing units 
within the institution overcrowded? In 
other words, the question is not only how 
many inmates are housed in the prison 
but also how the prison population is 
distributed throughout the institution.

Roughly speaking, Cummins houses 
about three times as many inmates as 
does Tucker, and, as a class, the Cum­
mins inmates are older men and more 
hardened criminals than are the inmates 
of Tucker.

In both Holt I and Holt I I  the court 
found that both of the institutions in 
question were seriously overcrowded, and 
th a t  the overcrowding constituted a seri­
ous threat to inmate safety, particularly 
when considered in connection with the 
trusty guard system which was still in 
use when Holt II was decided in 19 tO. 
As of tha t  date the population of Cum­
mins had been declining for some time, 
and amounted to somewhat less than 
1,000 men; a t the same time Tucker was 
housing about 325 inmates.

f oi­
lm­
an 
tai
S I)  l

a i 
1(H 
the 
tail 
Tin 
cell 
con 
ing 

I:
the
a b o i
gro
unit
ban
men
Cun
of a
mor
At '
to b.
to h
rega
That
App<
Finn
basei
missi
not ‘
than
when
barm
men.

W h  
overt 
worst 
The | 
to 151 
501. 
lation 
any d 
sas p:

3. Sli. 
W on 
son-  
t u r n  
mid !



255

1

1

t
n
.1

y
L*
a
).

n
is

FINNEY
n t o  :is l io  F.J

In those days the basic housing' units 
for inmates a t  both institutions were 
large, dormitory type barracks, which 
are still in use. Each barracks con­
tained, and still contains, about 5,000 
square reel of floor space, and each has 
a maximum capacity of not more than 
100 men. Additionally, a t  Cummins 
there was a separate building which con­
tained a number of isolation cells. At 
Tucker there were two rows of small 
cells reserved for persons who had been 
condemned to die and who were await­
ing execution.

By 1973, when Holt I I I  was decided, 
the Cummins population had grown to 
about 1200 and tha t  of Tucker had 
grown to about 349. The basic housing 
units were still the barracks, and each 
barracks probably had more than 100 
men in it. The old isolation cells at 
Cummins had been abandoned in favor 
of a new maximum security facility com­
monly referred to as the East Building.
At Tucker the “death cells” had ceased 
to be used as such, and were being used 
to hold prisoners in “administrative seg- 
regation or in “punitive isolation.” 
That was the condition tha t  the Court of 
Appeals found to be unconstitutional in 
Finney. The holding of tha t court was 
based in part on the testimony of Com­
missioner Hutto th a t  the barracks could 
not “be successfully operated with more 
than 60 to 80 inmates,” 505 F.2d a t  201, 
whereas in truth and fact the respective 
barracks were housing from 125 to 135 
men.

When the 1975 hearings were held, the 
overcrowding a t  both institutions was 
worse than it was in either 1973 or 1974.
The population a t  Cummins had grown 
to 1518 and that a t  Tucker had grown to 
501. According to Mr. Hutto, the popu­
lation growth was not attributable to 
any defect or malfunction of the Arkan­
sas parole system, but solely to the fact

v. HUTTO
lupp. C51

tha t  inmate intake began to exceed re­
leases about the first of 1974.

The 1975 record reflects a difference 
between the testimony tha t  Mr. Hutto 
gave alwiut barracks capacity in 1973 and 
that which he gave in 1975. In 1973 he 
had said tha t  there should not be more 
than 60 to 80 men in a given barracks; 
in 1975 he raised th a t  figure to 100. He 
explained the difference by saying that 
when he was testifying in 1973 he had 
convenience of administration, rather 
than overcrowding, in mind, and tha t  as 
far  as overcrowding is concerned, each 
barracks can properly house 100 men 
without loss of administrative efficiency. 
However tha t  may be, the fact remains 
tha t  as late as the date of the court’s 
August, 1975 inspection of the prisons all 
of the barracks a t  both Cummins and 
Tucker had substantially more than 100 
men in them, and inmates who could not 
be housed in the barracks and who were 
not in the East Building a t  Cummins or 
in the administrative segregation-puni­
tive isolation cells a t  Tucker, were being 
housed in facilities tha t  were not de­
signed originally for the housing of in­
mates.

A report filed with the court and 
which is a part  of the record reflects 
conditions as they existed on November 
12, 1975. That report reveals tha t  since 
August, 1975 the overcrowded conditions 
a t  both Cummins and Tucker had been 
alleviated substantially as a result of a 
number of factors.

To s ta r t  with, in the late summer and 
early fall of 1975 the ra te  of inmate 
discharges began to exceed the ra te  a t 
which new inmates were being received 
a t  the prisons. As a result of this trend, 
the population of Cummins had declined 
to 1451, and tha t  of Tucker had gone 
down to 486.3

3. Shortly after directing the closing of the 
Women’s Reformatory, the court made a per­
sonal inquiry of Commissioner Hutto as to the 
current population of Cummins and Tucker in 
mid-February of the current year and was ad­

vised that the downward trend in the popula­
tions of both institutions had continued, and 
further, that the population of the Women’s 
Reformatory was lower than it had been in 
November, 19^5.

I



256 110 FEDERAL SUPPLEMENT

In the second place a modern mini­
mum security b u i l d i n g  cquip|>ed with 
cells for single occupancy had been 
largely completed and put into active 
use.

And finally the Department had been 
able to acquire and install a large num­
ber of house trailers to provide housing 
for some 12 inmates per trailer.

However, the report reflects th a t  27 
inmates of Cummins were being housed 
in a gymnasium area, and tha t  57 in­
mates who were not ill were being 
housed in part  of the infirmary facilities. 
And the report also shows tha t  a t  Tuck­
er a substantial number of inmates were 
being housed temporarily in what had 
been a par t  of the commissary facility.

The November report reveals th a t  the 
Department estimates tha t  the capacity 
of Cummins is 1638 men, and th a t  the 
capacity of Tucker is 632 men. Those 
capacity figures are based on 100 men 
for each of the large barracks and 12 
men for each of the house trailers. The 
Cummins figures show four minimum se­
curity “pods” with a capacity of 62 men 
each, and another minimum security 
building with a capacity of 62 men. The 
Cummins figures also show continued 
use of the gymnasium area with a capac­
ity of 30 men, part  of the infirmary 
building with a capacity of 59 men, the 
infirmary proper with 25 beds, and the 
“dog kennel” with a capacity of six 
men.4 The Cummins report also reflects 
th a t  East Building has a capacity of 120 
men. The report indicates tha t  a t  Tuck­
er all of the inmates are housed in the 
large barracks, the house trailers, and 
the maximum security unit, which unit 
has a rated capacity of 28 men, the “dog 
kennel” with a four man capacity, and 
the eight bed infirmary.

If the occupancy figures appearing in 
the report and the capacity figures ap­
pearing therein are both accepted as cor­
rect, it appears th a t  on November 12, 
1975 Cummins was occupied to the ex­
ten t  of about 89% of capacity, and tha t

4. The dog kennel is the building where the
prison bloodhounds are kept. The building

Tucker was occupied to the ex ten t of 
about 77% of capacity.

Those total figures, however, do not 
tell the whole story, and it is necessary 
to consider how the total populations of 
the two prisons are distributed among 
the individual housing units in each in­
stitution.

While none of the large barracks a t 
Cummins had as many as 100 men in it 
on November 12, 1975, not one of the 
eight had less than 94 inmates. There 
were 99 inmates in one barracks, 98 in 
another, 97 in a third, 96 in four and 94 
in one. One of the minimum security 
“pods” with a capacity of 62 men had 
not been completed and was housing no 
inmates. One of the completed “pods” 
was filled to capacity, and the other two 
had 61 and 60 inmates respectively. The 
report also indicates th a t  the trailer com­
plexes are not being used to an extent 
approaching capacity. Each complex 
contains six trailers th a t  are used to 
house inmates, and, as stated, the rated 
capacity of each trailer is 12 men. In 
November the number of occupants in 
the respective trailer complexes varied 
from 59 to 54; thus, the highest rate of 
occupancy was about 81% and the lowest 
was 75%.

With particular regard to the East 
Building, the report shows a capacity of 
120 men and an occupancy of 111, or an 
occupancy ra te  of some 92%. But the 
East Building figures, as set out in the 
report, overlook the fact tha t  the build­
ing has three wings, each of which 
should be considered as a separate hous­
ing unit. W hat imbalance or imbalances 
exist among the separate wings, the 
court does not know.

In any event, the court is not willing 
to accept the proposition tha t  the East 
Building over-all has a capacity to house 
120 maximum security inmates without 
overcrowding. While the report de­
scribes the building as containing mainly 
two to four man cells with some cells 
being isolation cells, Respondents’ Exhib-

has certain living facilities in which inmate
dog handlers are housed.

it
ties- 
ed 
(Ion 
cell 
sigi 
In  
by 
hou 
Bui] 
freq 
hou. 
the 
was! 
the < 
peoj > 
on I 
then: 
the t 
parti 
cally 
must 

At 
last 
units 
Cumi 
not n 
ly per 
Barr:: 
Novel 
trade 
three 
inmat 
eight; 
had n

The 
the in 
the coi 
not pi 
Depart 
quarto i 
ments. 
from t! 
venienc 
bring o 
lar uni 
the off

Whi'
all of t 
them i; 
sleep tl 
workinj 
they ha



257FINNEY v. HUTTO
< 'lt<» as 110 r .Supp .  lift I < 107<»)

it #  654 which is a slick paper brochure in the barracks a t  Cummins or Tucker is 
describing the East Building and prepar- not nearly as dangerous for an inmate as 
ed by the architects and engineers who it was some years ago. However, inci- 
designed it, seems to indicate tha t the dents of violence do occur in the bar- 
cells in the building were actually de- racks, and two men have been murdered 
signed to house only one prisoner each, in barracks by other inmates since the 
In Holt III the court was not disturbed court visited the prisons last August. It 
by the idea tha t  two men were being should be said, however, tha t the first of 
housed in the same cell in the East those two killings broke the Depart- 
Building, but the court now finds tha t  ment’s very enviable record of not hav- 
frequently the cells have been used to ing had an inmate killed by another in- 
house three or four men a t  a time with mate since 1971.
the men being required to use a single The court has given very careful con- 
wash basin and toilet. And when one of sideration to this aspect of the case. As- 
the cells is used to house more than two suming a t  least for purposes of argu- 
people, one or more of them has to sleep ment th a t  Cummins and Tucker were 
on the floor. Regardless of what the not  unconstitutionally overcrowded in 
theoretical capacities of the cells may be, November of last year or in February of 
the court finds th a t  the East Building, or this year, and assuming tha t  they are 
particular units thereof, has been chroni- not  overcrowded today either from the 
cally overcrowded and tha t  something standpoint of the over-all institutions or 
must be done about the situation. from the standpoint of individual hous-

At Tucker the distribution of inmates ing units, the fact remains tha t  they 
last November among individual housing have been seriously overcrowded in the 
units was more encouraging than a t  recent past, and unless prevented the 
Cummins, and the large barracks were overcrowding may recur, 
not nearly so crowded. The most dense- The problem has long-term and short­
ly populated of the four barracks was C term solutions. The housing of convicts 
Barracks, and it  had only 81 men in it on ;n pa r ts of gymnasiums or infirmaries or 
November 12, 1975. Of the 16 house jn essentially short-term housing units 
trailers, four were filled to capacity; such ^  house trailers, is not an accepta- 
three had 11 occupants; four had ten hie long-term solution. Long-term the 
inmates each; one had nine; one had problem can be solved only by replacing 
eight; and two had seven. One trailer the existing main buildings a t Cummins 
had no occupants. and Tucker, which contain the old bar-

The disparities of occupancies among racks, and which are old and outmoded, 
the individual housing units appear to by modern and adequate housing facili- 
the court to be due in large measure, if ties, or by reducing prison populations as 
not principally, to the |X>licy of the by dispersing inmates to off-stations or 
Department to assign men to living by constructing one or more smaller pr.s- 
quarters on the basis of their job assign- ons conveniently located. That Mr. H ut­
ments That policy is understandable to and the Board of Correction may fa- 
from the standpoint of security and con- vor the la tter  approach is indicated by 
venience of administration, but it can Mr. Hutto’s testimony last summer tha t 
bring about the overcrowding of particu- no additional construction a t  Cummins is 
lar units, and it does not contribute to contemplated, and tha t  it is not felt tha t 
the efficient use of living space, as such. Cummins should be a larger institution 

j While ordinary inmates do not spend than it now is.
all of their waking hours or even most of There is very little, if anything, tha t  
them in their living quarters, they do the court can do immediately alxjut long- 
sleep there and spend most of their non- term solutions to the housing problem, 
working time in their quarters where As to the short-term solution, the court 

5 they have essentially no privacy. Living finds and concludes tha t  the maximum
•<10 F.Supp —17



110 FEDERAL SUPPLEM ENT

maintained a t  both Cummins and Tuck-

258

population a t  Cummins should not ex­
ceed 1650 inmates, and that the maxi­
mum population a t  Tucker should not 
exceed 550, and the decree to t>e entered 
will freeze the maximum populations a t  
those numl>ers. Additionally, respon­
dents will be required generally or in 
circumstances other than exceptional not 
to exceed the unit capacities set forth 
with respect to the various individual 
housing units, other than the East Build­
ing, set forth in the report of November 
12, 1975. The court recognizes, of
course, tha t  in emergency situations unit 
capacities may have to l>e exceeded to 
some extent for limited periods of time. 
The court will deal specifically with the 
East Building in a later section of this 
opinion.

Medical Services and Health Care
[3] A state owes to its convicts a con­

stitutional duty to provide them reasona­
ble and necessary medical and surgical 
care, and this duty extends to the field 
of mental health and also to other fields 
of health care. Finney v. Hutto, supra; 
see also Seward v. H utto , 525 F.2d 1024 
(8th Cir. 1975). The existence of this 
duty was recognized by the Arkansas pe­
nal system as early as Talley v. S te ­
phens, 247 F.Supp. 683 (E.D.Ark. 1965).

[4] On the other hand, except in 
cases of emergencies, the need or desire 
of an inmate for medical service a t  a 
particular point in time must be bal­
anced against legitimate institutional in­
terests of the prison administration.

The Arkansas Department of Correc­
tion furnishes its inmates both on-station 
and off-station health care. The on-sta­
tion care is provided by a full time phy­
sician employed by the Department who 
divides his time between Cummins and 
Tucker and who also treats female in­
mates of the Women’s Reformatory. 
The doctor is assisted in his work by 
paramedical personnel a t  both Cummins 
and Tucker, whom the court considers to 
be adequately qualified to perform the 
tasks appropriate to their professions. 
Infirmaries, including pharmacies, are

cr. The court finds tha t  the infirmaries 
are reasonably well equip|>ed and are ad­
equate to provide ordinary types of care 
reasonably to be expected in a prison 
infirmary. No one claims th a t  the infir­
maries are hospitals or tha t  they are 
equipped as such.

The Department also provides its in­
mates with somewhat rudimentary den­
tal care which is administered by two 
part  time dentists. The care appears to 
be limited to the filling and extraction 
of teeth and the furnishing of prison 
made dentures. The equipment a t  Cum­
mins and Tucker api»ears to be adequate 
for the limited uses to which it is put: 

When an inmate is admitted to the 
Department, he is given a physical ex­
amination which includes an examination 
of his eyes. Inmates are advised tha t  if 
they develop eye complaints while in the 
institution, they should follow regular 
sick call procedures. If an inmate needs 
glasses, they are supplied, and the initial 
furnishing is gratis. If an inmate loses 
his glasses through carelessness or ne­
glect, he may be required to pay for a 
replacement. Since most inmates are in­
digent and opportunities for an inmate 
to earn money legitimately while in the 
Department are quite limited, it may be 
difficult if not impossible for an inmate 
to pay for a new set of glasses. The 
court doubts tha t the on-station facilities 
a t  either Cummins or Tucker are ade­
quate to detect eye diseases or conditions 
such as cataracts or glaucoma, particu­
larly a t  the early stages of development.

Contagious diseases can create prob­
lems for any prison, and the m atter  of 
the spread of contagious diseases is 
closely connected to the sanitary condi­
tions of the institution. A common ail­
ment of prison inmates is infectious hep­
atitis, and while fortunately there has 
not been to the court’s knowledge a seri­
ous epidemic of hepatitis in the Depart­
ment, there are and have been many 
cases of it. Likewise, there has been 
some apprehension about the incidence 
and possible spread of tuberculosis in the

Departn 
concern' 
deseripti 
taken In 
with ll 
Health t 
and to r 
appears 
th a t  the 
in the D 
factory i 
improve: 
and a p. 
to keep ; 
including 
Naturall 
substanti 
may be ; 
to a grea 
there is ; 
the build

For m: 
off-statio 
tie Rock 
hospital i: 
S tate  H< 
proximity 
School of 
Medical 
Hospital.

In Aug 
closing o 
described, 
not appe; 
terminal! 
S tate  Ho: 
with a co 
ty Hospi 
terms of 
publicly o 
in-patient 
the Depa. 
from the 
tered by 
gaged in 
and who ; 
program, 
the will < 

Transp< 
the Depa 
provided 
Departme 
mins and



FINNEY v. HUTTO
(,’iio ns 410 l '\S u p p . 251 (1070)

Department. As far as tuberculosis is 
concerned, the record contains detailed 
descriptions of the steps tha t are being 
taken by the D epartm ent in cooperation 
with the Arkansas D epartm ent of 
Health to detect the disease, to trea t it 
and to render it non-communicable if it 
appears in an inmate. The court finds 
that the sanitary conditions th a t prevail 
in the D epartm ent are reasonably satis­
factory on the whole, but there are some 
improvements th a t ought to be made, 
and a particular effo rt should be made 
to keep flies out of the prison buildings, 
including kitchens and dining areas. 
Naturally, the incidence of flies varies 
substantially with the seasons; and flies 
may be able to ge t inside the buildings 
to a greater ex ten t during days on which 
there is an unusual am ount of activity in 
the buildings than on ordinary days.

For many years inm ates who required 
off-station care were transported  to Lit­
tle Rock where they were trea ted  and 
hospitalized, if need be, a t the Arkansas 
State Hospital which is located in close 
proximity to the U niversity of Arkansas 
School of Medicine and to the University 
Medical Center, including University 
Hospital.

In August of last year following the 
closing of the hearings th a t have been 
described, the D epartm ent for reasons 
not appearing of record seems to have 
terminated its arrangem ent with the 
State Hospital and to have supplanted it 
with a contract with the Jefferson Coun­
ty Hospital in Pine Bluff under the 
terms of which the Hospital, which is 
publicly owned, will provide com{>ensated 
in-patient hospital services to inmates of 
the Department who may be sent there 
from the prisons. T hat care is adminis­
tered by physicians and surgeons en­
gaged in private practice in Pine Bluff 
and who are willing to participate in the 
program. The contract is term inable a t 
the will of either party.

Transportation between the units of 
the Department and the Hospital is now 
provided by ambulances owned by the 

i Department and stationed a t both Cum­
mins and Tucker. Pine Bluff is much

£

259

closer to Cummins than is L ittle Rock 
and is somewhat closer to Tucker. Until 
last summer, the D epartm ent owned no 
ambulances.

The arrangem ent between the Depart­
m ent and the Jefferson County Hospital 
is not intended as a perm anent one. The 
D epartm ent now has under construction 
a hospital of its own in Pine Bluff locat­
ed near the new Women’s Reform atory 
th a t has been mentioned. This hospital 
when completed will be in all respects a 
modern, up-to-date and fully equipped 
and staffed  hospital facility. I t  will not 
only provide medical and surgical care 
for inmates but will also serve as a re­
ception and evaluation center for all new 
inmates. The s ta ff  will include one or 
more psychiatrists or clinical psycholo­
gists.

The D epartm ent hopes to have this 
new hospital completed and in operation 
by 1977. However, the court’s experi­
ence with the construction of the Wom­
en’s Reform atory causes it to be some­
w hat skeptical about ta rg e t dates for the 
completion of D epartm ent construction, 
particularly in view of the fac t th a t 
much of the work is done by prison la­
bor.

The court will observe, as it has done 
in the past, th a t many of the inm ates of 
the D epartm ent su ffer from serious 
mental and emotional illnesses and dis­
turbances. Historically, the D epartm ent 
has done nothing for those people except 
tre a t them with drugs, and send violent 
inm ates to the S tate Hospital to be held 
tem porarily until their periods of vio­
lence subside or are brought under con­
trol. Until very recently the D epart­
m ent has never had any system atic men­
tal health program  for inmates; nor has 
the D epartm ent ever employed a full 
tim e psychiatrist or psychologist al­
though it has had from time to time the 
benefit of p art time services of members 
of those professions who have not had 
any meaningful opportunity to engage in 
any extended counselling w ith or tre a t­
m ent of disturbed inmates.



260
410 F E D E R A L  S U P P L E M E N T

L ast year the D ep artm en t adopted and 
put into lim ited o,.oration  a group ^ c r a ­
py program  designed  to ai<l inm ates hav­
in g  cor recti hie character or em otional de­
fects . This program  w as devised  and its 
practice is ta u g h t by the A sklep .eion  
Foundation o f C arbondale, Illinois and is 
som etim es called “ A F .” Mr. H utto  te s ti­
fied  a t som e len g th  about the program  
and th e  court personally  heard a good  
deal o f ex p ert testim on y  about it on the  
final day o f th e  1975 hearings. The^ pro­
gram  is closely  akin although not id e n t - 
cal to transactional analysis, a n d  th e  w it­
nesses expressed  g rea t hopes for it  as 
applied to convicts.

T he court th inks th a t the estab lish ­
m ent o f th e  program  in the D epartm ent 
is certain ly  a step  in th e  right direction  
and th a t it  should be ex tended  to  the  
e x te n t feasib le  if  it appears to  be g e t­
tin g  results. H ow ever, the program  is 
probably not su ited  to all inm ates, and it 
should not be used to the autom atic  e x ­
clusion o f  o ther program s o f  m ental 
health  th a t m ay show  prom ise N or  
does th e  court think th a t the in itiation  
o f a program  or program s o f group th er­
apy takes th e  place o f  regular psychia­
tr ists or psychologists to bo used in d iag­
nosing, ev a lu a tin g  and endeavoring  to  
trea t individual inm ates by conventional 
m ethods o f individual psychotherapy.

G ettin g  back to the subject o f on -sta ­
tion care and the adequacy o f the facdi- 
ties and services available at Cunl!™n‘ 
and Tucker, it  appears to  the court th a t  
th e  Court o f A ppeals in reach ing its  ad­
verse decision on th is phase o f th e  case  
w as in fluenced  in substantia l m easure by 
the results o f a study  th at w as m ade in 
1972 by the A rkansas S ta te  D epartm ent 
o f H ealth  a t the request o f the Board of 
Correction. T he report o f the resu lts o f 
th e  study pointed ou t m any serious d e fi­
ciencies in th e  health  care o ffered  by the  
D epartm ent and w as discussed a t  som e  
len g th  in F i n n e y  v .  A r k a n s a s  B o a r d  o f  

C o r r e c t i o n ,  s u p r a ,  505 F.2d a t 202-04 .
Since th a t report w as m ade, there  

have been num erous and substantia l im ­
provem ents a t both C um m ins and Tuck­
er but the court th inks th a t rem ediable

d eficiencies probably still e x is t  It has 
been som e four years since the study  
w as conducted, and the court is g o in g  to 
direct the D ep artm en t to request that 
another study be m ade as soon as practi­
cable T he D ep artm en t w ill be expected  
to  fo llow  any reasonable su ggestions  
th a t th e  H ealth  D ep artm en t may make.
T he study requested  should n ot be lir n i- 
ed to  the adequacy o f personnel and 
equipm ent at the prisons, b u t should also 
ex ten d  to the adequacy o f on-station  
serv ices o ffered  and to such th in gs as 
san itary  conditions a t the prisons and 
th e  adequacy o f th e  m eans b ein g  taken  
to  prevent or control the spread o f con­
tag iou s d iseases, including tulierculos.s.

The ex is tin g  arran gem en t b etw een  the 
D ep artm en t anil th e  Jefferson  County  
H ospital is not ideal. T he H ospital was 
n ot designed  as a prison hospital, it is 
n ot under th e  control o f the D epartm ent 
or any other agen cy  o f the S ta te  itself, 
and th e  doctors practicing  therein  are 
n ot sta te  em ployees. M oreover the 
court is not w illin g  to perm it the 
D epartm ent en tire ly  to sever  its connec­
tion  w ith  perhaps m ore advanced facili­
tie s  and services th a t m ay be available  
a t L ittle  Rock. T he court thinks it  prob­
able th a t the D ep artm en t in fact has a 
contingency  arran gem en t w ith  the^State  
H ospital or the M edical C enter w hereby  
inm ates can have th e  b en efit o f facilities  
and services th at may l>e available at 
those in stitu tion s and w hich may not be 
availab le a t P ine B lu ff. If no such con­
tin gen cy  arran gem en t ex is ts , the 
D ep artm en t w ill be exp ected  to under­
take to  n ego tia te  one as soon as possible.

W hat has ju s t been  said is not to  be 
tak en  as a d isp aragem en t o f the J e ffer ­
son C ounty H ospital or o f the physicians 
w ho practice in th a t hospital or as a 
disapproval o f  th e  ex is tin g  contract 
T he court is sim ply not w illin g  to  permi 
th e  D ep artm en t to  rely en tire ly  on the 
P ine B lu ff fac ility  to provide off-sta tion  
care th at inm ates m ay need.

A s has been  said , the court th inks that 
the D epartm ent should now proceed to 
em ploy on a fu ll tim e basis one or more 
psych iatrists or psychologists for the pur-

ivoses thai 
provide :u 
for the \ 
Those req

With iv 
able healt 
th a t the • 
[Hilicy of . 
inm ate w! 
th a t inma 
cian and t< 
sonnel is i 
sick calls 
l«>th Cum: 
sick call i 
East Buil. 
physician 
week.

It is tru  
es inmate: 
ment impi 
given pro; 
instances, 
the result 
or profess 
result fron 
course, it 
jxiint out t 
ble for an 
erately to : 
deny him 
sons of spi 
or punishr 

To the t 
complain 
they have 
medication 
claims cai 
when the 
claims for 

Before c 
opinion, th. 
ex ten t wit 
by inmate; 
or mental 
Dcpartmen 
many of l! 
and for loi 
feign illne 
will go so 
avoid duty, 
shirk work 
real problc



FINNEY v. HUTTO
* C ite  as  -110 l-'.Supp. 251 (1978)

poses th a t have been indicated, and to
provide adequate quarters and facilities 
for tile work of the new employees. 
Those requirem ents will lie made.

With regard to inm ate access to avail­
able health care services the court finds 
that the D epartm ent has no custom or 
policy of denying necessary care to any 
inmate who needs it, and fu rther finds 
tha t inmate access to the prison physi­
cian and to the infirm aries and their per­
sonnel is reasonably adequate. Regular 
sick calls and “pill” calls arc made a t 
both Cummins and Tucker each day. A 
sick call is made by paramedics a t the 
East Building each day, and the prison 
physician visits the E ast Building once a 
week.

It is true th a t in some isolated instanc­
es inmates may have been denied trea t­
ment improperly or may have not been 

, given proper treatm ent. Such isolated 
instances, however, would appear to be 
the result of nothing but adm inistrative 
or professional error, and they do not 
result from any departm ental policy. Of 
course, it ought to be unnecessary to 
point out th a t it is absolutely impermissi­
ble for any D epartm ent employee delib­
erately to refuse to tre a t an inm ate or to 
deny him prescribed medication for rea­
sons of spite or as a means of retaliation 
or punishment for misconduct.

To the ex ten t th a t individual inmates 
complain th a t on particular occasions 
they have been denied trea tm en t or 
medication, the court thinks th a t such 
claims can be dealt with adequately 
when the court considers the individual 
claims for relief th a t are before it.

Before concluding this section of this 
opinion, the court desires to deal to some 
extent with the problem of malingering 
by inmates. Unless they are physically 
or mentally disabled, inm ates of the 
Department are expected to work, and 

^  many of them are required to work hard 
and for long hours. Some inmates will 
feign illness to avoid work, and some 
will go so fa r as to injure themselves to 
avoid duty. This tendency of inmates to 
shirk work by feigning illness creates a 
real problem for the prison adm inistra-

261

tion, and m alingering is quite properly a 
m ajor disciplinary offense and may be 
punished severely.

There is one aspect of the problem, 
however, th a t gives the court some trou­
ble. Inm ates can and do become ill on 
occasion while a t  work. If an inm ate 
complains of illness while working in the 
fields, for example, and expresses a de­
sire to go to the infirm ary, his request 
will ordinarily be gran ted  by his supervi­
sor and he will be transported to the 
infirm ary from his place of work. But, 
when the inm ate asks to be taken to the 
infirm ary in such circumstances he runs 
the risk of being charged with m alinger­
ing unless the doctor or the paramedic 
who examines him finds th a t he is sick 
enough to be put to bed or a t least to 
receive an excuse from working for the 
rem ainder of the day. If the inm ate is 
so charged and found guilty, he may be 
confined in punitive isolation, or may 
lose good time or be reduced in classifi­
cation, or he may be subjected to a com­
bination of those sanctions.

[5] The court recognizes th a t an in­
m ate may go to work on a particular day 
and la te r pretend to be ill in order to 
obtain a t  least a brief respite from labor 
while being carried to the infirm ary, and 
th a t this gives a problem to those in 
charge of inm ate work crews. But, an 
inm ate who becomes ill or honestly 
thinks th a t he is sick should not be dis­
couraged from seeking medical attention  
by fear of being exposed to a m ajor dis­
ciplinary proceeding should the person 
who examines him conclude th a t there is 
nothing serious the m atter with him.

The court thinks th a t the problem can 
be solved, a t  least in part, by providing 
th a t before an inm ate can be found 
guilty  of m alingering by a disciplinary 
committee or a panel thereof, the com­
m ittee or panel m ust consult with the 
doctor or o ther person who examined the 
inm ate and determ ine th a t in the opinion 
of the exam iner the accused inm ate was 
in fact a m alingerer on the occasion in 
question. The mere fact th a t the inm ate 
in question was returned to his place of 
work w ithout being pu t to bed or given

I

I



262 •410 FEDERAL SUPPLEMENT

a “lay-in” for the day is not enough au­
tomatically to justify  a conviction. The 
decree to i>e entered will so provide.

Rehabilitation
Unlike the situation th a t existed in 

1973, the rehabilitation picture within 
the D epartm ent is now quite bright, and 
the court finds it free of constitutional 
deficiencies.

With the possible exception of the live­
stock operation a t Booneville, all of the 
off-stations mentioned in an earlier por­
tion of this opinion were established in 
1975, and their rehabilitative value is ob­
vious.

In 1973 the Arkansas Legislature es­
tablished the D epartm ent of Correction 
School District, and the educational pro­
gram  offered by th a t district is com para­
ble to the program  available in the pub­
lic schools of the State. If a trustw or­
thy inmate completes his high school ed­
ucation while an inm ate of the D epart­
ment, he can arrange to pursue his edu­
cation a t the college level if he desires to 
do so. The educational program, which 
is available to all inmates of the D epart­
ment, was discussed in some detail by 
the court in Rutherford  v. Hutto, 377 
F.Supp. 268 (E.D.Ark.1974), to which 
opinion reference is now made.

In addition to the educational program  
available to female inmates of the 
Departm ent, those inmates are being 
trained in ceramics and in o ther areas. 
Hopefully, when the women are moved 
into their new institution rehabilitative 
opportunities will be broadened further.

Extensive vocational training is availa­
ble a t both Cummins and Tucker. An 
inm ate a t Cummins may be trained in 
the repair of farm  equipm ent and furni­
ture, in upholstering, welding, building 
maintenance, and “graphic a rts .” A 
Tucker inm ate may be trained in the 
repair of automobile bodies, in the tun- 
ing up of automobile engines, welding, 
woodwork and drafting.

The graphic arts program  a t Cummins 
deserves particular mention. It teaches 
offset printing and perhaps o ther forms

of duplication, and inm ates who have 
completed the course and have been re­
leased have been quite fortunate in find­
ing jobs in which their newly develojied 
skill can lie employed.

Finally, although the health care pro­
vided by the D epartm ent has l>een criti­
cized, it appears to the court th a t a good 
many inmates em erge from the Depart­
m ent in better physical condition than 
they were in when they were received as 
inmates, and th a t in itself has rehabilita­
tive value.

Regulations as to Mail and Visitors
The D epartm ent’s regulations relating 

to inm ate mail which gave the Court of 
Appeals trouble, 505 F.2d a t 210-12, 
were promulgated prior to the decision 
of the Supreme Court in Procunier v. 
Martinez, 416 U.S. 396, 94 S.Ct. 1800 40 
L.Ed.2d 224 (1974). Since th a t decision 
the regulations, which apjtear as p a rt of 
Chapter IV of the January , 1975 edition 
of the D epartm ent’s Inm ate Handbook, 
have been revised. The court finds th a t 
the revised regulations are quite liberal 
and comply with constitutional require­
ments.

Regulations dealing with visits be­
tween inmates and members of their 
families and friends also appear in Chap­
te r IV of the Handbook, and they appear 
to the court to l>e reasonable and appro­
priate.

Legal Assistance to Inm ates
The opinion in Finney  deals in part 

with the adequacy of legal assistance 
available to inmates, and this court was 
directed to “reexam ine procedures re la t­
ing to inm ate assistance to satisfy the 
alternative requirem ents of Johnson v. 
Avery, 393 U.S. 483, 89 S.Ct. 747, 21 
L.Ed.2d 718 (1969).” Finney v. Arkansas 
Board o f  Correction, supra, 505 F.2d at 
213.

The court finds th a t the legal assist­
ance available to inmates, including as­
sistance rendered by fellow inmates, at 
times called “w rit w riters,” is and has 
been adequate, and th a t the Court of

Appo. 
in tin

As
mates 
writ \ 
within 
ye a rs, 
contra 
by o ik  
simple

The 
ly inf< 
of the 
Legal 
the D. 
yer. i 
charge 
the I). 
[Kxsitio, 
in nut 
th a t t[ 
assist 
505 F.l 

I t is 
|x>sitior 
to file 
against 
tloes re 
ings gv 
}K)St-COI 
kansas 
courts, 
have n- 
corpus 
recent i 
Court o 
394 F.S 
F.2d 13,- 
g a r n e r  

(E.D.At 
Befor< 

will poi: 
ance of 
and of I 
who can 
to empl.

3. The i. 
connect • 
Cl. fclllir 
rd  w ith 
K 2d at 
prison \ 
lions hi,'

m m w BUMSWWtu,-.. w



I.'ivo
ro-

FINNEY v. HUTTO
r i l e  as  410 F .S u p p . 2~>l (1070)

263

ind-
>pod

|>ro- 
riti- 
,ood 
urt- 
han 
1 as 
ii ta ­

rts

ling 
l of 

12, 
sion 
/• v. 
i, 40 
sion 
t of 
lion 
ook, 
that 
teral 
i i ro­

be- 
heir 
nap- 
’>ear 
pro­

part 
mce 
was 
■lat- 
the 

n v. 
, 21 
nsas 
1 a t

sist- 
as- 

i, a t 
has 

t of

I

*

IV.

i

Appeals may not have boon advised fully 
in this area.

As to inmate assistance to o ther in­
mates, the court knows full well th a t 
writ writers have functioned freely and 
without hindrance in the D epartm ent for 
years, and th a t the representation to the 
contrary made to the Court of Appeals 
by one of the appellants in Finney was 
simply false.5

The Court of Appeals was also not ful­
ly informed as to the sta tu s and function 
of the Legal Adviser to Inmates. The 
Legal Adviser is a full time employee of 
the Department, and is a licensed law­
yer. His services are available w ithout 
charge to inmates of all of the units of 
the Department. The Adviser is in a 
|x)sition to serve and does serve inmates 
in numerous fields, and the statem ent 
that the Adviser “ is not perm itted to 
assist the prisoners in civil litigation,” 
505 F.2d a t 213, is not an accurate one.

It is true th a t the Adviser is not in a 
position to represent inmates who wish 
to file § 1983 petitions seeking relief 
against their keepers. But he can and 
does represent inm ates in civil proceed­
ings generally, including proceedings for 
post-conviction relief either in the Ar­
kansas state courts or in the federal 
courts. That the efforts of the Adviser 
have not been unsuccessful in habeas 
corpus context is dem onstrated by the 
recent decision of this court and of the 
Court of Appeals in Sanford v. Hutto, 
394 F.Supp. 1278 (E.D.Ark.), a ff'd , 523 
F.2d 1383 (8th Cir. 1975). See also B um ­
garner v. Lockhart, 361 F.Supp. 829 
(E.D.Ark.1973).

Before leaving this subject the court 
will point out th a t ap art from the assist­
ance of the Legal Adviser to Inm ates 
and of fellow inmates, Arkansas convicts 
who can afford to do so are always free 
to employ counsel of their choice, and

th a t indigent inm ates are entitled in 
projier eases to judicially appointed coun­
sel in connection with either civil or 
criminal proceedings in the sta te  or fed­
eral courts.

The court recognizes th a t if the legal 
assistance to be given by one inm ate to 
another is to be effective, the inmate 
giving the assistance m ust have reasona­
ble access to some library facilities. 
Law libraries have been purchased a t 
both Cummins and Tucker. The court 
has inspected them  and finds them ade­
quate for inmate use and th a t access to 
them is reasonably available subject to 
restrictions which are not inappropriate.

Inm ate S a fe ty
In this section of the opinion the court 

will discuss the question of w hether the 
D epartm ent is exercising ordinary care 
for the safety of inm ates from abuse and 
violence a t the hands of o ther inmates, 
and the question of w hether living condi­
tions a t  Cummins or Tucker are so un­
reasonably dangerous to inmates as to 
make confinem ent in either of those in­
stitutions unconstitutional.

The questions have been sta ted  as 
above because it may l>e doubted th a t 
any prison is a “safe” place for an in­
m ate to live. Regardless of how well 
constructed, organized, and administered 
a prison may be, incidents of violence of 
various kinds, including homosexual vio­
lence, are going to occur from time to 
time. And the court has already men­
tioned the killing of two inm ates by oth­
er inmates since A ugust of last year.

In the very nature of things a sta te  
cannot be held to be an insurer of the 
safety of the inm ates of its penal institu­
tions. But a sta te  does owe to convicts 
the duty to use ordinary care for their 
safety, and a sta te  cannot be perm itted 
to m aintain a penal institution in which

J. The representation in question was made in 
connection with one of the appeals of James 
G. Ellingburg, which appeals were consolidat­
ed with the appeal in Finney proper. See 505 
F2d at 213. Ellingburg is himself a notorious 
pnson writ writer and prepared many peti­
tions both for himself and other inmates while

confined in Cummins from about 1972 until 
his release in the summer of 1975. As the 
court recalls, Ellingburg handled his own ap­
peals, and the representation in question is not 
to be attributed to counsel for petitioners in 
Finney.



264 110 F E D E R A L  S U P P L E M E N T

conditions arc so dangerous th a t the in­
mates m ust exist in dread of imminent 
injury or death inflicted hy o ther in­
mates.

In years past an ordinary inm ate of 
the D epartm ent, referred to then as a 
“ranker,” was in almost constant danger 
from other rankers, and he was also in 
danger of being killed by armed inm ate 
guards. His danger of attack  from oth­
er rankers was enhanced by the fact 
th a t the trusty  guards would do little or 
nothing to protect him, and th a t the in­
m ate floorwalkers assigned to patrol the 
barracks a t night were of little, if any, 
value as fa r as inm ate safety was con­
cerned.

In Holt I I  the trusty  guard system 
(and other aspects of the trusty  system) 
was held to be unconstitutional and was 
ordered to be phased out with the tru s t­
ies being replaced by civilian personnel.

By the time of Holt III  the tru sty  
guards had been replaced except for a 
few arm ed inm ates who were stationed 
in the towers and the inm ate dog han­
dlers who were armed when the prison 
bloodhounds were being used in pursuit 
of an escaped convict or a crim inal6 

The court finds th a t a t the present 
time the D epartm ent uses no arm ed in­
m ates as guards or in any other capacity, 
including the handling of dogs. Thus, 
an inm ate today is in no danger of death 
or injury a t the hands of another inm ate 
in whose hands a weai>on has been 
placed by the D epartm ent.

In the course of the hearings counsel 
for petitioners suggested in their exam i­
nation and cross-examination of witness­
es th a t the continued use of inm ate 
floorwalkers to patrol the barracks a t 
night was a relic of the old system, and 
th a t it should be prohibited. The court 
does not agree.

The floorwalkers are unarmed and 
have no authority with respect to the

6. The court will note at this point that the 
bloodhounds used by the Department are not 
"guard” or “attack" dogs. They are not vi­
cious; they are not trained to pursue or attack 
human beings but simply to follow human 
scent. When a dog is working, he is under the

inm ates over whom they are supposed to sonably
watch. While the court doubts, as it has safety <>
doubted in the past, th a t the floorwalk­ and th<
ers are of much protection to sleeping Departn
inmates, they are not a source of danger care foi
to  inmates; their presence may have Cummin
some deterring  effect on the “creepers” gerous |
and “craw lers” mentioned in Holt II, and raise a
according to Commissioner H utto and inm ate :
Superintendent Lockhart they serve cer­
tain o ther useful purposes as well. 1

W hat has ju s t been said about the As is
floorwalkers who operate in the barracks isting ii
is generally applicable to the inmate tim e an
turnkeys who are stationed outside the ons. A !
doors of the respective barracks. th a t cai

The actual guarding of inmates from sure to ■
other inmates is now done by civilian ed form
guards who are always stationed outside life. N
the barracks and who can readily come lions co
to the assistance of an imperilled inmate. all over
And inm ates who are working in the is not so
fields are under the guard of free world exists i.
personnel who are in a position to come and the
to the help of an inm ate who is th reat­ kansas 1
ened or assaulted by a fellow convict. exceptio

Further, regardless of w hat may be relation
thought about conditions in the East |>erhaps
Building a t Cummins, a subject th a t will Depart i ’
be reached in due course, the fact re­ number
mains th a t the authorities a t Cummins ministry
have been able to use the building to In di
remove from general jxjpulation a num­ and con
ber of inm ates who ordinarily would live nored u
in barracks anti who would constitute a ap|>earii
particular source of danger to other in­ this opi’
mates. lar ref<

The two killings th a t have taken place one app
in recent months occurred a fte r the cipline,
record in the case was closed, and the inmates
circumstances of the killings have not assignm
been developed in the evidence. * |x>pulati

While those incidents and other non- overlool
fata l incidents th a t have doubtless oc­ f the effi
curred are highly regrettable, the court udices l
finds tha t all in all officers and employ­ on relat
ees of the D epartm ent have done a rea- tween i

immediate phvsical control of the handler.
employt

RaceBloodhounds such as those used by the
Department can be, and are, used not only to somewl:
track fleeing criminals and escapees, but also i the sub
to track lost or missing persons, including chil­ volved.
dren.

i .

■110 i



265FINNEY v. HUTTO
C ile  ns 410 f .S n p p .  231 <1!)7(i)

sonably good job in the field of inmate 
safety over the past three or four years, 
and the court does not find th a t the 
D epartm ent is failing to use ordinary 
care for inmate safety, or th a t either 
Cummins or Tucker is today such a dan­
gerous place for an inm ate to live as to 
raise a constitutional problem as fa r as 
inm ate safety in itself is concerned.

R a c e  R e l a t i o n s  i n  G e n e r a l

As is well known, social conditions ex­
isting in a given community a t a given 
time are ap t to be reflected in its pris­
ons. And if a social problem is of a kind 
tha t can arise in a prison, it is almost 
sure to do so and probably in exacerbat­
ed form due to the very nature of prison 
life. No one questions th a t race rela­
tions constitute a m ajor social problem 
all over the United S tates today, and it 
is not surprising to find th a t the problem 
exists in prisons all over the country, 
and the institutions operated by the Ar­
kansas D epartm ent of Correction are no 
exceptions. Indeed, the problem of race 
relations a t both Cummins and Tucker is 
perhaps the most vexing one to beset the 
Department, and it m anifests itself in a 
number of areas of prison life and ad­
ministration.

In discussing certain prison practices 
and conditions race relations can be ig­
nored up to a point, and the discussions 
appearing in the preceding sections of 
this opinion have not made any particu­
lar reference to race. However, when 
one approaches such areas as prison dis­
cipline, alleged brutality  practiced upon 
inmates, inm ate classifications, and job 
assignments, racial consists of inmate 
populations and prison staffs cannot be 
overlooked, nor can there be overlooked 
the effect th a t racial a ttitudes and prej­
udices may have, or be alleged to have, 
on relationships between inmates and be­
tween inmates anti prison officers and 
employees.

Race relations, w hether in a prison or 
somewhere else, depend ultim ately on 
the subjective feelings of the jocople in­
volved. As long as the subjective feel­

ings involved are no more than feelings, 
no federal constitutional problem is 
presented. Where, however, those .feel­
ings m anifest themselves objectively in 
words, actions, or policies in prison con­
tex t, constitutional deprivations can re­
sult.

Racial a ttitudes in this country have 
developed over a very long period of 
time, and in many people are so deep 
seated th a t the persons holding them  are 
not actively conscious th a t they exist 
and influence their objective conduct. 
Thus, a white prison employee may dis­
crim inate against black inm ates w ithout 
being really conscious th a t he is doing so. 
The reverse of th a t proposition is also 
true. Moreover, a member of a minority 
racial or ethnic group who believes th a t 
he is a member of a class th a t has been 
system atically discriminated against by 
members of a dom inant m ajority may 
see discrimination where none exists. 
Further, a member of a minority, includ­
ing a convict, may seek to excuse his 
own failings, incapacities, or shortcom­
ings by claiming th a t he has been the 
victim of racial discrimination when such 
is not the case.

I t is probably unnecessary to say th a t 
when one deals with race relations in the 
A rkansas D epartm ent of Correction, one 
is dealing with members of the Negro 
and the Caucasian races. If o ther racial 
or ethnic groups are represented in the 
D epartm ent a t all, the num ber of their 
members is so small as to be insignifi­
cant.

Negroes in Arkansas are in a substan­
tial minority when compared with the 
population of the S tate  as a whole. In 
the D epartm ent of Correction, however, 
black inm ates make up nearly one-half 
of the total prison population and have 
done so for as long as this court has 
been fam iliar with the Arkansas prison 
system.

A dm inistration of the D epartm ent, on 
the o ther hand, is clearly under the con­
trol of white people. A lthough in recent 
years the D epartm ent has employed a 
substantial number of blacks and is try-

no F.Supp.—17Vj



266 111) FEDERAL SU PPLEM EN T

in}' to hire more, a large m ajority of the 
employees are white, and Negroes occu- 
pying |K>sitions of any real authority  are 
very few indeed.

Regardless of the fact th a t a t Cum­
mins, and presumably a t  Tucker as well, 
one finds a num ber of black employees 
bearing titles such as Captain, L ieuten­
an t or Sergeant, it appears to the court 
th a t the only black person who occupies 
a position of any real authority  in the 
adm inistration of the prison system is 
Ms. Helen C arruthers, the Superintend­
en t of the Women’s Reformatory. And 
the court will say a t this point th a t she 
has done an excellent job with a racially 
mixed female population in spite of the 
difficulties, including overcrowding, un­
der which she has been required to work.

Prior to the D epartm ent’s voluntary 
integration of Tucker and prior to the 
integration of Cummins pursuant to the 
decision in H olt II, the court had no real 
occasion to consider race relations in the 
D epartm ent apart from the question of 
segregation itself. However, in Holt I I I  
the court had urgent occasion to discuss 
those relations and did so in several con­
texts. See Holt v. H utto, supra, 363 
F.Supp. a t  201-05 and 214.

In Holt I I I  the court found th a t race 
relations in the D epartm ent were bad, to 
say the least, and the Court of Appeals 
certainly did not disagree with th a t find­
ing. Finney v. Arkansas Board o f  Cor­
rection, supra, 505 F.2d a t 206 and 209— 
10.

Most of w hat the court had to say in 
Holt i i l  by way of criticism of the 
D epartm ent in the field of race relations 
is still valid today, and the court sees no 
occasion to repeat those statem ents here 
in any detail. -While conditions in the 
D epartm ent have probably improved 
som ewhat over the last two years and 
several months, the court finds th a t in 
spite of D epartm ental regulations and 
memoranda designed to improve race re­
lations and to elim inate or m itigate the 
effects of poor race relations, the rela­
tions between whites and blacks are still 
bad a t  both Cummins and Tucker, partic­
ularly a t the form er institution. And

the court fu rther finds th a t the jioor re­
lations are still due to the factors that 
the court found causative in Holt III, 
namely a paucity of blacks in positions 
of real authority  th a t are meaningful to 
inm ates in their day to day prison life, 
the low caliber of the inmates in general, 
including black inmates, and the poor 
quality and lack of professionalism of 
the lower echelons of prison employees 
who are in close and abrasive contact 
with inm ates every day.

On the positive side, the court thinks 
th a t the members of the Board of Cor­
rection, Commissioner H utto, and Super­
intendents Lockhart and Britton are con­
scious of the problem and are working 
tow ard a t least a partial solution, al­
though in candor the court doubts that 
race relations, as such, will ever be any 
b e tte r in the D epartm ent than they are 
in the free world; and th a t observation 
is as applicable to any prison in the 
country as it is to the Arkansas prisons.

One hopeful sign is the establishment 
of the rehabilitative programs th a t have 
been described. If they do nothing else, 
such program s tend to am eliorate the 
rigors and harshness of prison life, and 
th a t amelioration in itself would seem to 
have a tendency to improve relations be­
tween inm ates and prison personnel re­
gardless of race. Moreover, providing 
ignorant or illiterate black inm ates with 
w hat am ounts to a public school educa­
tion should tend to upgrade them and 
qualify them  for b e tte r assignm ents and 
a b e tte r life inside the prison as well as 
in the outside world.

Conversely, system atic tra in ing  of 
prison employees is calculated to improve 
their general competency and profession­
alism, to make them aw are of racial atti­
tudes and problems, and to equip them 
b etter to deal with inmates of a race 
o ther than their own. And it appears 
from  the record th a t train ing programs 
for employees of the D epartm ent have 
been institu ted  and are being prosecuted.

Respondents’ Exhibit No. 687 is a copy 
of the D epartm ent’s “A ffirm ative Action 
P lan” which was initiated in March, 1974 
and which was approved in February,

197. 
coin 
proi 
Dep 
out 
gon, 

T 
Mar 
nati 
wen 
riod 
I>eo) 
blac! 
beer, 
cent 

A. 
are 1 
tirel 
kails 
and 
utili. 
servi 
Dep; 
plan 
and 
blacl 
and 
Man- 
work 

\V! 
plan 
is do 
| lose 
it ha 
the ; 
of wl 
that 
invol 

Thi 
case.i ,i llepu
black 
or di 
mont 

% Depa 
ullevi 
Depa; 
e<I s<i 
Depa i 
under 

Wh 
not to



i
1
I

i
1
.
i
|
i
j
t

ii
••

FINNEY v
I ' l l , .  ; ,S 111) l ’.S lI

1975. The plan indicates th a t the major 
concern of the D epartm ent has been to 
promote blacks already hired by the 
Department, and th a t since March, 1974, 
out of 198 promotions, 64 or 32.32% have 
gone to blacks.

The plan fu rther reflects th a t since 
March, 1974 the D epartm ent has term i­
nated 260 persons of whom 61 or 23.46% 
were black, whereas during the same pe­
riod of tim e the D epartm ent hired 274 
people, 78 of whom or 28.47% were 
black. Thus, the hiring of blacks has 
been in excess of black term inations per­
centagewise.

According to the plan, new employees 
are hired w ithout regard to race and en­
tirely as a result of referrals by the Ar­
kansas Employment Security Division, 
and the plan recites th a t prior to the 
utilization of the ESD as a referring  
service application forms used by the 
Department did not refer to race. The 
plan states th a t between A ugust 30, 1973 - 
and June 30, 1974 the D epartm ent’s 
black work force was increased by 2.4%, 
and th a t during the period between 
March, 1974 and May, 1975 the black 
work force increased by 5.1%.

While the progress reported in the 
plan is commendable, and while the plan 
is doubtless sufficient to serve the pur­
pose for which it was formed, and while 
it has evidently gained the approval of 
the governmental agency, the approval 
of which was required, the court doubts 
that it really reaches the problem th a t is 
involved here.

This is not a fair employment practices' 
case. The question is not w hether the 
Department is discrim inating against 
blacks in m atters of hirings, promotions, 
or discharges, but w hether the recruit­
ment and promotional policies of the 
Department are designed to correct or 
alleviate the racial imbalance of the 
Department’s sta ff which has contribut­
ed so much to the difficulties th a t the 
Department has had in the area now 
under consideration.

What the D epartm ent needs to do is 
not to hire people w ithout regard to race

. IIDTTO 267
1>]>. 2.">1 (197(5)

but to make a conscious effo rt to hire 
qualified blacks in additional numl>crs 
and to place them  in positions in the 
institutions which will enable them to 
exercise some real authority  and influ­
ence in the a s s e t s  of prison life with 
which black inm ates are primarily con­
cerned.

The D epartm ent needs more blacks 
who are in positions th a t will entitle 
them  to sit on classification committees 
and on disciplinary panels, to counsel 
with inmates about their problems, and 
to supervise inm ates while a t work. 
This need was recognized by this court 
in Holt III, and it was recognized by the 
Court of Appeals in Finney, 505 F.2d a t 
210.

To illustrate th a t need: Many of the 
disciplinary problems of the D epartm ent 
arise in the prison fields where large 
numbers of black inmates work as mem­
bers of prison “hoe squads” or “garden 
squads.” An exam ination of Respon­
dents’ Exhibit No. 659 reveals as of June 
11, 1975 the field security force a t Cum­
mins consisted of a Field Major, a Field 
Captain, three Field Lieutenants, and 
fifteen “Correctional Officers II.” The 
major, the captain, and the lieutenants 
were all white, and of the fifteen correc­
tional officers twelve were white. On 
the o ther hand, Respondents’ Exhibit 658 
reflects th a t on June 10, 1975 282 in­
mates were assigned to hoe squads; 
54.9% of those inm ates were black. The 
same exhibit shows th a t on the same 
date 137 inm ates were assigned to  the 
garden squads; 52.5% of those inm ates 
were black. In such a situation racial 
difficulties, including claims of discrimi­
nation, are certain to arise, and they do.

There is no constitutional objection, of 
course, to the D epartm ent’s using the 
ESD as a referring  service, but the ex­
clusive use of th a t agency is not ap t to 
produce applicants the hiring of whom 
will meet the D epartm ent’s need to cor­
rect the existing racial imbalance of the 
staff.

The court recognizes, as it has recog­
nized in the past, th a t it is difficult to



268 110 FEDERAL SUPPLEMENT

recruit blacks who are qualified and will­
ing to hold resjxinsible [x>sitions in the 
D epartm ent; a num ber of factors are 
involved, including the rural location of 
the prisons. But the court is not satis­
fied th a t Commissioner H utto and others 
connected with recruiting prison person­
nel have really exerted themselves to the 
fullest ex ten t possible or have exhausted 
their resources as far as hiring responsi­
ble blacks is concerned.

There is nothing to indicate th a t the 
D epartm ent's need in this connection has 
been made known generally to the black 
population in A rkansas through advertis­
ing or otherwise, or th a t anyone connect­
ed with the D epartm ent has sought to 
enlist the good offices of the University 
of Arkansas a t Pine Bluff, which is a 
predom inantly black institution of higher 
learning and which used to be an all 
black college, or th a t help has been 
sought from such agencies or organiza­
tions as the Urban League or the Na­
tional Association for the Advancement 
of Colored People, or from any govern­
mental agencies concerned with the wel­
fare of minorities.

Such approaches to the problem m ight 
not tu rn  out to be fruitful, but a t  least 
they should be explored. Respondents 
will be directed to make fu rth er efforts 
in the field of black employment and in 
th a t connection to give consideration to 
the court’s suggestions although the 
court is not going to command th a t any 
particular suggestion be followed.

In this section of the opinion the court 
has undertaken to discuss race relations 
in the D epartm ent in a general way. 
The court will now proceed to examine 
o ther si>ecific prison problems. The 
problems to be considered will include 
racial discrimination per se and other 
problems in which race is involved to a 
g rea te r or lessor extent.

Racial Discrimination

The racial discrimination now to be 
considered is alleged discrimination by 
white prison personnel against black in­
mates. A t this tim e a t least, “ reverse

discrimination” is not any real problem 
in the Departm ent.

In a prison which is controlled by 
white people and in which large numbers 
of black inm ates are confined, opportuni­
ties for racial discrimination against the 
blacks exist in a number of principal 
fields, namely: inm ate classification, in­
cluding promotions to a higher class or 
demotions to a lower class, job assign­
ments, disciplinary proceedings, and pun­
ishments imposed for infractions of pris­
on rules.

The general subject was considered by 
this court in some detail in Section II of 
its opinion in Holt III, supra, 363 
F.Supp. a t 202-05, and the Finney  court 
considered it as well, 505 F.2d 209-10.
The court has reviewed w hat it had to 
say in Holt I I I  in the light of the opinion 
of the Court of Appeals and in the light 
of the evidence developed in 1975, and 
finds th a t it has nothing really substan­
tial to add to w hat it said in 1973, taking 
into consideration the fact th a t there 
probably has been some improvement in 
race relations a t  the prisons since Holt 
I I I  was decided.

As indicated in Holt III, racial discrim­
ination is not officially countenanced by 
the D epartm ent and is specifically pro­
hibited by its rules and regulations. As 
it found in 1973, the court now finds 
th a t there is no hard evidence th a t overt 
discrimination is being practiced in the 
D epartm ent, although many black in­
m ates think or claim to think th a t they 
have been the victims of discrimination.
But again as in. 1973 the court has the ; 
feeling th a t in instances racial discrimi­
nation th a t is covert and perhaps even 
unconscious is still going on, and that it 
is going to continue to go on until such 
tim e as the D epartm ent itself is ade­
quately in tegrated  along the lines laid j: 
down in the preceding section of this 
opinion.

In its Second Supplemental Decree 
filed in connection with its Holt I I I  opin­
ion the court specifically enjoined racial f 
discrimination in any form and in all ; 
significant areas of prison life, and the 1 
court does not consider th a t additional \-

injuncti 
problem 
a t this

r«] A
prison ot 
l>er of j 
of racia 
such a | 
ognized i 
circuit it, 
(8th Cir. 
Mason t 
Cir. 1976 
ists, it ca 
many ini 
ing the 
time con 
extreme!} 
prison ad 
the law 
prisoner 
m inistrati 
ance pro< 
relief und 
however, 
adequate 
ministers 
era! court, 
fu ture da: 
the proce 
have his <

The red  
1974 the ! 
grievance 
detail a t 
Handbook 
ance is not 
immediate 
grievance 
Officer. I 
the proble, 
entitled to 
Review Bo 
intendent <

7. The coin 
not a cur 
officials at 
tions of | 
court.

8. Both of t 
who were



269FINNEY v. HUTTO
C ite  n s  110 l- '.S up ii. 231 (1970)

injunctive relief in connection with the 
problem is necessary or would be helpful 
at this time.7

Grievance Procedure
[6] A viable grievance procedure in a 

prison ought to serve to alleviate a num­
ber of prison problems, including claims 
of racial discrimination. The value of 
such a program generally has been rec­
ognized by the Court of Appeals for this 
circuit in Willis v. Ciccone, 506 F.2d 1011 
(8th Cir. 1974), and in the later case of 
Mason v. Ciccone, 531 F.2d 867 (8th 
Cir. 1976).s Where such a procedure ex­
ists, it can be used to settle  expeditiously 
many inmate grievances w ithout requir­
ing the inmates involved to resort to 
time consuming litigation which places 
extremely heavy burdens on the courts, 
prison adm inistrators, and attorneys. As 
the law now appears to stand, a sta te  
prisoner is not required to exhaust ad­
ministrative remedies, including griev­
ance procedures, before seeking judicial 
relief under § 1983. T hat is not to say, 
however, th a t if a sta te  establishes an 

jf adequate grievance procedure and ad-
. ministers it fairly and properly, the fed-
S era* courts m ight not be inclined a t some 
f future date to require the exhaustion of 

the procedure before the inm ate may 
have his grievance heard in the courts.

The record in this case reflects th a t in 
1974 the D epartm ent initiated a formal 
grievance procedure which is set out in 
detail a t pages 12-14 of the Inm ate 
Handbook. If an inmate w ith a griev­
ance is not able to obtain relief from his 
immediate supervisor, he may carry  his 
grievance to the Adm inistrative Review 
Officer. If th a t officer does not solve 
the problem satisfactorily, the inm ate is 
entitled to review by an “Institutional 
Review Board,” consisting of the Super­
intendent of the institution and two high

The court will note at this point that this is 
not a contempt proceeding in which prison 
officials are sought to be held liable for viola­
tions of previous decrees or orders of the 
court.

1  Both of those cases involved federal convicts 
who were inmates of the Medical Center for

ranking s ta ff  members. The grievance 
may lie carried still fu rther to the 
“D epartm ent Review Com m ittee” and 
ultim ately to the Board of Correction it­
self. Provision is made for having the 
grievance considered by im partial people, 
and it is expressly provided th a t unless 
the inm ate makes false statem ents in the 
prosecution of his grievance, he is not to 
be subjected to any sort of retaliation 
for having invoked the grievance proce­
dure.

Mr. Lockhart testified th a t some use 
of the procedure has been made a t Cum­
mins, and th a t some grievances have 
been adjusted satisfactorily. Of course, 
if inm ates will not use a grievance pro­
cedure, it is valueless, and they will not 
use it unless they believe th a t there is a 
reasonable possibility of obtaining relief 
by means of it.

A part from any formal grievance pro­
cedure, the court thinks th a t the higher 
echelon officials of the D epartm ent 
should be more available to inm ates than 
perhaps they are, and should keep them ­
selves personally fam iliar with day to 
day life in the prisons including the work 
activities of inmates.

The Black Muslims
The D epartm ent has a num ber of 

black inm ates who are meml>ers of the 
Black Muslim religious sect. Some of 
those inm ates claim th a t they are  sub­
jected to religious discrimination along 
with or ap art from racial discrimination.

The Muslims in the D epartm ent fall 
broadly into two groups, namely, Mus­
lims who abide generally by prison rules 
and regulations and who live in general 
prison population, and Muslims who are 
more or less consistent rule violators and 
trouble makers and who spend a t  least 
large portions of their time confined un-

Kederal Prisoners at Springfield, Missouri. A 
federal prisoner complaining of prison condi­
tions or personal mistreatment can obtain by 
means of a petition for a writ of habeas corpus 
essentially the same relief available to a state 
prisoner in a § 1983 proceeding.



270 110 FEDERAL SUPPLEMENT

der maximum security conditions, princi­
pally in the East Building a t Cummins. 
This section of the opinion will deal with 
the Muslims who live in j>opulation, but 
w hat is said here will not be irrelevant 
to the conditions of Muslims in the E ast 
Building.

The problem of the Muslims in general 
population was considered by the court 
in Holt III, 363 F.Supp. a t 202-03. The 
court found th a t the claims of the Mus­
lims were not w ithout substance, al­
though the court did not find th a t 
D epartm ent personnel were intentionally 
discrim inating against Muslims as such, 
and th a t much of the problem arose 
from the fact th a t the prison adm inistra­
tions were simply unaw are of w hat the 
problems of the Muslims were. The 
court found th a t the adm inistration was 
willing to meet reasonable Muslim de­
mands, and th a t for the most p a rt the 
problems of the Muslims could be han­
dled adm inistratively. However, in its 
Second Supplemental Decree the court 
specifically enjoined the respondents 
from discrim inating against the Muslims 
on account of their religious beliefs or 
the teachings of their religion. And the 
Finney  court took note of this court s 
action in th a t regard. 505 F.2d a t  209.

The court finds th a t today the Mus­
lims are not unduly restricted in the ex­
ercise of their religion. They can hold 
meetings as can members of other reli­
gious sects, the services of Muslim cler­
gymen are not denied to them, and they 
are free to receive generally circulating 
Muslim publications.

As it was in 1973, the principal prob­
lem of the D epartm ent’s Muslims today 
is dietary. As is now generally known, 
Muslims eschew the consumption of pork 
in any form; they are not jterm itted by 
their religion to eat- pork, nor are they 
perm itted to ea t any food which has 
been cooked in pork grease or th a t has 
been contam inated otherwise by coming 
into contact with pork. U nfortunately 
for the Muslims, pork is frequently 
served as a foot! item in the Departm ent, 
and a good many of the vegetables

served to inm ates are cooked in pork 
grease.

The court finds th a t the Departm ent 
has made and is making a conscientious 
e ffo rt to supply the Muslims with a  pork 
free diet and to advise Muslim inmates 
in connection w ith each meal what 
dishes they can ea t w ithout danger of 
being contam inated. However, the Mus­
lims are not fully satisfied because in the 
last analysis they do not tru st the 
D epartm ent’s cooks and food handlers, 
including non-Muslim employees and 
non-Muslim inm ates assigned to work in 
the prison kitchens. Anti the Muslims 
fear th a t they may unw ittingly consume 
food th a t is taboo to them on religious 
grounds.

The court does not think th a t there is 
much th a t it can do to remove this dis­
tru s t by means of fu rther injunction or 
otherwise. However, the court will en­
join the D epartm ent from serving pork 
to Muslims against their will and from 
exposing them to food th a t has been con­
tam inated by contact with pork or pork 
grease or lard made from pork fat.

Due in part to the small num ber of 
Muslims in the D epartm ent, the court is 
not going to order th a t special kitchens 
be established for the Muslims or that 
only Muslims be employed in the prepa­
ration of food for the Muslims. Assum­
ing th a t Muslims will work in a kitchen 
in which pork is being used as an item of 
diet or a cooking ingredient, the court 
thinks th a t it would be helpful if Mus­
lims were assigned to the kitchens, and 
the court thinks th a t in any event non- 
Muslim kitchen personnel should be 
properly supervised to prevent the overt 
or covert, direct or indirect, serving of 
pork to the Muslim inmates.

While the court does not deem it nec­
essary to order the step to be taken, it 
m ight not be amiss for Commissioner 
H utto  to arrange to have the prisons 
inspected by free world Muslims and to 
g e t their ideas and suggestions about the 
conditions from  the standpoint of reli­
gion under which their co-religionists are 
confined.

The cor 
of inmat< 
they are 
brutality, 
ing, and 
This sect! 
ed to clas 
populatior 
confined i 
tions will 
this opinii 
cific insta 
with with 
complaint: 

The hist 
the Depat 
one and it 
judges of 
Appeals, 
to the op 
this parti' 
Bishop, 4 
Jackson v

f 1968), rev
b op, 268 F.
J Talley v.
t When tli
V 1969, the

Courtney
i and Talle\

eliminated
j ous kinds

j II  was dec
a t the tin

1

On Dect 
the decisit

l;; court felt
I mental <1
t4 from infli
.
I
I

punishmet 
and from| tices or pi
diction of 
joining r 
with inm; 
relief in t

i ii|)on inma
T lief or for
i testify in
•>% Contemi
iB the opinio
i



FINNEY v. HUTTO 271
> >rk

i Cite ns 410 V.

1tI
Brutality

“nt i The court will now Lake up the claim
>us f of inmates in general imputation th a t
>rk it they are unconstitutionally subjected to
les ! brutality, including verbal abuse, curs­
tat ; ing, and the like, by prison personnel.
of ci This section of the opinion will lie limit­
.'S- :

1 ed to class claims of inmates in general
he / population; similar claims of inmates
he ii confined under maximum security condi­
•s, i

y
tions will be trea ted  in o ther portions of

id this opinion, and individual claims of spe­
in \

i

cific instances of brutality  will be dealt
is with within the fram ework of individual
50 complaints.
IS !

\
The history of brutality  in w hat is now 

the D epartm ent of Correction is a long
s one and it has been discussed in detail by
- judges of this court and by the Court of
»• Appeals. In this connection in addition_ < to the opinions th a t have been filed in
Y this particular litigation see Courtney v.

Bishop, 409 F.2d 1185 (8 th Cir. 1969); 
Jackson v. Bishop, 404 F.2d 571 (8 th  Cir. 
1968), reversing in part, Jackson v. Bish­
op, 268 F.Supp. 804 (E.D.Ark.1967); and 
Talley v. Stephens, supra.

When the Holt cases were first filed in 
1969, the grosser abuses considered in 
Courtney v. Bishop, Jackson v. Bishop, 
and Talley v. Stephens, supra, had been 
eliminated. However, brutality  of vari­
ous kinds was still prevalent when Holt 
II was decided, and it was still a problem 
at the time of H olt III.

On December 30, 1971, a date between 
the decisions in Holt I I  and Holt III, the 
court felt constrained to file a supple­
mental decree enjoining respondents 
from inflicting any cruel and unusual 
punishment on any individual inmate 
and from engaging in any general prac­
tices or procedures am ounting to the in­
fliction of such punishm ent and also en­
joining respondents from in terfering  
with inmates in their efforts to obtain 
relief in the courts and from  retaliating  
upon inmates for having sought such re­
lief or for having testified or offered to 
testify in judicial proceedings.

Contemporaneously w ith the filing of 
the opinion in Holt III, the court filed

another supplemental decree which, 
am ong other things, defined “cruel and 
unusual punishm ent” in broad term s so 
as to include: the infliction upon any
inm ate of any unreasonable or unneces­
sary force in any form; the assigning of 
an inm ate to tasks inconsistent with his 
medical classification; the use of any 
punishm ent am ounting to to rture; the 
practice of forcing any inm ate to run to 
or from work, or while a t  work, or in 
fron t of any moving vehicle or animal; 
and the infliction of any punishm ent not 
authorized by the D epartm ent’s rules 
and regulations.

Brutality, w hether broadly or narrow ­
ly defined, is not countenanced in the 
D epartm ent today. Like racial discrimi­
nation, bru tality  in its various forms is 
strictly  forbidden by the prison rules for 
employees. And it appears th a t in in­
stances employees who have been guilty 
of brutality  have been discharged or re­
quired to resign.

[7] I t  should always be kept in mind 
th a t the reasonable use of force by pris­
on authorities is not only permissible but 
positively required on occasions. Hence, 
every incident of violence involving an 
inm ate and a prison employee is not nec­
essarily an incident of brutality.

In o ther sections of this opinion the 
court deemed it well to mention the kill­
ing of two inm ates by other inmates 
th a t took place a fte r  the record herein 
had been closed. And the court now 
feels it necessary to mention another fa­
tal incident th a t took place in A ugust of 
last year. This incident, unlike the kill­
ings th a t have been described, involved 
prison personnel to some extent. A 
young inm ate was received a t  Cummins 
during the early m orning hours on the 
date of the incident and was put to work 
with o ther inmates clearing a ditch 
bank; he was given no breakfast prior 
to being put to work, although he did 
ea t lunch. In the afternoon he died in 
circumstances th a t were a t  least suspi­
cious. The incident evoked considerable 
publicity and stirred up the usual inmate 
rumors, including charges th a t the young 
man had been beaten to death by his



272 410 FEDERAL SUPPLEMENT

guards. An autopsy was performed on 
the laxly, and a fte r  a ra ther strange pe­
riod of delay, the S tate Medical Examin­
er reported his finding th a t the inmate 
had not been physically assaulted and 
had come to his death as a result of heat 
exhaustion. There is a t least some rea­
son to believe th a t the young man was 
subjected to “hazing” by fellow inmates 
and th a t one or more prison employees 
may have participated to some ex ten t in 
the process.

If  the foregoing description of the in­
cident is substantially correct, and the 
court does not know th a t it is and is 
m aking no finding on the subject, the 
incident was inexcusable, and points up 
as much as anything else the fact th a t 
some employees of the D epartm ent are 
still sadly lacking not only in profession­
alism but also in ordinary good sense. 
The court hopes th a t Commissioner H ut­
to  and Superintendent Lockhart have in­
vestigated the incident properly and 
have taken such disciplinary action, if 
any, as m ight have appeared appropri­
ate.

G etting back to the record, the court 
does not doubt th a t incidents of violence 
still occur in the D epartm ent and tha t 
some of them  may am ount to physical 
brutality. Nor does the court doubt tha t 
in spite of D epartm ent prohibitions some 
employees are still using foul language 
and racial epithets when addressing in­
mates, and th a t a t times inm ates are 
improperly threatened by their guards 
and supervisors.

The court has given very careful con­
sideration to the question of w hether the 
inm ates are entitled to additional class 
relief in the m atter of brutality . In 
view of the announced policies of the 
D epartm ent and in view of the relief 
th a t  has already been granted  in this 
sphere of prison life, the court does not 
consider th a t much more relief is called 
for or th a t it would do any good. How­
ever, the court will in the decree to be 
entered specifically enjoin all D epart­
m ent personnel from verbally abusing, or 
cursing, inmates, and from employing ra­
cial slurs or epithets when addressing or

talking with inmates. T hat specific pro­
hibition may l>e of some value to higher 
echelon employees in their efforts to im­
prove the professionalism and conduct of 
those who are required to work in close 
proximity to inmates and who have occa­
sion to deal with inmates.

Discipi inary Proce< i u res
In Holt I I I  the court considered disci­

plinary procedures th a t were followed by 
the D epartm ent a t th a t time and that 
had been devised in 1972 or earlier. The 
procedures were discussed a t some 
length and were approved subject to the 
D epartm ent’s compliance with certain 
specific directives of the court. 363 
F.Supp. a t  206-68. On appeal, the Court 
of Appeals considered the procedures in 
question in the light of the then very 
recent decision of the Supreme Court in 
W o lff v. McDonnell, 418 U.S. 539, 94 
S.Ct. 2963, 41 L. Ed.2d -935 (1974). The 
appellate court approved of the di­
rectives of this court but fe lt th a t the 
procedures in question had to be re­
vamped in the light of the McDonnell 
decision, supra. 505 F.2d a t  208.

W olff v. McDonnell, supra, was decid­
ed on June 26, 1974. Shortly thereafter 
the Board of Correction promulgated 
rules and regulations relating  to discipli­
nary m atters which appear in the record 
as Respondents’ Exhibit 6 8 8  and most of 
which appear in the 1975 edition of the 
Inm ate Handbook which has been men­
tioned. The court finds ultim ately that 
the procedures in question m eet the re­
quirem ents of McDonnell and are consti­
tutional.

Each institution has a m ajor discipli­
nary committee and a minor disciplinary 
committee. The m ajor disciplinary com­
m ittee consists of a t least four prison 
officials and m ust include the Associate 
Superintendent of the institution or his 
designee; one member of the security 
s ta ff  of the institution, one member of 
the trea tm en t staff, and the Chief Se­
curity Officer of the institution who is a 
member of the committee bu t has no 
vote. The minor disciplinary committee, 
which deals with rule infractions deemed



FINNEY v. HITTTO 273
C ite  n s  110 I '.S n p p .  231 (197(1)

to bo of a minor or trivial nature, con­
sists of the Shift Su[>ervisor, who serves 
as Chairman, and any two other depart­
ment personnel of the Chairm an’s choos­
ing. While the m ajor disciplinary com­
mittee consists of a t least four persons, 
the committee usually sits in panels of 
three as was the case in 1973 and 1972. 
A minor disciplinary committee always 
consists of three memliers.

A minor disciplinary committee can 
impose only minor punishments. I t  can­
not sentence an inm ate to confinement 
in punitive isolation, or deprive him of 
good time, or change his classification or 
job assignment. The punishments that 
it can impose are limited to warnings or 
reprimands, loss of privileges, and limit­
ed extra duty. Once a minor discipli­
nary committee has acted in a given 
case, its decision cannot be altered by 

f the major disciplinary committee if the
inmate accepts the decision of the minor 
committee. An inm ate is not required to 
accept the decision of the minor discipli­
nary committee; if he chooses to do so, 
he may insist upon being proceeded 
against before the major disciplinary 
committee in accordance with the proce­
dures applicable to th a t committee.

)

S i t  is not entirely clear from the m ate­
rials before the court w hat procedures 
are followed in connection with a minor 

disciplinary procedure. The rules do pro­
vide that a minor disciplinary committee 
is to function as “expeditiously as possi­
ble,” and in view of the lim itations on 
the punishments th a t such a committee 
can impose and in view of the nature of 
the violations considered by such a com­
mittee, and the fact th a t an inm ate is 
not required to accept a minor discipli­
nary decision adverse to him, the court 
assumes th a t the minor disciplinary com­
mittee acts in a more sum m ary m anner 
than does the major disciplinary commit­
tee. The court has no difficulty with 
that, and thinks th a t W o lff v. McDon­
nell, supra, recognizes a t least by impli­
cation that the requirem ents of proce­
dural due process where only minor rule 
infractions are involved are less than the 
requirements th a t exist where an inm ate

***:,

faces a serious charge th a t may result in 
severe punishment.

Turning now to m ajor disciplinary pro­
cedures, an inm ate facing a m ajor disci­
plinary charge is required to be served 
with a w ritten copy of the charge not 
less than tw enty-four hours iiefore the 
disciplinary hearing th a t must be held 
within seventy-two hours a fte r the oc­
currence of the disciplinary episode, ex­
cept th a t in unusual circumstances the 
Superintendent of the institution may 
g ran t limited extensions of time.

The inm ate is entitled to appear be­
fore the committee, including a panel 
thereof, and is entitled to present his 
version of the incident. He may also 
“call w itnesses” in the sense th a t he may 
identify potential witnesses to the officer 
who notifies him of the charge against 
him. The committee is authorized to call 
all necessary witnesses. The testim ony 
of a witness may be taken in w riting 
before the hearing or orally before the 
committee in the course of the hearing.

[8 ] If  in the course of a hearing the 
panel calls witnesses, the accused is not 
perm itted to be present while the w it­
nesses are testifying; on the o ther hand, 
the charging officer is not perm itted to 
be present during the testimony of wit­
nesses. Commissioner H utto explained 
this procedure by saying th a t in view of 
the conditions of prison life an inmate 
witness is simply not going to say any­
th ing adverse to the accused and is not 
likely to say anything th a t may bring 
him into the bad graces of the charging 
officer. Consequently, the testim ony of 
inm ate witnesses if taken in the pres­
ence of either the accused or the charg­
ing officer would probably be essentially 
worthless. The accused is not perm itted 
to cross-examine the employee who pre­
pared the initial disciplinary report and 
who is frequently  the charging officer; 
in Mr. H utto ’s view such cross-examina­
tion would be worthless and would be 
quite likely to cause increased hostility 
between the inm ate and the employee 
involved and m ight lead to fu tu re  con­
frontations between them. In the 
court’s opinion, Mr. H utto ’s views are

•110 F.Supj).— 18



274 410 FEDERAL SUPPLEMENT

reasonable, and the court does not con­
sider th a t the practices ju s t described of­
fend W olff v. McDonnell or th a t they 
violate due process of law.

A t the conclusion of the hearing the 
panel decides the case, and if the accused 
is found guilty, punishm ent is assessed. 
The court presumes th a t the decision and 
action of the panel in a given case is 
determ ined by the vote of a m ajority of 
the members of the panel. If the ac­
cused is found guilty, the panel is re­
quired to sta te  in w riting the reasons for 
its decision.

An inm ate may appeal an adverse dis­
ciplinary ruling to the Superintendent of 
the institution by filing a w ritten notice 
of appeal within three days a fte r  the 
adverse decision is rendered. However, 
the Superintendent is not required to re­
view the decision unless he considers 
th a t the facts of the case w arran t re­
view. If the Superintendent’s ruling is 
adverse to the inm ate, the la tte r may 
appeal to the Commissioner and finally 
to  the Board of Correction itself. How­
ever, the rules provide th a t if in connec­
tion with any appeal an inm ate wilfully 
and knowingly makes a false sta tem ent 
or deliberately tries to deceive the re­
viewing authority, the inm ate’s action is 
in itself a m ajor disciplinary violation.

While W o lff v. McDonnell makes it 
clear th a t an inm ate is not entitled to 
counsel in the course of a disciplinary 
proceeding, the D epartm ent’s rules pro­
vide th a t if an inm ate is illiterate or “ is 
otherwise unable to properly present his 
case, the Chairman may appoint a mem­
ber of the s ta ff  to assist the inm ate in 
his presentation.’’ And the Superintend­
en t is required to provide the Chairman 
of the committee with a  list of s ta ff  
members who do not regularly sit on the 
Disciplinary Committee who are availa­
ble to assist inmates. The court will 9

9. The present rules were issued shortly before 
the Finney decision was handed down. The 
rules, as written, do not in terms prohibit the 
practice condemned by the appellate court. It 
is the court’s recollection that when Cecil Bor­
en was Assistant Superintendent at Cummins, 
he, on one occasion, sat on a disciplinary pan­

pause a t this point to commend the 
Board of Correction for adopting that ,
particular rule because a g rea t many in­
mates, even if not illiterate, are simply 
too inarticulate to present their conten­
tions system atically or intelligently. The 
court hoi>cs th a t the Disciplinary Com­
m ittee will make liberal use of the rule 
in question. >

The rules fu rth er provide th a t no dis­
ciplinary action is to be taken against 
any inm ate save in accordance with the 
prescribed procedures, except th a t a shift 
supervisor may place an inm ate in ad­
m inistrative segregation or barracks ar­
rest pending disciplinary committee ac- '
tion.

The court finds th a t black employees 
now sit from time to time as members of 
disciplinary panels. Assuming th a t the 
D epartm ent is able to and does employ i 
more blacks and th a t it pursues its an- i 
nounced policy of promoting blacks 
where possible, increased black participa­
tion in disciplinary proceedings is to be 
anticipated.

In considering the case the Court of ’
Appeals expressed concern lest a charg- f
ing officer be a member of the panel f
hearing the charge, and directed this !
court to prohibit the charging officer 
from sitting  in judgm ent on his own 
complaint. 505 F.2d a t 208. That, of 
course, will be done . 5

Punitive Isolation and Adm inistrative  
Segregation

The rules of the D epartm ent specify 
eight punishments th a t may be imposed ! 
singly or in combination upon an inmate 
who is found guilty of a disciplinary in­
fraction. Some of the punishm ents are 
very light and, as has been seen, may be f 
imposed by a minor disciplinary commit- j 
tee. O ther punishments are more severe

el in connection with a matter in which he was 
the charging officer. Mr. Boren admitted the 
impropriety of his action, and the court doubts 
that such a thing would happen again. How- j  
ever, the decree to be entered will specifically 
prohibit the practice.

it
lj
I

an.
dis

'I
wii
thi
tin
a
fin

vo t
ti\
D.
wi
w!
is
be
sni
tri

on
fir
pri
tio
th.
coi
B o
20:
(81
lib
C o

th
th,
in
in;
al.
foi
ins
th;
I, i
at
sot
pat
ini
a. I,
of
he;

10.



275FINNEY v. HUTTO
C ite  us 410 F .S u p p . 251 (1970)

and can be imposed only by a major 
disciplinary committee.

The serious punishments take a ra ther 
wide range, but there is no question tha t 
the punishment th a t is one of the most 
dreaded by the inm ates and th a t creates 
a serious constitutional problem is con­
finement in punitive isolation.

This section of the opinion will be de­
voted principally to a discussion of puni­
tive isolation as it is practiced in the 
Department, and most of the discussion 
will be based on conditions a t Cummins 
where the problem is more severe than it 
is at Tucker. Also discussed herein will 
be the “adm inistrative segregation” in 
small cells of inmates who are aw aiting 
trial on disciplinary charges . 10

[9] The placing of inm ates of a pris­
on in punitive isolation or solitary con­
finement as punishment for violation of 
prison rules is not necessarily unconstitu­
tional, but it may be, depending upon 
the duration of the confinem ent and the 
conditions thereof. Finney v. Arkansas 
Board o f Correction, supra, 505 F.2 d a t 
207; Burns v. Swenson, 430 F.2 d 771 
(8 th Cir. 1970), cert, denied, 404 U S 
1062, 92 S.Ct. 743, 30 L.Ed.2d 751 (1972); 
Courtney v. Bishop, supra.

In 1973 the court found in Holt I I I  
that confinement in punitive isolation in 
the former “death cells” a t Tucker and 
in the punitive wing of the East Build­
ing at Cummins was not unconstitution­
al, and in th a t connection specifically 
found that the cells in use a t  the two 
institutions were not overcrowded, and 
that the diet of “grue,” described in Holt 
/. was not unconstitutional. 363 F.Supp. 
at 208. The Court of Appeals took a 
somewhat dimmer view and expressed 
particular concern as to w hether or not 
inmates held in punitive isolation wer*e 
adequately supplied with the necessities 
of life such as proper and sufficient food, 
beat, light, ventilation and sanitary  facil-

I*. While the confinement of an inmate in ad- 
mimstrative segregation is somewhat less rig­
orous in certain respects, including diet, than 
the confinement of an inmate who has been

itics. Finney  v. Arkansas Board o f  Cor­
rection, supra, 505 F.2d a t 207 08.

From testim ony th a t the court heard 
in June, 1974, prior to the rendition of 
the decision of the Court of Ap[>cals in 
Finney, and from additional testimony 
taken in 1975, and from the court’s own 
inspection of the facilities in question, 
including both the punitive cells and the 
adm inistrative segregation cells a t lioth 
Cummins and Tucker, the court now 
finds th a t either conditions were not as 
good in 1973 as the court thought th a t 
they were or th a t the conditions have 
deteriorated since 1973. Whichever may 
be the case, the court now finds from 
the evidence th a t unconstitutionalities 
now exist with respect to both punitive 
isolation and adm inistrative segregation, 
and th a t substantial changes are going 
to have to be made within the immediate 
fu tu re  if the D epartm ent is to be al­
lowed to continue to place inmates 
charged with offenses in adm inistrative 
segregation and to punish inm ates by 
w hat is called w ithout entire accuracy 
punitive “ isolation.”

An inm ate sentenced to punitive isola­
tion receives a sentence to confinem ent 
in an extrem ely small cell under rigorous 
conditions for an indeterm inate period of 
time with his sta tu s being reviewed a t 
the end of each fourteen day period. 
While most inm ates sentenced to puni­
tive isolation are released to population 
within less than fourteen days, many re­
main in the sta tu s in question for weeks 
or months, depending upon their a tt i­
tudes as appraised by prison personnel. 
I t  is rare indeed th a t a prisoner is con­
fined in a cell by himself. Usually, he 
m ust share a cell with a t  least one other 
inmate, and a t  times three or more in­
m ates are kept in the same cell which is 
equipped w ith extrem ely limited facili­
ties. Assuming, and the court is not a t 
all sure th a t the assumption is valid, th a t 
all of the isolation cells are equipped 
with two bunks, it follows th a t if three

sentenced to punitive isolation, the two types 
of confinement a re  in other respects very simi­
lar to each other.



m * •iMi, ■> >n. --- - - --

276 410 FEDERAL

or four men are put in the same cell, and 
th a t frequently happens, one or two of 
them  are going to have to sleep on the 
floor.

Convicts being w hat they are, th a t 
means th a t the stronger and more ag­
gressive inm ates are going to occupy the 
bunks, and they are also likely to perse­
cute the weaker inm ate or inmates. A 
varian t of this is th a t where three con­
victs are confined in a single cell, two of 
them  are ap t to team  up against the 
third one.

Assuming th a t an inm ate in punitive 
isolation or in adm inistrative segregation 
has a bunk to sleep on, he also has a 
cotton m attress to lie u|>on during sleep­
ing hours, but the m attress is taken 
away during each day.

During each basic fourteen day period 
of confinement, an inm ate in a punitive 
cell is fed on a diet of “grue” unless such 
a diet is medically contraindicated. He 
gets no o ther solid food, except th a t ev­
ery third day he receives or is supposed 
to receive a regular prison meal." And 
on every third day the inm ate is perm it­
ted or required to leave his cell for the 
purpose of taking a shower and probably 
changing his clothes. While inm ates in 
punitive isolation may now be allowed 
some limited outdoor exercise, for a long 
tim e the only exercise th a t the inmates 
in question could take was th a t involved 
in going to the shower room, taking the 
shower, and re tu rn ing  to the cells.

A t the end of a basic fourteen day 
jKjriod of punitive confinement, the in­
m ate is weighed to see how much weight 
he has lost on the “g rue” d iet ; 12  and if 
it is determ ined th a t he should be re­
turned to punitive isolation, he is given 
regular food for two days and returned
11. At an early stage of the 1975 hearings the 

court heard much inmate testimony to the ef­
fect that they were “shorted” with respect to 
their rations on the days on which they were 
sup|H>scd to receive a regular meal. This al­
leged practice, of which one prison employee 
in particular was charged, is known as “shak­
ing the spoon."

12. While the evidence is to the effect that 
“grue,” a tasteless and unappetizing sub-

SU PPLEM EN T

to the “g rue” d iet on the seventeenth 
day. I t  is to be observed th a t the rules 
specify th a t during this two day “inter­
im ” or “intermission,” the inm ate need 
not be moved from the punitive cell to 
Other quarters, and as a m atter of prac­
tice they are not moved; they simply 
stay  where they are.

An inm ate in punitive isolation is not 
only held in cramped quarters and fed a 
limited diet, he also loses practically all 
privileges and opportunities available to 
inm ates in general population. Such an 
inm ate can receive visits from a clergy­
man, which visits are probably very rare, 
and he can engage in such correspon­
dence as the Constitution of the United 
S tates guarantees or which the prison 
adm inistration deems to be otherwise 
“privileged.”

As a class, the convicts confined in 
punitive isolation or in administrative 
segregation, for th a t m atter, are violent 
men. They are filled w ith frustration 
and hostility, some of them  are extrem e­
ly dangerous, and others are psycho­
paths. Confined together under rigorous 
conditions in the same cell or in immedi­
ately  adjacent cells, the convicts identify 
w ith each other and reinforce each other 
in confrontation with custodial person­
nel, and those personnel in tu rn  identify 
with each other and reinforce each other 
in confrontation with the convicts.

As a result, the  punitive wing in the 
E ast Building a t Cummins is not infre­
quently a scene of violence. The in­
m ates vandalize their cells to the extent 
possible, and th a t ex ten t has been very 
substantial; they scream and curse; 
they abuse the guards and a t times at­
tem pt to assault and injure them. The 
trouble is made worse by the poor ad-

stance, will not only sustain life but is ade­
quate nutritionally for an inmate who is not 
leading an active life, the evidence also dis­
closes that some inmates simply will not cat 
the grue or will not eat much of it, and that 
practically all inmates lose weight while in pu­
nitive isolation. The court will note at this 
point that inmates in administrative segrega­
tion are not required to eat “grue." While 
they are awaiting trial, they receive regular 
prison food.

i
i
i

i
;

:

|
*

i
i

I

*
i
15
|
Ii
i
b;ii1

i
t.V
<

i

i



277FINNEY v. HUTTO
C ite  us 410 l-'.Supp. 251 (197(1)

ministrative practice of despatching, say, 
two correctional officers to quell a dis- 
turbance in a cell containing three or 
four men or to remove one or two con­
victs from such a cell. Such an approach 
invites and results in trouble.

From testim ony in the record the 
court is convinced th a t as a class the 
inmates of the punitive cells hate those 
in charge of them , and th a t they may 
harbor particular hatreds against prison 
employees who have been in charge of 
the same inm ates for a substantial peri­
od of time. In his hatred of guards in 
general or of a particular guard, an in­
mate may deliberately run the risk of 
injury to himself in o rd e r,to  obtain an 
opportunity to inflict injury upon prison 
personnel or upon a particular prison 
employee.

Inmate violence unavoidably produces 
a forcible response from prison personnel 
who may be required to use such things 
as night sticks and the chemical known 
as "Mace” to quell disorders. And the 
court is satisfied th a t a t times the re­
sponse is excessive, and is fu rther satis­
fied that many of the episodes of vio­
lence tha t take place in the maximum 
security facility could be avoided readily 
if the guards were more professional and 
used better judgm ent and common sense 
in dealing with refractory  inmates. This 
lack of professionalism and good judg­
ment on the p art of maximum security 
personnel in the D epartm ent was one of 
the things th a t led the court to say in 
1973 that the D epartm ent’s prisons were 
not so much unconstitutional as they 
were poorly administered. 363 F.Supp. 
at 202.

The court agrees w ith Dr. A rthur Rog­
ers, a clinical psychologist who testified 
as an expert in the 1974 hearings, th a t 
punitive isolation as it exists a t  Cum­
mins today serves no rehabilitative pur­
pose, and th a t it is counterproductive. 
It makes bad men worse. I t m ust be 
changed.

[10] The court thinks th a t from the 
standpoint of orderly and efficient prison 
administration the D epartm ent would be

b e tte r off if inmates sentenced to puni­
tive isolation were kept alone in individ­
ual cells. However, the court is not pre­
pared to go so far as to say th a t it is 
unconstitutional to confine as many as 
two men in the punitive isolation and 
adm inistrative segregation cells a t Cum­
mins and Tucker provided th a t each man 
has a bunk to sleep on a t night and to 
sit upon during the day. The court will 
enjoin the confining of more than two 
men a t any one tim e in one of the indi­
vidual cells in question and will require 
th a t where two men are placed in the 
same cell, each m ust have a bunk.

This does not mean th a t in cases of 
serious emergency as for example a riot 
or o ther type of disorder involving large 
num bers of inm ates a t  the same time, 
the prescribed cell capacity may not be 
exceeded for limited periods of time. 
B ut the court does not accept the propo­
sition th a t every disciplinary incident in 
the D epartm ent creates an emergency, 
or th a t an emergency continuously exists 
a t  either Cummins or Tucker.

[11] As to “grue,” it may be arguable 
as to w hether w hat the Court of Appeals 
had to say about th a t substance am ount­
ed to a holding th a t its use as food is 
unconstitutional. But, even if the lan­
guage in question does not am ount to 
such holding, which would be binding on 
this court, i t  is clear to the court th a t 
the constitutional handw riting is on the 
wall as fa r  as “g rue” is concerned, and 
th a t its use had as well be outlawed now 
ra th e r than a t some la ter time or by the 
appellate courts. And th a t will be done.

The practice of removing m attresses 
from  the cells during daylight hours, like 
the diet of “grue”, is defended on the 
ground th a t if living conditions in the 
cells are made too com fortable inm ates 
will contrive to ge t themselves consigned 
to the cells to avoid work. The court 
does not accept th a t particular argum ent 
either as to “grue” or as to the removal 
of the mattresses.

However, with respect to the m attress­
es a  more cogent argum ent is made th a t 
the court does accept. The evidence re-



278 110 FEDERAL SUPPLEMENT

fleets th a t when a violent inm ate of one 
of the cells is “acting out," as the psy­
chologists call it, he is quite ap t to set 
his m attress on fire, or to tear the m at­
tress up and s tu ff fragm ents in the toi­
let;^ and it is inferable tha t this “acting 
out is more ap t to take place during 
daylight hours when it is ap t to gain 
more peer approval than if it took place 
a t night when other inmates are trying 
to sleep or a f te r  the violent inmate him­
self has become fatigued. The - court 
thinks th a t the respondents’ argum ent is 
valid, and the practice of removing the 
m attresses in the daytime, while perhaps 
questionable, will be perm itted to contin­
ue.

which are not punitive. Of course, a 
disciplinary com m ittee may inqxjse a 
sentence of less than th irty  days, and the 
Su|>crintcndent of the institution or the 
Commissioner may direct tha t a convict 
l)e released from punitive isolation at 
any time prior to the expiration of his 
sentence.

Let the court point out in this connec­
tion th a t many acts which constitute se­
rious violations of prison rules also 
am ount to felonies under the laws of the 
S tate of Arkansas, and if an inmate 
commits such an offense he can always 
be prosecuted in the sta te  courts and 
may receive a sentence in addition to the

[12] The court holds th a t the policy 
of sentencing inmates to indeterm inate 
periods of confinem ent in punitive isola­
tion is unreasonable and unconstitution­
al. The court thinks tha t determ inate 
sentences of no more than a prescribed 
num ber of days m ust be imposed. In so 
holding the court does not imply for a 
moment th a t there are not some inm ates 
who m ust be segregated from the gener­
al population for any one or more of a 
number of reasons, and does not con­
demn th a t practice. Cf. Kelly v. Brewer, 
supra. But segregated confinement un­
der maximum security conditions is one 
thing; segregated confinem ent under the 
punitive  conditions th a t have been de­
scribed is quite another thing.

[13] As to the length of the maxi­
mum sentences th a t may be imposed, the 
court notes th a t Mr. H utto is of the view 
th a t basically the maximum period of 
time in which a man should be confined 
in punitive isolation with a restricted 
diet, with no m attress in the daytime, 
and perhaps w ithout p bunk to sleep in 
a t night is fourteeh days. In view of 
the changes in the conditions of confine­
m ent in punitive isolation th a t the court 
is ordering, the court feels tha t a maxi­
mum sentence of th irty  days is permissi­
ble. If  a t the end of tha t maximum 
period, it is found th a t an inm ate should 
not be returned to population, he may be 
kept segregated but under conditions

one th a t he was serving when he com­
m itted the offense.

The court is well aw are of the fact 
th a t the changes th a t are being ordered 
with respect to punitive isolation and ad­
m inistrative segregation may cause a de­
gree of consternation in the Department 
and, indeed, outside the Department. 
But, the court sincerely believes that 
these changes are not only constitution­
ally required, but also th a t they will pro­
duce both a more hum ane prison system 
and a system th a t is going to be more 
peaceful and orderly and easier to ad­
m inister efficiently in the long run.

The East Building at Cummins

In the section of this opinion that 
dealt with overcrowding the court stated 
th a t the [x>pulation of the E ast Building 
a t Cummins would have to be reduced. 
As fa r  as the punitive wing and the ad­
m inistrative segregation wings of the 
E ast Building are concerned, the di­
rectives of the court in the immediately 
preceding section hereof ought to take 
care of the problem of overcrowding. 
However, there is a third wing of the 
building th a t m ust be dealt with, and 
there are some other conditions in the 
E ast Building th a t call for attention.

The third wing which may be thought 
of simply as a “maximum security” wing 
houses inmates who cannot safely be 
kept in general population. Some of 
those inmates require protective custody

to proven i 
injured In 
sources of 
prison pen 
risks; and 
under con: 
While it is 
m ent, this 
would prol 
tra tive  seg: 
erences to . 
opinion wil 
being held 
plinary viol 
punished f, 
nevertheles: 
the East B 
re fer to sir, 

Third wii 
spects bett< 
in the punil 
tive segreg;: 
ing, and arc 
are held un, 
tions in cer 
ceive regula 
same corres, 
m ates in gc 
certain com, 
are perm itb 
outside thei 
the “day roe 
kept in the 
work in the 
and “ 10 Ho 
are made u 
wing of the 

Due to tl 
mentioned ir 
1975 and th 
court does 
were confine 
vember 12 < 
there today, 
tha t a t  time: 
lieen confinei 
wing, and tl 
cell in the 
when it is h: 
ju st as the ce 
the administi 
overcrowded 
than two me



FINNEY v. HUTTO 279
C ite  a s  410 F .S u p p . 2T)1 (107(5)

\  a
0 a
1 the 

the
ivict 
1 a t 

his

nec- 
■ se- 
also 
the 

aate 
• ays 
and 
the 

om-

fact 
..■red 
ad- 

. de- 
lent 

lent, 
tha t 
rion- 
pro- 
tem 
nore 

ad-

tha t 
a ted 
.ling 
iced, 

ad- 
the 
di- 

itely 
take 
ling, 

the 
and 
the 

n.
ught 
•ving 
y be 
e of 
tody

to prevent them from being killed or 
injured bv other inmates; some are 
sources of danger to other inmates or to 
prison personnel; others are high escai>e 
risks; and some may be in the wing 
under consideration for o ther reasons. 
While it is not so called in the D epart­
ment, this wing in some institutions 
would probably be called the “adminis­
trative segregation” wing. F urther ref­
erences to inmates in this section of the 
opinion will be to persons who are not 
being held for trial on charges of disci­
plinary violations and who are not being 
punished for such violations, but who 
nevertheless are confined in the wing of 
the East Building which the court may 
refer to simply as the “third wing.” 

Third wing inm ates are in certain re­
spects better off than inmates confined 
in the punitive isolation and adm inistra­
tive segregation wings of the East Build­
ing, and are b etter o ff than inmates who 
are held under maximum security condi­
tions in certain o ther prisons. They re­
ceive regular prison food; they have the 
same correspondence privileges as do in­
mates in general population; they have 
certain commissary privileges; and they 
are permitted to spend part of their time 
outside their cells in w hat is known as 
the “day room.” Moreover, they are not 
kept in the East Building all day. They 
work in the prison fields and gardens, 
and “10 Hoe” and “5 Garden” Squads 
are made up of inm ates of the third 
wing of the building.

Due to the deficiency th a t has been 
mentioned in the report of November 12, 
1975 and the lack of o ther figures the 
court does not know how many men 
were confined in the third wing on No­
vember 12 or how many are confined 
there today. The court is sure, however, 
that at times more thaA two men have 
been confined to a single cell in the third 
wing, and the court finds tha t a single 
cell in the third wing is overcrowded 
when it is has more than two men in it 
just as the cells in the punitive wing and 
the administrative segregation wing are 
overcrowded when occupied by more 
than two men a t the same time. The

requirem ents of the preceding section 
with respect to cell capacity and bunks 
will also be marie applicable to the third 
wing of the East Building.

While, as indicated, third wing in­
m ates are b e tte r off in certain r e s e c ts  
than  the inm ates of the other wings, 
there  is no question th a t they are not as 
well o ff as inm ates in general population 
and suffer deprivations th a t general pop­
ulation inmates do not suffer.

[14] Such l>eing the case, the Consti­
tution requires th a t the sta tus of in­
m ates of the third wing be evaluated 
and reevaluated periodically in order to 
determ ine w hether or not particular in­
m ates can safely be returned to popula­
tion or w hether they should be transfer­
red to o ther institutions.

The m atter of periodic evaluations of 
the situations of convicts held in maxi­
mum security and segregated from the 
general population was before the Court 
of Appeals in Kelly v. Brewer, supra. In 
th a t case the court held th a t such evalu­
ations m ust take place and th a t they 
m ust be made in the light of relevant, 
objective criteria, although the court rec­
ognized th a t the proper evaluation of the 
sta tu s of one inm ate m ight require less 
effo rt and consideration than the evalua­
tion of the status of another inmate.

In Brewer the court also held th a t 
there  are certain criteria th a t may not 
properly be employed in the evaluation 
process. Specifically, the court held th a t 
the evaluating authority  may not proper­
ly consider adverse s ta ff  reaction to a 
re tu rn  of an inm ate to population, or the 
deterring  effect on o ther inm ates tha t 
m ight result from holding a particular 
inm ate or inm ates in segregated confine­
ment. And it was fu rther held th a t the 
evaluating authority  is not to give undue 
or artificial weight to the offense of 
which the inmate in question was con­
victed originally, although, of course, the 
nature  of th a t offense is a factor for 
consideration.

The determ ination of w hether an in­
m ate is to be retained in segregation or 
returned to population is not so much a



280 410 FEDERAL SU PPLEM EN T

question of w hat he has done in the past 
bu t of w hat he is likely to do or have 
done to him in the fu tu re  if he is re­
turned to population. In the last analy­
sis the question is one of behavior pre­
diction, and its answ er m ust be left 
largely to the discretion of the prison 
adm inistration. Ordinarily, judicial re­
view of an adm inistrative determ ination 
th a t an inm ate should remain in segre­
gated sta tus should be limited to an in­
quiry as to w hether the action in ques­
tion was arb itrary  or capricious or was 
invidiously discriminatory.

The requirem ent of evaluation ami re- 
evaluation of inmates held under maxi­
mum security conditions may seem bur­
densome to some prison adm inistrators, 
but it is necessary to protect inmates 
from being held indefinitely in th a t s ta ­
tus a fte r  the original reason for their 
being placed in it has ceased to be valid 
or relevant.

The court is going to direct Su[>erin- 
tendent Lockhart to review as soon as 
practicable the sta tus of all convicts now 
confined in the third wing, and to return  
to population such inmates, if any, of 
th a t wing who can be returned  w ithout 
serious risk to the inm ate, to o ther in­
m ates, U> prison personnel or to the se­
curity  of the prison.

In the fu ture, the cases of all inmates 
of the third wing are to be re-evaluated 
by a t least the A ssistant Superintendent 
in charge of security a t Cummins not 
less often than once every sixty days, 
and the cases of all inmates in th a t wing 
are to be reviewed a t  least once a year 
by the Superintendent personally.

The evaluation process should involve 
interviews with the inm ates out of the 
presence of other inmates, and should 
also involve consideration of psychiatric 
or psychological opinions to the ex ten t 
th a t the same may be available. And 
the court will say th a t one of the things 
th a t it had in mind in directing the em­
ployment of one or more full Lime psy­
chologists or psychiatrists by the D epart­
ment is the useful function th a t such 
specialists can i>erform in determ ining

w hether or not an inm ate should contin­
ue to be held in segregated status.

I t occurs to the court th a t friction and 
confrontations between inm ates of the 
E ast Building and East Building staff 
may be due in part to the fact tha t some 
of the higher ranking personnel of the 
E ast Building may have been kept on 
th a t station too long and have been deal­
ing with the same inmates too long. 
Commissioner H utto  and Superintendent 
Lockhart should give serious considera­
tion to ro tating  the higher ranking em­
ployees assigned to the E ast Building as 
well as to ro tating  ordinary correctional 
officers.

One problem th a t arises in the East 
Building is the failure a t times to repair 
prom ptly dam age to the cells and their 
furnishings resulting from inmate van­
dalism. In consequence inm ates a t times 
have been removed from badly damaged 
cells and placed in o ther cells with other 
inmates thus overcrowding them or ag­
gravating  an already overcrowded condi­
tion.

The record reflects th a t those who de­
signed the E ast Building assured the 
D epartm ent th a t the building and its fa­
cilities were proof against damage by in­
mates. Such has been far from the case. 
I t  is hard for the court to believe, how­
ever, th a t American technology and en­
gineering is not sufficiently advanced in 
this day and age to equip prison cells 
with facilities such as lighting and 
plumbing facilities and locks that in­
m ates cannot destroy or seriously dam­
age with their bare hands or such simple 
tools or o ther means as they may be able 
to  devise. If  anything practical can be 
done in th a t direction, it should be.

Some of the most dangerous and trou­
blesome of the occupants of the East 
Building are blacks who are or claim to 
be Black Muslims. Like Muslims in gen­
eral population, they claim to be the vic­
tim s of religious as well as racial dis­
crimination. Their principal complaints 
relate to diet, a subject with res|>cct to 
which the court has already undertaken 
to deal, and about restrictions on reli-

giou
m at

[1
East
but
relig-j

1 cler;
the

: faitl
| an ir

der :
t finci
> ncce

scril
* than
i is n<

ther - ampc gitir:i-
. pope| ing

be i| thou
t"; ing
i latti
i
5R

worl
giou

I
|.y

ing
men

>: • wea;jv
the

I free
sona

it'
t sign.'
l outs
* curi;
l mat:
V R<*

crow9. tion■V,> er a
1 all tai Cun
% nq*
*■’ that
1 Tuci
? onlyX ■ifv wen

gate
JF - men
1 tiler

sani'
the

1



I I

gious assemblages and access to the in­
mates by Muslim ministers.

[15,16] The Muslim inmates of the 
East Building- are entitled to the same, 
but no g reater, privileges in the area of 
religious worship, including visits by 
clergymen, as are accorded to inmates of 
the building who profess o ther religious 
faiths. I t  m ust be kept in mind th a t if 
an inm ate is being held legitim ately un­
der maximum security conditions of con­
finement, his exercise of his religion is 
necessarily somewhat more circum­
scribed for legitim ate security reasons 
than is such exercise by an inm ate who 
is not a security risk and who is living in 
the general prison population. For ex­
ample, the prison adm inistration may le­
gitimately prevent an inm ate in general 
population from visiting an East Build­
ing inm ate even though the form er may 
be or claim to be a m inister and even 
though the ostensible reason for his call­
ing on the o ther inm ate is to serve the 
latter s religious needs. Moreover, free 
world ministers who desire to pay reli­
gious calls on inm ates of the East Build­
ing are subject to reasonable security 
measures such as reasonable searches for 
weapons or o ther contraband. However, 
the restrictions imposed on visitations by 
free world clergymen m ust not be unrea­
sonable or such as are  purposely de­
signed to discourage ministers from the 
outside world from visiting maximum se­
curity inm ates or o ther inm ates for tha t 
matter.

Returning now to the subject of over­
crowding of the adm inistrative segrega­
tion and punitive isolation cells a t  Tuck­
er and the overcrowding of the cells in 
all three wings of the E ast Building a t 
Cummins, the court observes from the 
report of November 12, 1975 th a t as of 
that date the punitive isolation cells a t 
Tucker w ith a capacity of 14 men had 
only three men in them , and th a t there 
were 13 men in the adm inistrative segre­
gation cells with an equal capacity of 14 
men. Thus by the court’s standards, if 
there were no more than two men in the 
same cell and if each man had a bunk, 
the maximum security facilities a t  Tuck-

FINNEY v. HUTTO
Cite ns 410 I-’.Supp. 2 0 1  (1970) 281

410 F.Supp.—18‘/*

er were not overcrowded on th a t date. 
W hat the situation is today, the court 
does not know.

I t is possible th a t when this opinion 
and its accompanying docree are filed, 
none of the maximum security cells a t 
either institution will be overcrowded. 
While the court thinks th a t the existence 
of such a situation is improbable if it 
does exist, well and good. Respondents 
will simply be required not to let the 
cells become overcrowded.

Assuming, however, th a t compliance 
with the court’s decree will require a 
substantial reduction of the populations 
of the maximum security cells a t  either 
Cummins or Tucker, or both, the court 
does not think th a t the respondents 
should be required to effect the reduc­
tion over night or in a haphazard man­
ner. The court feels th a t respondents 
should have a reasonable but compara­
tively short period of time within which 
to effect necessary reductions, and now 
sets th a t period a t th irty  days from the 
filing date of the decree. However, the 
co u rts  prohibition against limited diets 
will go into effect immediately.

It will be remembered th a t in the pre­
ceding section of this opinion the court 
fixed th irty  days as the maximum period 
of time during which an inm ate may be 
confined in punitive isolation. Any in­
m ates who have been confined in puni­
tive isolation for th irty  days or longer 
m ust be returned to population or held 
in maximum security under conditions 
th a t are not punitive. And inm ates who 
a t the time of the filing of the decree 
herein who have been in punitive isola­
tion for less than th irty  days are to be 
deemed as serving sentences of not more 
than th irty  days.

This section of the opinion is the last 
of w hat may be called its “substantive” 
sections. There are, however, some oth­
er m atters to be considered.

A ttorneys Fee unit Kxpenses

[17] When this litigation was first 
commenced, the court apfiointed Messrs. 
Steele Hays and Je rry  T. Jackson, capa-



282 410 FEDERAL SU PPLEM EN T

ble members of the Little Rock Bur, to 
represent petitioners, and their efforts 
contributed to the Holt I  decision from 
which there was no appeal. The court 
did not award Mr. Hays or Mr. Jackson 
any fee, and the court does not recall 
th a t they requested an award.

A fter Holt I was decided, the a tto r­
neys ju s t mentioned were excused from 
fu rth er duty. When the litigation was 
reactivated, the court appointed Messrs. 
Jack Holt, J r . and Philip Kaplan of Lit­
tle Rock to represent the inmates. Mr. 
Holt and Mr. Kaplan have been in the 
case ever since and have rendered yeo­
man service to their clients. In 1974 
when certain inm ates of the East Build­
ing were perm itted to institu te a class 
action of their own, Mr. Phillip H. 
McMath of Little Rock was appointed to 
represent them, and he remained active­
ly in the case a fte r the E ast Building 
suits were consolidated with the others.

In 1973 in connection with the H olt I I I  
decision the court allowed Messrs. Holt 
and Kaplan an $8,000.00 fee and certain 
expenses. Those items were paid by the 
D epartm ent of Correction. However, 
Mr. McMath has never received anything 
for his services, and Mr. Holt and Mr. 
Kaplan have received nothing a ttrib u ta ­
ble to the Holt I I I  appeal or to the 
present phase of this litigation.

The court’s 1973 award th a t has been 
* mentioned was based in part on the the­

ory th a t counsel had |>erformed valuable 
services not only to the inm ates bu t also 
to the people of the S tate of A rkansas as 
well. In other words, the aw ard was 
based in part on the “private attorney 
general” theory. 363 F.Supp. a t 217.

A fter the decision in Holt III, the Su­
prem e Court of the United States decid­
ed Edclmnn v. Jordan, 415 U.S. 651, 94 
S.Ct. 1347, 39 L.Ed.2d 662 (1974), and 
Alycska Pipeline Service Co. v. Wilder­
ness Socivly, 421 U.S. 240, 95 S.Ct. 1612, 
44 Ii. Ed .2d 141 (1975). While the court 
is of the opinion th a t Mr. Holt and Mr. 
Kaplan deserve an additional award of 
fee and exj>cnses, and th a t Mr. McMath 
ought to receive a fee for his services, it 
is necessary for the court to consider

w hether in the light of either or both of 
the Supreme Court decisions ju s t men­
tioned it has the power to make the 
awards in question. In approaching the 
problem the court recognizes th a t as far 
as the class action phase of the litigation 
is concerned, the real party  respondent is 
the D epartm ent of Correction itself 
which is an agency of the S tate  of Ar­
kansas. And the court recognizes that 
any valid award made by it will be paid 
and should be paid out of sta te  funds in : 
the hands of the D epartm ent ra ther than 
by the individual respondents personally.

In Edelman v. Jordan, supra, the Su- j 
preme Court held th a t while a federal 
court may g ran t prospective injunctive 
relief against s ta te  agencies and state 
officials which may impose financial bur­
dens on the treasury of the state, the 
eleventh am endm ent to the Constitution 
prohibits the federal courts from making 
retroactive pecuniary aw ards th a t will 
have to be paid out of the funds of the 
sta te , unless the sta te  has waived its sov­
ereign immunity.

In Alveska, supra, the Supreme Court 
rejected the “private attorney general” 
theory as a basis for aw ards of attor- 
neys’ fees to prevailing parties in federal 
court litigation, and held th a t such fees 
are allowable only when authorized by 
sta tu te  or when a case falls within one 
of the long-established exceptions to the 
“American Rule” which prescribes that 
each litigant m ust pay his own lawyer.
The exceptions to the rule are that a 
court of equity may aw ard an attorneys 
fee where (1) the losing party  has been 
in violation of a court order; (2) the 
prevailing party  has created a fund for 
the benefit of himself and others, in 
which case a fee payable out of the fund 
may be allowed; and (3) the losing party 
has acted in bad faith, vexatiously, wan­
tonly or oppressively. 421 U.S. a t 247- 
7 1 , 9 5  S.Ct. a t 1616-28, 44 L.Ed.2d at 
147 61.

Not long ago this court had Alycska- 
Edelman problems arise in Arkansas «,
Com m unity Organization for Reform i
N ow  (ACORN) v. Brincgar, 398 F.Supp.
685 (E.D.Ark.1975), a f f ’d, 531 F.2d 864 |

(8th
was
priv
the
mei
clas
of
Tra
eral
The
met
way
kan
plai
obt;
coui
low,-
ney:
to r
sine
the
§ a :
deci
Ede
able
paid
men

A. 
awa 
age i 
theii 
App' 
ques 
ultiii 
allo\ 
inch: 
(4th 
F.2d 
ton, • 
Chai 
1017

13.
legi
in l
coir
fee
S t; i.
107.
firm
resi
tion
pen
F.2d
pre-
COUi



283

both of 
t men- 
ke the 
mg' the 
1 as fa r 
i Ration 
ident is 

itself 
of Ar­

es th a t 
be paid 
unds in 
or than 
;onally.
' he Su- 
federal 
unctive 
I sta te  
ial bur- 
ite, the 
1 itution 
making 
a t  will 
of the 

its sov-

Court 
eneral” 

atto r- 
federal 
ch fees 
i zed by 
bin one 

to the 
os th a t 
lawyer, 
th a t a 

lorney’s 
as been 
(2) the 
and for 
lers, in 
he fund 
>g party  
ly, wan- 
a t 247- 
:<1.2d a t

\ lycska- 
rkansas 
Reform  
F.Supp. 
'.2d 864

FINNEY v. HUTTO
C ite  ns 410 F .S u p p . 251 (1976)

(8th Cir. 1976). ACORN, like Alyeska, 
was a “public in terest" suit brought by 
private organizations and individuals for 
the purpose of protecting the environ­
ment. The defendants fell into two 
classes. One class included the Secretary 
of the United S tates D epartm ent of 
Transportation and officials of the Fed- 
eral Highway Works Administration. 
The other class was made up of the 
members of the Arkansas S tate High­
way Commission and officials of the Ar­
kansas S tate Highway D epartm ent. The 
plaintiffs prevailed in large measure and 
obtained injunctive relief. However, the 
court fe lt th a t Alyeska  precluded the al­
lowance of any fee to plaintiffs a tto r­
neys. Since the plaintiffs were entitled 
to recover only one aw ard of costs, and 
since th a t award could be collected from 
the government as provided by 28 U.S.C.
§ 2412, the court found it unnecessary to 
decide a t the time w hether in view of 
Edelman the “sta te  defendants” were li­
able for costs th a t would have had to be 
paid out of Arkansas Highway D epart­
ment funds.

As to w hether Edelman precludes an 
award of a tto rney’s fees against sta te  
agencies or against s ta te  officers sued in 
their official capacities, the Courts of 
Appeals appear to be divided, and the 
question will probably have to be settled 
ultimately by the Supreme Court. Cases 
allowing fees notw ithstanding Edelman 
include Thoncn v. Jenkins, 517 F.2d 3 
(4th Cir. 1975); Souza v. Travisono, 512 
F.2d 1137 (1st Cir. 1975); Class v. Nor­
ton, 505 F.2d 123 (2nd Cir. 1974); Boston 
Chapter N A A C P  v. Beecher, 504 F.2d 
1017 (1st Cir. 1974); Milburn v. Huecker,

13. Newman v. State of Alabama involves al­
leged unconstitutionalities which have existed 
in the Alabama prison system. The district 
court granted relief and awarded an attorney’s 
fee and expenses of litigation. Newman v. 
State of Alabama, 349 F.Supp. 278 (M.D.AIa. 
1972); a panel of the Court of Appeals af­
firmed as to the equitable relief granted and 
reserved for en banc consideration the ques­
tion of the allowability of the fee and ex­
penses. Newman v. State of Alabama, 503 
F 2d 1320 (5th Cir. 1974). The question 
presented was argued and submitted to the 
court en banc after Edelman was decided. In

500 F.2d 1279 (5th Cir. 1974). See also 
the  dissenting opinion of Circuit Judge 
Gewin in Newman v. S ta te  o f  Alabama,
522 F.2d 71, 72 e t seq. (5th Cir. 1975), in 
which opinion he was joined by Chief 
Judge Brown and Circuit Judges Wis­
dom, Thornberry and Goldberg.13

Cases in which a fee has been disal­
lowed on the strength  of Edelman in­
clude Hallmark Clinic v. North Carolina 
Dept, o f  Human Resources, 519 F.2d 
1315 (4th Cir. 1975); Skehan v. Board o f  
Trustees o f Bloomsburg S ta te  College, 
501 F.2d 31 (3rd Cir. 1974), vacated on 
other grounds, 421 U.S. 983, 95 S.Ct. 
1986, 44 L.Ed.2d 474 (1975); and Jordon 
v Gilligan, 500 F.2d 701 (6th Cir. 1914), 
cert, denied, 421 U.S. 991, 95 S.Ct. 1996,
44 L.Ed.2d 481 (1975).

The cases holding th a t Edelman does 
not preclude the award of an a tto rney’s 
fee th a t m ust be paid out of sta te  funds 
characterize the allowance of the fee as 
being purely ancillary to prospective eq­
uitable relief properly granted  against a 
sta te  or a s ta te  agency. This court now 
takes th a t view. The subject is thor­
oughly and capably discussed in the dis­
sent in Newm an v. S ta te  o f  Alabama, 
supra.

T hat the aw ard of an atto rney’s fee in 
a civil rights case on the “private a tto r­
ney general” theory is improper in the 
absence of a s ta tu te  allowing such an 
aw ard was recognized by the Court of 
Appeals for this circuit in Gilliam v. City 
o f  Omaha, 524 F.2d 1013, 1017 (8th Cir. 
1975). But, in the earlier case of Doe v. 
Poelker, 515 F.2d 541, 546-48 (8th Cir. 
1975), the same court held th a t the case 
before it fell w ithin one of the Alyeska

a terse per curiam opinion the majority of the 
en banc court remanded the case for further 
consideration in the light of Alyeska and Edel­
man. The dissenters felt that remand for Edel­
man consideration was unnecessary and would 
serve no useful purpose; they felt that the 
remand should be limited to the question of 
whether the defendants had acted in bad faith 
so as to bring the case within the Alyeska 
exceptions as far as some of the defendants 
were concerned. Thus, the majority of the en 
banc court did not hold that the fee and ex­
penses were not allowable.



284 410 FEDERAL SU PPLEM EN T

exceptions where the defendant Mayor 
had obstinately insisted on m aintaining 
an anti-alx>rtkm i>olicy in municipally 
owned hospitals in St. Is>uis a fte r  being 
on full and ample notice th a t the [>olicy 
was unconstitutional or was probably un­
constitutional. See also Doe v. Poelker, 
527 F.2d 605 (8th Cir. 1976).

As indicated, this court does not feel 
th a t the allowance of a fee, costs, and 
expenses is precluded by Edelman. With 
respect to  Alyeska, the court thinks th a t 
the case before it is markedly d ifferent 
in quality from Alyeska  and also th a t it 
falls within the “bad fa ith ” exception to 
the American Rule recognized in Alyeska  
and in Doe v. Poelker, supra.

In the first place, Alyeska  was a pri­
vate civil suit brought by environm ental­
ists to prevent the construction of a 
pipeline in Alaska. No constitutional is­
sues were involved. The instan t case on 
the o ther hand involves the grave consti­
tutional question of w hether those in 
charge of the Arkansas D epartm ent of 
Correction and the prisons of the 
D epartm ent are continuing to deprive in­
digent convicts of fundam ental rights 
and immunities guaranteed to them by 
the fourteenth amendment.

In the second place, the attorneys in 
this case who have labored so diligently 
on behalf of their inm ate clients are not 
in the litigation on their own motion or 
by the ir own volition. They did not vol­
untarily  enroll themselves under the 
banner of convict rights as the attorneys 
in the Alyeska  case enlisted under the 
banner of environm ental protection. 
Counsel in this case are  here because 
they were appointed by the court and 
for no other reason.

The very variety of the issues dis­
cussed and  the length of this opinion and 
of earlier opinions make it obvious th a t 
the claims of the convicts could not have 
been presented to the court intelligently 
by petitioners themselves; they had to 
have counsel. And their attorneys have 
been of assistance to the court as well as 
to the inmates.

Assuming arguendo, however, that the 
considerations ju st mentioned do not 
serve adequately to distinguish this case 
from Alyeska, the court thinks that in a 
legal sense res|>ondents and their prede­
cessors in office and employment have 
acted in bad faith and oppressively, and 
th a t the case falls within the “bad faith" 
exception to the Alyeska  rule.

If one looks a t the history of the Ar­
kansas prison system from 1965 or 1966 
down to the present day, one may note a 
continuous albeit erratic  course of im­
provement. Some of th a t improvement 
would no doubt have taken place even in 
the absence of this litigation; and the 
court will observe th a t in recent years 
A rkansas governors and legislators, and 
members of what is now the Board of 
Correction, have shown marked sympa­
thy w ith and affirm ative response to 
prison needs, an a ttitude  th a t was not 
always characteristic of form er years, 
On the o ther hand, it is only fair to say 
th a t this litigation has served to impress 
upon Arkansas policy makers tha t if the 
prisons are to be operated a t all, they 
m ust be operated in a constitutional 
m anner, and has served as a spur to 
improvement. Moreover, the litigation, 
including the efforts of petitioners’ coun­
sel herein, has served to bring to light 
certain problem areas th a t might have 
been overlooked otherwise.

In earlier stages .of the case, when the 
grossest constitutional violations were 
brought to light, the prison administra­
tion tended to be cooperative in moving 
against the conditions and practices in 
question and indeed appeared to wel­
come the action of the court in requiring 
them  to do w hat they wanted to do any­
way bu t fe lt unable to do voluntarily.

I t  would be unfair to say tha t the 
a ttitude  of the respondents is uncoopera­
tive today, bu t the court thinks that it 
has noted th a t with the passage of time 
and with improvements in prison condi­
tions being made, there nas been some 
hardening of D epartm ental attitudes and 
an unwillingness on the p a rt of the pris­
on adm inistrators to go much if any far­
ther than they have gone, and as has

J;
r

t
f
I
£
?

I

*
f8
%

ii-
l*

• > 
»
f1
r\
tl



i

)
i
\
!

ii
l
X

FINNEY v. HUTTO
Cite as 410 K.Supp. 251 (1970)

been seen the progress th a t has l>een
made to this date is still insufficient.

Another observation th a t may be 
made is tha t a t practically every stage of 
the litigation evidence has brought to 
light practices of which those in higher 
prison authority were ignorant, and 
which they eliminated when the facts 
were disclosed. I t  seems to the court 
that the prison authorities should have 
discovered a t least some of those condi­
tions and practices for themselves and 
corrected them  w ithout w aiting for them 
to be developed in the course of eviden­
tiary hearings in this lawsuit.

Since 1968 the D epartm ent of Correc­
tion has been in w hat may be called a 
period of transition from a patently  un­
constitutional penal system and in the 
direction of a constitutional system. 
But, each major transitional step has fol­
lowed the m andate of this court or of 
the Court of Appeals. And significantly 
at each stage of the litigation, rem aining 
constitutional deficiencies have been dis­
covered. In 1973 the court thought that 
the Departm ent had moved far enough 
down the transitional road to perm it this 
court to release its supervisory jurisdic­
tion over the Arkansas prisons, but, as 
all concerned know, the Court of Appeals 
sharply disagreed.

Enough on this subject has been said. 
The court is going to allow petitioners’ 
attorneys a fee and certain  exjxmses of 
litigation.

In fixing the am ount of the fee, which 
counsel may divide am ong themselves as 
they see fit, the court will make no ef­
fort to adequately comj>ensate counsel 
for the work th a t they have done or for 
the time th a t they have spent on the 
case. Adequate compensation would run 
into many thousands of dollars. On the 
other hand, the court is not w illing ,to  
qjlow merely a nominal fee or one that 
has no relation to the work th a t counsel 
have done. The court is going to allow a

U. The court will note that the transcript ma­
terial in question will be available for appellate 
purposes without additional expense. Atten­
tion is called to the fact, however, that the 
testimony that was taken before the court per-

285

substantial fee for the work 'done by 
counsel since the remand. Not only are 
the attorneys entitled to such a fee, but 
also the allowance thereof may incline 
the D epartm ent to act in such a m anner 
th a t fu rth e r protracted litigation a I Knit 
the prisons will not be necessary.

From its consideration of the m atter 
the court now awards a fee of $20,000.00 
to be paid out of D epartm ent of Correc­
tion funds.

As to costs, the principal item of costs 
has been the fees paid to the court re­
porter for transcripts of depositions and 
testimony. As the litigation has pro­
ceeded, the court has entered certain  or­
ders under the term s of which a portion 
of those fees has been paid by the 
Departm ent. The court now confirms 
those orders. This action, however, is 
w ithout prejudice to the righ t of the 
D epartm ent a t  some la te r date or dates 

. to seek reim bursem ent or recoupment 
from certain  individual inm ates whose 
individual claims now pending when con­
sidered may tu rn  out to be frivolous or 
patently  insubstantial. The court is not 
saying th a t there are such claims, but 
there may be.14

Procedural Details

I t is now necessary to wrap up proce- 
durally the class action phase of this liti­
gation so th a t it may be on its way to 
the Court of Appeals if either side cares 
to appeal, and the court assumes th a t 
one side or the o ther will so desire. I t is 
also necessary to give some directions to 
the Clerk as to  how this opinion and its 
accompanying decree should be handled.

Pursuant to this opinion the court will 
en te r its Third Supplemental Decree. In 
order th a t the decree am ount to  an ap­
pealable order, the court, pursuant to 
Fed.R.Civ.P. 54(b), now determ ines th a t 
there is no ju s t reason for delaying en try  
of the decree until disposition of the in-

sonally at the outset of the remand hearings 
has not been transcribed, and the testimony 
that the court heard in 1974 has not been tran­
scribed.



X

286
410 FEDERAL SU PPLEM EN T

dividual claims and directs th a t the de­
cree be entered forthw ith.

The Clerk is now directed to file the 
original of this opinion and of the decree 
in the anchor case before the court, 
namely, Holt, e t a1. v. Hutto, Commis­
sioner o f  Correction, e t a/., D.C.Cir.,
F.Supp. 194. Copies of the opinion and 
of the decree will be considered as hav­
ing been filed in all of the cases consoli­
dated with Holt, and a copy of the opin­
ion and decree will be filed physically in 
any particular one of the consolidated 
cases upon the request of e ither side. 
Since the court may well have to con­
sider individual inm ate claims in all of 
the individual cases, the Clerk should not 
close for statistical purposes any of the 
cases a t this time.

Ju s t as the court sees no ju s t reason 
for delay in entering  a decree dealing 
with the class action aspect of the case, 
the court likewise sees no reason to de­
lay disposition of the individual claims 
until an appeal, if there is one, from the 
class action decree is decided. T hat is 
true  because decision of an individual 
claim either in favor of or against a par­
ticular inm ate is not likely to run coun­
te r  to the class action decision or to any 
probable holding of the Court of Appeals 
w ith respect to th a t decision. For exam ­
ple, a claim of Inm ate X. th a t he was 
denied needed medication on a particular 
occasion can be decided one way or the 
o ther w ithout particular regard to the 
over-all sufficiency of the health care 
provided by the D epartm ent for inmates 
in general. The court, therefore, will 
proceed to adjudicate the individual 
claims with all convenient speed. The 
court is probably going to need the help 
of counsel in connection w ith the individ­
ual claims, and, as a m atter of fact 
counsel for respondents have requested 
leave to brief the issues raised by certain 
individual claims separately from the 
general issues raised by the class claims. 
T hat leave will be gran ted ; it occurs to 
the court th a t counsel for petitioners 
may likewise w ant to brief some individ­
ual claims separately, and the court will 
shortly be in touch with counsel on both

sides in connection with the individual 
claims.

While the court would like to relieve 
counsel for jietitioncrs of their duties in 
the case a t  this time and while the court 
is s,ure th a t counsel would like to be 
relieved, the court does not think it prac­
ticable to release them  until a fte r the 
appeal, if any, from the class action deci­
sion has been disposed of and until after 
the court rules on the individual claims.

Since jurisdiction of the case is being 
retained, the Commissioner will be di­
rected to file not la te r than  July 15, 197o 
a report showing w hat has been done 
tow ard complying with the directives 
and requirem ents of this opinion and its 
accompanying decree. The report must 
include da ta  on the prison population in 
all institutions adm inistered by the 
D epartm ent as of June 30 or July 1. 
Those da ta  should be reported in a form 
conform ing generally to the report filed 
on November 12, 1975, but there must be 
a breakdown among w injp and a cell by 
cell sta tem ent of population in the East 
Building a t Cummins. F u rther reports 
may be required in the discretion of the 
court.

Kuno SPONHOLZ, Plaintiff,

B ernadette STANISLAUS, a /k /a  Bern 
Nadette, a /k /a  Mrs. Thomas L 
Fauntleroy, a /k /a  B ernadette Faunt- 
leroy, a /k /a  B ernadette Stanis, De­
fendant.

No. 75 Civ. 6257.

United S tates D istrict Court,
S. D. New York.

March 31, 1976.

Action was brought in Civil Court/ 
the City of New York against a Califor-

r
c
S-
t
t
t;
o
7
c
P
s<
ai
P'
r'.
th
th
h:
r<
co

1.

N.
ex
aci
Y<
th:
no:
all,
§

2.

is <! 
cou 
juri 
tioi 
hav 
firs

3. I

City 
lion 
was 
was 
dist 
§  2<

4. 1



CONSTITUTIONAL AND STATUTORY PROVISIONS 
INVOLVED

I n  a d d i t i o n  t o  t h e  s t a t u t e s  and  c o n s t i t u t i o n a l  p r o v i s i o n s  

c i t e d  i n  t h e  b r i e f  f o r  p e t i t i o n e r s ,  t h e  c a s e  a l s o  i n v o l v e s  A c t  

543 o f  t h e  A r k a n s a s  A c t s  o f  1977  a p p r o v e d  March  1 8 ,  1 9 7 7 .  A c t  

543 p r o v i d e s  a s  f o l l o w s :

ACT 543

"AN ACT A u t h o r i z i n g  t h e  S t a t e  o f  A r k a n s a s  t o  Pay 
A c t u a l  Damages  A d j u d g e d  Under  C e r t a i n  
C i r c u m s t a n c e s  A g a i n s t  O f f i c e r s  or  E m p l o y e e s  o f  
A r k a n s a s  S t a t e  G o v e r n m e n t ,  o r  A g a i n s t  t h e  
E s t a t e  o f  Such  an O f f i c e r  o r  E m p l o y e e ;  D e f i n i n g  
t h e  E x t e n t  o f  A p p l i c a b i l i t y  o f  t h e  A c t :  and  f o r  
O t h e r  P u r p o s e s .

Be i t  E n a c t e d  by t h e  G e n e r a l  A s s e m b l y  o f  t h e  S t a t e  
o f  A r k a n s a s :

SECTION 1 .  The S t a t e  o f  A r k a n s a s  s h a l l  pay  
a c t u a l ,  b u t  n o t  p u n i t i v e ,  d a m a g e s  a d j u d g e d  by a s t a t e  
o r  f e d e r a l  c o u r t ,  o r  e n t e r e d  by s u c h  a c o u r t  a s  a 
r e s u l t  o f  a c o m p r o m i s e  s e t t l e m e n t  a p p r o v e d  and  r e c ­
ommended by t h e  A t t o r n e y  G e n e r a l ,  a g a i n s t  o f f i c e r s  
o r  e m p l o y e e s  o f  t h e  S t a t e  o f  A r k a n s a s ,  o r  a g a i n s t  
t h e  e s t a t e  o f  s u c h  an o f f i c e r  o r  e m p l o y e e ,  b a s e d  on 
an a c t  o r  o m i s s i o n  by t h e  o f f i c e r  o r  e m p l o y e e  w h i l e  
a c t i n g  w i t h o u t  m a l i c e  a nd  i n  good  f a i t h  w i t h i n  t h e  
c o u r s e  a nd  s c o p e  o f  h i s  e m p l o y m e n t  and i n  t h e  p e r ­
f o r m a n c e  o f  h i s  o f f i c i a l  d u t i e s .

SECTION 2.  Upon t h e  r e c o m m e n d a t i o n  o f  t h e  
A t t o r n e y  G e n e r a l ,  t h e  S t a t e  o f  A r k a n s a s  s h a l l  h a ve  
a u t h o r i t y  t o  p ay  d a m ag e s  b a s e d  on an a c t  o r  o m i s s i o n  
by an o f f i c e r  o r  e m p l o y e e  o f  t h e  S t a t e  o f  A r k a n s a s  
w h i l e  a c t i n g  w i t h o u t  m a l i c e  and  i n  good  f a i t h  
w i t h i n  t h e  c o u r s e  and  s c o p e  o f  h i s  e m p l o y m e n t  
and  i n  t h e  p e r f o r m a n c e  o f  h i s  o f f i c i a l  d u t i e s ,  
w h e r e  t h e  a mo u n t  o f  d a m ag e s  i s  d e t e r m i n e d  by 
n e g o t i a t e d  s e t t l e m e n t  b e f o r e  or  a f t e r  an  a c t i o n  
had  b e e n  commenced .

SECTION 3 .  Damages  p a y a b l e  u n d e r  t h i s  A c t  
s h a l l  be r e d u c e d  t o  t h e  e x t e n t  t h a t  t h e  o f f i c e r  
o r  e m p l o y e e  h a s  b e e n  i n d e m n i f i e d  o r  i s  e n t i t l e d  
t o  i n d e m n i f i c a t i o n  u n d e r  a ny  c o n t r a c t  or  
i n s u r a n c e .

-  3 -



SECTION 4 .  A p a r t y  d e s i r i n g  t o  make a c l a i m  f o r  
i n d e m n i f i c a t i o n  u n d e r  t h i s  A c t  s h a l l  n o t i f y  t h e  
A t t o r n e y  G e n e r a l  o f  t h e  f i l i n g  o f  a c o m p l a i n t  
i n  any  c o u r t  o r  t h e  m ak in g  o f  any  o t h e r  f o r m  o f  
demand f o r  d a m ag e s  p r o m p t l y  a f t e r  i t  i s  f i l e d  o r  
made and  p e r m i t  t h e  A t t o r n e y  G e n e r a l  t o  p a r t i c i p a t e  
i n  a l l  t r i a l  o r  s e t t l e m e n t  n e g o t i a t i o n s  o r  p r o c e e d ­
i n g s  r e g a r d i n g  t h e  c o m p l a i n t  o r  demand .  C o m p l i a n c e  
w i t h  a l l  r e q u i r e m e n t s  o f  t h i s  S e c t i o n  s h a l l  be 
p r e r e q u i s i t e  t o  p a y m e n t  o f  any  c l a i m  u n d e r  t h i s  
A c t .  N o t h i n g  i n  t h i s  S e c t i o n  s h a l l  be c o n s t r u e d  
t o  d e ny  any  p a r t y  d e s i r i n g  t o  make a c l a i m  u n d e r  
t h i s  A c t  f r o m  e m p l o y i n g  l e g a l  c o u n s e l  o f  h i s  
c h o o s i n g  t o  d e f e n d  any  l a w s u i t  o r  o t h e r  demand 
f o r  d a m a g e s .

SECTION 5 .  The A r k a n s a s  S t a t e  C l a i m s  Commis­
s i o n  s h a l l  h a v e  j u r i s d i c t i o n  o v e r  a l l  c l a i m s  
f o r  i n d e m n i f i c a t i o n  b a s e d  on a j u d g m e n t  o r  n e g o ­
t i a t e d  s e t t l e m e n t  i n  c o n f o r m i t y  w i t h  S e c t i o n s  1 
and  2 ,  and p r o c e d i n g s  f o r  t h e  r e c o v e r y  o f  s u c h  
c l a i m s ,  and t h e  p a y m e n t  o f  s u c h  c l a i m s ,  s h a l l  
be g o v e r n e d  by t h e  l aw g o v e r n i n g  p r o c e e d i n g s  b e f o r e  
t h e  S t a t e  C l a i m s  C o m m i s s i o n  and  p a y m e n t  o f  c l a i m s  
a l l o w e d  by t h e  C o m m i s s i o n .

SECTION 6 .  E l e c t e d  s t a t e  o f f i c i a l s  and 
members  o f  c o m m i s s i o n s ,  b o a r d s ,  o r  o t h e r  g o v e r n ­
i n g  b o d i e s  o f  a g e n c i e s  a r e  o f f i c e r s  o f  t h e  S t a t e  
o f  A r k a n s a s  f o r  t h e  p u r p o s e  o f  t h i s  A c t .

SECTION 7 .  A l l  l a w s  and p a r t s  o f  l a w s  i n  
c o n f l i c t  w i t h  t h i s  A c t  a r e  h e r e b y  r e p e a l e d .

SECTION 8 .  I f  any p r o v i s i o n  o f  t h i s  A c t  
o r  t h e  a p p l i c a t i o n  t h e r e o f  t o  any  p e r s o n  o r  c i r c u m ­
s t a n c e s  i s  h e l d  i n v a l i d ,  s u c h  i n v a l i d i t y  s h a l l  
n o t  a f f e c t  o t h e r  p r o v i s i o n s  or  a p p l i c a t i o n s  o f  
t h i s  A c t  w h i c h  c a n  be g i v e n  e f f e c t  w i t h o u t  t h e  
i n v a l i d  p r o v i s i o n  or  a p p l i c a t i o n ,  and t o  t h i s  
end  t h e  p r o v i s i o n s  o f  t h i s  A c t  a r e  d e c l a r e d  t o  
be s e v e r a b l e .

SECTION 9 .  EMERGENCY. I t  i s  h e r e b y  f o u n d  and 
d e t e r m i n e d  by t h e  G e n e r a l  A s s e m b l y  t h a t  a number  o f  
S t a t e  o f f i c e r s  and  e m p l o y e e s  a r e  b e i n g  made d e f e n ­
d a n t s  i n  l a w s u i t s  s e e k i n g  d a m a g e s  f o r  t h e i r  a c t s  or  
o m i s s i o n s  i n  t h e  p e r f o r m a n c e  o f  t h e i r  o f f i c i a l  
d u t i e s ;  t h a t  i n  many i n s t a n c e s  s u c h  l a w s u i t s  a r e  
f i l e d  a g a i n s t  t h e  e s t a t e s  o f  s u c h  o f f i c e r s  or  
e m p l o y e e s ;  and  t h a t  i t  i s  e s s e n t i a l  t h a t  t h e  S t a t e  
o f  A r k a n s a s  o f f e r  p r o t e c t i o n  f o r  i t s  o f f i c e r s  
or  e m p l o y e e s  a g a i n s t  p e r s o n a l  l i a b i l i t y  f o r  p e r f o r m ­
i n g  t h e i r  o f f i c i a l  d u t i e s ,  and  t h a t  t h e  i m m e d i a t e  
p a s s a g e  o f  t h i s  A c t  i s  n e c e s s a r y  t o  a c c o m p l i s h  t h i s  
p u r p o s e .  T h e r e f o r e ,  an  e m e r g e n c y  i s  h e r e b y  d e c l a r e d  
t o  e x i s t  and t h i s  A c t  b e i n g  n e c e s s a r y  f o r  t h e  
i m m e d i a t e  p r e s e r v a t i o n  o f  t h e  p u b l i c  p e a c e ,  h e a l t h  
and s a f e t y  s h a l l  be i n  f u l l  f o r c e  and e f f e c t  f r om 
and  a f t e r  i t s  p a s s a g e  and  a p p r o v e d  . "



STATEMENT
A. Introduction

This is a consolidated group of cases in which prisoners
confined in the Arkansas State Prison system have complained
t h a t  c o n d i t i o n s  i n  t h e  p r i s o n s  v i o l a t e  t h e i r  r i g h t s  u n d e r

t h e  F o u r t e e n t h  Amendment .  The c a s e  h a s  b e e n  p e n d i n g  s i n c e  1969

and  t h e  d e c i s i o n s  o f  t h e  D i s t r i c t  C o u r t  — C i r c u i t  C o u r t  J u d g e

J .  S m i t h  H e n l e y  ( f o r m e r l y  d i s t r i c t  j u d g e )  s i t t i n g  by s p e c i a l

designation —  have been reviewed by the Court of Appeals for
1/

t h e  E i g h t h  C i r c u i t  on t h r e e  o c c a s i o n s .  The p r e s e n t  p e t i ­

t i o n  s e e k s  r e v i e w  o f  two r u l i n g s  c o n t a i n e d  i n  t h e  D i s t r i c t  

C o u r t ' s  T h i r d  S u p p l e m e n t a l  D e c r e e  d a t e d  March  1 9 ,  1976  w h i c h  

w e r e  a f f i r m e d  on a p p e a l .  The f i r s t  r u l i n g  c o m p l a i n e d  o f  was  t h e  

D i s t r i c t  C o u r t ' s  d e c i s i o n  l i m i t i n g  t h e  amo u n t  o f  t i m e  p r i s o n e r s  

may be c o n f i n e d  i n  p u n i t i v e  i s o l a t i o n  c e l l s  a t  Cummins and 

T u c k e r  P r i s o n s  t o  a  p e r i o d  o f  t h i r t y  d a y s  f o r  a s i n g l e  o f f e n s e .  

T h i s  3 0 - d a y  l i m i t a t i o n  was one  o f  a number  o f  r u l i n g s  o r d e r i n g  

c h a n g e s  o f  r u l e s  and  c o n d i t i o n s  i n  t h e  p u n i t i v e  c e l l s  w h i c h  

w e r e  d e s i g n e d  t o  c o m pl y  w i t h  a p r i o r  m a n d a t e  o f  t h e  E i g h t h  

C i r c u i t ,  w h i c h  h a d  i n  1974 d i r e c t e d  t h e  D i s t r i c t  C o u r t  t o  

f o r m u l a t e  a r emedy  t o  " e n s u r e  t h a t  p r i s o n e r s  p l a c e d  i n  p u n i t i v e  

s o l i t a r y  c o n f i n e m e n t  a r e  n o t  d e p r i v e d  o f  b a s i c  n e c e s s i t i e s  

i n c l u d i n g  l i g h t ,  h e a t ,  v e n t i l a t i o n ,  s a n i t a t i o n ,  c l o t h i n g  and  

a p r o p e r  d i e t . "  F i n n e y  v .  A r k a n s a g - B o a r d  o f  C o r r e c t i o n ,

F . 2d 1 > 4 , 2 0 1 t 2  0 8 ( 8 t l i C i r .  1 9 J 4 ) .

The s e c o n d  r u l i n g  c o m p l a i n e d  o f  by t h e  p e t i t i o n e r s  i s  t h e  

D i s t r i c t  C o u r t ' s  a w a r d  o f  a c o u n s e l  f e e  o f  $ 2 0 , 0 0 0 . 0 0  t o  be 

s h a r e d  by t h r e e  c o u r t - a p p o i n t e d  a t t o r n e y s  ( M e s s r s .  K a p l a n ,

1 /  The  r e p o r t e d  o p i n i o n s  o c c u p y  129 p a g e s  i n  t h e  o f f i c i a l  
r e p o r t s .  The  E i g h t h  C i r c u i t  h a s  c a l l e d  t h e  c a s e  " s e e m i n g l y  
e n d l e s s . "

-  5 -



H o l t  and  McMath) f o r  s e r v i c e s  p e r f o r m e d  d u r i n g  t h e  p e r i o d  f r o m  

1974 t o  1 9 7 6 .  The c o u r t  o r d e r e d  t h a t  t h i s  f e e  be p a i d  f r o m  t h e  

b u d g e t  o f  t h e  A r k a n s a s  C o r r e c t i o n s  D e p a r t m e n t .

I n  o r d e r  t h a t  t h e  p r e s e n t  i s s u e s  may be s e e n  i n  t h e i r  

c o m p l e t e  c o n t e x t ,  we s h a l l  r e v i e w  p r o c e e d i n g s  f r o m  t h e  i n c e p t i o n  

o f  t h e  c a s e  i n  1 9 6 9 ,  b e f o r e  g i v i n g  a more d e t a i l e d  s t a t e m e n t  o f  

t h e  p r o c e e d i n g  w h i c h  l e d  t o  t h e  T h i r d  S u p p l e m e n t a l  D e c r e e .

B . H o l t  I and  P r e v i o u s  P r i s o n  S u i t s

L i t i g a t i o n  a b o u t  p r i s o n  c o n d i t i o n s  i n  A r k a n s a s  b e g a n  i n

1965  and  h a s  c o n t i n u e d  s i n c e  t h a t  t i m e ,  r e s u l t i n g  i n  r e p e a t e d

h o l d i n g s  o f  c o n s t i t u t i o n a l  v i o l a t i o n s .  I n  T a l l e y  v .  S t e p h e n s ,

247 F . S u p p .  6873  ( E . D .  A r k .  1 9 6 5 ) ,  and  i n  J a c k s o n  v .  B i s h o p ,

804 ( E . D .  A r k .  1 9 6 7 ) ,  r e v e r s e d  i n  p a r t  404 F . 2 d  571 ( 8 t h  C i r .

1 9 6 8 ) ,  t h e  c o u r t s  o u t l a w e d  t h e  w h i p p i n g  o f  i n m a t e s  w i t h  a s t r a p

and  v a r i o u s  t o r t u r e s  s u c h  a s  t h e  " T u c k e r  T e l e p h o n e "  and  t h e

" t e e t e r  b o a r d . "  The  c o u r t  f o u n d  t h a t  A r k a n s a s  p r i s o n e r s  w e r e

b e i n g  s u b j e c t e d  t o  t o r t u r e  a nd  " b r u t a l  and  s a d i s t i c  a t r o c i -
2/  '

t i e s . "  I n  1969 i n  C o u r t n e y  v .  B i s h o p , 409 F . 2d  1185 ( 8 t h  

C i r .  1 9 6 9 ) ,  t h e  C o u r t  h e l d  i n  an  i n d i v i d u a l  c a s e  t h a t  s o l i t a r y  

c o n f i n e m e n t  d i d  n o t  v i o l a t e  a p r i s o n e r ' s  c o n s t i t u t i o n a l  r i g h t s .

2 /  I n  J a c k s o n  v ._B i s h o p , 2 68 F . S u p p .  8 0 4 ,  815 ( E . D .  A r k .
1 9 6 7 ) ,  t h e  C o u r t  w r o t e :

" T h e r e  c a n  be no d o u b t  t h a t  t h e  b r u t a l  and 
s a d i s t i c  a t r o c i t i e s  w h i c h  w e r e  u n c o v e r e d  by 
t h e  i n v e s t i g a t i o n  o f  t h e  S t a t e  p o l i c e  i n  
A u g u s t  and  S e p t e m b e r  o f  1966  c a n n o t  be t o l e r ­
a t e d .  The C o u r t  h a s  r e f e r e n c e  t o  t h e  u s e  o f  
a t e l e p h o n e  s h o c k i n g  a p p a r a t u s ,  t h e  t e e t e r  
b o a r d ,  s t r a p p i n g  on t h e  b a r e  b u t t o c k s  and 
o t h e r  t o r t u r o u s  a c t s  o f  t h i s  n a t u r e . "

Some c r i m i n a l  p r o s e c u t i o n s  o f  p r i s o n  e m p l o y e e s  we r e  b r o u g h t  
b u t  few c o n v i c t i o n s  we r e  o b t a i n e d .  309 F . S u p p .  a t  3 6 8 - 3 6 9 ,  n o t e  
4 .

-  6 -



I n  e a c h  o f  t h e s e  e a r l i e r  c a s e s  p l a i n t i f f s  we r e  i n m a t e s  who

f i l e d  p r o  s e  c o m p l a i n t s  and  t h e  c a s e s  w e r e  p r e s e n t e d  by c o u r t -
37

a p p o i n t e d  a t t o r n e y s  who s e r v e d  w i t h o u t  c o m p e n s a t i o n .

3 /  The a p p o i n t m e n t  o f  c o u n s e l  was  n o t e d  i n  e a c h  o f  t h e  
o p i n i o n s .  I n  T a l l e y  v .  S t e p h e n s , 247 F . S u p p .  6 8 3 ,  685 ( E . D .  
A r k .  1 9 6 5 ) ,  t h e  C o u r t  s t a t e d :

" P e t i t i o n e r s  h a ve  b e e n  r e p r e s e n t e d  m o s t  
c a p a b l y  by B r u c e  T.  B u l l i o n  o f  L i t t l e  Rock 
and L o u i s  L.  Ramsay ,  J r .  o f  P i n e  B l u f f ,  
a p p o i n t e d  by t h e  C o u r t  t o  r e p r e s e n t  p e t i t i o n e r s  
w i t h o u t  c h a r g e .  The C o u r t  i s  g r a t e f u l  t o  
M e s s r s .  B u l l i o n  and  Ramsay f o r  t h e i r  s e r v i c e s . "

I n  J a c k s o n  v .  B i s h o p ,  268 F . S u p p .  8 0 4 ,  806 ( E . D .  A r k .  1967)  t h e  
C o u r t  s a i d :

"The c o u r t  a p p o i n t e d  Edward  L.  W r i g h t  o f  L i t t l e  
Rock and  W i l l i a m  S . A r n o l d  o f  C r o s s e t t ,  b o t h  
h i g h l y  r e s p e c t e d  and  e x p e r i e n c e d  members  o f  
t h e  A r k a n s a s  b a r ,  t o  r e p r e s e n t  t h e  p l a i n t i f f s  
w i t h o u t  c h a r g e .  They h a v e  d o n e  s o  m o s t  
c a p a b l y  and  t h e  C o u r t  t h a n k s  them f o r  t h e i r  
s e r v i c e s . "

On A p p e a l  i n  J a c k s o n  v .  B i s h o p ,  404 F . 2 d  571 ( 8 t h  C i r .  1 9 6 8 ) ,  
t h e  C o u r t  n o t e d  a t  p .  5 7 3 :

"We i n i t i a l l y  commend Edward  L.  W r i g h t  o f  L i t t l e  
Rock and  W i l l i a m  S .  A r n o l d  o f  C r o s s e t t ,  c o u r t -  
a p p o i n t e d  c o u n s e l  f o r  t h e  p l a i n t i f f s  and Don 
L a n g s t o n  who a r g u e d  t h e  c a s e s  f o r  t h e  d e f e n ­
d a n t  f o r  t h e i r  c a n d i d ,  u n e m o t i o n a l  and f a i r  
and  a b l e  p r e s e n t a t i o n s .  The s e r v i c e s  r e n d e r e d  
by Mr. W r i g h t  and Mr.  A r n o l d ,  and t h e  e x p e n s e s  
t h e y  h a v e  i n c u r r e d ,  we r e  w i t h o u t  a n t i c i p a t i o n  o f  
r e i m b u r s e m e n t . "

I n  C o u r t n ey  v .  B i s h o p ,  409 F . 2d  1 1 8 5 ,  1186 ( 8 t h  C i r .  1 9 6 9 ) ,  t h e  
C o u r t  s t a t e d :

"Phillip K. Lion and Robert L. Robinson, Jr. 
lawyers of Little Rock, Arkansas, were 
appointed to represent petitioner."

-  7 -



1969 d e c i s i o n ,  t h e  i s o l a t i o n  u n i t  a t  Cummins was  a one s t o r y  

c o n c r e t e  b l o c k  b u i l d i n g  w i t h  t w e l v e  c e l l s  w h i c h  we r e  10 f e e t  

l o n g  a nd  a p p r o x i m a t e l y  8 f e e t  w i d e .  The C o u r t  f o u n d  t h a t  t h e  

i s o l a t i o n  c e l l s  w e r e  d i r t y  and  u n s a n i t a r y ,  p e r v a d e d  by bad 

o d o r s ,  t h a t  t h e  m a t t r e s s e s  w e r e  u n c o v e r e d  and  d i r t y  and t h a t  

t h e  c e l l s  w e r e  c h r o n i c a l l y  o v e r c r o w d e d  The a v e r a g e  number  o f  

men c o n f i n e d  i n  a s i n g l e  c e l l  was  f o u r .  300 F . S u p p .  a t  

83 2.

I n m a t e s  i n  t h e  i s o l a t i o n  u n i t  we re  s e r v e d  a f o o d  m i x t u r e  

known a s  " g r u e " ,  w h i c h  c o n s i s t s  o f  m e a t ,  p o t a t o e s ,  v e g e t a b l e s ,  

e g g s ,  o l e o ,  s y r u p  and  s e a s o n i n g  b a k e d  a l l  t o g e t h e r  i n  a p a n  and  

s e r v e d  i n  f o u r - i n c h  s q u a r e s .  The C o u r t  f o u n d  t h a t  g r u e  was n o t  

a p p e t i z i n g  a nd  n o t  s e r v e d  a t t r a c t i v e l y  b u t  n e v e r t h e l e s s  f o u n d  

i t  a " w ho l e s o m e  a nd  s u f f i c i e n t  d i e t  f o r  men i n  c l o s e  c o n f i n e ­

me n t  day  a f t e r  d a y . "  3Q.Q F . S u p p .  a t  8 32 .  I n  c o n c l u d i n g  t h a t  t h e  

c o n f i n e m e n t  i n  i s o l a t i o n  a s  t h e n  p r a c t i c e d  a t  Cummins v i o l a t e d  

t h e  C r u e l  a nd  U n u s u a l  P u n i s h m e n t  C l a u s e ,  t h e  C o u r t  n o t e d  t h a t  " i f  

c o n f i n e m e n t  o f  t h a t  t y p e  i s  t o  s e r v e  any u s e f u l  p u r p o s e ,  i t  m u s t  

be r i g o r o u s ,  u n c o m f o r t a b l e  and  u n p l e a s a n t . "  I d .  a t  8 3 3 .

H o w ev e r ,  t h e  C o u r t  f o u n d  t h a t  t h e  " p r o l o n g e d  c o n f i n e m e n t  o f  

n u m b e r s  o f  men i n  t h e  same c e l l "  u n d e r  t h e s e  c o n d i t i o n s  t o  be 

" e m o t i o n a l l y  t r a u m a t i c  a s  w e l l  a s  p h y s i c a l l y  u n c o m f o r t a b l e . "  I d .  

a t  8 3 3 . The C o u r t  s a i d  a b o u t  t h e  c o n f i n e m e n t  i n  i s o l a t i o n :  " I t

i s  h a z a r d o u s  t o  h e a l t h .  I t  i s  d e g r a d i n g  and  d e b a s i n g ;  i t  o f f e n d s  

m o d e r n  s e n s i b i l i t i e s ,  a n d ,  i n  t h e  C o u r t ' s  e s t i m a t i o n ,  a m o u n t s  

t o  c r u e l  and  u n u s u a l  p u n i s h m e n t . "  I d .  a t  8 3 3 .

The r e l i e f  g r a n t e d  h o w e v e r  was  q u i t e  l i m i t e d .  The C o u r t ,  

r a t h e r  t h a n  m a n d a t i n g  s p e c i f i c  c h a n g e s ,  m e r e l y  made"  s u g g e s ­

t i o n s "  t o  t h e  d e f e n d a n t s .  3(10  ̂ F . S u p p .  a t  8 3 ^ - 8 3 4 .  The 

C o u r t  s u g g e s t e d  t h a t  e f f o r t s  be made t o  h o l d  t h e  number  o f

-  9 -



p e r s o n s  c o n f i n e d  i n  a s i n g l e  i s o l a t i o n  c e l l  a t  one  t i m e  t o  a 

"min imum" .  I d .  a t  8 3 4 . The C o u r t  s u g g e s t e d  t h a t  i n m a t e s  n o t  be 

l o n g  c o n f i n e d  i n  i s o l a t i o n  i n  a d v a n c e  o f  a h e a r i n g ,  and  s t a t e d  

t h a t  t h e  d e f e n d a n t  " o u g h t  t o  be a b l e  a t  minimum e x p e n s e  t o  do 

s o m e t h i n g  a b o u t  t h e  s a n i t a r y  c o n d i t i o n s  o f  t h e  c e l l s  and  he  

m i g h t  g i v e  c o n s i d e r a t i o n  t o  d o i n g  s o  w i t h o u t  much r e g a r d  t o  t h e  

a t t i t u d e s  o f  t h e  i n m a t e s . "  M b i d . The C o u r t  d i r e c t e d  t h e  d e f e n d a n t s  

t o  r e p o r t  t h e  c h a n g e s  made a nd  r e t a i n e d  j u r i s d i c t i o n .

C • H o l t  I I  -  L i t i g a t i on D u r i n g  1970 and  1971

The H o l t  I I  p r o c e e d i n g s  a r e  d e s c r i b e d  i n  t h e  Memorandum 

O p i n i o n  o f  F e b r u a r y  18 , 1 9 7 0 ;  HoJ.t  v .  S a r v e r , 30$. F . S u p p .  36.2 

( E . D .  A r k .  1 9 7 0 ) ,  a f f i r m e d  and  r e m a n d e d  4-^2 F . 2d 304 ( 8 t h  C i r .

1 9 7 1 ) .  I n  December  1969 J u d g e  H e n l e y  c o n s o l i d a t e d  f i v e  addiii-r: 

t i o n a l  p^o  s e  p r i s o n e r  c o m p l a i n t s  w i t h  t h e  t h r e e  c a s e s  w h i c h  

w e r e  c o n s i d e r e d  i n  t h e  H o l t  I o p i n i o n .  He a l s o  a p p o i n t e d  new 

c o u n s e l ,  M e s s r s .  K a p l a n  and  H o l t ,  who h a v e  s e r v e d  s i n c e  Decem­

b e r  1969 a s  c o u n s e l  f o r  members  o f  a c l a s s  o f  p r i s o n e r s  i n  t h e
5 /

A r k a n s a s  s y s t e m .  The a p p o i n t e d  c o u n s e l  f i l e d  a C o n s o l i d a t e d  

Amended and  S u b s t i t u t e d  C o m p l a i n t  w h i c h  p r a y e d  f o r  d e c l a r a t o r y

The C o m p l a i n t  a l l e g e d  t h a t

5 /  The C o u r t  s t a t e d  a t  38$  F . S u p p .  a t  3.64:

" I t  a p p e a r i n g  t o  t h e  C o u r t  t h a t  c o n s t i ­
t u t i o n a l  q u e s t i o n s  r a i s e d  by t h e  p e t i t i o n s  
s u b m i t t e d  by t h e  c o m p l a i n i n g  i n m a t e s  p e r  
s e s e  w e r e  s u b s t a n t i a l ,  t h e  C o u r t  a p p o i n t e d  
M e s s r s .  J a c k  H o l t ,  J r .  and  P h i l i p  K a p l a n  o f  
t h e  L i t t l e  Rock Bar  t o  r e p r e s e n t  p e t i ­
t i o n e r s  w i t h o u t  c h a r g e .  M e s s r s .  H o l t  and  
K a p l a n  a c c e p t e d  t h e  apcfp)Lntments  and  h a v e  
done  yeoman s e r v i c e  on b e h a l f  o f  t h e i r  
c l i e n t s .  The  C o u r t  w i s h e s  t o  t h a n k  them f o r  
t h e i r  e f f o r t s .

-  10  -



the defendants violated the prisoners' rights under the Thir-
6/

teenth and Fourteenth Amendments.
The C o u r t  s u s t a i n e d  t h e  c l a i m  t h a t  t h e  o v e r a l l  c o n d i t i o n s  

and  p r a c t i c e s  o f  t h e  A r k a n s a s  S t a t e  P e n i t e n t i a r y  s y s t e m  a m o u n t e d  

t o  a v i o l a t i o n  o f  t h e  C r u e l  and  U n u s u a l  P u n i s h m e n t  C l a u s e .  ^09 

F . S u p p .  a t  3-65. The  C o u r t  a l s o  s u s t a i n e d  t h e  c l a i m  t h a t  u n c o n s t i ­

t u t i o n a l  r a c i a l  d i s c r i m i n a t i o n  and  s e g r e g a t i o n  was  b e i n g  p r a c t i c ­

ed  i n  t h e  s y s t e m .  Ld.  a t  3fr6.  The  C o u r t  r e j e c t e d  a c l a i m  t h a t  

f o r c e d  l a b o r  i n  t h e  p r i s o n s  v i o l a t e d  t h e  T h i r t e e n t h  Amendment .

I d .  a t  3 6 3 .

At  t h e  t i m e  o f  t h e  1970  d e c i s i o n  t h e  A r k a n s a s  p r i s o n  

s y t e m  was  o p e r a t e d  p r i m a r i l y  w i t h  t r u s t y  p r i s o n e r s  s e r v i n g  a s  

g u a r d s  a nd  w i t h  v e r y  few f r e e  w o r l d  e m p l o y e e s .  3Q9 F . S u p p .  a t  

3 ^ 3 .  The t h r e e  p r i n c i p a l  u n i t s  i n  t h e  s y s t e m  w e r e  t h e  Cummins 

Fa rm,  t h e  s m a l l e r  T u c k e r  I n t e r m e d i a t e  R e f o r m a t o r y  and  t h e  s m a l l  

Women ' s  R e f o r m a t o r y  l o c a t e d  on t h e  Cummins Fa rm.  Id^. a t  3(>6. At  t h e

6 /  The c l a i m  i s  s u m m a r i z e d  i n  1|20 o f  t h e  C o n s o l i d a t e d  
Amended a nd  S u b s t i t u t e d  C o m p l a i n t :

"The a c t i o n s  o f  d e f e n d a n t s  h a ve  d e p r i v e d  members  o f  
t h e  p l a i n t i f f  c l a s s  o f  r i g h t s ,  p r i v i l e g e s  and 
i m m u n i t i e s  s e c u r e d  t o  t he m by t h e  due  p r o c e s s  and  

' e u q a T - p r o t e c t  i o n  c l a u s e s  o f  t h e  F o u r t e e n t h  Amendment  
t o  t h e  C o n s t i t u t i o n  o f  t h e  U n i t e d  S t a t e s ,  i n c l u d i n g \  
( a )  t h e  r i g h t  n o t  t o  be i m p r i s o n e d  w i t h o u t  m e a n i n g ­
f u l  r e h a b i l i t a t i v e  o p p o r t u n i t i e s ,  (b)  t h e  r i g h t  t o  be 
f r e e  f r o m  c r u e l  and  u n u s u a l  p u n i s h m e n t ,  ( c )  t h e  
r i g h t  t o  be f r e e  f r o m  a r b i t r a r y  and c a p r i c i o u s  
d e n i a l  o f  r e h a b i l i t a t i o n  o p p o r t u n i t i e s ,  ( d )  t h e  
r i g h t  t o  m i n i m a l  due  p r o c e s s  s a f e g u a r d s  i n  d e c i s i o n s  
d e t e r m i n i n g  f u n d a m e n t a l  l i b e r t i e s ,  ( e )  t h e  r i g h t  t o  
be f e d ,  h o u s e d  and  c l o t h e d  s o  a s  n o t  t o  be 
s u b j e c t e d  t o  l o s s  o f  h e a l t h  o r  l i f e ,  ( f )  t h e  r i g h t  
t o  u n h a m p e r e d  a c c e s s  t o  c o u n s e l  and t h e  c o u r t s ,  <(Wi 
t h e  r i g h t  t o  be f r e e  f r o m  t h e  a b u s e s  o f  f e l l o w  G 
p r i s o n e r s  i n  a l l  a s p e c t s  o f  d a i l y  l i f e ,  ( h )  t h e  
r i g h t  t o  be f r e e  f r om  r a c i a l  s e g r e g a t i o n ,  ( i )  t h e  
r i g h t  t o  be f r e e  f r o m  f o r c e d  l a b o r ,  ( j )  t h e  r i g h t  t o  
be f r e e  f r o m  t h e  b r u t a l i t y  o f  b e i n g  g u a r d e d  by f e l l o w  
i n m a t e s . "

(309  F . S u p p .  a t  3 6 4 ) .

-  11 -



l a r g e s t  i n s t i t u t i o n  a t  Cummins o n l y  35 f r e e  w o r l d  e m p l o y e e s  

w e r e  i n  " o s t e n s i b l e  c h a r g e  o f  s l i g h t l y  l e s s  t h a n  a t h o u s a n d  

m e n . "  I d .  a t  3 i 3 .  "Of t h o s e  35 o n l y  8 w e r e  a v a i l b a l e  f o r  g u a r d  

d u t y ,  and  o n l y  2 o f  them w e r e  on d u t y  a t  n i g h t . "  vI b i d .

The t r u s t y  g u a r d  s y s t e m ,  t h e  c o n f i n e m e n t  o f  i n m a t e s  i n  l a r g e  

o p e n  b a r r a c k s ,  bad  c o n d i t i o n s  i n  t h e  i s o l a t i o n  c e l l s ,  an 

a b s e n c e  o f  a m e a n i n g f u l  p r o g r a m  o f  r e h a b i l i t a t i o n  and  o t h e r  

a s p e c t s  o f  p r i s o n  l i f e  w e r e  h e l d  i n  c o m b i n a t i o n  t o  c r e a t e  

an  u n c o n s t i t u t i o n a l  s y s t e m .  The C o u r t  s a i d :

"For the ordinary convict a sentence to the Arkansas 
Penitentiary today amounts to a banishment from 
civilized society to a dark and evil world complete­
ly alien to the free world, a world that is admin­
istered by criminals under unwritten rules and 
customs completely foreign to free world culture.

A f t e r  l o n g  and  c a r e f u l  c o n s i d e r a t i o n  t h e  C o u r t  
h a s  come t o  t h e  c o n c l u s i o n  t h a t  t h e  F o u r t e e n t h  
Amendment  p r o h i b i t s  c o n f i n e m e n t  u n d e r  t h e  c o n d i t i o n s  
t h a t  h a v e  b e e n  d e s c r i b e d  a t  t h e  A r k a n s a s  P e n i ­
t e n t i a r y  S y s t e m  a s  i t  e x i s t s  t o d a y ,  p a r t i c u l a r l y  
a t  Cummins ,  i s  u n c o n s t i t u t i o n a l .

Such confinement is inherently dangerous. A 
convict, however cooperative and inoffensive he may 
be, has no assurance whatever that he will not be 
killed, seriously injured or sexually abused. Under 
the present system the State cannot protect him.

Apart from physical danger, confinement in the 
Penitentiary involves living under degrading and 
disgusting conditions. ...

* * *

I t  i s  one  t h i n g  f o r  t h e  S t a t e  t o  s e n d  a man t o  
t h e  P e n i t e n t i a r y  a s  a p u n i s h m e n t  f o r  c r i m e .  I t  i s  
a n o t h e r  t h i n g  f o r  t h e  S t a t e  t o  d e l e g a t e  t h e  g o v e r n ­
a n c e  o f  h im t o  o t h e r  c o n v i c t s ,  and t o  do n o t h i n g  
m e a n i n g f u l  f o r  h i s  s a f e t y ,  w e l l  b e i n g ,  and  p o s s i b l e  
r e h a b i l i t a t i o n .  I t  i s  one  t h i n g  f o r  t h e  S t a t e  n o t  
t o  p ay  a c o n v i c t  f o r  h i s  l a b o r ;  i t  i s  s o m e t h i n g  e l s e  
t o  s u b j e c t  h im t o  a s i t u a t i o n  i n  w h i c h  he  h a s  t o  
s e l l  h i s  b l o o d  t o  o b t a i n  money t o  p ay  f o r  h i s  own 
s a f e t y ,  o r  f o r  a d e q u a t e  f o o d ,  o r  f o r  a c c e s s  t o  
n e e d e d  m e d i c a l  a t t e n t i o n N 5  (305 F . S u p p .  a t  382SL.

-  12  -



Wi t h  r e s p e c t  t o  t h e  i s o l a t i o n  c e l l s  a t  Cummins t h e  1970

o p i n i o n  f o u n d  t h a t  w h i l e  t h e  o v e r c r o w d i n g  n o t e d  i n  H o l t  I 

" s e e m s  t o  h a v e  b e e n  a m e l i o r a t e d ;  t h e  o t h e r  c o n d i t i o n s  s t i l l  

e x i s t . "  ^09  F . S u p p .  a t  3-78. The C o u r t  n o t e d  t h e  p l a n n e d  c o n ­

s t r u c t i o n  o f  a  new maximum s e c u r i t y  u n i t  a t  Cummins ,  and  s t a t e d  

t h a t  t h e  o p e r a t i o n  o f  t h e  u n i t  by t r u s t y s  was a s o u r c e  o f  c o n ­

s t a n t  t r o u b l e .  I b i d . However  t h e  C o u r t  c o n c l u d e d  t h a t  s i n c e  

o v e r c r o w d i n g  h ad  b e e n  r e l i e v e d  and  many o f  t h e  c o n d i t i o n s  

w e r e  d u e  t o  t h e  c o n d u c t  o f  t h e  i n m a t e s ,  t h e  i s o l a t i o n  c e l l s  

w e r e  n o t  a s  s e r i o u s  a  c o n s t i t u t i o n a l  p r o b l e m  a s  o t h e r  a s p e c t s  

o f  t h e  p e n i t e n t i a r y .  The C o u r t  o r d e r e d  an end  t o  t h e  s y s t e m  o f  

t r u s t y  g u a r d s  i n  t h e  i s o l a t i o n  c e l l s  and  i n  a d d i t i o n  o r d e r e d  

t h a t  f o o d  s e r v i c e  be made more  s a n i t a r y  and  p a l a t a b l e .  303 

F . S u p p .  a t  3 ^ 4 - 3 8 5 .

On a p p e a l  by t h e  d e f e n d a n t s  t h e  C o u r t  o f  A p p e a l s  a f f i r m ­

e d .  H o l t  v .  S a r v e r , '4.42 F . 2 d  \L04 ( 8 ^ h / C i r  15(71) .  The C o u r t  

o f  A p p e a l s  r e j e c t e d  t h e  d e f e n d a n t ' s  a r g u m e n t  t h a t  t h e  c a s e  was  a 

s u i t  a g a i n s t  t h e  S t a t e  b a r r e d  by t h e  E l e v e n t h  Amendment ,  t h e  

C o u r t  r e l y i n g  on Ex p a r t e  Y o u n g , 209 U . S .  123 ( 1 9 0 8 ) .  The 

C o u r t  h e l d  t h a t  j u r i s d i c t i o n  was  p r o p e r l y  i n v o k e d  t o  e n f o r c e  

t h e  E i g h t h  Amendment  u n d e r  42 U . S . C . A .  §1983  a n d  28 U . S . C . A .  

§ 1 3 4 3 ( 3 ) .  The C o u r t  r e j e c t e d  t h e  a r g u m e n t  t h a t  t h e  r e c o r d  d i d  

n o t  s u p p o r t  t h e  D i s t r i c t  C o u r t ' s  f i n d i n g s  o f  an E i g h t h  Amend­

m e n t  v i o l a t i o n .  On r emand  t h e  D i s t r i c t  C o u r t  h e l d  f u r t h e r  

h e a r i n g s  i n  November  and  December  1971  and  e n t e r e d  a s u p p l e ­

m e n t a l  d e c r e e  d a t e d  December  3 0 ,  1 9 7 1 .  A. 7 %  . The  C o u r t

n o t e d  t h a t  t h e r e  h ad  b e e n  g r e a t  p r o g r e s s  i n  m a k i n g  t h e  s y s t e m  a 

c o n s i t u t i o n a l  o n e ;  t h a t  t h e r e  w e r e  s t i l l  p r o b l e m  a r e a s  and

-  13 -



" A

t h a t  t h e  c o u r t  s h o u l d  r e t a i n  j u r i s d i c t i o n .  A. The C o u r t

s u p p l e m e n t e d  t h e  e a r l i e r  i n j u n c t i o n s  by p r o v i s i o n s  w h i c h  

e n j o i n e d  any  c r u e l  a nd  u n u s u a l  p u n i s h m e n t s ,  e n j o i n e d  i n t e r ­

f e r e n c e s  w i t h  i n m a t e s '  a c c e s s  t o  t h e  c o u r t s  and t o  c o u n s e l ,  and  

e n j o i n e d  r e p r i s a l s  a g a i n s t  i n m a t e s  f o r  e x e r c i s i n g  t h e i r  r i g h t  

t o  a c c e s s  t o  t h e  c o u r t .  I b i d .

D . H o l t  I I I  -  L i t i g a t i o n  i n  1973  and  1974

The Ho l t  I I I  p r o c e e d i n g s  a r e  d e s c r i b e d  i n  t h e  o p i n i o n  o f  

A u g u s t  13 , 1 9 7 3 ,  H o l t  v .  Hub t o ? 3^3  F . S u p p .  194 ( E ^ .  Arj t .

1 9 7 3 ) ,  a f f i r m e d  i n  p a r t ,  r e v e r s e d  i n  p a r t ,  s u b  nom. F i n n e y  v .  

A r k a n s a s  Bo ar d  o f  C o r r e c t i o n s , 5Q5 F . 2 d  19,4 ( 8 t h  C i r .  1 9 7 4 ) .

On S e p t e m b e r  8 ,  1972  t h e  C o u r t  f i l e d  a memorandum and  o r d e r  

n o t i n g  t h a t  i t  was  r e c e i v i n g  a c o n s t a n t  s t r e a m  o f  c o m p l a i n t s  

w h i c h  g a v e  t h e  c o u r t  c o n c e r n  t h a t  i n m a t e s  w e r e  b e a t e n  and  a b u s e d  

a nd  o t h e r w i s e  m i s t r e a t e d  i n  v i o l a t i o n  o f  t h e  C o u r t ' s  p r i o r  

o r d e r s .  A. U l t i m a t e l y  t h e  C o u r t  c o n s o l i d a t e d  34 i n d i ­

v i d u a l  and  c l a s s  a c t i o n s  w i t h  t h e  p e n d i n g  H o l t  p r o c e e d i n g  and  

h e l d  e v i d e n t i a r y  h e a r i n g s  i n  November  and December  1972  and 

J a n u a r y  1 9 7 3 .

I n  t h e  o p i n i o n  i s s u e d  A u g u s t  1 3 ,  1 9 7 3 ,  J u d g e  H e n l e y  f o u n d  

t h a t  t h e  p r i s o n  s y s t e m  had  u n d e r g o n e  s u b s t a n t i a l  c h a n g e s .

The  t r u s t y  s y s t e m  had  b e e n  e s s e n t i a l l y  d i s m a n t l e d ,  and a new 

maximum s e c u r i t y  b u i l d i n g  ( t h e  E a s t  B u i l d i n g )  h a d  b e e n  b u i l t  a t  

Cummins .  The C o u r t  h e l d  t h a t  a number  o f  c o n d i t i o n s  a t  Cummins 

and  T u c k e r  w e r e  u n d e s i r a b l e  b u t  no l o n g e r  u n c o n s t i t u t i o n a l  and

-  14 -



t h a t  t h e  ma in  d i f f i c u l t i e s  r e s u l t e d  f r o m  p o o r  a d m i n i s t r a t i o n .

3 6 J  F . S u p p .  a t  2 0 1 - 2 0 2 .  The C o u r t  d i d  o r d e r  f u r t h e r  i n j u n c t i v e
\ /  .

r e l i e f  t o  d e a l  w i t h  v a r i o u s  p r o b l e m s  o f  r a c i a l  d i s c r i m i n a t i o n  

i n c l u d i n g  p r o h i b i t i n g  u n d u e  r e s t r i c t i o n s  a g a i n s t  B l a c k  M u s l i m s ,  

p r o h i b i t i n g  t h e  c o n t i n u e d  r a c i a l  s e g r e g a t i o n  o f  i n m a t e s  i n  t h e  

maximum s e c u r i t y  u n i t  a t  Cummins and i s s u i n g  a  g e n e r a l  i n j u n c t i o n  

t o  a t t e m p t  t o  d e a l  w i t h  p r o b l e m s  o f  r a c e  d i s c r i m i n a t i o n  i n  j o b  

a s s i g n m e n t s  o f  b l a c k s  and  i n  p u n i s h m e n t  o f  i n m a t e s  w i t h i n  t h e  

i n s t i t u t i o n .  363 F . S u p p .  203-^205.

Wi th  r e s p e c t  t o  t h e  maximum s e c u r i t y  u n i t ,  t h e  C o u r t  

f o u n d  t h a t  t h e  c e l l s  we r e  n o t  o v e r c r o w d e d ,  t h a t  t h e y  we r e  

p r o p e r l y  l i g h t e d  a nd  v e n t i l a t e d  and  t h a t  t h e i r  c o n d i t i o n s  d i d  

n o t  c o n s t i t u t e  a v i o l a t i o n  o f  t h e  E i g h t h  Amendment .  36<3 F . S u p p .  

a t  ' fcoa. The C o u r t  a l s o  r e f u s e d  t o  e n j o i n  t h e  c o n t i n u e d  d i e t  o f  

g r u e  i n  t h e  p u n i t i v e  i s o l a t i o n  c e l l s .  I b i d . The  C o u r t  c o n c l u d e d  

t h a t  i t  was  n o t  n e c e s s a r y  f o r  i t  t o  c o n t i n u e  t o  r e t a i n  f u r t h e r  

s u p e r v i s o r y  j u r i s d i c t i o n .  3,63 F . S u p p .  a t  2 1 6 .

The C o u r t  g r a n t e d  a r e q u e s t  f r o m  M e s s r s .  H o l t  and K a p l a n  

t h a t  t h e y  be a w a r d e d  a c o u n s e l  f e e .  The C o u r t  g r a n t e d  a f e e  o f  

$ 8 , 0 0 0  p l u s  $ 5 0 2 . 8 0  t o  r e i m b u r s e  them f o r  money p a i d  t o  l aw 

s t u d e n t s  and d i r e c t e d  t h a t  t h e  members  o f  t h e  B o a r d  o f  C o r r e c ­

t i o n s  make t h o s e  p a y m e n t s  o u t  o f  a v a i l a b l e  d e p a r t m e n t  f u n d s .

3&3 F . S u p p .  a t  2 1 7 . T h e s e  o r d e r s  w e r e  e m b o d i e d  i n  a  S e c o n d  

S u p p l e m e n t a l  D e c r e e  i s s u e d  A u g u s t  13 , 1 9 7 3 .  A. / .

The p l a i n t i f f s  a p p e a l e d  f r o m  t h e  S e c o n d  S u p p l e m e n t a l  D e c r e e  

a nd  on a p p e a l  t h e  E i g h t h  C i r u c i t  f o u n d  c o n t i n u i n g  c o n s t i t u t i o n a l  

v i o l a t i o n s  and  o r d e r e d  t h e  D i s t r i c t  C o u r t  t o  c o n t i n u e  t o  r e t a i n  

j u r i s d i c t i o n :

-  15 -



" T h i s  C o u r t  r e c o g n i z e s  t h e  d i f f i c u l t  i s s u e s  
t h e  D i s t r i c t  C o u r t  h a s  p a s s e d  upon  s i n c e  t h e  
commencement  o f  t h i s  l i t i g a t i o n  i n  1 9 6 9 .  toe 
a r e  n e v e r t h e l e s s  c o m p e l l e d  t o  f i n d  on t h e  
b a s i s  o f  t h e  o v e r a l l  r e c o r d  t h a t  t h e r e  e x i s t s  
a c o n t i n u i n g  f a i l u r e  by t h e  c o r r e c t i o n a l  
a u t h o r i t i e s  t o  p r o v i d e  a c o n s t i t u t i o n a l  a n d ,  
i n  some r e s p e c t s ,  e v e n  a humane e n v i r o n m e n t  
w i t h i n  t h e i r  i n s t i t u t i o n s .  As w i l l  be d i s c u s s ­
e d ,  we f i n d  m a j o r  c o n s t i t u t i o n a l  d e f i c i e n c i e s  
p a r t i c u l a r l y  a t  Cummins ,  i n  h o u s i n g ,  l a c k  
o f  m e d i c a l  c a r e ,  i n f l i c t i o n  o f  p h y s i c a l  and 
m e n t a l  b r u t a l i t y  and  t o r t u r e  upon  i n d i v i d u a l  
p r i s o n e r s ,  r a c i a l  d i s c r i m i n a t i o n ,  a b u s e s  of  
s o l i t a r y  c o n f i n e m e n t ,  c o n t i n u i n g  u s e  o f  t r u s t y  
g u a r d s ,  a b u s e  o f  m a i l  r e g u l a t i o n s ,  a r b i t r a r y  
work c l a s s i f i c a t i o n s ,  a r b i t r a r y  d i s c i p l i n a r y  
p r o c e d u r e s ,  i n a d e q u a t e  d i s t r i b u t i o n  o f  f o o d  
and  c l o t h i n g ,  and  t o t a l  l a c k  o f  r e h a b i l i t a t i v e  
p r o g r a m s .  We a r e  t h e r e f o r e  c o n v i n c e d  t h a t  
p r e s e n t  p r i s o n  c o n d i t i o n s ,  now a l m o s t  f i v e  
y e a r s  a f t e r  H o l t  I ,  r e q u i r e  t h e  r e t e n t i o n  o f  
F e d e r a l  j u r i s d i c t i o n  i n  t h e  g r a n t i n g  o f  f u r ­
t h e r  r e l i e f . "  (505  F .2d  a t  2 0 0 ) .

Wi th  r e s p e c t  t o  t h e  p u n i t i v e  w i ng  t h e  C o u r t  n o t e d  t h a t  

p r i s o n e r s  w e r e  d e n i e d  t h e  r e g u l a r  p r i s o n  d i e t  and  s e r v e d  g r u e  

a s  a f o r m  o f  f u r t h e r  p u n i s h m e n t .  The C o u r t  o f  A p p e a l s  n o t e d  

t h a t  w h i l e  t h e  D i s t r i c t  C o u r t  t h o u g h t  t h a t  g r u e  c o n s t i t u t e d  a 

n u t r i t i o n a l l y  s u f f i c i e n t  d i e t ,  i t  f o u n d  t h a t  c o n c l u s i o n  " d u b i ­

o u s . "  50.5 F . 2 d  a t  2 0 7 .  The C o u r t  d i r e c t e d  t h e  D i s t r i c t  C o u r t  t o  

e n s u r e  t h a t  p r i s o n e r s  i n  t h e  p u n i t i v e  wi ng  a r e  " n o t  d e p r i v e d  o f  

b a s i c  n e c e s s i t i e s  i n c l u d i n g  l i g h t ,  h e a t ,  v e n t i l a t i o n ,  s a n i t a t i o n ,  

c l o t h i n g ,  and a p r o p e r  d i e t . "  505 F . 2 d  a t  2,08.

E. G r a v e s  v .  L o c k h a r t  -  1 9 7 3 - 1 9 7 4  P r o c e e d i n g s

P r o c e e d i n g s  i n  t h e  Gr a v e s C a s e  a r e  d e s c r i b e d  b r i e f l y  

i n  an  u n r e p o r t e d  o p i n i o n  f i l e d  on S e p t e m b e r  2 9 ,  1 9 7 7 .  A. /_<?£_. 

G r a v e s  was  i n i t i a t e d  i n  l a t e  1973  and c o n s i s t e d  o f  two c o n s o l i d a t ­

ed  c o m p l a i n t s  f i l e d  by W i l l i e  G r a v e s  and o t h e r  p r i s o n e r s  who 

c o m p l a i n e d  o f  r a c e  d i s c r i m i n a t i o n  and  o t h e r  t y p e s  o f  m i s t r e a t ­

m e n t  i n  t h e  p u n i t i v e  w i ng  a t  t h e  Cummins P r i s o n .  G r a v e s  was  f i l e d  

d u r i n g  p l a i n t i f f s  a p p e a l  f r o m  t h e  H o l t  I I I  d e t e r m i n a t i o n  t h a t

-  16 -



t h e r e  was  no c o n s t i t u t i o n a l  v i o l a t i o n  i n  t h e  p u n i t i v e  w i n g .  I n  

e a r l y  1974 t h e  d i s t r i c t  c o u r t  a p p o i n t e d  P h i l i p  McMath,  E s q .  t o  

r e p r e s e n t  t h e  p r i s o n e r s  i n  G r a v e s , and c o n d u c t e d  a t r i a l  o f  a b o u t

*

X

s i x  d a y s .  ( On l y  one  d a y ' s  t e s t i m o n y  f r om t h i s  h e a r i n g  h a s  b e e n  

t r a n s c r i b e d  t o  d a t e ) .  The d i s t r i c t  c o u r t  s t a t e d  i n  t h e  s u b s e ­

q u e n t  memorandum o p i n i o n  o f  S e p t e m b e r  29 ,  1977 t h a t ,  a s  t h e  c a s e  

p r o g r e s s e d  " i t  became  c l e a r  t h a t  t h e  i s s u e s  r a i s e d  by p e t i t i o n e r s  

i n  t h e s e  c a s e s  w e r e  i n  l a r g e  m e a s u r e  t h e  sam e i s s u e s  t h a t  had  

b e e n  r a i s e d  a nd  c o n s i d e r e d  i n  H o l t  I I I  w h i c h  was  t h e n  p e n d i n g  on 

a p p e a l ,  and t h a t  no u s e f u l  p u r p o s e  w o u ld  be s e r v e d  by u n d e r t a k ­

i n g  t o  d e c i d e  t h e s e  c a s e s  u n t i l  t h e  c o u r t  o f  a p p e a l s  s h o u l d  

d e c i d e  t h a t  c a s e . "  A.  . A f t e r  t h e  C o u r t  o f  A p p e a l s ' s

d e c i s i o n  i n  F i n n e y  was  a n n o u n c e d  i n  O c t o b e r ,  1974 t h e  d i s t r i c t  

c o u r t  c o n s o l i d a t e d  G r a v e s  w i t h  t h e  Hol t - F i n n e y  l i t i g a t i o n .  The 

e v i d e n c e  i n  Gr a v e s was  t h u s  c o n s i d e r e d  a s  a p a r t  o f  t h e  r e c o r d  

i n  t h e  s u b s e q u e n t  F i n n e y p r o c e e d i n g s  d e s c r i b e d  b e l o w .  Mr. P h i l i p  

McMath,  t h e  a p p o i n t e d  a t t o r n e y  i n  G r a v e s  was a w a r d e d  an  a t t o r ­

n e y ' s  f e e  i n  t h e  s u b s e q u e n t  F i n n e y  d e c i s i o n  w h i c h  i s  now b e i n g  

r e v i e w e d  i n  t h i s  C o u r t .  The i n j u n c t i v e  r e l i e f  g r a n t e d  i n  F i n n e y -  

Ho l t  was  c o n s i d e r e d  a p p l i c a b l e  t o  t h e  G r a v e s  c a s e .  The i n d i ­

v i d u a l  damage  c l a i m s  o f  t h e  p l a i n t i f f s  i n  G r a v e s  we r e  s u b s e ­

q u e n t l y  d i s m i s s e d  i n  t h e  memorandum o p i n i o n  o f  S e p t e m b e r  29 ,

19 77 . A. 10 W .

F .  F i n n e y  v .  H u t t o ,  -  P r o c e e d i n g s  1 9 7 5 - 1 9 7 7

The p r o c e e d i n g s  i n  t h e  d i s t r i c t  c o u r t  a f t e r  t h e  1974 

E i g h t h  C i r c u i t  r emand  a r e  d e s c r i b e d  i n  t h e  Memorandum O p i n i o n  o f

Mar ch  19 , 1976  r e p o r t e d  a s  F i n n e y v ._Hu V t o , 4'H) F . S u p p .  25 J

( E . I X  A r k .  197-6-) . See  a l s o  t h e  C l a r i f y i n g  Memorandum O p i n i o n  

f i l e d  A p r i l  2 ,  1 9 7 6 ,  w h i c h  i s  u n r e p o r t e d .  A.

-  17 -



X

X

T h e s e  d e c i s i o n s  w e r e  a f f i r m e d  by t h e  E i g h t h  C i r c u i t  J a n u a r y  6 ,  

1 9 7 7 ,  s u b  nonu F i n ne y  v . H u t t o ,  548 F .2d  740 ( 8 t h  C i r .  1 9 7 7 ) .

The Mar ch  1 9 ,  1977 o p i n i o n  r e v i e w s  t h e  e v i d e n c e  t a k e n  i n  

e x t e n s i v e  h e a r i n g s  b e f o r e  t h e  D i s t r i c t  C o u r t  and  b e f o r e  a 

U n i t e d  S t a t e s  M a g i s t r a t e  d u r i n g  1 9 7 5 .  J u d g e  H e n l e y  s t a t e d  

t h a t  t h e  c o u r t  " r e c o g n i z e s  t h a t  i t  s h o u l d  n o t  e m b r o i l  i t s e l f  

u n r e a s o n a b l y  i n  t h e  a f f a i r s  o f  t h e  d e p a r t m e n t "  and  t h a t  "much 

m u s t  be l e f t  t o  t h e  d i s c r e t i o n  o f  t h e  p r i s o n  a d m i n i s t r a t o r s . "

410 F.Supp. 2 5 4 .  However, the opinion stated that constitu­
tional deprivations continued to exist and that the court must 
grant appropriate relief. The opinion which covers some 35 

pages in the official reports contains separate sections 
discussing the following subjects: "Oovercrowding", "Medical
Services and Health Care", "Rehabilitation", "Regulations as to 
Mail and Visitors", "Legal Assistance to Inmates", "Inmate 
Safety", "Race Relations in General", "Racial Discrimination", 
"Grievance Procedure", "The Black Muslims", "Brutality", 
"Disciplinary Procedures", "Punitive Isolation and Administra­
tive Segregation", "The East Building at Cummins", "Attorney's 
Fees and Expenses", and "Procedural Details". The court issued 
its Third Supplemental Decree on March 19 , 1 9 7 6 .  A. / 7_7_.  See 
also the Clarifying Memorandum Opinion of April 6,  1 9 7 6 .  A.

M -

With  r e s p e c t  t o  o v e r c r o w d i n g  t h e  C o u r t  f o u n d  t h a t  c o n d i ­

t i o n s  i n  1975  w e r e  w o r s e  t h a n  i n  e i t h e r  1973  o r  1 9 7 4 ,  a l t h o u g h  

a f t e r  t h e  1975  h e a r i n g s  c o n d i t i o n s  w e r e  a l l e v i a t e d  s u b s t a n t i a l l y .

/  The h e a r i n g  b e f o r e  t h e  M a g i s t r a t e  t r e a t e d  a s  d e p o s i t i o n s .  
4 1 0 - F . S u p p .  a t  2 5 3 .note 2 .  The  h e a r i n g s  i n  o p e n  c o u r t  i n  1975 
h a v e  n o t  b e e n  t r a n s c r i b e d  by t h e  c o u r t  r e p o r t e r .  4 K i  F . S u p p .  
a t  2-85, n o t e  1 4 .  The  same i s  t r u e  o f  m o s t  o f  1974 G r a v e s 
t r a n s c r i p t s .

-  18 -



The c o u r t  g r a n t e d  e x t e n s i v e  a d d i t i o n a l  i n j u n c t i v e  r e l i e f  a s  t o  

a v a r i e t y  o f  p r i s o n  c o n d i t i o n s .  ~~ Y lO  F . S u p p .  a t  2 ^ 4 - 2 5 ^ .

Wi t h  p a r t i c u l a r  r e f e r e n c e  t o  t h e  p u n i t i v e  i s o l a t i o n  c e l l s  t h e  

C o u r t  f o u n d  t h a t  t h e  E a s t  B u i l d i n g  a t  Cummins was o v e r c r o w d e d ,

t h a t  c e l l s d e s i g n e d t o h o u s e o n l y one p r i s o n e r  had b e e n u s e d  t o

h o u s e  t h r e e o r  f o u r men and t h a t t h e E a s t  B u i l d i n g " h a s b e e n

c h r o n i c a l l y o v e r c r o w d e d and t h a t some t h i n g  m u s t  be done a b o u t

t h e  s i t u a t i o n "  44J3 F . S u p p .  a t  2^57. The T h i r d  S u p p l e m e n t a l  

D e c r e e  s e t  maximum c a p a c i t y  l i m i t s  f o r  Cummins and  T u c k e r  

p r i s o n s ,  and a p p r o v e d  t h e  c a p a c i t i e s  o f  i n d i v i d u a l  h o u s i n g  

u n i t s  a t  Cummins and  T u c k e r  a s  s e t  f o r t h  i n  a r e p o r t  f r om  

t h e  d e f e n d a n t s .  For  t h e  maximum s e c u r i t y  c e l l s  a t  T u c k e r  and  

a l l  c e l l s  i n  t h e  E a s t  B u i l d i n g  a t  Cummins t h e  c o u r t  e n t e r e d  an 

i n j u n c t i o n  r e s t r a i n i n g  d e f e n d a n t s  f r o m  c o n f i n i n g  more  t h a n  two 

p e r s o n s  i n  any  maximum s e c u r i t y  c e l l  a t  t h e  same t i m e ,  and 

r e q u i r i n g  t h a t  e a c h  p e r s o n  be p r o v i d e d  w i t h  a bunk and m a t t r e s s  

on w h i c h  t o  s l e e p  a t  n i g h t ,  s u b j e c t  t o  e x c e p t i o n s  f o r  " c a s e s  o f  

s e r i o u s  e m e r g e n c i e s  i n v o l v i n g  l a r g e  n u m b e r s  o f  v i o l e n t  or  

u n r u l y  i n m a t e s . "  A.  The C l a r i f y i n g  Memorandum O p i n i o n

p e r m i t t e d  f u l l  u s e  o f  c e r t a i n  f o u r - m a n  c e l l s ,  h o w e v e r ,  t h e  

C o u r t  p r o v i d e d  t h a t  i n m a t e s  i n  " p u n i t i v e  i s o l a t i o n "  s h o u l d  n o t  

be c o n f i n e d  w i t h  more  t h a n  two men i n  a c e l l .  A _ /£ S  .

__ /  Wi t h  r e s p e c t  t o  h e a l t h  c a r e ,  t h e  C o u r t  o r d e r e d  a new
s t u d y  t o  be made by t h e  A r k a n s a s  S t a t e  B o a r d  o f  H e a l t h  o f  
m e d i c a l  f a c i l i t i e s  a t  Cummins and  T u c k e r ,  o r d e r e d  t h e  e m p l o y m e n t  
o f  one  or  two f u l l  t i m e  p s y c h i a t r i s t s  o r  c l i n i c a l  p s y c h o l o g i s t s  
a t  t h e  p r i s o n  h o s p i t a l ,  and  i s s u e d  an o r d e r  p r o h i b i t i n g  t h e  
d i s c i p l i n a r y  c o m m i t t e e  f r om  p u n i s h i n g  i n m a t e s  f o r  m a l i n g e r i n g  o r  
p r e t e n d i n g  i l l n e s s  t o  a v o i d  work  u n l e s s  t h e  d i s c i p l i n a r y  c o m m i t ­
t e e  h ad  c o n s u l t e d  w i t h  a d o c t o r  who e x a m i n e d  t h e  i n m a t e  p r i o r  t o  
m a k i n g  s u c h  a f i n d i n g .  41D F . S u p p .  a t  2!x8.

-  19 -



P u r s u a n t  t o  t h e  m a n d a t e  o f  t h e  E 

c o n d u c t e d  an  e x t e n s i v e  f u r t h e r  i n q u i r y  

t i v e  i s o l a t i o n  i n  t h e  E a s t  B u i l d i n g  a t  

2 7 4 - 2 8 1 .  The C o u r t  a l s o  e x a m i n e d  c ond

i g h t h  C i r c u i t ,  t h e  C o u r t  

i n t o  c o n d i t i o n s  i n  p u n i -

. ' V w  F *Cummins .  4N18 F . S u p p .  a t  

i t i o n s  a t  T u c k e r  P r i s o n  and

/  [ C o n t i n u e d ]

3 - 1 X

The C o u r t  a p p r o v e d  t h e  c h a n g e s  made by t h e  C o r r e c t i o n s  
D e p a r t m e n t  i n  e s t a b l i s h i n g  a r e h a b i l i t a t i o n  p r o g r a m ,  a p p r o v e d  
t h e  ne wl y  a d o p t e d  r e g u l a t i o n s  a s  t o  m a i l  and  v i s i t o r s  and t h e  
p r o c e d u r e  f o r  f u r n i s h i n g  l e g a l  a s s i s t a n c e  t o  i n m a t e s  by a f u l l  
t i m e  l e g a l  a d v i s e r  e m p l o y e d  by t h e  D e p a r t m e n t .  I d .  a t  2 ^ ? .
The  C o u r t  f o u n d  i n m a t e s  w e r e  no l o n g e r  u s e d  a s  a rmed  g u a r d s  i n  
t h e  S t a t e  p r i s o n  s y s t e m  a nd  t h a t  i n m a t e  s a f e t y  had b e e n  s u b ­
s t a n t i a l l y  i m p r o v e d .  i d .  a t  2 6 3 .  Wi th  r e s p e c t  t o  r a c e  r e l a ­
t i o n s ,  t h e  C o u r t  o r d e r e d  a p r o g r a m  t o  r e c r u i t  more  b l a c k  
e m p l o y e e s  and  p u t  b l a c k s  i n  p o s i t i n g j x > f  m e a n i n g f u l  a u t h o r i t y  
i n  t h e  p r i s o n  s y s t e m .  I d .  a t  2 6 ^ - 2 6 8 .  I n  a d d i t i o n  t o  t h e  
p r e v i o u s  o r d e r s  p r o h i b i t i n g  d i s c r i m i n a t i o n  a g a i n s t  B l a c k  
M u s l i m s  t h e  C o u r t  e n j o i n e d  t h e  d e f e n d a n t s  f r om  s e r v i n g  M u s l i m s  
any  f o o d  w h i c h  c o n t a i n e d  p o r k ;  t h i s  a p p l i e d  i n  maximum s e c u r i t y  
c e l l s  a s  w e l l  a s  i n  g e n e r a l  p o p u l a t i o n .  I d .  a t  2 6 ^ - 2 7 0 .  Wi th  
r e s p e c t  t o  b r u t a l i t y  a g a i n s t  i n m a t e s ,  t h e  C o u r t  s u p p l e m e n t e d  
i t s  p r i o r  d e c r e e s  p r o h i b i t i n g  t o r t u r e s  and o t h e r  b r u t a l  t r e a t ­
m e n t  by an a d d i t i o n a l  u n j u n c t i o n  p r o h i b i t i n g  e m p o y e e s  o f  t h e  
D e p a r t m e n t  " f r o m  v e r b a l l y  a b u s i n g ,  o r  c u r s i n g ,  i n m a t e s ,  and 
f r o m  e m p l o y i n g  r a c i a l  s l u r s  on e p i t h e t s  when a d d r e s s i n g  or  
t a l k i n g  w i t h  i n m a t e s . "  Td^ a t f  2 7 8 .  Wi th  r e s p e c t  t o  d i s c i ­
p l i n a r y  p r o c e d u r e s  a d o p t e d  by c h ^ d e f e n d a n t s  t o  compl y  w i t h  
Wol f  v .  M c D o n n e l l , 418 U . S .  539 ( 1 9 7 4 ) ,  t h e  C o u r t  a d d e d  a 
p r o h i b i t i o n  a g a i n s t  a c h a r g i n g  o f f i c e r  s i t t i n g  i n  j u d g m e n t  on 
h i s  own c o m p l a i n t .  Ic). a t  ' 2 2 2 - 2 1 4 .

-  20 -



i n  t h e  o t h e r  two w i n g s  o f  t h e  Cummins E a s t  B u i l d i n g  w h e r e  p r i s o n ­

e r s  a r e  h e l d  i n  s e g r e g a t i o n  p e n d i n g  t r i a l  i n  one  w i ng  and  i n  

maximum s e c u i r i t y  i n  t h e  t h i r d  w i n g .  A f t e r  c o n s i d e r i n g  t e s t i m o n y  

h e a r d  i n  G r a v e s i n  1974  and  t h e  c o n s o l i d a t e d  c a s e s  i n  1975  and  

c o n d u c t i n g  t h e  C o u r t ' s  own i n s p e c t i o n  o f  t h e  p u n i t i v e  c e l l s  and  

t h e  a d m i n i s t r a t i v e  s e g r e g a t i o n  c e l l s  o f  b o t h  Cummins and T u c k e r ,  

J u d g e  H e n l e y  r e v e r s e d  h i s  p r i o r  r u l i n g  and  c o n c l u d e d  t h a t  t h e  

c o n d i t i o n s  w e r e  u n c o n s t i t u t i o n a l .  J u d g e  H e n l e y  d e c i d e d  t h a t  

e i t h e r  c o n d i t i o n s  w e r e  n o t  a s  good  i n  1973 a s  he had  t h o u g h t  a t  

t h a t  t i m e  or  t h e  c o n d i t i o n s  h ad  d e t e r i o r a t e d  s i n c e  t h a t  p e r i o d .

410 F . S u p p .  a t  2 7 5 .  " W h i c h e v e r  may be t h e  c a s e ,  t h e  C o u r t  now 

f i n d  f r o m  t h e  e v i d e n c e  t h a t  u n c o n s t i t u t i o n a l i t i e s  now e x i s t  w i t h  

r e s p e c t  t o  b o t h  p u n i t i v e  i s o l a t i o n  and  a d m i n i s t r a t i v e  s e g r e g a ­

t i o n ,  . . . . "  I b i d . The C o u r t  f o u n d  t h a t  an i n m a t e  s e n t e n c e d  t o  

p u n i t i v e  i s o l a t i o n  was  c o n f i n e d  " i n  an  e x t r e m e l y  s m a l l  c e l l  u n d e r  

r i g o r o u s  c o n d i t i o n s  f o r  an  i n d e t e r m i n a t e  p e r i o d  o f  t i m e  w i t h  h i s  

s t a t u s  b e i n g  r e v i e w e d  a t  t h e  end  o f  e a c h  f o u r t e e n  d a y  p e r i o d . "  

I b i d .  The C o u r t  f o u n d  t h a t  w h i l e  m o s t  i n m a t e s  s e n t e n c e d  t o  

p u n i t i v e  i s o l a t i o n  w e r e  r e l e a s e d  i n  l e s s  t h a n  f o u r t e e n  d a y s  

"many r e m a i n e d  i n  t h e  s t a t u s  i n  q u e s t i o n  f o r  w e e k s  or  m o n t h s ,  

d e p e n d i n g  upon  t h e i r  a t t i t u d e s  a s  a p p r a i s e d  by p r i s o n  p e r s o n n e l .  

I b i d .  The C o u r t  f o u n d  t h a t  s u c h  p r i s o n e r s  w e r e  r a r e l y  c o n f i n e d  

i n  t h e  c e l l  a l o n e  and  t h a t  a t  t i m e s  t h r e e  or  more i n m a t e s  w e r e  

k e p t  i n  t h e  s m a l l  c e l l  e q u i p p e d  w i t h  e x t r e m e l y  l i m i t e d  f a c i l i ­

t i e s .  Where t h r e e  o r  more  men w e r e  p u t  i n  t h e  same c e l l ,  one  

o r  two o f  t hem h ad  t o  s l e e p  on t h e  f l o o r .  The m a t t r e s s e s  w e r e  

r e mo v ed  d u r i n g  t h e  d a y .  Icl.  a t  2175j)27i>.

The C o u r t  r e v i e w e d  t h e  d i e t  o f  g r u e  s e r v e d  a s  a p u n i s h m e n t  

t o  i n m a t e s  i n  p u n i t i v e  i s o l a t i o n  i n  l i g h t  o f  t h e  C o u r t  o f  A p p e a l s  

r e ma nd  and  c o n c l u d e d  t h a t  i t  s h o u l d  no l o n g e r  be s e r v e d .  I d .  a t

-  21  -



2 7 0 - 2 7 7 .  I n m a t e s  w e r e  f e d  g r u e  d u r i n g  e a c h  f o u r t e e n  d ay  p e r i o d ,  

e x c e p t  t h a t  on e v e r y  t h i r d  d a y  t h e y  we r e  s u p p o s e d  t o  r e c e i v e  one 

r e g u l a r  p r i s o n  m e a l .  I b - id . Many i n m a t e s  c o m p l a i n e d  o f  s h o r t -  

r a t i o n s  f o r  t h i s  m e a l  and  o f  a p r a c t i c e  known " a s  s h a k i n g  t h e  

s p o o n " .  I d .  a t  2 ^ 6 ,  n o t e  1>1. At  t h e  end  o f  e a c h  f o u r t e e n  d a y s  

i n m a t e s  w e r e  w e i g h e d  t o  d e t e r m i n e d  how much w e i g h t  t h e y  had  l o s t  

on t h e  g r u e  d i e t  and  i f  r e t u r n e d  t o  p u n i t i v e  i s o l a t i o n  we r e  g i v e n  

r e g u l a r  f o o d  f o r  two d a y s  b e f o r e  b e i n g  r e t u r n e d  t o  t h e  g r u e  

d i e t  on t h e  s e v e n t e e n t h  d a y .  V i r t u a l l y  a l l  i n m a t e s  l o s t  w e i g h t  

on t h i s  d i e t .  I d .  a t  2 ^ ,  n o t e  I S . I n m a t e s  w e r e  a l l o w e d  v e r y  

l i m i t e d  o u t d o o r  e x e r c i s e  and  l e f t  t h e i r  c e l l s  on e v e r y  t h i r d  

d a y  t o  t a k e  a s h o w e r .  I n m a t e s  i n  p u n i t i v e  i s o l a t i o n  w e r e  d e n i e d  

p r a c t i c a l l y  a l l  p r i v i l e g e s ;  t h e y  c o u l d  r e c e i v e  v i s i t s  o n l y  f r om 

c l e r g y m e n  w h i c h  w e r e  v e r y  r a r e  and  c o u l d  r e c e i v e  o n l y  " c o n s t i t u ­

t i o n a l l y  p r o t e c t e d "  c o r r e s p o n d e n c e .  The C o u r t  f o u n d  t h e  p u n i t i v e  

w i n g  was  f r e q u e n t l y  t h e  s c e n e  o f  v i o l e n c e  w i t h  p r i s o n e r s  s c r e a m ­

i n g  and  c u r s i n g  a t  g u a r d s ,  a t t e m p t i n g  t o  a s s a u l t  and i n j u r e  t hem 

a nd  t h e  g u a r d s  r e t a l i a t i n g  w i t h  n i g h t  s t i c k s  and  ma ce ,  f r e q u e n t l y  

w i t h  e x c e s s i v e  r e s p o n s e s .  I d .  a t ' 2 J7 6 - 2 ? 7 .  The  C o u r t  c r i t i c i z e d  

t h e  l a c k  o f  p r o f e s s i o n a l i s m  and  c o m m o n - s e n s e  among t h e  maximum 

s e c u r i t y  p e r s o n n e l .  I d .  a t  2 7 7 .  The C o u r t  a g r e e d  w i t h  t h e  

t e s t i m o n y  o f  Dr .  A r t h u r  R o g e r s ,  a c l i n i c a l  p s y c h o l o g i s t ,  who 

t e s t i f i e d  a s  p l a i n t i f f ' s  e x p e r t  i n  1974 G r a v e s  h e a r i n g s  t h a t  

p u n t i i v e  i s o l a t i o n  a s  p a r a c t i c e d  a t  Cummins " s e r v e s  no r e h a b i l i ­

t a t i v e  p u r p o s e ,  and  t h a t  i t  i s  c o u n t e r p r o d u c t i v e .  I t  makes  bad  

men w o r s e .  I t  m u s t  be c h a n g e d . "  I d .  a t Nv'2'77.

The Third Supplemental Decree prohibited the continued use 
of grue and required that inmates be served food of the same quality 
as that supplied to inmates in the general population. The 
Court ordered that defendants provide inmates in punitive isolation

-  22  -



further opportunity for physical exercise outside their cells
Finally, the Court 
tive isolation for

enjoined the confinement of
7 /

indeterminate periods. The
inmates in puni-

7 / The Third Supplemental Decree provided^ 3

"Punitive Isolation.
Respondents will be, and they hereby are, 

enjoined from sentencing inmates of the Depart­
ments to confinement in punitive isolation for 
indeterminate periods of time. In the future 
an inmate who is convicted of a major dis­
ciplinary infraction may be sentenced to 
confinement in punitive isolation for a period 
of not more than thirty days; at the end of that 
maximum period he must be returned to general 
population, or, if it be found necessary, he may 
be held in a segregated status under maximum 
security conditions other than punitive. No 
disciplinary committee or panel is required to 
sentence an inmate to confinement in punitive 
isolation for as much as thirty days, and the 
Superintendent of the institution or the 
Commissioner is free to release an inmate from 
punitive isolation at any time prior to the 
expiration of his sentence.

Inmates who have been confined in punitive 
isolation for more than thirty days when this 
Decree is filed are to be released to population 
or held in maximum security but under conditions 
that are not punitive. Inmates who have not 
been confined in punitive isolation for thirty 
days or longer will be considered as serving 
sentences of not more than thirty days. In 
determining whether an inmate has been in 
isolation for thirty days or longer, the two 
day periods of "interruption" mentioned in the 
Opinion will be included in the calculation.

Respondents will be, and they hereby are, 
enjoined from supplying inmates confined in 
punitive isolation with food and water inadequate 
in quantity and quality to preserve their health, 
and are further enjoined from serving such 
inmates diets which differ qualitatively from 
food supplied to inmates in general population. 
Without limiting the generality of the fore­
going, the use of the substance knows as 
"grue", or any variant thereof, as a food for 
inmates in punitive isolation is specifically 
enjoined.

-  23 -



C o u r t ' s  d e c i s i o n  was  t h a t  i n d e t e r m i n a t e  p e r i o d s  o f  c o n f i n e m e n t

u n d e r  t h e s e  c o n d i t i o n s  was  u n r e a s o n a b l e  and  u n c o n s t i t u t i o n a l .

410 F . S u p p .  a t ^ V S .  The C o u r t  a c k n o w l e d g e d  t h a t  some i n m a t e s  

m u s t  be s e g r e g a t e d  f r o m  t h e  g e n e r a l  p o p u l a t i o n  f o r  v a r i o u s  

r e a s o n s  " an d  d o e s  n o t  condemn t h a t  p r a c t i c e " .  I b i d .  "Bu t  

s e g r e g a t e d  c o n f i n e m e n t  u n d e r  maximum s e c u r i t y  c o n d i t i o n s  i s  one  

t h i n g ;  s e g r e g a t e d  c o n f i n e m e n t  u n d e r  t h e  p u n i t i v e  c o n d i t i o n s  t h a t  

h a v e  b e e n  d e s c r i b e d  i s  q u i t e  a n o t h e r  t h i n g . "  Iiagd . The C o u r t  

made c l e a r  t h a t  i t  was  n o t  p r o h i b i t i n g  a l l  s e g r e g a t i o n  o f  u n r u l y  

p r i s o n e r s  f r o m  g e n e r a l  p o p u l a t i o n  and  r e f e r r e d  t o  t h e  E i g h t h  

C i r c u i t ' s  c o n t r o l l i n g  d e c i s i o n  r e l a t i n g  t o  s o - c a l l e d  " a d m i n i s t r a -

7 /  [ C o n t i n u e d ]

R e s p o n d e n t s  w i l l  b e ,  and t h e y  h e r e b y  a r e ,  
d i r e c t e d  a nd  r e q u i r e d  t o  a f f o r d  i n m a t e s  i n  
p u n i t i v e  i s o l a t i o n  r e a s o n a b l y  a d e q u a t e  o p p o r ­
t u n i t i e s  f o r  p h y s i c a l  e x e r c i s e  o u t s i d e  t h e i r  
c e l l s ,  i n c l u d i n g  r e a s o n a b l e  a m o u n t s  o f  o u t ­
d o o r  e x e r c i s e  when w e a t h e r  p e r m i t s .

THE EAST BUILDING AT CUMMINS.

L e s t  t h e r e  be any  m i s t a k e  a b o u t  t h e  m a t t e r ,  
r e s p o n d e n t s  w i l l  b e ,  and  t h e y  h e r e b y  a r e ,  e n j o i n e d  
f r o m  c o n f i n i n g  i n  any  c e l l  i n  any o f  t h e  t h r e e  
w i n g s  o f  t h e  E a s t  B u i l d i n g  a t  Cummins ,  i n  c i r c u m ­
s t a n c e s  o t h e r  t h a n  e x c e p t i o n a l  and t h e n  f o r  o n l y  
s h o r t  p e r i o d s  o f  t i m e ,  more  t h a n  two men a t  t h e  
same t i m e ,  and  r e s p o n d e n t s  w i l l  b e ,  and a r e ,  
r e q u i r e d  t o  p r o v i d e  e a c h  man s o  c o n f i n e d  w i t h  a 
bunk and  m a t t r e s s .

R e s p o n d e n t s  w i l l  b e ,  and  t h e y  h e r e b y  a r e ,  
d i r e c t e d  a nd  r e q u i r e d  t o  e v a l u a t e  and p e r i o d i c a l l y  
r e - e v a l u a t e  t h e  c a s e s  o f  i n m a t e s  c o n f i n e d  i n  w h a t  
t h e  c o u r t  h a s  c a l l e d  t h e  " t h i r d  w i n g "  o f  t h e  E a s t  
B u i l d i n g ,  ( O p i n i o n  p a g e  60)  a s  p r e s c r i b e d  on 
p a g e s  6 2 - 6 4  o f  t h e  O p i n i o n ,  and  t o  t a k e  a p p r o ­
p r i a t e  a c t i o n s  b a s e d  on s u c h  e v a l u a t i o n s  and r e -  
e v a l u a t i o n s .  "

-  24 -



i

t i v e  s e g r e g a t i o n " ,  e . g . ,  K e l l y v .  B r e w e r , 525 F . 2 d  394 ( 8 t h  C i r .  

1 9 7 5 ) .  See  41 ( L-F . Supp .  a t -  278 . J u d g e  H e n l e y  b a s e d  h i s  d e c i s i o n  

t o  l i m i t  t h e  t i m e  i n  p u n i t i v e  i s o l a t i o n  t o  t h i r t y  d a y s  on t h e  

t e s t i m o n y  o f  Mr. H u t t o  t a k e n  i n  c o n j u n c t i o n  w i t h  t h e  

v a r i o u s  c h a n g e s  t h a t  w e r e  o r d e r e d  i n  c o n d i t i o n s  i n  t h a t  w i n g .

The  C o u r t  s t a t e d :

"As t o  t h e  l e n g t h  o f  t h e  maximum s e n t e n c e s  
t h a t  maybe i m p o o s e d ,  t h e  c o u r t  n o t e s  t h a t  Mr.  H u t t o  
i s  o f  t h e  v i e w  t h a t  b a s i c a l l y  t h e  maximum p e r i o d  
o f  t i m e  i n  w h i c h  a man s h o u l d  be c o n f i n e d  i n  p u n i ­
t i v e  i s o l a t i o n  w i t h  a r e s t r i c t e d  d i e t ,  w i t h  no 
m a t t r e s s  i n  t h e  d a y t i m e ,  and  p e r h a p s  w i t h o u t  a 
bunk t o  s l e e p  i n  a t  n i g h t  i s  f o u r t e e n  d a y s .
I n  v i e w  o f  t h e  c h a n g e s  i n  t h e  c o n f i n e m e n t  i n  
p u n i t i v e  i s o l a t i o n  t h a t  t h e  c o u r t  i s  o r d e r i n g ,  
t h e  c o u r t  f e e l s  t h a t  a maximum s e n t e n c e  o f  t h i r t y  
d a y s  i s  p e r m i s s i b l e .  I f  a t  t h e  end  o f  t h a t  m a x i ­
mum p e r i o d ,  i t  i s  f o u n d  t h a t  an i n m a t e  s h o u l d  
n o t  be r e t u r n e d  t o  p o p u l a t i o n ,  he may be k e p t  
s e g r e g a t e d  b u t  u n d e r  c o n d i t i o n s  w h i ch a r e  
n o t  p u n i t i v e . "  (410  F . S u p p .  a t  2 7 A D  cA / 0

The  C o u r t  p o i n t e d  o u t  t h a t  l e s s  t h a n  t h i r t y  d ay  s e n t e n c e s  m i g h t

be i m p o s e d  a nd  a l s o  t h a t  i n m a t e s  m i g h t  be p r o s e c u t e d  f o r  f e l o n i e s

i f  t h e y  c o m m i t t e d  s e r i o u s  c r i m e s  w h i l e  i n  p r i s o n .  410 F . S u p p .  a t

2 2 3 .

J u d g e  H e n l e y  a l s o  u s e d  t h e  t h i r t y  d ay  l i m i t  on p u n i t i v e  

c o n f i n e m e n t  a s  a p a r t  o f  t h e  m e t h o d  o f  d e a l i n g  w i t h  u n c o n ­

s t i t u t i o n a l  o v e r c r o w d i n g .  "As f a r  a s  t h e  p u n i t i v e  wi ng  and  

t h e  a d m i n i s t r a t i v e  s e g r e g a t i o n  w i n g s  o f  t h e  E a s t  B u i l d i n g  a r e  

c o n c e r n e d ,  t h e  d i r e c t i v e s  o f  t h e  C o u r t  i n  t h e  i m m e d i a t e l y  p r e c e d ­

i n g  s e c t i o n  h e r e o f  o u g h t  t o  t a k e  c a r e  o f  t h e  p r o b l e m  o f  o v e r c r o w d ­

i n g . "  4^0 F . S u p p .  a t  2 7 8 .

In the third wing which would probably be called "adminis­
trative segregation" in most institutions but in Arkansas was 
merely referred to as the "third wing" or "maximum security 
wing, the Court also ordered certain changes. Here the Court

-  25 -



a

ordered periodic evaluation of the situation of convicts who 
could not be safely returned to the general population in accord 
with the Eighth Circuit's ruling in Kelly v. Brewer, supra.

I n  t h e  C l a r i f y i n g  Memorandum O p i n i o n  o f  A p r i l  2,  1 9 7 6 ,  t h e  

C o u r t  r e s p o n d e d  t o  an  i n q u i r y  f r o m  t h e  d e f e n d a n t s  a b o u t  how t o  

d e a l  w i t h  p r i s o n e r s  who c o m m i t t e d  i n f r a c t i o n s  w h i l e  i n  p u n i t i v e  

i s o l a t i o n .  The C o u r t  s t a t e d  t h a t  i f  an i n m a t e  i n  p u n i t i v e  i s o l a ­

t i o n  c o mm i t s  a s e r i o u s  i n f r a c t i o n  he  may be p r o c e e d e d  a g a i n s t  i n  

a d i s c i p l i n a r y  p r o c e e d i n g  j u s t  a s  t h o u g h  t h e  o f f e n s e  h a d  b e e n

committed by an inmate in the general population. A. I ____•
If an inmate is found guilty the Court stated he may be sentenced 
to an additional time in punitive confinement beyond the basic 
thirty day maximum period specified in the Third.Supplemental 
Decree. Ibid. The Court however warned the defendants to move 
slowly and sparingly in this area, and not to use the major 
disciplinary procedures followed by consecutive sentences as a

of evading the prohibition againt indeterminate sentences. 
The Court stated that if the imposition of consecutive sentences 
became a matter of common practice it would be constitutionally 
suspect and call for additional judicial attention. Ibid.

The Court also clarified its order with respect to food to 
provide that inmates in punitive isolation not be required to be 
served exactly the same food or the same size portions or have 
the same choice of dishes as other inmates but the Court did 
require that inmates be served adequate meals in punitive con­
finement and warned against the practice of deliberately serving 
short rations. A. \ <11-1*2..

-  26 -



The C o u r t ' s  r u l i n g  on a t t o r n e y s '  f e e s  i s  s e t  f o r t h  i n  410

F . S u p p .  a t  2 8 1 - 2 8 5 .  The  C o u r t  n o t e d  t h a t  Mr.  McMath who was 

a p p o i n t e d  i n  1974 had  r e c e i v e d  no f e e  f o r  h i s  work and t h a t  

M e s s r s .  H o l t  and K a p l a n  had  r e c e i v e d  no f e e  f o r  t h e i r  work on 

t h e  H o l t  I I I  a p p e a l  o r  any  s u b s e q u e n t  w o r k .  The C o u r t  n o t e d  

t h a t  i t s  1973  a war d  o f  f e e s  had  b e e n  b a s e d  i n  p a r t  upon  t h e  

" p r i v a t e  a t t o r n e y  g e n e r a l "  t h e o r y  and  t h a t  E l d e l m a n  v .

J o r d a n ,  415 U . S .  651 ( i * ? y )  a n d  A l y e s k a  P i p e l i n e  S e r v i c e  Co .

v .  W i l d e r n e s s  S o c i e t y , 421 U . S .  240 ( 1 9 7 5 )  r e q u i r e d  a r e e x a m i ­

n a t i o n  o f  t h e  C o u r t ' s  power  t o  a w a r d  s u c h  a f e e .  The C o u r t  

c o n c l u d e d  t h a t  t h e  bad f a i t h  e x c e p t i o n  t o  t h e  A m e r i c a n  R u l e ,  

r e c o g n i z e d  i n  A l y e s k a , j u s t i f i e d  t h e  a w ar d  o f  a c o u n s e l  f e e  i n  

t h i s  c a s e .  410 F . S u p p .  a t  2 8 4 .  The C o u r t  n o t e d  t h a t  t h e  

a t t o r n e y s  i n v o l v e d  had  b e e n  i n  t h e  p r o t r a c t e d  c a s e  o n l y  b e c a u s e  

t h e y  had  b e e n  a p p o i n t e d ;  t h a t  t h e  l i t i g a t i o n  h ad  b e e n  n e e d e d  t o  

b r i n g  a b o u t  t h e  e r r a t i c  c o u r s e  o f  i m p r o v e m e n t  i n  t h e  A r k a n s a s  

p r i s o n  s y s t e m  f r o m  1965 t o  d a t e ;  t h a t  t h e  l i t i g a t i o n  b r o u g h t  t o  

l i g h t  p r o b l e m s  w h i c h  w o u l d  h a v e  b e e n  o t h e r w i s e  o v e r l o o k e d ;  t h a t  

t h e r e  h a d  b e e n  a h a r d e n i n g  o f  t h e  p r e v i o u s l y  c o o p e r a t i v e  

a t t i t u d e  o f  t h e  p r i s o n  a d m i n i s t r a t o r s  and  an u n w i l l i n g n e s s  t o  

go f o r w a r d  w i t h  n e c e s s a r y  i m p r o v e m e n t s ;  t h a t  a t  " p r a c t i c a l l y  

e v e r y  s t a g e  o f  t h e  l i t i g a t i o n  e v i d e n c e  h a s  b r o u g h t  t o  l i g h t  

p r a c t i c e s  o f  w h i c h  t h o s e  i n  h i g h e r  p r i s o n  a u t h o r i t y  we r e  

i g n o r a n t ,  and w h i c h  t h e y  e l i m i n a t e d  when t h e  f a c t s  w e r e  d i s c l o s ­

e d " ;  t h a t  t h e  a u t h o r i t i e s  s h o u l d  h a v e  t h e m - s e l v e s  d i s c o v e r e d  

some o f  t h o s e  p r a c t i c e s  w i t h o u t  w a i t i n g  f o r  t he m t o  be d e v e l o p  

ed  i n  t h e  l aw s u i t  by p l a i n t i f f s '  a t t o r n e y s .  Ic), a t  2 8 4 - 2 8 5 .

The  C o u r t  s t a t e d  t h a t  i n  f i x i n g  t h e  amo u n t  o f  t h e  f e e  i t  was

-  27 -



m a k i n g  no e f f o r t  " t o  a d e q u a t e l y  c o m p e n s a t e  c o u n s e l  f o r  t h e  work 

t h a t  t h e y  h a v e  d o n e  o r  f o r  t h e  t i m e  t h a t  t h e y  h a ve  s p e n t  on t h e  

c a s e "  b e c a u s e  a d e q u a t e  c o m p e n s a t i o n  "wo u ld  r u n  i n t o  many 

t h o u s a n d s  o f  d o l l a r s . "  Id^. a t  2 8 S . The C o u r t  s t a t e d  i t  

d i d  w i s h  t o  a l l o w  more  t h a n  a n o m i n a l  f e e  and  a c c o r d i n g l y  

a w a r d e d  $ 2 0 , 0 0 0 . 0 0  t o  be d i v i d e d  b e t w e e n  t h e  t h r e e  a t t o r n e y s  

and  t o  be  p a i d  o u t  o f  D e p a r t m e n t  o f  C o r r e c t i o n s  f u n d s .  The 

C o u r t  a l s o  o r d e r e d  t h e  S t a t e  t o  p ay  f o r  t h e  c o s t  o f  a t r a n ­

s c r i p t  o f  d e p o s i t i o n s  and  t e s t i m o n y .  The C o u r t  n o t e d  t h a t  much 

o f  t h e  t e s t i m o n y  h e a r d  i n  1974 and  1975 had  n o t  b e e n  t r a n ­

s c r i b e d .  410 F . S u p p .  n o t e  14^.

On a p p e a l  by t h e  d e f e n d a n t s  t h e  E i g h t h  C i r c u i t  a f f i r m e d  on 

J a n u a r y  6 , 1977  . F i n n e y  v .  H u t t o , 548 F . 2 d  740 ( 8.th C i r .  1 9 7 7 ) .  

The  d e f e n d a n t s  c o n t e s t e d  t h e  a s p e c t s  o f  t h e  d e c r e e  w h i c h  p r o ­

h i b i t e d  i n d e t e r m i n a t e  c o n f i n e m e n t  i n  p u n i t i v e  i s o l a t i o n  and  w h i c h  

a w a r d e d  a t t o r n e y s '  f e e s  and  c o s t s .  The E i g h t h  C i r c u i t  a c c e p t e d  

J u d g e  H e n l e y ' s  d e s c r i p t i o n  o f  t h e  c o n d i t i o n s  i n  p u n i t i v e  i s o l a ­

t i o n  and  a f f i r m e d  h i s  c o n c l u s i o n  t h a t  i n d e f i n i t e  c o n f i n e m e n t  i n  

t h o s e  c o n d i t i o n s  f o r  more  t h a n  t h i r t y  d a y s  was  c r u e l  and  u n u s u a l  

p u n i s h m e n t .  The C o u r t  a f f i r m e d  t h e  a w ar d  o f  a t t o r n e y s  f e e s  

r e a s o n i n g  t h a t  t h e  a w ar d  was  j u s t i f i e d  by t h e  r e c e n t l y  

e n a c t e d  C i v i l  R i g h t s  A t t o r n e y s  F ee  Award A c t  o f  1 9 7 6 ,  

c o d i f i e d  a s  42 U . S . C .  § 1 9 8 8 .  The C o u r t  r e a s o n e d  t h a t  t h e  a w a r d  

was  n o t  b a r r e d  by t h e  E l e v e n t h  Amendment  b a s e d  upon  t h i s  C o u r t ' s  

d e c i s i o n  i n  F i t z p a t r i c k  v .  B i t z e r , 427 U . S .  445 ( 1 9 7 6 ) .  The 

C o u r t  a l s o  f o u n d  t h a t  t h e  r e c o r d  f u l l y  s u p p o r t e d  t h e  D i s t r i c t  

C o u r t ' s  f i n d i n g  t h a t  t h e  c o n d u c t  o f  t h e  d e f e n d a n t s  j u s t i f i e d  an 

a w a r d  u n d e r  t h e  bad  f a i t h  e x c e p t i o n  e n u m e r a t e d  i n  t h e  A l y e s k a  

c a s e .  S48 F . 2 d  a t  742^ n . 6 .  F i n a l l y ,  t h e  C o u r t  f o u n d  t h e  a w a r d



o f  c o s t s  p e r m i s s i b l e  u n d e r  t h e  E l e v e n t h  Amendment  c i t i n g  F a i r m o n t

C r e a m e r y  Company v .  M i n n e s o t a , 275 U . S .  70 ( 1 9 2 7 ) .  The C o u r t  o f  

A p p e a l s  a w a r d e d  t h e  a p p o i n t e d  c o u n s e l  an a d d i t i o n a l  $ 2 , 5 0 0 . 0 0  f o r  

t h e i r  s e r v i c e s  on t h e  a p p e a l .

On O c t o b e r  1 7 ,  1 9 7 7 ,  t h i s  C o u r t  g r a n t e d  a p e t i t i o n  f o r  

c e r t i o r a r i  f i l e d  by t h e  d e f e n d a n t s  H u t t o  e t  a l .

-  29 -



548 FEDERAL REPORTER, 2d SERIES

Robert FINNEY et at., 
Petitioners-Appellees,

Amendment, award of fees to be paid out 
of funds allocated to state Department of 
Correction was not barred by the Eleventh 
Amendment. 42 U.S.C.A. §§ 1983, 1988;
T *  n  / I  A n _____ * A _________ 1 1  1 A

Terrell Don HUTTO et al.,
Respondents-Appellants.

No. 76-1406.

United States Court of Appeals,
Eighth Circuit.

Submitted Dec. 16, 1976.
Decided Jan. 6, 1977.

Rehearing and Rehearing En Banc 
Denied Feb. 3,1977.

Arkansas convicts brought actions 
against state prison officials alleging viola­
tion of constitutional rights. Following pri­
or disposition in district court, 363 F.Supp. 
194, and remand, 505 F.2d 194, the United 
States District Court for the Eastern Dis­
trict of Arkansas, J. Smith Henley, J., 410 
F.Supp. 251, held certain practices unconsti­
tutional, and awarded attorney fees and 
costs, and appeal was taken. The Court of 
Appeals, Ross, Circuit Judge, held that con­
finement of prisoners in punitive isolation 
for more than 30 days constituted cruel and 
unusual punishment and was impermissible, 
and that award of attorney fees and costs 
was justified and was not barred by the 
Eleventh Amendment.

Affirmed.

1. Criminal Law <3=1213
Confinement of prisoners in punitive 

isolation for more than 30 days constituted

3. Civil Rights ®= 13.17
In prisoners’ suits against officials of 

state Department of Correction, district 
court properly required the Department to 
pay attorney fees awarded to plaintiffs, 
though the Department was not named a 
party. 42 U.S.C.A. § 1988.

4. Civil Rights 0=13.17
Where prisoners, as private attorneys 

general, hail vindicated constitutional rights 
of Arkansas state prisoners, award of attor­
ney fees was justified, and in view of pro­
tracted nature of litigation, results obtain­
ed, and other factors, $20,000 award was 
reasonable. 42 U.S.C.A. § 1988.

5. Federal Courts 0=268
In civil rights suit brought by state 

prisoners, award of costs to be paid by state 
Department of Correction was permissible 
under the Eleventh Amendment and was 
reasonable. 42 U.S.C.A. § 1983; U.S.C.A. 
Const. Amend. 11.

Robert A. Newcomb, Asst. Atty. Gen., 
Little Rock, Ark., for appellant; Jim Guy 
Tucker (Former Atty. Gen.), Robert A. 
Newcomb and Jack T. Lassiter, Asst. Atty. 
Gen., Little Rock, Ark., on the briefs.

it

i
«i
*
i
*

(

(
>’

ii

t
i

cruel and unusual punishment and was im­
permissible. U.S.C.A.Const. Amends. 8, 14.

2. Federal Courts <3=268
Since the Civil Rights Attorney’s Fees 

Awards Act of 1976, which was intended to 
apply to cases pending resolution on appeal, 
was passed by Congress under, inter alia, 
the enabling clause of the Fourteenth

Philip E. Kaplan, Little Rock, Ark., for 
appellee; Stanley Bass, New York City, 
Jack Holt, Jr., Philip H. McMath, Little 
Rock, Ark., on the brief.

Before HEANEY and ROSS, Circuit 
Judges, and VAN PELT, Senior District 
Judge.*

The Honorable Robert Van Pelt, Senior Judge. United States District Court for the District of 
Nebraska, sitting by designation.



FINNEY v. HUTTO 741
Cite as 548 F.2d 740 (1977)

a cell by himself. Usually, he must share 
a cell with at least one other inmate, and

ROSS, Circuit Judge.
This appeal is the latest chapter in the 

seemingly endless litigation involving the 
constitutionality of the Arkansas state pris­
ons.1 The respondent-appellants are offi­
cials of the Arkansas Department of Cor­
rection. The petitioner-appellees are pris­
oners confined in Arkansas state prisons. 
In Finney v. Hutto, 410 F.Supp. 251 (E.D. 
Ark.1976), the district court,2 pursuant to 
remand of this court, Finney v. Arkansas 
Board o f Corrections, 505 F.2d 194 (8th Cir. 
1974), held that the Arkansas prison system 
is still unconstitutional in certain respects. 
The court held, inter alia, that the Depart­
ment’s policy of sentencing inmates to inde­
terminate periods of confinement in puni­
tive isolation is unconstitutional under the 
eighth and fourteenth amendments. Fin­
ney v. Hutto, supra, 410 F.Supp. at 278. 
The court awarded an attorneys’ fee to 
petitioners’ court appointed counsel in the 
amount of $20,000 to be paid out of funds 
allocated to the Department of Correction. 
The court also ordered the Department to 
pay the costs of litigation. Id. a t 281-285. 
The appellants contest these aspects of the 
judgment entered below. We affirm.

Indefinite Punitive Isolation.
[1] Judge Henley described the condi­

tions of punitive isolation in the following 
terms:

An inmate sentenced to punitive isola­
tion receives a sentence to confinement in 
an extremely small cell under rigorous 
conditions for an indeterminate period of 
time with his status being reviewed at 
the end of each fourteen day period. 
While most inmates sentenced to punitive 
isolation are released to population within 
less than fourteen days, many remain in 
the status in question for weeks or 
months, depending upon their attitudes 
as appraised by prison personnel. I t is 
rare indeed that a prisoner is confined in

1. The long history of this litigation may be
found in several reported decisions. See Holt 
v. Sarver, 300 F.Supp. 825 (E.D.Ark. 1969); 
Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark. 1970), 
afrd  442 F.2d 304 (8th Cir. 1971); Holt v.

a t times three or more inmates are kept 
in the same cell which is equipped with 
extremely limited facilities. Assuming, 
and the court is not at all sure that the 
assumption is valid, that all of the isola­
tion cells are equipped with two bunks, it 
follows that if three or four men are put 
in the same cell, and that frequently hap­
pens, one or two of them are going to 
have to sleep on the floor.

* * * * * *

As a class, the convicts confined in 
punitive isolation or in administrative 
segregation, for that matter, are violent 
men. They are filled with frustration 
and hostility, some of them are extremely 
dangerous, and others are psychopaths. 
Confined together under rigorous condi­
tions in the same cell or in immediately 
adjacent cells, the convicts identify with 
each other and reinforce each other in 
confrontation with custodial personnel, 
and those personnel in turn identify with 
each other and reinforce each other in 
confrontation with the convicts.

* * * * * *

Inmate violence unavoidably produces 
a forcible response from prison personnel 
who may be required to use such things 
as night sticks and the chemical known as 
"Mace” to quell disorders. And the court 
is satisfied that at times the response is 
excessive, and is further satisfied that 
many of the episodes of violence that 
take place in the maximum security facil­
ity could be avoided readily if the guards 
were more professional and used better 
judgment and common sense in dealing 
with refractory inmates.

Id. at 275-277. The court concluded that 
“ * * * punitive isolation as it exists at
Cummins today serves no rehabilitative 
purpose, and that it is counterproductive. 
It makes bad men worse. It must be

Hutto, 363 F.Supp. 194 (E.D.Ark. 1973), rev'd in 
part, 505 F.2d 194 (8th Cir. 1974).

2. Honorable J. Smith Henley, Circuit Judge, 
sitting by designation.

%

w



548 FEDERAL REPORTER, 2d SERIES
742
changed.” Id. Accordingly, the court held, 
inter alia, that confinement in punitive iso­
lation for more than thirty days is cruel and 
unusual punishment and thus impermissi­
ble.3 Id. at 278.

We affirm this holding on the basis of 
Judge Henley’s well-reasoned opinion.

Attorneys' Fees and Costs.
The appellants vigorously contest the at­

torneys’ fee award of $20,000 to be paid out 
of the funds allocated to the Department of 
Correction.4 We affirm the award.

[2] On October 19, 1976, at a time when 
this case was pending resolution on appeal, 
the Civil Rights Attorney’s Fees Awards 
Act of 1976, Pub.L. No. 94-559 (Oct.
1976), 90 Stat. 2641, was signed into law. 
This Act permits an award of a reasonable 
attorneys’ fee to the prevailing party in an 
action such as this brought under 42 U.S.C 
s 1983. It is clear that Congress intended 
the Act to apply to cases such as ^ i s  pend­
ing resolution on appeal. Since the A 
was passed by Congress under, inter alia, 
the enabling clause of the fourteenth 
amendment, S.Rep. No. 9 4 - 1 0 1 1  94th 
Cong 2d Sess. 5, U.S.Code Cong. & Admin. 
News 1976, p. 5908, the award attorneys 
fees is not barred by the eleventh amend-

3 The court carefully noted that the thirty day 
' maximum applies only to punitive isolauom no

segregated confinement under maximum secur 
ity conditions.

4 This award was attributable to . ^ “ s 
'court appointed counsel in connection with the

Holt III appeal and the present phase of this 
litigation. 410 F.Supp. at 282.

5. During House consideration of the measure, 
Representative Drinan stated.

I should add also that, as the uentlenian 
from Illinois (Mr. Anderson) observed dmmg 
consideration of the resolution on S. 227. 
this bill would apply to cases pending on 
date of enactment. It is the settled rule that 
a change in statutory law is to be applied to 
cases in litigation. In Bradley versus R>ch- 
mond School Board, the Supreme Court ex 
pressly applied that longstanding rule to an 
attorney fee provision, including the award 
of fees for services rendered prior to the 
effective date of the statute.

ment. Fitzpatrick v. Bitzer, 427 U.S. 445 
457, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976).

[3] The appellants complain that the 
district court erroneously forced the De­
partment to pay the fee in view of the fact 
that the Department is not a named party.
We disagree. The Act permits an order, as 
was entered in this case, requiring the 
award to be paid directly from the funds of 
a state agency, such as the Department of 
Correction, whether or not the agency is a 
named party. U.S.Code Cong. & Admin. 
News, 1976, p. 5912.

[4] The petitioners, as private attorneys 
general, have vindicated the constitutional 
rights of Arkansas state prisoners. The 
award is thus justified under Public Law 
No 94-559-* Furthermore, in view of the 
protracted nature of this litigation, the re­
sults obtained by the petitioners, and other
factors enumerated in Johnson v. Uorgta
Highway Express, Inc., 488 F.2d 714, 717 
719 (5th Cir. 1974), the $20,000 award is
reasonable.

[5] The appellants also attack the award 
of costs which is to be paid by the Depart- ’ 
ment of Correction. This award is both 
permissible under the eleventh amendment 
Fairmont Creamery Co. v. Minnesota, 275 
U.S. 70, 73-74, 48 S.Ct. 97, 72 L.Ed. 168
(1927), and reasonable.

122 Cong.Rec. 12.160 (daily ed. Oct. 1. 1976) 
(remarks of Representative Dnnan). B r a d ly  
v R ic h m o n d  School Board. 416 U.S. 696. 94 
S Ct 2006, 40 L.Ed.2d 476 (1974) involved the 
issue whether § 718 of the Education Amend­
ments of 1972, Which granted authority to 
eral courts to award a reasonable attorneys fee 
in school desegregation cases, applied to a case 
where the propriety of the fee award was pend­
ing resolution on appeal when the statute be­
came law. The Supreme Court held that it did 
Id at 710 724. Thus Representative Drinan s 
reference to the Bradley case is strong evidence 
Unit Congress intended this statute to apply to 
lee awards pending resolution on appeal.

6. Although, in view of the statute, we are not 
required to pass on the issue of bad faith, the 
record fully supports the finding of the district 
court that the conduct of the state officials 
justified the award under the bad |a,th ex'  £  
tion enumerated in AleyskaPipeline Sennce 
Co V. Wilderness Society. 421 U.S. 240.
259, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975).



UNITED STATES v. GORDON
Cite as 548 F.2d 743 (1977)

The petitioners’ court appointed counsel 
are awarded $2,500 for their services on this 
appeal.

Affirmed.

UNITED STATES of America, Appellee, 
v.

John H. GORDON, Appellant.
No. 76-1497.

United States Court of Appeals, 
Eighth Circuit.

Submitted Jan. 10, 1977.
Decided Jan. 14, 1977.

Defendant, a podiatrist, was convicted 
in the United States District Court for the 
Western District of Arkansas, Paul X Wil­
liams, Chief Judge, of knowingly making 
false and material statements for the pur­
pose of obtaining medicare payments, and 
he appealed. The Court of Appeals, Ross, 
Circuit Judge, held, inter alia, that photo­
graphs put in evidence by the prosecution 
were not too remote in time to be admissi­
ble and that defendant could be convicted, 
at the prosecution’s discretion, of either a 
felony or misdemeanor for any one transac­
tion.

Affirmed.'

1. Criminal Law «= 438(1)
Like other matters of relevancy, use of 

photographs is committed to sound discre­
tion of trial judge.

2. Criminal Law e=>384
In prosecution of podiatrist for making 

false statements to obtain medicare pay­
ments, photographs of patients’ feet, taken 
four to six months after defendant alleged 
he had performed excision and removal of

743

toenails for such patients, were not too re­
mote in time to be admissible. 18 U.S.C.A. 
§ 1001; Social Security Act, § 1877, 42 
U.S.C.A. § 1395nn.

3. Criminal Law <3= 662(4)
Podiatrist was not denied his constitu­

tional right to confront witness by prosecu­
tion’s use, in trial on charges of making 
false and material statements for the pur­
pose of obtaining medicare payments, of 
photographs of feet of patients on whom 
podiatrist claimed he had operated; photo­
graphs were used only to demonstrate foun­
dation underlying expert’s opinion, and ex­
pert was available for cross-examination 
and was in fact fully cross-examined by 
defense counsel. 18 U.S.C.A. § 1001; Social 
Security Act, § 1877, 42 U.S.C.A. § 1395nn.

4. Fraud c = 6 9 (l)
Government, in bringing criminal 

charges against podiatrist for allegedly 
making false and material statements for 
purpose of obtaining medicare payments, 
was within its discretion in prosecuting de­
fendant for any one transaction under ei­
ther general statute making it felony to 
make false and material statements to 
government agent or more specific misde­
meanor statute relating to making false 
statements for purpose of obtaining medi­
care payments. 18 U.S.C.A. § 1001; Social 
Security Act, § 1877, 42 U.S.C.A. § 1395nn; 
Fed.Rules Crim.Proc. rule 8(a), 18 U.S.C.A.

Damon Young, Texarkana, Ark., and 
Harry B. Friedman, Texarkana, Tex., for 
appellant; Harkness, Friedman & Kusin, 
Texarkana, Tex., and Young, Patton & Fil- 
som, Texarkana, Ark., on brief.

J. Michael Fitzhugh, Fort Smith, Ark. for 
appellee; Robert E. Johnson, U.S. Atty., 
and J. Michael Fitzhugh, Asst. U.S. Atty., 
Fort Smith, Ark., on brief.

Before LAY, ROSS and WEBSTER, Cir­
cuit Judges.

ROSS, Circuit Judge.
John Gordon was convicted on five counts 

of knowingly making false and material



inn
gen
tha
she
she
sioi

con 
tied 
t a t  
tec i 
Mu 
age 
the 
ed i 
lea.- 
m;u 
qui 
reli 
1,

sig
wht
m;n

vic: 
nal 
it *

wa> 
to 1 
plo. 
in i

363 FEDERAL SUPPLEMENT

[3] Defendants fu rth e r contend 
“technical knowledge” is not w ithin the 
purview of 22 U.S.C. § 1934, and that 
the sta tu te  covers only the illegal expor­
tation of printed or reproduced technical 
data. They contend an extension of 
22 U.S.C. § 1934 to include “technical 
knowledge” would be violative of the 
F irs t Amendment.

The regulations promulgated under 
the authority  of 22 U.S.C. § 1934 shed 
light on w hat “technical da ta” is to in­
clude.

“As used in this subchapter the 
term  ‘technical data’ means: (a) any 
unclassified inform ation th a t can be 
used, or adapted for use, in the de­
sign, production, m anufacture, repair, 
overhaul, processing, engineering, de­
velopment, operation, maintenance, or 
reconstruction of arm s, ammunition, 
and implements of w ar on the U.S. 
M unitions List . . . ” 22 C.F.R.
§ 125.01 (1970).

“The export controls of this sub­
chapter over technical data (a) apply 
to the export of unclassified technical 
data relating to arm s, ammunition, 
and implements of w ar on the U.S. 
Munitions List, and (b) classified 
equipment and classified information 
relating to arm s, ammunition, and im­
plements of w ar on the U.S. Munitions 
List as defined in S 125.02. These 
controls shall apply whenever the in­
form ation is to be exported by oral, 
visual, or documentary means . . . ”
22 C.F.R. § 125.03.

I t  is clear from the language of these 
regulations th a t “technical knowledge” 
was to be included in the purview of the 
sta tu te .

nied, 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 
G52 (1952); Gorin v. United States, 312 
U.S. 19, 61 S.Ct. 429, 85 L.Ed. 488 
(1941).

For the foregoing reasons, defendants’ 
motion to dismiss is denied.

So ordered.

[41 Such inclusion does not violate 
the F irs t Amendment. Although F irs t 
Amendment rights are to be close­
ly guarded, when m atters of foreign pol­
icy are involved the government has the 
constitutional authority  to prohibit indi­
viduals from divulging “technical data” 
related to implements of w ar to foreign 
governments. United States v. Rosen, 
195 F.2d 583 (2d Cir. 1952), cert. de­

Law rence J. IIOLT et al.. 
Petitioners, 

v.
Terrell Don HUTTO, C om m issioner of 

Correction, State of Arkansas, 
et al., Respondents.

No. P B -69-C -21 and 33 related cases.

United States D istrict Court,
E. D. Arkansas,

P ine B lu ff D ivision.
Aug. 13, 1973.

T hirty-four individual and class ac-, 
tions were brought by Arkansas convicts 
against sta te  prison officials asserting 
violation of p la in tiffs’ constitutional 
rights. The United States District 
Court for the E astern  D istrict of Ar­
kansas, J. Smith Henley, Chief Judge, 
309 F.Supp. 362, rendered judgment in 
favor of petitioners, and respondents ap­
pealed. The Court of Appeals, 442 F.2d 
304, affirm ed and remanded. On re­
mand, the D istrict Court, Henley, Chief 
Judge, held th a t Black Muslims confined 
in prisons may not be discriminated 
against on account of the ir religion, that 
racial discrim ination between convicts is 
unconstitutional, th a t difficulty of hir­
ing qualified blacks for prison positions 
was not to deter prison officials from 
try ing  to do so, tha t disciplinary proce­
dures were to be properly administered 
if they were to pass constitutional mas­
ter, tha t incoming privileged correspon­
dence was to be opened in presence of 
prisoner, and tha t rule perm itting exam-



t. 20, 97 L.Ed. 
tod States, 312 
S3 L.Ed. 488

ns, defendants’

HOLT v. HUTTO
C ite  n s 303 I '\R upp . KM (1073)

195

«*t al„

niissioner of
rkansas,
its.
dated  cases.

I Court,

ion.

1 and class ac- 
ansas convicts 
ials asserting  
constitutional 
ates D istrict 

'('strict of Ar- 
Chief Judge, 

i judgm ent in 
■spondents ap- 
eals, 442 F.2d 
nled. On re- 
llenley, Chief 
dims confined 
discrim inated 
religion, th a t 

■en convicts is 
iculty of hir- 
ison positions 

officials from 
pi inary proce- 

adm inistered 
itutional mus- 
red correspon- 
n presence of 
m itting exam­

ination and limited reading of outgoing 
general correspondence was reasonable, 
that incidents of use of force on inm ates 
should he investigated at once and 
should, if possible, include inm ate’s ver­
sion of events.

Order accordingly.

1. Prisons C=4
Black Muslims confined in prisons 

constitute a religious sect and are  en ti­
tled, w ithin reasonable lim itations dic­
tated by conditions of prison life, to pro­
tection of the F irs t Amendment; Black 
Muslims may not be discrim inated 
against on account of th e ir religion, 
they are not to be unreasonably re s tric t­
ed in exercise or practice thereof and at 
least some accommodations m ust be 
made by prison authorities to some re­
quirements and taboos of the ir professed 
religious belief. U.S.C.A.Const. Amends.
1. 14.

2. Prisons C=>12
Constitution does not require as­

signment of prisoners to in tegrated  cells 
where such assigning cannot be safely 
made.

3. Prisons 0=12
A general policy of racial segrega­

tion in maximum security  cells is unlaw­
ful.

1. Prisons C=12
Racial discrim ination between con­

victs is unconstitutional; such discrim i­
nation, in whatever form it may take, be 
it overt or covert, cannot be tolerated.

.”>. Prisons
Difficulty of h iring  qualified blacks 

was no reason for state prison officials 
to deter from  try ing  to recru it black em­
ployees so as to alleviate racial situation 
in department of corrections.

A prison inm ate charged w ith viola­
tion of prison rules is not entitled to a 
full-fledged judicial tria l or to all of the 
guarantees and protections afforded by 
the Fourteenth Amendment to a person 
charged in court w ith a crim inal of­

fense; however, he is entitled to be ad­
vised of charge against him, to be heard, 
and to have his case considered serious­
ly, dispassionately, and objectively al­
though he cannot expect an im partial 
fact-finding body in the sense th a t a 
criminal defendant is entitled to an im­
partial ju ry . U.S.C.A.Const. Amend. 14.

7. P risons C=U3
If  properly adm inistered, sta te  p ris­

on disciplinary procedure, under which 
an inmate was afforded opportunity to 
give his version of episode but which did 
not entitle inmate to representation or 
afford  him rig h t of confrontation or 
righ t to call w itnesses and under which 
a w ritten  report was prepared by disci­
plinary committee and forwarded to 
higher officials, w ith inmate having 
righ t to appeal, would pass constitution­
al m uster; however, mere perfunctory 
determ inations of guilt or innocence 
were not proper and an inmate was to 
be clearly apprised not only of charges 
against him and of his righ ts but also 
of consequences of conviction.

8. P risons C=13
Specificity was added to prison rule 

requiring disciplinary committee to per­
form th e ir functions “as quickly as pos­
sible.” by requiring  tha t, in cases other 
than the highly exceptional, an accused 
inmate be given a hearing w ithin 72 
hours a fte r  occurrence of the discipli­
nary episode; it was also required that, 
insofar as possible, hearings be conduct­
ed between hours of G A.M. and 6 P.M. 
and th a t hearings be recorded in such 
m anner th a t a reviewing authority  could 
determ ine how much time was taken at 
hearing and essentially what was said 
and done by individuals involved.

9. Prisons C=I3
Recommendation th a t case of a 

youthful offender transferred  from re­
form atory type institu tion  to general 
prison housing more hardened crim inals 
be reviewed every 90 days was disap­
proved ; more appropriate procedure 
would be to hold the f irs t evaluation not 

iter than two weeks a fte r tra n sfe r  and 
second evaluation no la ter than 30 days

i i ; t .



23. I

perv 
assu 
inm; 
stitii 
imp;1 
prev 
i n j u : 
raci; 
tion. 
facei 
civil

21. <

fees 
d i v i ( 
stati 
com; 
alleg 
cigh 
re ini 
dent
U.S.<
S.C..

Ja
Rod

M
Ark.
resp

wm+m

ii
Ti

have 
agai 
Stat 
H ut t 
Con 
with 
Dcp; 
lcssi 
inm. 
part

363 FEDERAL SUPPLEMENT

officers as to proposed correspondent’s 
criminal • record in connection with 
drugs.

17. Prisons 0=4
Approval of parent or guardian may 

properly be required before prison offi­
cials approve inclusion of a m inor’s 
name on list of persons w ith whom pris­
on inmate may engage in general corre­
spondence.

18. Prisons 0=4
Requirem ent th a t an adult give his 

consent to be included on prison in­
m ate’s general correspondence mailing 
list m ight readily be dispensed w ith; 
however, requirem ent does not present a 
problem of constitutional dimension and 
is not required to be stricken.

1!). P risons 0= 9
Prison rules admonishing employees 

not to be overly fam iliar with inmates 
and th a t undue fam iliarity  decreases ef­
fectiveness of employee as well as possi­
bly placing employee in compromising 
position are  salu tary  and should be ob­
served.

20. Prisons 0=13
A prison employee charged w ith im­

proper use of force on recalcitrant in­
mates is not to be judged by hindsight 
but in the light of facts and circum­
stances as they reasonably appeared to 
him to exist a t the time.

21. Prisons 0=13
Force is properly employed by pris­

on personnel in self-defense, in breaking 
up figh ts between inmates, in compelling 
obedience to lawful orders where milder 
measures fail, in protecting sta te  prop­
erty , and in connection with preventing 
escapes and, a t times, in connection with 
recapturing escaped convicts.

22. Prisons 0=13
It is highly desirable th a t immedi­

ate investigation be made of use of force 
on prison inm ates; such investigation 
should include the development, where 
possible, of the inm ate’s version of the 
event.

10. P risons 0= 4
In compiling list of persons with 

whom prison inmate may engage in gen­
eral correspondence prison officials may 
properly send questionnaire to prospec­
tive correspondent and make certain  lim­
ited inquiries of local law enforcement

later, with subsequent evaluations at 
90-day intervals.

10. P risons C=4
Prison inmate has a practically un­

restric ted  rig h t to correspond privately 
w ith courts and with his attorney.

11. P risons 0= 4
R ight of prisoner to correspond 

generally w ith people in outside world is 
subject to reasonable regulation and re­
striction.

12. P risons 0=4
Prison restrictions on inmate corre­

spondence m ust be related to a legiti­
mate institu tional in terest; a t tim es va­
lidity of a given restriction  m ust be de­
term ined by balancing the in terest of 
the institu tion  in m aintaining it against 
the in terest of the inmate in being free 
from it.

13. P risons C=4
Prison rule that, with strictly  lim it­

ed exceptions, incoming privileged corre­
spondence, including letters from federal 
courts, is subject to being opened and 
inspected for contraband is a reasonable 
one; however, if prison au thorities de­
sire to open and inspect contents of a 
le tte r to an inmate from a lawyer they 
should do so in presence of the inmate.

14. Prisons 0= 4
Prison rule perm itting  examination 

and limited reading of inm ate’s outgoing 
general correspondence is reasonable and 
not unconstitutional.

15. Prisons 0=4
Prison officials may constitutionally 

lim it general correspondence of an in­
mate to persons whose names appear on 
mailing list approved by Corrections De­
partm ent.



• correspondent’s 
onnection w ith

guardian may 
i'ore prison offi- 
1 of a m inor’s 
with whom pris- 
n general corre-

ii adult give his 
on prison in- 

ndence m ailing 
lispensed w ith ; 
"3 not present a 

dimension and 
ken.

liing employees 
r with inmates 
y decreases ef- 

■s well as possi- 
compromising 

i should be ob-

irged with im- 
ecalcitrant in- 
1 by hindsight 
s and circunx- 
ly appeared to

Joyed by pris- 
>e, in breaking 
. in compelling 

where milder 
ig sta te  prop- 
ith preventing 
mncction with 
ts.

that immedi- 
■f use of force 

investigation 
iiment, where 
ersion of the

HOLT v.
Cite ax 3(13 K.S

23. Injunction C=215
Although d istric t court released su­

pervisory jurisdiction it had previously 
assumed in class action su it by prison 
inmates charging violation of th e ir con­
stitutional rights, such release would not 
im pair validity and continuing effect of 
previously issued injunctions, including 
injunctions restra in ing  continuation of 
racial segregation and, if those injunc­
tions were violated, those guilty could be 
faced with contempt proceedings either 
civil or criminal.

24. Civil K iglits 0=13.17
Two counsel were awarded $8,000 

fees for representing p lain tiffs in 34 in­
dividual and class actions brought by 
state convicts against prison officials 
complaining of conditions in prison and 
alleging violation of constitutional 
rig h ts ; counsel was also entitled to 
reimbursement of am ount paid law stu ­
dents for assistance in working up cases. 
U.S.C.A.Const. Amends. 1, 8, 14; 42 U. 
S.C.A. § 1983; 28 U.S.C.A. § 1343(3).

Jack Holt, J r ., Philip E. Kaplan, L ittle 
Rock, Ark., for petitioners.

Milton Lueken, Asst. A tty. Gen., of 
Ark., Ted Boswell, Little Rock, Ark., for 
respondents.

¥
MEMORANDUM OPINION

HENLEY, Chief Judge.
These 34 individual and class actions 

have been brought by A rkansas convicts 
|  against the members of the A rkansas

State Board of Correction, Terrell Don 
Hutto, the A rkansas Commissioner of 
Correction who adm inisters the prisons 
within the jurisdiction of the A rkansas 

t Department of Correction, and certain
lesser prison officials. Petitioners are 
inmates of the Cummins U nit of the De­

ll partment which is located in Lincoln

I. While some of these eases nam e lower  
echelon prison personnel ns respondents ,  I lie 
term “ respondents** jis herein used refers to 
the meml>rrs of the H oard  of <*orreetion, 
the ( ’ommissioner of ( ’orree tion, mid tin* re­
spective S upe r in te nden ts  of the T u c k e r  ln-

£

f;.

HUTTO 1 9 7
| i | i .  HU (1073)

County, A rkansas, and of the Tucker In­
term ediate Reform atory located in J e f ­
ferson County.

While d ifferen t individual inmates 
naturally complain about d ifferen t 
things, petitioners as a class contend 
tha t in spite of previous decrees and 
opinions of th is Court conditions in and 
practices a t both of the institutions that 
have been mentioned are such as to ren­
der the confinement of human beings 
there a cruel and unusual punishm ent 
prohibited by the E ighth  and Foux-- 
teenth Amendments to the Constitution 
of the United States. They also com­
plain of racial discrim ination and make 
a number of o ther complaints which will 
be mentioned in due course. Respond­
ents deny th a t the complaints have 
m erit.1

In I960 this Court granted a measure 
of injunctive relief to the inmates of 
Cummins. Ilolt v. Sarver, Commission­
er of Correction, E.D.Ark.l9G9, 300 F. 
Supp. 825 (H olt I) . The litigation con­
tinued into 1970 and was extended to in­
clude the Tucker U nit and to bring  in 
numerous inmate petitioners. A fter ex­
tensive hearings, the Court found th a t 
conditions and practices a t both In s titu ­
tions were such as to render the confine­
ment of a human being in e ither one of 
them a cruel and unusual punishm ent 
prohibited by the E ighth  and Four­
teenth Amendments to the Constitution 
of the United States. Holt v. Saxwer, 
E .D .Ark.1970, 309 F.Supp. 362 (Holt 
II).

The Court entered a decree declaring 
the unconstitutionality of the prisons 
and specifically enjoined the continua­
tion of w hat was left of racial segrega­
tion a t both institutions. Jurisdiction  
of the case was retained, and respond­
ents were directed to file a report set­
ting out w hat they proposed to do to

let-mediate Itefornia Inrv (T u ck e r)  :m<l (In* 
( ’ummiiis l *iiiI (C um m ins) .  T hose  ind iv idu­
als art*, of cniii'sc. responsible within l im its  
for the  conduct of th e i r  subord inates ,  and 
the subord ina te s  a re  bound by o rders  of this 
C ourt  a ffec t ing  th e i r  superiors.



198 363 FEDERAL SUPPLEMENT

bring the D epartm ent up to constitu­
tional standards.

Respondents appealed, and the Court’s 
decision was affirm ed. Ilolt v. Sarver, 
8 Cir., 11)71, 442 F.2d 304. This Court 
was directed to retain  jurisdiction of the 
prisons at least for a time.

Progress reports were filed by re­
spondents from time to tim e in 1970 and 
1971. On December 30, 1971, the Court, 
a f te r  hearings, filed a Supplemental De­
cree which amplified and made more 
specific in certain respects its earlier de­
cree. Jurisdiction was again retained.

The Court continued to receive num er­
ous inmate complaints in 1972, and on 
September 8 of tha t year the Court filed 
a Memorandum Opinion and entered an 
order perm itting  a num ber of such com­
plaints to be filed under the provisions 
of 42 U.S.C.A., section 1983, read in con­
nection with 28 U.S.C.A., section
1343(3). The later cases were consoli­
dated with the earlier ones, and hear­
ings were held in November and Decem­
ber, 1972, and in January  1973. The in­
mates as a class have been represented 
ably by Messrs. Jack Holt, J r . and Phil­
ip E. Kaplan of the Little Rock Bar, 
both serving by Court appointm ent since 
1970. Respondents have been represent­
ed by members of the s ta ff  of the A tto r­
ney General of A rkansas and by Mr. Ted 
Boswell of L ittle Rock and Bryant, A r­
kansas, who was employed by some of 
the respondents as special counsel.

This litigation today stands in a pos­
tu re  quite d ifferen t from th a t in which 
it stood in 19G9 and 1970. In those 
years the Court was dealing w ith o ffi­
cially prescribed or sanctioned condi­
tions and practices which were claimed 
to be unconstitutional, and the control­
ling facts were essentially undisputed. 
Today, most of the practices and condi­
tions alleged by petitioners to exist and 
of which they complain are not officially 
approved or sanctioned, and a number of 
them are specifically prohibited by rules 
and regulations of the Departm ent

which appear in the D epartm ent’s In­
mate Handbook and Employee Hand­
book. copies of which are in the record. 
Additionally, controlling facts are sharp­
ly disputed in many areas.

Inm ate complaints extend over practi­
cally the entire spectrum of prison life, 
and in try ing to resolve the disputed 
factual issues the Court has encountered 
in full measure the credibility problems 
inherent in litigation of th is kind. In 
resolving the issues of fact before it, the 
Court has done the best tha t it could, 
employing in th a t connection its own 
common sense and its experience with 
the Departm ent which extends over a 
period of a t least eight years,-’ and 
which has involved the reading of liter­
ally hundreds of inmate complaints or 
“w rits .”

From its consideration of the evidence 
as a whole, the Court finds ultimately 
th a t none of the individual petitioners, 
as individuals, have shown th a t they are 
entitled to specific equitable relief. But, 
the Court fu rth e r finds th a t notwith­
standing significant progress and im­
provements th a t have been made at both 
Cummins and Tucker, some problem 
areas of constitutional significance con­
tinue to exist, and th a t the inmates as a 
class stand in need of some additional 
injunctive relief, and th a t respondents 
need to be admonished about a number 
of things.

I.

To accentuate the positive, the Court 
will say f irs t  th a t as a result of chang­
ing a ttitudes and efforts on the part of 
the Arkansas Legislature, the present 
Governor of A rkansas and his predeces­
sor, the Board of Correction, incumbent 
Commissioner of Correction, Terrell Don 
Hutto, and his predecessor, C. Robert 
Sarver, and some of Mr. H u tto s subor­
dinates, the A rkansas prison system is 
simply not the same system th a t existed 
in 1969 and 1970 and in prior years.

tui ns.is SiiUe IVii iln i t i i i ry ,  K.P.Ark.,
IT I 'tSupii.  0S3.

2. It w as in IlHiT* that  tin* <*ourt iloriilnl Tal- 
l«\v v. S irplir tis ,  S iiperi it lcmlciit  of tin* Ar-



199
partm ent’s In- 
nployee Hand- 

in the record, 
acts are sharp-

ad over practi- 
of prison life, 

the disputed 
as encountered 
aility problems 
this kind. In 
t before it, the 
that it could, 

ction its own 
<perience w ith 
xtends over a 
t. years,- and 
ading of liter- 
complaints or

•f the evidence 
ads ultim ately 

aal petitioners, 
’ tha t they are 
!e relief. But, 
tha t notwith- 

rress and im- 
i made a t both 
some problem 
rnificance con- 
e inmates as a 
■me additional 
t respondents 
■out a num ber

ive, the Court 
suit of chang- 
in the p a rt of 
a the present 
I his predcccs- 
on, incumbent 
n, Terrell Don 
or, C. Robert 
Hutto’s subor- 
sun system is 
ai that existed 
•or years.

K.D.Ark., ItMiTi,

HOLT v. HUTTO
C’ito ns .t(W I ’.Sll|»|t. 1!M (HITS)

To s ta r t  with the iniquitous “trusty  
system” described in detail in Holt I and 
Holt II, supra, has essentially been dis­
mantled. Free world personnel have re­
placed the trusties in positions of au­
thority throughout both prisons. While 
there are still a few tru sty  guards, they 
do not represent the th rea t to ordinary 
inmates tha t they have done in years 
past, and the Court is confident tha t the 
few tha t remain will soon be phased out.

W riting in prior years, the Court was 
gravely concerned with the risk th a t in­
mates confined in barracks ran of homo­
sexual or deadly assaults by other in­
mates. While the barracks are still seri­
ously overcrowded, and while additional 
housing facilities are still needed, partic­
ularly a t Cummins, and while inm ate as­
saults on other inmates and figh ts be­
tween inmates still occur, as they do in 
all prisons, the problem is not what it 
was in form er days.

Since Holt II was w ritten, the D epart­
ment has constructed a maximum securi­
ty unit a t Cummins in which are housed 
the most dangerous and unstable in­
mates, and they are thus removed from 
the general and more tractable prison 
population. It appears to the Court tha t 
somewhat less than 10 percent of the to­
tal population of Cummins is confined in 
the maximum security unit, and a very 
large portion of the complaints th a t the 
Court receives come from the inmates of 
the unit, a fact which is not w ithout sig­
nificance.

As its name implies, Tucker is a re­
formatory type institution, and it has an 
advancing program  of education and 
training for its comparatively young and 
unhardened inmates. Tucker is a much 
smaller institution than Cummins; its 
population is generally a little over 300 
as compared to an average population at 
Cummins of some 1100 or 1200 inmates. 
Prior to the 1972-73 hearings the Court 
received substantial numbers of com­
plaints from the inmates of Tucker; 
however, during the last few months 
section 1983 complaints from Tucker in­
mates have become almost nonexistent.

There is a limited program  of voca­
tional and educational tra in ing  available 
a t Cummins, but inmate participation 
therein is not as encouraging as th a t at 
Tucker. That, however, is explainable 
by reference to a number of factors, in­
cluding ages, dispositions, and crim inal 
records of many of the inmates of Cum­
mins.

The D epartm ent has recently acquired 
law libraries for the use of inm ates a t 
both institutions, and the Court finds 
tha t those libraries are adequate fo r le­
gitim ate inmate purposes, and th a t rules 
for the use of the libraries are  not un­
reasonable. The Departm ent has also 
employed a lawyer who serves full time 
as Legal Adviser for the inmates a t both 
institutions, and he is of substantial as­
sistance to them in connection with 
many of the ir legal problems, although 
he is not in a position to assist them 
when they come into conflict or contro­
versy with prison personnel.

A th ird  institution adm inistered by 
the D epartm ent but not directly involved 
in this particu lar phase of the overall 
prison litigation is the Women’s S tate 
Reform atory presently located on the 
same trac t of S tate owned lands as is 
the Cummins U nit where male prisoners 
are confined. The Women’s Reform ato­
ry  houses a small num ber of female in­
mates. It has given some constitutional 
trouble in the past. However, the Court 
has had no complaints about it  for 
months. It is capably adm inistered by a 
Negro matron or Superintendent, and it 
appears to be a constitutionally tolerable 
institution. It is to be moved from its 
present location to a new site near the 
City of Pine Bluff, and initial phases of 
construction of the new facility are now 
under way.

In pointing out sign ifican t improve­
ments tha t have been made a t both insti­
tutions the Court does not overlook the 
fact tha t serious deficiencies, w hether 
constitutional or not, exist a t both Cum­
mins and Tucker. Contributing factors 
to those deficiencies, some of which will 
be mentioned, are  lack of funds and the



200

With ; 
lar indi 
Messrs. 
Boren ai 
the Corn 
least the. 
to run at 
and const

The C 
lower ci 
Those ci> 
recruited 
by model 
tie train 
them are 
e d ; sonn 
haps too 
authority 
are Quick 
to be use- 
“unprofei

correcti 
Court’s 
ment to 
er unco 
a t  both 
al stand 
tion. 1 
personn 
ly defit 
tha t  th; 
most of 
partmen 

Comm 
Superin! 
ton, Sup 
of their 
partmen 
Cecil Bo 
Cummin 
indeed, ’ 
ment wl 
missione 
few othi 
the admi 
are, so i 
the inst 
ployees y 
ganizatii 
nary gue

From 1 
the Depa)

lu ia l  locations of both institutions a 
substantial distance by road away from 
each other.

While many inmates have complained 
that they have been intentionally denied 
medical and dental services which it was 
within the power of the Department to 
provide, the Court docs not so find. 
And it appears to the Court that many 
of the inmate complaints have stemmed 
fiom the fact that they were not treated 
as quickly or cured as rapidly as they 
desired or were not given the quantity 
or quality of medication that they want­
ed. A great many people in the free 
world would have the same complaints.

The Court finds that the Department 
has done the best that it could in the 
are? of medical services with the re­
sources a t  its command. That is not to 
say, however, that deficiencies have not 
existed and do not continue to exist. As 
of the date upon which the hearings 
were closed, the Department had never 
had a fuil time physician whose services 
were available to inmates. Inmates 
were treated bv paramedical personnel 
who generally had to work without the 
direct supervision of a doctor. Inmates 
in need of hospitalization were, and still 
are, carried to Little Rock or Pine Bluff 
for treatment. Dental services appar­
ently are largely limited to extractions 
and the supplying of false teeth.

Since the hearings closed, the Depart­
ment has been able to employ a full time 
physician, and his services should be 
quite helpful. However, his services 
alone will not by any means solve all of 
the medical problems of the Department.

One serious problem is tha t a number 
of inmates are mentally ill or emotional­
ly disturbed and probably should not be 
in a penal institution at all. Unfortu­
nately, a viable alternative to their con­
finement in the Department docs not ex­
ist in Arkansas today since the Arkan­
sas State Hospital for Nervous Diseases 
in Little Rock will not care for them ex­
cept when they arc violent. Some of 
these people are extremely dangerous to 
themselves and to their  keepers and oth- 
ei inmates and tend to keep other in­

mates in states of unrest and excite­
ment.

Apart from mentally ill inmates, there 
are also some inmates who have serious 
and chronic physical ailments which ren­
der confinement in an ordinary penal in­
stitution undesirable, but, again, there is 
no viable alternative existing today. 
The problem is complicated by the fact 
tha t the Arkansas State Sanatorium at 
Booneville, an institution for the trea t­
ment of tuberculosis, has now been 
closed. I t  goes without saying that pris­
on inmates who are active tuberculars or 
who have other infectious or contagious 
diseases must be segregated from other 
inmates, and the Court assumes that re­
spondents can and will work out methods 
whereby such segregation can be effect­
ed.

Kitchen and sanitary facilities at 
Tucker stand in serious need of im­
provement, and improvements are con­
templated. Improvements are also need­
ed at Cummins. The overcrowding of 
the barracks should be eliminated or 
mitigated, and there is a strong need for 
a minimum security unit at Cummins.

In the course of the hearings the 
Court heard some testimony involving 
complaints about clothing issues, and 
aftei the hearings were closed a number 
of inmates of Barracks No. 7 at Cum­
mins submitted a complaint about al­
leged insufficiencies of issues of under­
wear and about inadequate laundry fa­
cilities. The Court denied that petition 
summarily but stated tha t it would take 
up the m atter of clothing in this opin­
ion.

The Court does not find that clothing 
issues and issues of footwear are seri­
ously deficient. Of course, shortages of 
particular items occur from time to 
time, and laundry service may be defi­
cient from time to time. It might also 
be observed that a t  times inmates are 
careless with their clothing, and at times 
steal items of clothing from other in­
mates.

The deficiencies that have been men­
tioned and others like them call for

363 F



■nd excite-

ates, there 
ive serious 
which ren- 
y penal in- 
n, there is 
ug today, 
v the fact 
torium at 
the treat- 
iow been 
that pris- 
rculars or 
ontagious 
: om other 
s that re- 
t methods 
be effect-

ilities a t 
I of im- 
are con- 
iso need- 
vding of 
nated or 
need for 
ummins. 
ings the 
nvolving 
ies, and 
number 
it Cum- 
bout al- 
f under- 
idry fa- 
petition 
uld take 
is opin-

•lothing 
re scri­
nges of 
ime to 

i>e dofi- 
lit also 

■tea are 
I times 
her in-

a men- 
all for

HOLT v,
Cite ns 363 F.S

correction, but they are not such, in the 
Court s opinion, as to render confine­
ment today a t  either Cummins or Tuck­
er unconstitutional. The main problem 
at both institutions from a constitution­
al standpoint lies in prison adm inistra­
tion. The quality of the Department’s 
personnel at both institutions is serious­
ly deficient, and the Court is convinced 
that that deficiency lies a t  the root of 
most of the serious problems in the De­
partment.

Commissioner Hutto, A. L. Lockhart, 
Superintendent a t  Cummins, R. G. B r i t ­
ton, Superintendent a t Tucker, and some 
of their subordinates came to the De­
partment from the Texas Penal System. 
Cecil Boren, Associate Superintendent at 
Cummins, did not come from Texas and, 
indeed, was an employee of the Depart­
ment when C. Robert Sarver was Com­
missioner. Those four men, plus a very 
few others, make up the top echelon of 
the administration of the prisons; they 
aie, so to speak, the “management” of 
the institutions. Lower ranking em­
ployees grade down through tables of or­
ganization to the lowest grade of ordi­
nary guard.

With some reservations as to particu­
lar individuals, the Court finds tha t 
Messrs. Hutto, Lockhart, Britton, and 
Boren are qualified for their  jobs, and 
the Court thinks tha t up to a point a t 
least they are trying to do good jobs and 
to run an efficient, reasonably humane, 
and constitutional prison system.

The Court cannot say as much fol­
lower echelon personnel as a class. 
Those employees have in general been 
recruited locally; they are poorly paid 
by modern s tandards ; they have had lit­
tle training or experience; many of 
them are uncultured and poorly educat­
ed, some of them are quite young, per­
haps too young to be in position of 
authority over convicts; some of them 
are quick tempered. If one adjective is 
to be used to describe them, it  would be 
"unprofessional."

HUTTO
ll|>|>. 1!M (1073)

notwithstanding the fact that the inmate 
population of both institutions is ap­
proximately 50 percent black. There are 
very few black employees, and with one 
or two exceptions there are no blacks in 
positions of any real authority a t  either 
institution. Important as the Classifica­
tion Committees and Disciplinary Com­
mittees a t both institutions are, there 
has been, except for perhaps a few iso­
lated instances, no black representation 
on those Committees.

A prison s ta ff  and the population of 
the prison naturally react on each other. 
Ignoring distinctions between Cummins 
and Tucker, inmates of the Department 
are not only racially mixed; they also 
differ greatly in ages, cultural levels, 
dispositions, criminal records, intelli­
gence, education, training, and experi­
ence. Most of them, indeed the great 
majority of them, had extremely poor 
work records in the outside world. And, 
they have carried into the prisons with 
them the same weaknesses and deficien­
cies tha t they had in the outside world 
and that got them into prison in the 
f i rs t  place.

With particular, regard to the black 
inmates as a group, it is probably safe 
to say tha t they are drawn from the 
lower s tra ta  of the black population. As 
a class, they are neither well educated 
nor industrious; and they appear to be 
highly suspicious of those in authority 
over them. Some have difficulty in 
communicating intelligently, particularly 
under conditions of stress.

I-iom top to bottom the personnel of 
the Department are predominantly white

363 F Supp.—13*/?

The personnel tha t have been de- 
scribed and the inmate population that 
has been described are in day to day 
contact within the abrasive atmosphere 
of penal institutions. Given the quality 
of the personnel and the quality of the 
inmates, the contacts between them will 
inevitably produce friction, stress, un­
rest, and a t  times violence.

With certain exceptions to be men­
tioned the Court finds tha t  if the pre­
scribed rules and regulations of the De­
partment were in fact administered con­
scientiously and with reasonable effi-



363 FEDERAL SUPPLEMENT

ciencv and with appropriate supervision 
by higher echelon prison employees, it 
would not have any real constitutional 
problem with either Cummins or Tucker. 
Unfortunately, the Court is not able to 
find that the declared policies and pre­
scribed rules and regulations of the De­
partment are in fact being carried out 
conscientiously and effectively, and, on 
the contrary, the Court is persuaded 
tha t  the Department’s policies, rules, 
and regulations are not being carried 
out properly in some significant areas.

In other words, and subject to certain 
exceptions, the Court is convinced that 
today it  is dealing not so much with an 
unconstitutional prison system as with 
a poorly administered one. However, 
unconstitutionality can arise from poor 
administration of valid policies as well 
as from policies tha t  are constitutionally 
invalid themselves.

The Court will make no effort  here to 
discuss every problem that has arisen or 
conceivably may arise in the Department 
in the future. Rather, the Court will 
confine itself to certain specific serious 
problem areas. While institutional 
problems of constitutional significance 
fall into well defined categories, it  is 
necessary to keep in mind tha t  the cate­
gories are not mutually exclusive; they 
tend to overlap, particularly where race 
is involved.

II.

In this section of the opinion the 
Court will take up claims of racial dis­
crimination against black inmates,3 and 
the claim of Black Muslim inmates that 
they are subjected to additional discrim­
ination and oppression on account of 
the ir  religion. The Court will take up, 
first, the peculiar problems of the Black 
Muslims.

[1] (a) I t  is now thoroughly estab­
lished by judicial opinions too numerous

3. T h e re  is no s u b s ta n t ia l  evidence t h a t  the 
few Negro employees of t lie D ep a r tm en t  
p rac t ice  a n y  d iscrim inat ion  against,  white  in ­
mates.

to mention that the Black Muslims con­
fined in prisons in this country consti­
tute a religious sect and are entitled, 
within reasonable limitations dictated by 
the conditions of prison life, to the pro­
tection of the F irs t  Amendment as car­
ried over into the Fourteenth and by the 
Fourteenth Amendment itself. That 
means tha t  Black Muslims may not be 
discriminated against on account of 
their  religion, tha t they are not to be 
unreasonably restricted in the exercise 
or practice thereof, and tha t  a t least 
some accommodations must be made by 
prison authorities to some requirements 
and taboos of their professed religious 
belief.

There are a few Muslims in both 
Cummins and Tucker. Without any par­
ticular elaboration the Court finds that 
the Muslims at both institutions have 
some problems that are not without con­
stitutional significance. Their problems 
are mainly dietary in tha t  Muslims are 
forbidden by their religion to consume 
pork in any form. While the Muslims 
are not required to eat pork as such, a 
good deal of the food served at  both in­
stitutions is cooked in pork grease or 
fat, and the Muslims cannot always tell 
what dishes they can eat on a given day 
without offending the dietary require­
ments of their  faith. The Court also 
finds tha t  there are some restrictions on 
the number and places of Muslim meet­
ings which do not exist with respect to 
other religious groups who are repre­
sented in the prison population. And 
the Court also finds tha t Muslims are 
not permitted to use the Christian chap­
el a t Tucker, and that, a t  least a t Tuck­
er, Muslim meetings must be attended 
by the prison chaplain who is a black man 
but who is also a Christian. The Court 
still fu r ther  finds tha t for a time at 
least lists of inmates who attended Mus­
lim meetings were kept and turned over 
to the Federal Bureau of Investigation.1

4. T h e  C o u r t  doubts  th a t  such l ists are now 
being kep t  in view of the f a c t  th a t  accord­
ing to the media the  W ash ing ton  headquar­
te rs  of the  F . l ’.I.  denied following the

'1 
on 
crii 
Foi 
the 
ten, 
the 
and 
wit: 
met 
mai 
the 
of t 
the 
mil: 
the 
rea 
a t it

T
al t
due
Coi:
dou
cla.'
be
the
thai
in
no
plai
or
con.
mui
or i
plai
the

(! 
tioi 
stri 
the 
was 
tiali 
iste 
The 
son i 
Bui.

Co 
l in 
«i.'i



dims con- 
ry consti- 

entitled, 
ctated by 
i the pro- 
ut as car- 
nd by the 
f. That 
i.v not be 
count of 
.iot to be 

exercise 
a t  least 
made by 

uirements 
religious

in both 
L any par- 
'inds tha t 
ons have 
hout con- 
problems 

islims are 
> consume 

Muslims 
is such, a 
t both in- 
urease or 
Iways tell 
given day 
• require- 
ourt also 
ictions on 
dim meet- 
respect to 
ire repre- 
on. And 
slims are 
tian chap- 

a t Tuck- 
attended 

Ulack man 
the Court 
i time at 
uded Mus- 
irncd over 
itigation.1

HOLT v. HUTTO 203
Cite ns 303 F .Supp. 1!H (1973)

The Court does not find that the pris­
on administration has intentionally dis­
criminated against Muslims as such. 
For example, denial to the Muslims of 
the use of the chapel a t Tucker is a t ­
tempted to be justified by reference to 
the small number of Muslims at Tucker 
and to security problems in connection 
with guarding a small number of people 
meeting in a building tha t  is outside the 
main prison compound. It appears to 
the Court tha t  some of the difficulties 
of the Muslims are due to the fact tha t  
the prison authorities are simply not fa ­
miliar with Muslim problems, and that 
the administration is prepared to meet 
reasonable Muslim requests for consider­
ation.

The Court is going to enjoin in gener­
al terms discrimination against the un­
due restrictions upon the Muslims. The 
Court will say, however, that the Court 
doubts tha t as of today the Muslims as a 
class have any real problems that cannot 
be disposed of administratively. And 
the Court will observe in this connection 
that since the hearings were concluded 
in January of this year it  has received 
no more than a very few Muslim com­
plaints emanating from either Cummins 
or Tucker except a number tha t have 
come from Negro inmates of the maxi­
mum security unit a t Cummins who are 
or claim to be Muslims, and whose com­
plaints about religious discrimination 
the Court considers to be baseless.

(b) In years prior to 1967 the popula­
tion of both Cummins and Tucker was 
strictly segregated from top to bottom on 
the basis of race. By 1970 when Holt II 
was decided, segregation had been essen­
tially eliminated at Tucker but still ex­
isted in large measure a t Cummins. 
The Court discussed the problem in 
some detail in Ilolt II, supra, 309 F. 
Supp. at 381-382, and ordered it  elimi­

nated to the extent tha t it still existed 
in that institution.

The Court finds tha t as of now the 
populations of both institutions are fully 
desegregated, except tha t inmates of the 
maximum security unit a t  Cummins are 
still assigned to racially segregated 
cells.5 Desegregation cf the barracks 
has been accomplished without the crea­
tion of any problems in the areas of se­
curity and discipline, and the Court can­
not accept the argument put forward by 
respondents that members of both races 
cannot dwell peaceably together in the 
cells in the maximum security unit. 
And it should be pointed out in this con­
nection that not all of the inmates of the 
unit have been put there for disciplinary 
reasons.

[2 ,3]  This is not to say, of course, 
tha t  there may not be some inmates, 
whether white or black, who cannot 
safely be confined in a cell with a mem­
ber or members of the other race. In 
such cases the Constitution does not re­
quire assignment to integrated cells. 
Lee v. Washington, 1968, 390 U.S. 333, 
334, 88 S.Ct. 994, 19 L.Ed.2d 1212. But 
the existing general policy of racial 
segregation in the maximum security 
cells cannot be approved and must be 
brought to an end.

Respondents will be directed forthwith 
to consider the situations of all inmates 
now in the unit and determine on an in­
dividual basis which of those inmates, if 
any, cannot safely be put in a cell with a 
member of the other race. The rest of 
the inmates presently confined in the 
unit are to be assigned to cells on a non- 
racial basis.

No present or fu ture  inmate of the 
unit is to be assigned to a cell on the ba­
sis of race unless the Superintendent of 
the institution personally finds in w rit­
ing and with a statement of supporting

is a re  now 
Mint aecortl- 
i hendquar-

: lowing the

Court’s November l!)7l! hear ings t h a t  it  w as 
lhireau |H>liey to require  the  keeping ami 
delivery of sueli lists.

necessary  to confine more than  two men to 
the same cell. T h e re  art* no s e p a ra te  cells 
in tin* b a r ra c k s  where  inm ates  in general 
imputation reside.



a n a  - — i a a i i i

363 FEDERAL SUPPLEMENT

reasons that the inmate in question 
should not be confined in an integrated 
cell; such finding is to be made a part 
of the inmate’s prison record.

(c) Passing on to the more general 
problem of racial discrimination in such 
fields as inmate classifications, job as­
signments, personal appearance, privi­
leges, and prison discipline, the Court 
will say f irs t  that the prison rules and 
regulations do not authorize racial dis­
crimination against inmates and, in fact, 
prohibit it in the field of language used 
in addressing inmates. On the other 
hand, the Employee Handbook (Defend­
an ts’ Exhibit 4031) which is issued to 
all employees of the Department and 
which spells out the Department’s rules 
and regulations as to employee conduct, 
does not in terms prohibit racial dis­
crimination in the areas now being dis­
cussed. Perhaps the author or authors 
of the Handbook did not consider such 
prohibition to be necessary.

[4] Actually, however, it  makes no 
real difference what the Handbook says 
or does not say. Racial discrimination 
between convicts in any form which it 
may take is unconstitutional and must 
be eliminated to the extent tha t  i t  exists.

Racial discrimination can be overt and 
ingenuous, and tha t  type of discrimina­
tion is easy to detect and ought to be 
easy to eradicate. On the other hand, 
such discrimination may be covert, sub­
tle, or even unconscious. That kind of 
discrimination is extremely hard to es­
tablish and may be extremely hard to 
get rid of. The problem is complicated 
by the fact tha t the appearance of racial 
discrimination may be present even if 
the reality is not, and until such appear­
ance is eliminated to the greatest extent 
possible, race relations in a prison will 
not be good.

As has been seen, the proportions of 
blacks and whites in both institutions 
arc ju s t  about equal. It must be recog­
nized, however, tha t the general educa­
tional, vocational, and cultural levels of 
the black inmates as a class arc substan­
tially lower than the corresponding lev­

els of the white inmates. And it is pos­
sible that black inmates confined in an 
integrated institution which is adminis­
tered by white personnel may create ad­
ministrative problems disproportionate 
to their  numbers.

The Court does not find from the evi­
dence tha t any open or gross discrimina­
tion against black inmates exists a t  ei­
ther Cummins or Tucker, except to the 
extent tha t the maximum security cells 
are still segregated. But the Court is 
not a t all sure that there is not some 
covert discrimination in the areas of 
classifications, job assignments, and 
punishments.

With particular regard to punish­
ments, the Court does not have before it 
a substantial body of statistical material 
relating to Tucker, but it  does have 
monthly operating reports from Cum­
mins covering the months of June 
through November, 1972, and the last of 
those reports (Defendants’ Exhibit 
3018) also contains information covering 
the f irs t  eleven months of tha t year.

A consideration of those reports leads 
the Court to conclude that a black in­
mate accused of a disciplinary violation 
is as likely to be found not guilty or to 
receive a mild sentence as is a white in­
mate. But when we come to severe pen­
alties, such as reductions in classifica­
tion, adverse changes in job assign­
ments, loss of good time, and confine­
ment in punitive isolation, the Court is 
impelled to the view that a black inmate 
is more likely than a white inmate to be 
subjected to such penalties, and if he 
is sentenced to punitive isolation, he is 
likely to stay there longer than is a 
white inmate.

That black inmates may receive more 
severe sentences than white inmates 
does not necessarily justify  the infer­
ence tha t white members of Disciplinary 
Committees are intentionally discrimi­
nating against blacks in the area of 
prison discipline. As has been suggest­
ed, black inmates in the environment of 
Cummins and Tucker may as a class 
present more serious disciplinary prob­

lem
des
the
in \
cial
don
fen
plii
acts
on
on
scio
ruli
whi
erir:

I
me i 
be i 
to . 
mat 
fieri 
moi 
Sec' 
com 
be t 
ma> 
tael 
thu 
tasl 
of i

\\ 
the 
clas 
al r 
inte 
Am 
lowi 
cult 
squ; 
as i 
sigi

0
per;
Cla:



Mu

'nd it is pos- 
, "fined in an 
i is adminis- 
i.v create ad- 
roportionate

rom the evi- 
discrimina- 

■xists a t  ei- 
<cept to the 
curity ceils 

he Court is 
s not some 
c areas of 
• ents, and

lo punish- 
e before it 
al material 
does have 
rom Cum- 

of June 
the last of

Exhibit 
n covering 
year.

'orts leads 
hlack in­
violation 

lilty or to 
white in- 

"vere pen- 
dassifica- 
b assign- 
I confine- 
' Court is 
k inmate 

iate to be 
nd if he 

'•on, he is 
ian is a

ive more 
inmates 

a; infer- 
dp linary  
liscrimi- 
arca of 
suggest- 
iment of 

a class 
> y prob­

lems than do whites as a class and may 
deserve more severe penalties, although 
the Court does not so find. Moreover, 
in view of long held and deep seated ra ­
cial attitudes, words or acts, if  said or 
done by blacks, may be simply more of­
fensive to some white members of disci­
plinary panels than are similar words or 
acts of white convicts. And white pris­
on administrators sitting in judgment 
on black inmates actually may not con­
sciously be aware tha t their  reactions to 
rule violations by blacks, as opposed to 
whites, may constitute a form of dis­
crimination against the former.

Looking a t  the question of job assign­
ments, there are two things tha t  must 
be recognized. First, it is probably safe 
to say that the majority of black in­
mates a t both institutions a re  not quali- 
lied to do anything but work involving 
more or less arduous physical labor. 
Second, from an inmate’s standpoint a 
comparatively low status -job may 
be easier than a job of higher s ta tus or 
may have some fringe benefits not a t ­
tached to a more highly rated job and 
thus more desirable than some other 
task which the inmate might be capable 
of performing.

When those things are borne in mind, 
the Court cannot find tha t blacks, as a 
class, are intentionally assigned to meni­
al or disagreeable jobs while whites are 
intentionally assigned to “better” jobs. 
And if one looks at what is probably the 
lowest prison job, namely, manual ag r i­
cultural labor as a member of a “hoc 
squad”, the Court concludes that about 
as many white inmates as blacks are as­
signed to such jobs.

HOLT v. HUTTO
nsSli.'! l\S 'll|i|i. HU (!!)T.'(I

On the other hand, the Court is not 
persuaded that the white members of 
C lassification Committees are doing as 
much as they could and should to classi­
fy inmates and to assign them to work 
on the basis of qualifications. It would 
appear to the Court tha t Negroes should 
occupy some job slots that they arc not 
now occupying, and that certain catego­
ries of jobs should have more than their 
present number of ' lack assignees.

Apparent racial inequities in punish­
ments, job assignments, and other as­
pects of prison life relate not only to the 
actual existence of racial discrimination 
but also to the appearance of such dis­
ci imination. And it should be obvious 
that apart  from any question of consti­
tutional law black inmates will make a 
better adjustment to prison life and will 
conform better to prison routine and re ­
quirements if they believe affirm ative­
ly that members of their  race are being 
tieated fairly and without discrimina­
tion on account of race.

The Court’s previous decrees will be 
supplemented so as to enjoin racial dis­
crimination in any form and in all areas 
of prison life. However, the Court is 
not willing to leave this subject without 
some suggestions to respondents as to 
what can and should be done to alleviate 
the racial situation in the Department.

To s ta r t  with, existing prison rules 
about employee language should be en­
forced rigorously and higher echelon 
personnel should set an example to their 
subordinates.

Second, positive rules prohibiting ra ­
cial discrimination should be formulated 
and published. Employees a t  all levels 
must be made familiar with those rules, 
and must be made to realize that if they 
want to keep their jobs, they must abide 
by the rules.

Third, and this is extremely impor­
tant, more black employees should be re- 
ciuited, and blacks should be assigned to 
meaningful positions of authority, in­
cluding assignments to Classification 
and Disciplinary Committees.

[5] Not any of those things will be 
easy to accomplish, and the accomplish­
ment of the third one may be the most 
difficult of all. The Court realizes that 
qualified blacks who are willing to fill 
positions of responsibility and authority 
in prison administration may be in short 
supply. Other more appealing positions 
are open to them in today’s society. But, 
the difficulty of hiring qualified blacks 
should certainly not deter respondents 
from try ing to do so.



206 363 FEDERAL SUPPLEMENT

III.
The Court considers next the question 

of the constitutional acceptability of the 
disciplinary procedures employed in the 
Department with respect to inmates who 
violate prison rules, or who refuse to 
work, or who loiter a t their  tasks. The 
racial aspect of prison disciplinary pro­
cedures in the Department has been ex­
amined already and will not be referred 
to in this section of the opinion.

All inmates upon entering the Depart­
ment are exposed to a period of “orien­
tation,” and are furnished with an In­
mate Handbook. A copy of tha t  Hand­
book, revised to November 1, 1972, is in 
the record as Defendants’ Exhibit No. 
4023.®
The Handbook, among other things, ad­
vises the inmate of the types of conduct 
tha t may bring on disciplinary proceed­
ings against him, the punishments tha t 
may be imposed, and disciplinary proce­
dures th a t  are to be followed if  charges 
are filed. There are 25 listed offenses 
and 11 possible punishments which may 
be imposed singly or in combination.

Some of the sentences are relatively 
mild; others are quite severe. The se­
vere penalties include loss of good time, 
reduction in classifications, extra duty, 
job changes, and confinement in puni­
tive isolation. Another severe penalty is 
a postponement of an inmate’s appear­
ance before the Board of Pardons and 
Paroles for a period of not less than 
three nor more than six months.

Each of the two units of the Depart­
ment has a Disciplinary Committee con­
sisting of four men; however, the Com­
mittees may and usually do sit in panels 
of three. Each Committee has a Chair­
man and a Vice Chairman and two ordi­
nary members who may be replaced 
from time to time. The Assistant Su­
perintendent of the institution is Chair­
man of the Committee, and the Chief 
Security Officer of the institution is the 
Vice Chairman. A Shift Supervisor, Se­

curity, serves as one ordinary member, 
and a member of the treatment s ta ff  of 
the institution serves as the other ordi­
nary member.

The rules provide tha t  an inmate 
charged with a violation is to be brought 
before the Committee and is to be a f­
forded an opportunity to give his ver­
sion of the episode leading up to the 
charge. Other witnesses may be called 
in the discretion of the Committee. The 
inmate is not entitled to representation 
at the hearing, and he is not in terms 
accorded any r ight of confrontation or 
any right to call witnesses to testify in 
his own behalf.

After the Committee concludes a day’s 
work, it reports its actions to the Super­
intendent for approval. If  che Superin­
tendent notes his approval, the report is 
forwarded to the Commissioner. While 
the Superintendent is required to ap­
prove the actions of the Committee, it 
does not appear to the Court tha t  he is 
required to review specific actions taken 
by the Committee, although the Court is 
sure tha t he does so in some instances.

An inmate who is. dissatisfied with a 
decision of the Committee may appeal in 
writing to the Superintendent and from 
him to the Commissioner. I t  is pro­
vided, however, tha t if the inmate wil­
fully and knowingly makes false state­
ments in connection with an appeal, or 
wilfully tries to mislead or deceive the 
Superintendent or the Commissioner, his 
action in itself constitutes a major disci­
plinary offense.

The proceedings of the Committee in 
a given case are reflected in a document 
entitled “ Disciplinary Report.” The 
Court has seen quite a number of those 
reports which are made on mimeo­
graphed forms. The forms identify the 
accused inmate, identify the offense and 
the employee filing the charge. There 
is a space entitled “Offense in Detail.” 
That space is filled out by the charging 
employee and signed by him. Next 
comes a much narrower space entitled

6. 8ueh a handbook may be o£ little or no value to an illiterate inmate or to one with a lim­
ited ability to read.

“St;i
It i-
pern
mon
stab
comt
may
that
ther
char
attit
coop
the <
decis
tenc.
and
Chai

[6 
Circi 
as t< 
quirt 
char; 
is in 
er, 8 
son \ 
It is 
titlet 
all oi 
fordi 
a pet 
nal t 
e n t i t ; 
agaii 
have 
passi 
he n 
tial” 
a cri 
"imp

Th 
selvc 
Cour 
Comr 
weigl 
term, 
obsei 
hers 
mild 
vast 
ciplii 
the n 
in th.



207

inary member, 
itment s ta ff  of 
the other ordi-

iat an inmate 
is to be brought 
id is to be af- 
> give his ver- 
ling up to the 

.< may be called 
ommittee. The 

:> representation 
s not in terms 

onfrontation or 
es to testify in

oncludes a day’s 
us to the Super- 
If the Superin- 

al, the report is 
issioner. While 
•equired to ap- 

Committee, it 
’ourt tha t  he is 
ric actions taken 
igh the Court is 
some instances, 
satisfied with a 
■e may appeal in 
ndent and from 
icr. It is pro- 
the inmate wil- 
ikes false state- 
h an appeal, or 

. d or deceive the 
ommis3ioner, his 
es a major disci-

he Committee in 
ed in a document 

Report.” The 
number of those 
ade on mimeo- 
ums identify the 
. the offense and 
a charge. There 
' fense in Detail.” 

by the charging 
by him. Next 

or space entitled

to one with a liiii-

i

4

V

J

t

i
i
f

■ f

HOLT
Cite n s  u(J3 1*\S

“Statement of Inmate to Committee.”
It is not clear whether the inmate is 
permitted to fill this space out himself; 
more probably, the substance of his 
statement, if any, is written down by . a 
committee member; the inmate may or 
may not sign the statement. I t  appears 
that an inmate is required to plead ei­
ther “Guilty” or “Not Guilty” to the 
charge. The report notes the inmate’s 
attitude as being either cooperative, un­
cooperative, or hostile. The members of 
the Committee are then identified. The 
decision of the Committee and the sen­
tence imposed are shown on the report, 
and the document is signed by the 
Chairman and by the Superintendent.

[6] As the Court of Appeals for this 
Circuit has recently pointed out, the law 
as to what procedural due process re­
quires with respect to a prison inmate 
charged with a violation of prison rules 
is in a state of flux. Remmers v. Brew­
er, 8 Cir., 1973, 475 F.2d 52, 54; Dod­
son v. Haugh, 8 Cir., 1973, 473 F.2d G89. 
It is clear tha t such an inmate is not en­
titled to a full fledged judicial trial or to 
all of the guarantees and protections a f­
forded by the Fourteenth Amendment to 
a person charged in court with a crimi­
nal offense. On the other hand, he is 
entitled to be advised of the charge 
against him, and to be heard, and to 
have his case considered seriously, dis­
passionately, and objectively, although 
he naturally cannot expect an “ impar­
tial” fact finding body in the sense tha t 
a criminal defendant is entitled to an 
"impartial” jury.

The Department’s procedures them­
selves are probably not ideal, and the 
Court is troubled by the fact tha t the 
Committees seem to be ra ther  heavily 
weighted in favor of what may be 
termed the “prosecution.” It should be 
observed, however, tha t substantial num­
bers of inmates are acquitted or receive 
mild punishments, and that probably the 
vast majority of inmates accused of dis­
ciplinary violations are guilty, just  as 
the majority of persons accused of crime 
in the outside world are guilty.

v. HUTTO
i|>. 191 (1973)

[7] The Court thinks tha t  the proce­
dures in question would pass constitu­
tional muster if they were properly ad­
ministered, and if the Committees were 
willing to spend some time on individual 
cases and to make considered, ra ther 
than perfunctory, determinations of 
guilt or innocence, would make clear to 
the accused what the charges against 
him are, and what his rights are, and 
what the consequences of conviction may 
be, and would adopt an attitude tha t 
would encourage an accused inmate to 
state his side of the case, i f  he has one.

Unfortunately, the procedures are not 
so administered. On the contrary, in a 
given case the Committee tends to act 
summarily and in a very short space of 
time, and it  may display an attitude of 
hostility toward the inmate calculated to 
intimidate him and suppress his version 
of the incident involved.

The Court is under the impression 
that disciplinary hearings frequently are 
held a t night, and if the Court is correct 
in tha t impression, the night sessions 
may be par t  of the trouble with the ad­
ministration of the procedures. Some or 
perhaps all of the members of the disci­
plinary panel probably have been work­
ing all day, and they want to go home. 
That is understandable, but it  does not 
contribute to the proper administration 
of prison justice.

[8] The Court is going to issue 
three directives in this area: (1) The 
rules provide tha t  the Committees are to 
perform their  functions “as quickly as 
possible.” The Court is going to make 
that requirement more specific by re­
quiring that in cases other than highly 
exceptional an accused inmate must be 
given a hearing within 72 hours after  
the occurrence of the disciplinary epi­
sode. In exceptional cases limited exten­
sions of time may be granted by the re­
spective Superintendents. (2) Insofar 
as possible hearings are to be conducted 
between the hours of G A.M. and 6 P.M. 
I t  occurs to the Court tha t this will not 
only improve administration of the pro­
cedures but may also suggest to respond­
ents tha t  the Committees be restruc-



363 FEDERAL SUPPLEMENT

tured so as to include more noncustodial 
personnel who may be available during 
ordinary business hours but not a t 
night. (3) All hearings must be report­
ed in such manner that if the occasion 
arises a reviewing authority, including a 
court, may determine exactly how much 
time was taken at the hearing and es­
sentially what was said and done by the 
individuals involved. This means, of 
course, that the tapes or transcripts of 
the hearings must be preserved for at 
least a reasonable time a f te r  the hear­
ings take place.

With regard to the reporting of disci­
plinary proceedings the Court is advised 
that as of the present time disciplinary 
proceedings are being taped, and that 
tape recordings are also being made of 
certain types of interviews of prison of­
ficials with inmates. Assuming of 
course tha t the recordings are complete 
and accurate, the practice should be of 
value in dealing with inmate complaints 
about disciplinary proceedings and cer­
tain other types of inmate complaints.

As mentioned, one of the punishments 
tha t may be imposed on an inmate is 
confinement in isolation. At Tucker 
that confinement is in individual cells 
tha t were used for years for the confine­
ment of persons convicted of capital of­
fenses and condemned to die. At Cum­
mins the confinement is in cells in the 
maximum security unit. The Court 
finds tha t the cells are not overcrowded, 
tha t they are properly lighted and venti­
lated, and that confinement in them does 
not constitute any violation of the 
Eighth Amendment’s prohibition of 
cruel and unusual punishments. As in 
years past, convicts confined in isolation 
have a restricted diet consisting of a 
food substance known as “grue,” which 
is nourishing but tasteless; however, a 
convict confined in isolation receives a 
regular meal every third day. In earlier 
stages of the litigation the Court con­
cluded tha t  "g rue” is not unconstitu­
tional, and it  adheres to tha t view.

Before leaving this phase of the case, 
the Court desires to comment briefly on

conditions of confinement in the maxi­
mum security unit in general. An in­
mate is placed in the unit either as a 
disciplinary measure, or for his own 
piotection, or for purposes of “adminis­
trative segregation.” While it appears 
to the Court tha t some of the conditions 
of confinement in the unit are perhaps 
somewhat more rigorous than may be 
absolutely necessary, the Court does not 
find tha t  those conditions are such as to 
render confinement in the unit unconsti­
tutional.

A word needs to be said about the 
quiet” cells in the maximum security 

unit. Those cells which are soundproof 
are located in the middle of the build­
ing; each one of them has a double 
door; when the outer door is closed, the 
inmate is in complete darkness. The 
cells are essentially devoid of furniture 
and fix tures; bedding is not supplied. 
As the Court recalls, there was a some­
what excessive use of the quiet cells 
soon a f te r  the maximum security unit 
was activated, but the Court finds that 
as of now the cells are not used exces­
sively or in an inhumane manner. Use 
of the cells is limited to violent inmates 
who cannot be controlled in any other 
manner, and usually an inmate’s stay in 
a quiet cell is quite brief. Further, it 
is not uncommon for an inmate to be 
placed in a quiet cell without being 
placed in darkness; the outer door of 
the cell is simply left open.

One problem in the field of discipli­
nary procedures that calls for comment 
arises out of the fact that a t times it is 
necessary for purposes of discipline and 
good order to transfer  young inmates 
from Tucker to Cummins, and a t  times 
emergency situations arise in which it 
appears necessary to the authorities at 
Tucker to move a young inmate or 
young inmates immediately. The Court 
has no trouble with such transfers, in­
cluding emergency transfers, because 
the Court knows that young convicts can 
and frequently do present serious disci­
plinary and other problems and at times 
are more violent and irresponsible than



M. —J l*

'nt in the maxi- 
general. An in­
unit either as a 
ur for his own 
ses of “adminis- 
vVhile it  appears 
” f the conditions 
init are perhaps 
is than may be 
■ Court does not 
is are such as to 
•c unit unconsti-

said about the 
ximum security 
are soundproof 

le of the build- 
i has a double 
or is closed, the 
darkness. The 
■id of furniture  
s not supplied, 
re was a somc- 
the quiet cells
0 security unit 
ourt finds that 
iot used exces- 
• manner. Use 
violent inmates
1 in any other 
imate’s stay in 
f. Further, it

inmate to be 
without being 
outer door of

'Id of discipli- 
-i for comment 
1 a t  times it is 

discipline and 
oung inmates 

. and a t  times 
e in which it 
authorities at 
ig inmate or 

The Cou rt 
transfers, in­
fers, because 
>r convicts can 
serious disci* 

i and a t  times 
ponsible than

HOLT v. HUTTO 209
Citons* 303 F .S u p p . 10-1 (1073)

older convicts. What does trouble the 
Court is what happens to a young in­
mate after he goes to Cummins.

Evidence taken in November of last 
year described an illustrative case. In 
early 1972 authorities a t  Tucker had 
cause to believe tha t  a number of youths 
confined there were planning to incite a 
riot or promote a sit  down strike. This 
information was obtained during the 
late afternoon or night of a particular 
day, and the riot or sit down strike was 
supposed to take place the next morning. 
The young men were summarily moved 
in the night time from the one institu­
tion to the other, and at the time of the 
November hearing one of them was still 
there.

There are educational and vocational 
facilities at Tucker tha t are not availa­
ble at Cummins, and many of the in­
mates of Cummins are hardened crimi­
nals with whom a youth of comparative­
ly tender years should not be confined 
any longer than reasonably necessary. 
As has been pointed out, there is as yet 
no minimum security unit a t  Cummins, 
and young convicts sent down from 
Tucker have to be confined either in the 
maximum security unit or in the bar­
racks among the general prison popula­
tion. Confinement in neither place is 
desirable for a young convict, and it  is 
hard to tell which is worse.

The Court finds tha t prior to the No­
vember hearing there was no set policy 
with respect to getting young trans­
ferees back to the milder regime at 
Tucker, and that nobody seemed to care 
particularly whether or when a young 
transferee was retransferred. That sit­
uation gave the Court a serious problem, 
particularly in view' of the contention of 
counsel tha t  a young Arkansas convict 
has a constitutional r ight not to be un­
reasonably deprived of opportunities for 
improvement tha t exist a t Tucker.

Following the November hearings 
Commissioner Hutto issued a Policy 
Memorandum which addressed itself to 
the problem. The Memorandum pro­
vides in substance tha t in other than

363 F.Supp.—14

emergency situations inmates are not to 
be transferred  from Tucker to Cummins 
without a hearing before the Tucker 
Disciplinary Committee or the Tucker 
Classification Committee, or both, and 
tha t  a f te r  prisoners reach Cummins 
the ir  cases are to be evaluated every 90 
days by the Cummins Classification 
Committee with the end in view of get­
ting them back to Tucker as soon as pos­
sible. If  a Tucker inmate is transferred  
in an emergency situation, he is entitled 
to a hearing before the Cummins Classi­
fication Committee within 72 hours of 
his arrival a t Cummins. All t ransfer  
and retransfer  decisions may be appeal­
ed to the Commissioner by the affected 
inmates.

[9] . Subject to one qualification the 
Court finds tha t  the Commissioner’s 
Memorandum appears to solve the prob­
lem satisfactorily. The Court does not 
think the Cummins Classification Com­
mittee should wait 90 days before re­
viewing the case of a transferree be­
cause it  may not take the transferee 90 
days to realize the error of his ways and 
to become ready to behave himself if 
sent back to Tucker. The Court thinks 
tha t  the f irs t  evaluation should be not 
later than two weeks af te r  the trans­
feree arrives a t Cummins, and tha t  a 
second evaluation should not be later 
than 30 days af te r  the f i rs t  one. If by 
tha t  time the transferee is not ready to 
go back to Tucker, the Court thinks tha t 
later evaluations a t 90 day intervals are 
adequate.

The Commissioner will be directed to 
amend his Memorandum accordingly. 
Of course, it  goes without saying that 
authorities a t  Cummins will take proper 
precautions for the safety of young 
transferrees while they are confined at 
Cummins.

IV.

Before discussing claims of abuse of 
inmates, the Court will take up the ques­
tion of the validity of institutional rules 
governing inmate correspondence, a 
question tha t  actually is of interest to

v



210 363 FEDERAL SUPPLEMENT

only a small number of inmates who de­
sire to engage in correspondence of 
which the Department disapproves..

[ 10—12J As the Court understands
the state of the law in this field today, a 
prison inmate has a practically unre­
stricted right to correspond privately 
with courts and with his attorney. His 
r ight to correspond generally with peo­
ple in the outside world is by no means 
so unfettered; tha t r igh t is subject to 
reasonable regulation and restriction. 
However, the r ight of prison authorities 
to control and regulate inmate corre­
spondence of a general type is not as 
broad as it  was considered to be in prior 
years. Today, prison restrictions on in­
mate correspondence must be related to 
a legitimate institutional interest, and at 
times the validity of a given restriction 
must be determined by balancing the in­
terest of the institution in maintaining 
it against the interest of the inmate in 
being free from it. See e. g. Woods v. 
Yeager, 3 Cir., 1972, 4G3 F.2d 223; 
Goodwin v. Oswald, 2 Cir., 1972, 462 F. 
2d 1237; Wilkinson v. Skinner, 2 Cir., 
1972, 462 F.2d 670; Moore v. Ciccone, 8 
Cir., 1972, 459 F.2d 574; Burns v. 
Swenson, 8 Cir., 1970, 430 F.2d 771; 
Lee v. Tahash, 8 Cir., 1958, 352 F.2d 
970; Carey v. Settle, 8 Cir., 1965. 351 
F.2d 483.

Under the rules of the Department ap­
pearing a t  Pages 42-44 of the Inmate 
Handbook as supplemented by a later 
Policy Memorandum, inmate correspon­
dence is divided into three classes, privi­
leged, general, and special purpose. The 
principal complaints in this area go to 
the rules relating to general correspon­
dence. No attack is made on the rules 
relating to special purpose correspon­
dence, and the attack on the privileged 
correspondence rules is limited.

Taking up, first, the attack on the 
privileged correspondence rules the 
Court finds tha t all outgoing inmate 
mail to judges, court officials, lawyers, 
and certain other categories of addressees 
can be sent out of the institutions 
sealed; such letters are not opened, in­

spected, or read. Incoming privileged 
correspondence, with certain limited ex­
ceptions, including letters from the fed­
eral courts, is subject to being opened 
and inspected for contraband, principally 
money tha t  an attorney, unfamiliar with 
prison rules, might undertake to send to 
his client.

The specific complaint about privi­
leged correspondence with which the 
court is concerned is that, as ju s t  stated, 
incoming letters from lawyers may be 
opened. The Court does not consider 
that any lawyers of common sense would 
put anything in a letter to a  convict 
client tha t the lawyer did not want to be 
read by prison authorities, but the Court 
can easily see how a lawyer might mail 
his client a check, money order, or cur­
rency. I t  has long been prison policy to 
prohibit inmates from having in their 
possession what is called “ free world” or 
"green” money. The reasons for the 
prohibition are obvious. An inmate 
with currency in his possession may be 
the subject of attack by other inmates; 
an inmate with funds is in a better posi­
tion a f te r  escape than an inmate who has 
no money; the money in the possession 
of an inmate may be used to bribe guards 
or other prison employees.

[13J The Court thinks that the rule 
in question is a reasonable one, and with 
one modification the Court approves it. 
The modification is tha t if prison au­
thorities desire to open and inspect the 
contents of a letter to an inmate from a 
lawyer, they should do so in the presence 
of the inmate so tha t he will know’ that 
the letter has not been read. Compli­
ance with this requirement should not be 
unduly burdensome.

The Court finds it unnecessary to de­
scribe all of the Department’s rules deal­
ing with general correspondence. They 
are doubtless stricter than those that 
prevail in some jurisdictions and doubt­
less more liberal than those that prevail 
in others. In general, they closely track 
the recommendations of the Association 
of State Correctional Administrators 
which appear in a bulletin or handbook 
entitled “Uniform Correctional Policies

& Procedui 
tha t  Commi 
of tha t  Asso

Two prov 
spondence 
First, comp
correspondc 
ed, and in i 
plaint is m: 
dence bein; 
names appe 

i which are s 
Department

As to c 
spondents > 
i-eason to ■

I for contral 
ble with 

! w’hich com1 
j to the p< 

smuggle si 
| cannot be j

Howevei 
send out s 
correspond 
sibility th 
the opport 
counsel wi 
criminal c 
spondents 
all outgo 
Court is s 
nel do not 
they even 
outgoing 
reserve t! 
stances v 
tha t  a let 
present ii 
institutio

[14j
pcrmittii 
reading 
dence is 
tional.

The at 
ment ha 
tended t 
tutional 
spondeiv 
proved



privileged 
limited ex- 
tti the fed- 
;ng opened 
principally 

miliar with
■ to send to

out privi- 
which the 
just stated, 
rs may be 

■it consider 
ense would

■ a convict 
want to be 
t the Court 
might mail 
’er, or cur- 
n policy to 

ig in their
■ : world” or 
ns for the 
\n  inmate 
on may be 
r inmates; 
letter posi- 
te who has 
possession 
ibe guards

at the rule 
and with 

pproves it. 
prison au- 
iaspect the 
mte from a 
ie presence 
know that 

1. Compli- 
ould not be

sary to de­
rules deal- 

nce. They 
those tha t 
and doubt- 
hat prevail 
•osely track 
Association 
.iniatrators
■ handbook 
ml Policies

& Procedures.” The 
that Commissioner Hutto is a member 
of that Association.

Two provisions of the general corre­
spondence rules are .attacked h e re : 
First, complaint is made that outgoing 
correspondence may be opened, inspect­
ed, and in instances read. Second, com­
plaint is made about general correspon­
dence being limited to persons whose 
names appear on individual mailing lists 
which are subject to the approval of the 
Department.

As to outgoing correspondence, re­
spondents concede that there is no real 
reason to examine such correspondence 
for contraband. The Department’s trou­
ble with contraband relates to tha t 
which comes into the prison ra ther  than 
to the possibility tha t  inmates will 
smuggle something out. Thus, the rule 
cannot be justified on tha t  basis.

However, if an inmate is.permitted to 
send out sealed and unexamined general 
correspondence, there is always the pos­
sibility tha t he will take advantage of 
the opportunity to plot an escape or to 
counsel with the addressee about outside 
criminal conduct. It is evident tha t re­
spondents do not claim any r igh t to read 
all outgoing correspondence, and the 
Court is sure tha t the mail room person­
nel do not do so. The Court doubts tha t 
they even examine a great many of the 
outgoing letters. The Department does 
reserve the r igh t to read letters in in­
stances where there is reason to believe 
that a letter may constitute a “clear and 
present danger” to the security of the 
institution.

[14] The Court finds that the rule 
permitting the examination and limited 
reading of outgoing general correspon­
dence is reasonable and not unconstitu­
tional.

The attack on the mailing list require­
ment has three aspects. First, it  is con­
tended that respondents have no consti­
tutional right to limit the general corre­
spondence of an inmate to persons ap­
proved by the Department and whose

HOLT v. HUTTO 211
Cite as 303 r.Snpp. 101 (1073)

Court observes names appear on the inmate’s mailing 
list. Second, complaint is made tha t  be­
fore approving persons for inclusion on 
a mailing list, the Department sends a 
questionnaire to the prospective corre­
spondent and also makes certain limited 
inquiries of local law enforcement offi­
cers as to the proposed correspondent’s 
criminal record and connection with 
drugs. One reason for such inquiries 
would appear to be tha t  persons on an 
inmate’s mailing list are likely to desire 
to visit him a t  the prison from time to 
time in accordance with prison rules 
governing visitation. Third, an adult 
person will not be included on an in­
mate’s list without the consent of the 
proposed correspondent, and in the case 
of a proposed correspondent under the 
age of 18 the consent of a parent or 
guardian must be given; and it  is 
claimed tha t  this provision is unconsti­
tutional.

As to the f irs t  and second claims, the 
Court notes to begin with tha t there is 
no limit to the number of names that an 
inmate may include on his list, tha t his 
list may be changed from time to time, 
tha t correspondence between the sexes is 
permitted, and tha t  the fact tha t a pro­
posed correspondent has a criminal 
record does not in and of itself make 
tha t  person ineligible for inclusion on 
the list. In general, inmates are permit­
ted to correspond with their  close rela­
tives and with anyone else with whom 
they may have legitimate business.

[15] The Court rejects the claim 
tha t  respondents may not constitution­
ally limit the correspondence of an in­
mate to persons the inclusion of whose 
names on the inmate’s list has been ap­
proved by the Department. And the 
Court thinks tha t  if approval is to be 
given or withheld intelligently, the De­
partment has a r igh t to find out some­
thing about the people with whom the 
inmate desires to correspond. The 
Court does not consider tha t the ques­
tionnaires and inquiries addressed to 
law enforcement officers are designed or 
calculated to inhibit seriously correspon-



363 FEDERAL SUPPLEMENT

dence with free world people with whom 
an inmate has a legitimate reason to 
correspond.

The Court suspects tha t  a good deal of 
the dissatisfaction in this area stems 
from the fact tha t some inmates do not 
understand the mailing list requirement, 
and do not understand that adding 
names to the list or making changes in 
the list may take some time. Like many 
people in the free world, inmates tend to 
'•’•'ant instantaneous gratification of 
their wants and tend to complain when 
they do not receive it.

1.16, l " l  So, the f irs t  two attacks on 
the mailing list requ;rement are reject­
ed. The third ground of attack is more 
troublesome, as far  as adults who are 
prospective correspondents are con­
cerned. The Court has no trouble with 
the requirement tha t  the parent or 
guardian of a young person give his ap­
proval before tha t  person’s name is in­
cluded on the list.

As to adults, the case is somewhat dif­
ferent. The requirement tha t an adult 
give his consent to be included on an in­
mate’s mailing list is obviously designed 
to protect the former from unwanted 
mail communications. There are many 
reasons why a person in the outside 
world may not want to receive letters 
from a convict, even though he may be a 
close relative, spouse, or former spouse. 
Such a person may welcome a prison 
rule or policy which will insulate him or 
her from such correspondence. And the 
willingness of prison administrators to 
provide such insulation in the interest of 
public relations or for other reasons is 
understandable.

The problem of unwanted correspon­
dence, of course, is not limited to situa­
tions in which the mailer of the letters 
is confined in prison. Whether the 
mailer is inside or outside of a penal in­
stitution, a person who does not want to 
read his letters need not do so. Letters 
can be thrown away unread or returned 
unopened.

The Court observes tha t the publica­
tion “Uniform Correctional Policies &

Procedures,” which has been mentioned, 
recognizes the propriety of requiring ap­
proved mailing lists, and the propriety 
of limiting an inmate’s correspondence 
with a juvenile to cases in which the 
consent of the juvenile’s parent or 
guardian is forthcoming. The publica­
tion says nothing about any requirement 
tha t an adult give his permission before 
having his name included on an inmate’s 
list.

l l V  The Court is c: the view that 
the requirement just discussed is really 
not necessary ar.d might be dispensed 
with readily, but the Court does not 
think that it presents a problem of con­
stitutional dimension and is not pre­
pared to strike it down.

Before leaving this particular aspect 
of the case the Court would emphasize 
tha t prison mail room employees ought 
to understand the rules thoroughly 
themselves and faithfully follow them, 
and tha t  they should realize that many 
inmates of both Cummins and Tucker 
are not highly literate or intelligent peo­
ple, and where necessary the employees 
should spend a little time with inmates 
having correspondence problems and ex­
plain to them in terms tha t  they can un­
derstand just  what they can do and what 
they cannot do, and the procedures to be 
followed in getting a name on a mailing 
list or in making changes in a list.

V.

Much of the testimony that the Court 
heard related to claims of petitioners 
tha t  they are habitually harassed, retal­
iated against, and physically and verbal­
ly abused by prison personnel. Such 
claims would be significant if made in 
connection with any prison, but they are 
particularly significant here in view of 
the long history of brutality to inmates 
of both Cummins and Tucker that was 
practiced for so many years and that 
has been described in detail in earlier 
opinions of this Court and of the Court 
of Appeals.

The Court finds, first, that it is not 
the policy of the Department to abuse



■een mentioned, 
>f requiring ap- 
' the propriety 
correspondence 

in which the 
V s parent or 

The publica- 
'•y requirement 
mission before 
on an inmate’s

the view that 
ussed is really 

be dispensed 
nirt does not 
roblem of con- 
1 is not pre-

1 ticular aspect 
nld emphasize 
iployees ought 

"S  thoroughly 
follow them, 

ze tha t many 
■i and Tucker 
ntelligent peo- 
: he employees 
with inmates 
dems and ex- 
they can un- 

■ i do and what 
cedures to be 
on a mailing 
a list.

'a t the Court 
f petitioners 

trassed, retal- 
y and verbal- 
onnel. Such 
't if  made in 

but they are 
e in view of 
y to inmates 
ker that was 
rs and that 
il in earlier 

of the Court

'a t  it is not 
nt to abuse

HOLT v. HUTTO
Cite an 3(W F.Supp. 11H (1973)

inmates in any way or to t rea t  them 
brutally or abusively. The rules of the 
Department appropriately limit the use 
of force on inmates to situations in 
which the use of force is both legitimate 
and necessary and specify tha t the force 
used must not in any event exceed the 
reasonable necessities of a particular 
case. The rules also prohibit the use by 
employees of vulgar, profane, or insult­
ing language to inmates. And the Court 
thinks tha t  it  is safe to say tha t if an 
inmate, whether white or black, of ei­
ther institution behaves himself and 
does the work assigned to him to the 
best of his ability, he will be able to do 
his time without serious difficulties as 
far as prison personnel are concerned.

However, the prison s ta ff  is required 
to deal constitutionally not only with 
tractable inmates but also with inmates 
who are not so tractable, and there are 
many inmates who fall within the latter 
category. Those inmates make a great 
deal of trouble for themselves. While 
they are quick to assert what they con­
sider to be their  rights, they have little 
regard for their obligations as inmates. 
They refuse to obey orders, they loiter 
at their tasks or positively refuse to 
work; they figh t with each other; and 
they curse and abuse and sometimes as­
sault or fight with their keepers. In­
deed, some inmates appear a t  times to 
deliberately engage in conduct which 
they know will result in the use of force 
upon them.

In view of such inmate conduct, it is 
not strange that the relations between 
prison personnel, on the one hand, and 
certain inmates, particularly those in the 
maximum security unit, are bad, to put 
it conservatively. As indicated, much 
and perhaps most of the blame for such 
relations should be laid at the door of 
the inmates, but a t  times unprofessional 
reaction of prison employees to situa­
tions of stress is a t  least a contributing 
factor. In this overall problem area, as 
in other areas of prison life, the ulti­
mate answer may lie more in the up­
grading of prison personnel than in any­
thing else.

At one time or another inmates of the 
respective units have charged those in 
authority over them with every kind of 
abuse tha t the inmate mind can imagine. 
No effort will be made to list, let alone 
discuss, all of the charges. The Court 
will confine itself to the principal ones 
and will s ta r t  with complaints about 
working conditions.

While the Court finds tha t  many of 
the inmates, particularly those assigned 
to the “hoe squads,” are required to 
work long hours and to work hard, the 
Court does not find tha t  prison working 
conditions are so harsh or adverse as to 
constitute cruel and unusual punishment. 
Now, the Court does have some trouble 
with the possibility tha t  a t  times in­
mates may be assigned to work tha t  is 
beyond their  strength, or tha t  is medi­
cally contraindicated, and that older in­
mates may be required to try  to keep up 
with younger inmates which they some­
times cannot do. However, the Court 
does not find tha t  those things are done 
deliberately or wilfully, and the Court 
thinks tha t to the extent tha t they are 
done they symptomize simply poor com­
munication and administration. It  has 
been pointed out tha t  the Department 
has now been able to employ a full time 
physician who will doubtless evaluate in­
mates with respect to the types of work 
that they are able to do, and the Classi­
fication Committees and supervisory em­
ployees will be expected to pay heed to 
what the doctor orders or recommends.

With fu rther regard to working condi­
tions, it  has been alleged tha t  inmates 
are forced at times to run to and from 
work or while a t  work, or tha t one crew 
has been required to race with another 
crew in the performance of the same 
type of work. The Court does not find 
tha t such practices have ever been em­
ployed generally, but the evidence in the 
overall litigation has reflected that there 
have been instances in which inmates 
have been required to run in front of 
moving vehicles or ridden horses. I t  is 
hardly necessary for the Court to say 
that such practices cannot be tolerated,

T r

ill:
■ J j *

m

y.



214 363 FEDERAL

and it is the responsibility of respond­
ents to prevent them.

The Court takes up next the claim of 
inmates that prison personnel a t all lev­
els employ toward inmates profane, 
threatening, abusive, and vulgar lan­
guage which is replete with racial slurs 
and epithets and sexual and scatological 
terms. As indicated, prison rules specif­
ically prohibit the use of language of 
tha t kind.

The Court is sure tha t  the inmates of 
both institutions in their  own speech use 
language of the types of which they now 
complain, and in view of the quality of 
prison personnel tha t we have in the De­
partment a t this time, the Court knows 
as a matter of common sense tha t at 
least some employees on occasion do use 
profane or "gu tte r” language when ad­
dressing inmates, and th a t  the objection­
able language may include offensive ra ­
cial and other allusions.

The Court doubts tha t prison em­
ployees use language of the types in 
question to the extent tha t such use, 
standing alone, would present a substan­
tial constitutional problem, but its use, 
to the extent tha t it is in fact employed, 
can contribute to problems that do have 
constitutional significance. In any 
event, the use of objectionable language 
by members of the prison staff, of what­
ever rank, is completely unnecessary, is 
unprofessional, and can cause serious 
trouble. The Court is going to expect 
higher echelon personnel to set an exam­
ple for their subordinates in this field, 
and to enforce the institutional rules 
tha t  have been mentioned.

[19] Before leaving this subject the 
Court notes with approval tha t the pris­
on rules not only prohibit profane and 
similar language but also admonish em­
ployees not to be overly familiar with 
inmates and that undue familiarity "de­
creases the effectiveness of an employee 
as well as sometimes placing the em­
ployee in a compromising position.” 
Those admonitions arc salutary indeed 
and should be observed. The Court sus­
pects tha t many complaints of inmates

faB11

SUPPLEMENT

about language are afterthoughts, and 
tha t  some of the words involved may ;
have been used, if a t all, in jest or flip- j
pantly and without realization tha t they 
might give offense. Employees of the 
Department today simply cannot afford 
to joke or jest coarsely with inmates, 
particularly black inmates who, whether 
rightly or wrongly, are obviously “up 
tigh t” and prone to take offense.

The Court’s Supplemental Decree 
herein specifically enjoins prison person- | 
nel from retaliating against or threaten­
ing to retaliate against any inmate for 
having petitioned for judicial relief or 
for having testified or for having of­
fered to testify in any judicial proceed­
ing. Despite inmate claims, the Court 
is not able to find from a preponderance 
of the evidence tha t there has been any 
substantial amount of retaliation or >
threatened retaliation, and, on the other 
hand, the Court suspects tha t  some writ 
writers, witnesses, and potential wit­
nesses have been permitted to take lib­
erties that they otherwise would not have 
been allowed to take because prison per­
sonnel have feared being charged with 
retaliation. However, in the course of 
this litigation the Court has seen some 
indications that in instances some re­
prisals have been taken against inmates 
who have testified in this Court. There 
have been some job changes and disci- f 
plinary proceedings tha t have followed i' 
with suspicious closeness the appearances 
in court of certain inmate witnesses. I

The Court’s injunction in this area is 
as specific as it can be made, and fur­
ther discussion of the subject in this 
opinion would not be profitable. If a 
serious question of retaliation arises in 
the future, it  may well be considered in 
the context of a contempt proceeding.

This brings us a t  length to inmate 
claims tha t  they are subjected to unnec­
essary and unreasonable force. Re­
spondents naturally deny tha t  tha t  claim 
has any basis, and point out the fact 
tha t  in instances where employees have 
been found to have used unnecessary or 
excessive force they have been discharged 
or otherwise disciplined.



r

terthoughts, and 
ds involved may 
!, in jest or flip- 
ization tha t they 
Employees of the 
Iv cannot afford 
y with inmates, 
es who, whether 
e obviously “up 
■ offense.
•mental Decree 
is prison person- 
inst or threaten- 
any inmate for 

udicial relief or 
for having of- 

i udicial proceed- 
lims, the Court 
a preponderance 
re has been any 

retaliation or 
ad, on the other 

that some writ 
potential wit- 

led to take lib- 
would not have 
use prison per- 
r charged with 
i the course of 
has seen some 
tices some re- 

igainst inmates

[20] The Court recognizes a t  the 
outset tha t a t  times force has to be used 
by prison personnel on recalcitrant in­
mates, and that an inmate who has been 
the subject of force is not likely to con­
cede that its use was necessary or that 
the amount used was reasonable. The 
Court also recognizes tha t an employee 
charged with improper use of force is 
not to be judged by hindsight but in the 
light of facts and circumstances as they 
reasonably appeared to him to exist at 
the time.

[21] Force is used from time to time 
at both Cummins and Tucker, as it  is in 
prisons all over the United States. It is 
properly employed in self defense, in 
breaking up fights between inmates, in 
compelling obedience to lawful orders 
where milder measures fail, in protect­
ing State property, and in connection 
with preventing escapes and at  times in 
connection with recapturing escaped con­
victs.

The force employed by Department 
personnel is largely simply manual foice, 
but at times striking weapons such as 
“slappers” must be used. At other 
times subduing chemicals such as 
"mace’’ may be employed. Occasionally, 
firearms have to be used to break up

: Court. There < fights, or to prevent escapes, or in con­
iges and disci-

s•i nection with the recapture of escaped in­
have followed | mates. Generally speaking, the use of

l he appearances firearms involves nothing more than the
e witnesses. ■ firing of warning shots to induce in­
in this area is >•

I mates to stop fighting or to stop tiy ing
made, and fur- t* to run away.
■ubject in this i

The majority of incidents involving
ofitable. If  a use of force take place in the maximum
ation arises in security unit at Cummins, as might be
•-* considered in expected. However, incidents occur in
pt proceeding. V the barracks in both institutions, and in
gth to inmate the fields, and in other prison areas.
•cted to unnec- tf ; Hut such incidents do not occur evei.v

i! force. Re- day or with great frequency. A number
Ihat tha t  claim l of the incidents occurring in the maxi­
1 out the fact mum security unit have involved ex­
mployces have tremely violent and unstable inmates,

unnecessary or and some inmates are involved repeated­
een discharged ly in such incidents.

HOLT v. HUTTO 215
C it e  n s  3»>ai''.Sm>l>. n n  (10731

As far as incidents of force in the 
maximum security unit, the barracks, 
and the fields are concerned, the Court 
simply docs not find tha t the problem is 
as serious as the inmates would make it. 
While the Court suspects tha t some of 
such incidents were unnecessary, and 
tha t  employees may have over reacted in 
certain situations, the Court finds tha t 
bv and large the inmates who have been 
subjected to force have brought it  on 
themselves, and that in general the de­
gree of force used has been in reason­
able proportion to the violence displayed 
by the inmates involved.

The Court does find tha t there have 
been instances in which unnecessary and 
unreasonable force has been used on es­
capees after  the ir  recapture and after  
they ceased to be a source of any real 
danger to their  captors. And Superin­
tendent Britton was involved personally 
in two of such incidents.

The Court realizes that escapes and 
recaptures can be and frequently are ir ­
rita ting  and exasperating to prison ad­
ministrators and lesser personnel, par­
ticularly where as occasionally happens 
the escape involves a breach of t ru s t  le- 
posed in an inmate, as where he docs not 
return to the prison at the expiration of 
a furlough. And the Court realizes that 
a t times inmates resist recapture and 
have to be subdued forcibly. But, peo­
ple who are engaged in custodial work 
must learn to take such episodes in 
stride and must learn to control them­
selves. And there is simply no excuse 
for hitting, slapping, or kicking an es­
capee af te r  he has been recaptured and 
reduced to subjection.

The record reflects that after  the No- 
vember 1972 hearings were concluded, 
the Commissioner issued a Policy Memo­
randum dealing with procedures to be 
followed a f te r  an escapee has been re­
captured. Those procedures are de­
signed to determine whether the inmate 

I »•» with his l’C-



216 363 FEDERAL SUPPLEMENT

dum will be of value in solving problems 
arising out of escapes.

The Court has considered the body of 
evidence dealing with the use of force, 
and does not consider tha t  it  calls for 
any drastic action at this moment, al­
though the Court is going to make its 
injunction somewhat more specific than 
it  is in defining what the Court will con­
sider to amount to a cruel and unusual 
punishment.

[22] There is one thing that the 
Court is going to suggest strongly tha t 
Mr. Lockhart and Mr. Britton do in con­
nection with incidents of force. If  such 
an incident results in a disciplinary pro­
ceeding against the inmate, as many of 
such incidents do, there is an opportuni­
ty in the course of the proceedings to 
develop the facts of the incident more or 
less contemporaneously. But all inci­
dents of force do not result in discipli­
nary proceedings, or a t  least the Court 
is of tha t impression. The Court thinks 
tha t it would be highly desirable for 
such incidents to be investigated a t  once, 
and that the investigations should in­
clude the development, where possible, of 
the inmate’s version of the event. Many 
of the complaints tha t the Court receives 
about violence practiced upon inmates 
have been prepared by w rit  writers and 
signed by the complaining inmates. 
What a writ writer  puts into his writ 
may be nothing in the world but the 
product of his own imagination, and the 
allegations of the w rit may have little 
or no resemblance to what the complain­
an t  actually recalls about the incident or 
to what he would have said about it  if in­
terviewed a t  the time. The value of the 
Court’s suggestion to prison personnel 
ought to be apparent to them without 
fu rther elaboration.

VI.
Another supplemental decree in ac­

cordance with the foregoing will be en­
tered, and respondents and all Depart­
ment personnel from the highest in rank 
to the lowest will be expected to comply 
with it and with the earlier decrees that 
have been entered in this litigation.

[23] However, in view of the 
marked improvements tha t have been 
made in the Department and tha t  are 
continuing to be made the Court does 
not consider it  either necessary or desir­
able to retain further supervisory ju r is ­
diction with respect to the Department 
and such jurisdiction will not be re­
tained. Let the Court hasten to add 
that this release of jurisdiction will not 
impair the validity and continuing effect 
of its injunctions, and if those injunc­
tions are violated, those guilty may be 
faced with contempt proceedings either 
civil or criminal.

The Court hopes tha t this will be the 
last long opinion dealing with the De­
partment tha t the Court will be called 
upon to write. But the Court knows 
tha t  regardless of what has been said 
here, and regardless of what its decrees 
may forbid, or command, and regardless 
of how diligently respondents may seek 
to obey the orders of the Court or to fol­
low the Court’s suggestions, inmate com­
plaints are going to continue to be re­
ceived by the Court.

Judging from experience, many, if not 
most, of those complaints will be insub­
stantial from a constitutional s tand­
point, and can be ignored or disposed of 
summarily. Some can be handled admin­
istratively, as a number have been over 
the past year; and the Court will say at 
this point tha t it would be most desira­
ble if the Board and the Commissioner 
could work out a grievance procedure 
tha t will be effective and readily availa­
ble to inmates who have or think they 
have legitimate grievances. Should such 
a procedure be evolved, the Court might 
well be inclined, to the extent legally 
open to it, to refuse to consider inmate 
complaints until that procedure has been 
exhausted.

But, there will be complaints that can­
not be brushed aside and tha t  cannot be 
mediated. Those complaints will require 
formal judicial determinations. Some, 
if found meritorious, may call for fur­
ther injunctive orders; in connection 
with others the Court may find it neces-



of the 
have been 
'1 tha t are
* ourt does 
y or desir-

isory juris- 
1 )epartment 
iot be re- 
cn to add 
>n will not 
uing effect 
ise injunc- 

Ity may be 
ings either

will be the 
Hi the De­
ll be called 
■art knows 

been said 
its decrees 
regardless 

i may seek 
t or to fol- 
imate com-
■ to be re-

iany, if not 
1 be insub- 
nal stand- 
disposed of 
died admin-
• been over 
will say at 

lost desira- 
tnmissioner

procedure 
dily availa- 
think they 
hould such 
ourt might

■ ent legally 
tier inmate 
re has been

Is tha t ean- 
it cannot be 
will require 
■ns. Some, 
ill for fur- 
connection 

ud it  ncccs-

HOLT v. HUTTO
(Tito as 3113 K.Slipp. 1 !>l (1073)

sary or desirable to impose sanctions for ed to them jointly; 
violations of existing decrees.

217

The Court does not now foresee tha t  
circumstances will arise which would re­
quire the Court to impose the ultimate 
sanction available to it, tha t of closing 
one or both of the prisons or enjoining 
the further reception of inmates at one 
or both institutions. Less rigorous, but 
effective, sanctions are available. The 
Court can direct the discharge of of­
fending employees', the Court can pun­
ish for contempt, and it can award a t­
torney’s fees and expenses of litigation. 
So far, the Court has avoided the impo- ■ 
sition of sanctions and hopes tha t it will 
not have to impose any in the fu tu re ,  
but, the sanctions are a t  hand, if needed.

V II.

Finally, there remain to be considered 
the question of the allowance of a fee to 
counsel for respondents and the fo im  of 
the supplemental decree to be entered 
pursuant to this opinion.

Messrs. Holt and Kaplan have request­
ed that they be allowed a fee and that 
they be reimbursed for what they have 
paid to four law students for assistance 
in working up these cases. The Court 
thinks that their request should be 
granted not by way of punishment or 
sanction but in recognition of the fact 
that they have performed valuable 
services not only to the inmates and to 
the Court but to the people of the State 
of Arkansas as well. The Arkansas 
prison system belongs to the people of 
this State. They have an interest in 
their prisons being brought up to consti­
tutional standards and properly adminis­
tered; and they have an interest in full 
disclosures about their prisons and con­
ditions and practices therein. Counsel 
for petitioners have certainly advanced 
those interests.

[211 Considering the amount of time 
and effort tha t counsel have expended in 
this case, the Court thinks tha t  they aie 
entitled to substantial compensation, and 
that a fee of .$8,000.00 should be award-

they can divide it 
between themselves in any mannei they 
see fit. The amount paid to the law stu­
dents totals $502.80, and reimbursement 
to counsel to tha t extent will be allowed. 
The members of the Board will be di­
rected to make those payments out of 
available Department funds as soon as 
possible.

T he decree to be entered  w ill be en ti­
tled “ Second Supplem ental D ecree.” It 
w ill be se lf  ex p la n a to ry ; in places it  w ill 
re fer  to sp ec ific  section s o f th is  opinion.
A s in the case o f earlier  decrees, it  w ill 
be applicable to all m em bers o f the  
Board o f C orrection, to the C om m ission­
er, the S u p erin tendents, the A ssista n t 01 
A ssociate  Superin tendents, and to all 
subordinate em ployees o f the D ep art­
m ent.

As has been said, the Court does not 
find tha t individual petitioners are enti­
tled to specific individual relief, but all 
inmates are entitled to the benefits of 
the decree. Since this is so, the Court is 
going to dismiss all of the individual 
cases except the anchor case of Holt v. 
Hutto, PB-69-C-24.

T he decree to be entered  w ill o f course  
be appealable. R espondents m ay appeal, 
or the inm ates as a c lass m ay appeal, or 
ind ividual inm ates m ay appeal from  the  
decree to the ex ten t th a t it d ism isses  
th eir  ind ividual cases or fa ils  to aw a id  
them  sp ec ific  ind ividual re lief. The 
Court th inks it  sa fe  to assum e th at any  
inm ates d esir in g  to appeal w ill w ish  
to do so  in form a pauperis. N otices o f  
appeal should be lodged w ith  the Clerk 
of th is  ( ’ourt not la ter than 80 days a f t ­
er the decree is filed , and the Court w ill 
not be inclined to allow  belated appeals.

The Court now requests either Mr. 
Holt or Mr. Kaplan or both to visit the 
prisons as soon as possible after  the de­
cree is filed and discuss the mattei of 
appeal with individual petitioners. If 
an individual petitioner wishes to appeal 
and wants the Court to make specific 
findings in his ease, the Court will do so 
to the extent th a t  it  is able to do so 
from the record. The Court might point

363 F.Supp.— 14Vi



363 FEDERAL SUPPLEMENT

out, however, tha t  not all of the individ­
ual- petitioners were called as witnesses, 
and no specific testimony was taken 
with respect to certain individual cases.

In the M atter of Horace CARPENTEIt, 
Debtor.

N o. 70-146.

United S ta tes D istrict Court,
W. D. Tennessee, W. D.

June 8, 1973.

Petition to review order of bank­
ruptcy referee granting debtor’s petition 
for reimbursement and for a permanent 
injunction. The District Court, Well- 
ford, J., held tha t where debtor listed 
credit union as a creditor when filing 
his wage earner plan, and then complied 
with provisions of confirmed plan to 
which credit union assented, claims of 
credit union based on five notes which 
were executed by debtor as an accommo­
dation comaker, before filing of wage 
earner plan, were discharged since such 
notes were payable to credit union and 
executed by coemployees of debtor, and 
tha t  no interest should be allowed after  
filing date of wage earner plan.

Order affirmed.

1. B ills and N otes 0=49
Under Tennessee law, an accommo­

dation maker is primarily liable on a 
note. T.C.A. § 47-3-415.

2. B ills and N otes C= 49
Where five notes, which debtor had 

signed as an accommodation comaker, 
were executed before debtor’s wage 
earner plan was filed, such notes were, 
under Tennessee law, primary liabilities 
of the debtor a t tha t  time. Bankr.Act, S 
001 ct scq., 11 U.S.C.A. § 1001 et seep; 
T.C.A. § 47-3-415.

3. B ankruptcy 0=1101
Although debtor is responsible for 

scheduling all his debts to creditors and 
the nature of their respective claims in 
wage earner plan, creditors are responsi­
ble for proving all the claims to which 
they believe themselves entitled, since in 
a wage earner proceeding creditors must 
prove and establish their  claims before 
they are entitled to a distribution. 
Bankr.Act, § 601 et seq., 11 U.S.C.A. § 
1001 et seq.

4. B ankruptcy C=1101
Where debtor who filed wage earner 

plan listed credit union as a creditor, 
and thereafter complied with provisions 
of confirmed plan to which credit union 
assented, but where debtor did not list 
in the wage earner plan five notes on 
which he was an accommodation comak­
er, which notes debtor hdd executed be­
fore filing the wage earner plan, which 
notes were payable to the credit union 
and which had been executed by fellow 
employees of debtor, claims of credit un­
ion based on such notes were discharged. 
Bankr.Act, §§ 17, 601 et seq., 660, 11 U.
5. C.A. §§ 35, 1001 et seq., 1060.

3. B ankruptcy C=324
General rule in bankruptcy-cases is 

tha t  interest stops running from date of 
filing of a petition in bankruptcy.

6. B ankruptcy C=324
Generally, interest may be allowed 

in ordinary bankruptcy or insolvency 
situations where estate of debtor is suf­
ficient to pay all his debts including in­
terest, where the security in bankrupt’s 
estate produces income, or where the se­
curity is sufficient when sold to pay 
both principal and post petition interest.

7. B ankruptcy 0=1101
Object of a wage earner plan is to 

permit the debtor to relieve himself of 
the onus of his financial responsibilities 
by extending the time over which he pays 
his debts, thus allowing him to pay fully 
his debts and obligations on an extended 
basis without harassment. Bankr.Act, § 
601 et seq., 11 U.S.C.A. § 1001 et seq.



3 0 4  442 FEDERAL REPORTER, 2d SERIES

I^awrence J. HOLT et aU  Petitioners- 
A ppellees, 

v.
Robert SAKVEK, C om m issioner o f Cor­

rections. et at., Respondents- 
A ppellants.
No. 20318.

United States Court of Appeals, 
Eighth Circuit.

May 5. 1971.

Prison inmates' action for declar­
atory judgment that acts, policies and 
practices in Arkansas prisons violated 
their constitutional rights. The United 
States District Court for the Eastern 
District of Arkansas. J. Smith Ilenlev. 
Chief Judge. 30'J E.Supp. 3G2. rendered 
judgment in favor of petitioners, and re­
spondents appealed. The Court of Ap­
peals, Van Oosterhout, Circuit Judge, 
held, among other things, that action 
was not such suit against state as to be 
barred by Eleventh Amendment.

Affirmed and remanded for further 
proceedings.

Lay. Circuit Judge, concurred and 
filed opinion.

1. Courts 0=303(4)
Prison inmates’ action for declara­

tory judgment that acts, policies and 
practices in Arkansas prisons violated 
their constitutional rights was not such 
suit against state as to be barred by 
Eleventh Amendment. U.S.C.A.Const. 
Amend. 11.

2. Prisons C=L2
A federal court should be reluctant 

to interfere with operation and disci­
pline of state prison and intervention is 
warranted only upon clear showing of 
violation of federally guaranteed consti­
tutional right.

3. Courts 0=406.6(8)
In prison inmates' action for declar­

atory judgment tha t acts, policies and 
practices in Arkansas prisons violated 
their constitutional rights, prejudicial 
e rror  was not committed in receiving 
and refusing to strike expert testimony 
of retired director of. federal prisons and

a report made to Arkansas Commission 
on Crime and Law Enforcement.

4. Courts 0=405(17.1)
The Court of Appeals is not re­

quired to search the record for error. 
Fed.Rules App.Proc. rule 25(e>. 28 U.S. 
C.A.

5. Courts 0=406.6(8)
In nonjurv cases, tried to court, the 

Court of Appeals will not reverse for e r­
roneous reception of evidence unless it 
appears that competent evidence is in­
sufficient to support judgment or that 
court was induced by incompetent evi­
dence to make an ess.-ntial finding 
which it  would not have otherwise made.

6. Criminal l a w  0=1213
Evidence supported findings which 

warranted determination that imprison­
ment of inmates of Arkansas prisons 
constituted cruel and unusual punish­
ment violative of Eighth Amendment. 
U.S.C.A.Const. Amend. 8.

7. Courts 0=495
Eighth Amendment violations form 

basis for federal court intervention in 
administration of state prisons; a fac­
tual showing of cruel and unusual pun­
ishment violative of Eighth Amendment 
is a prerequisite. U.S.C.A.Const. Amend.
8 .

8. P risons 0=12
Supervision over state prisons by 

federal court should not be kept in force 
for any longer period than necessary to 
imovide reasonable assurance tha t  incar­
ceration therein will not constitute cruel 
and inhuman punishment violative of 
Eighth Amendment. U.S.C.A.Const. 
Amend. 8.

Name of counsel making argument for 
appellants is Ray Thornton, Atty. Gen., 
Mike Wilson, Asst. Atty. Gen., Justice 
Building, Little Rock, Ark.,

Names of counsel making argument 
for appellees are Stanley Bass, New York 
City, Philip K. Kaplan, Walker. Kap­
lan, Lavey & Mays, and Jack Holt, Jr., 
Bailey, Trimble & Holt. Little Rock, 
Ark.

"( , y

•' V

I

mmaim mum



•4

Bcioil* MATTHES. Chief J U 
OOSTERliOCT and LAV. 
Judges.

HOLT v .  SARVER
Cite ii* 412 K.2J Col iiitTl) 3 0 5

dpe. VAX 
Circuit

brutality of being guarded by fellow 
inmates."

VAX OOSTERIIOLX Circuit Judge.
This is an appeal by respondents Rob- 

eit Parver, ( ommissioner of Corrections, 
et al.. from judgment entered in favor 
of petitioners in eight consolidated class 
actions brought by Holt, et al.. inmates 
of the Cummins Farm Cnit and the 
Tucker Intermediate Reformatory, parts 
of the Atkansas prison system, against 
Commissioner Farcer  and the members 
of the Board of Corrections. The re­
spondents under Arkansas law adminis­
ter the State penitentiary system.

Petitioners individually filed pro se 
petitions on behalf of themselces and 
others similarly situated. The actions 
" e r e  consolidated by the trial court. 
Competent counsel was appointed to rep- 
le.-ent petitioners. An amended and 
substituted complaint was filed in which 
the alleped prievances are thus summar­
ized:

The prayer is for a declaratory judp- 
ment to the effect that the respondents’ 
acts, policies and practices violate peti­
tioners' r iphts under the Eiphth, Thir­
teenth and Fourteenth Amendments to 
the Constitution of the United States 
and for appropriate permanent injunc­
tive relief.

Chief Judpe Henley, a f te r  an exhaus­
tive evidentiary hearinp, filed a memo­
randum opinion reported at P.00 F.Supp. 
•'?G2. "he re in  he makes detailed findinps 
of fact and applies the law to such find­
inps. A judpment and decree was en­
tered on February 18. 1970. determininp 
that the confinement of human beinps at 
the ( ummins and Tucker prisons under 
existinp conditions fully described in the 
opinion constitutes cruel and inhuman 
punishment prohibited by the Eiphth 
Amendment, made applicable to the 
States by the Fourteenth Amendment. 
The court also determined that the con­
tinuation of racial seprepation of in-

“The actions of defendants have de­
prived members of the plaintiff class 
of riphts, privilepes and immunities 
secured to them bv the due process 
and equal protection clauses of the 
Fourteenth Amendment to the Consti­
tution of the United States, includinp 

the r ipht not to be imprisoned 
without meaningful rehabilitative op­
portunities. (b) the r ipht to be free 
fiom cruel and unusual punishment, 
(ci the r ipht to be free from arbi­
tra ry  and capricious denial of rehabil­
itation opportunities, (d) the ripht to 
minimal due process safepuards in de­
cisions determininp fundamental liber­
ties. (p> the r ipht to be fed, housed, 
and clothed so as not to be subjected 
to loss of health or life, (f) the r ipht 
to unhampered access to counsel and 
the courts. <p ) the ripht to be free 
f 1 om the abuses of fellow prisoners in 
all aspects of daily life, (h) the ripht 
to be free from racial seprepation. (i) 
the ripht to be free from forced labor, 
and ( j)  the r iph t to be free from the 

<42 F 2a— 2 0

mates in the institutions violated the 
equal protection clause of the Four­
teenth Amendment.

The respondents were directed to take 
the necessary steps to brinp the opera­
tion of the prisons up to federal consti­
tutional requirements and they were re­
quired to make written report to the 
court by April 1, 1970, setting out what 
had been done and what they planned to 
do to meet the constitutional violations 
found by the court. The court reserv.ed 
jurisdiction to take such further steps 
as may be appropriate to implement its 
determination that confinement in the 
Arkansas penitentiary system violates 
constitutional riphts of the inmates in 
event the required reports are not made 
or prove unsatisfactory.

The respondents have taken this time­
ly appeal from such judpment and de­
cree. Respondents, as required by the 
court order, filed the April 1. 1970, re­
port setting out the steps taken and con­
templated to meet the constitutional vio­
lations. On April 15, 1970, the court ap-



306 442 FEDERAL REPORTER, 2d SERIES

proved such report as an interim report, 
noting that a reasonable s ta r t  had been 
made to eliminate the unconstitutional 
conditions and that "the Court is most 
pleased with the response of the Gover­
nor and of the Legislature to the fiscal 
needs of the Penitentiary and ha.- no 
reason to believe that the institution will 
not be adequately funded in the future, 
taking into consideration, of course, the 
overall financial condition of the State."

A report requested by the court giv­
ing fu rther information as to disarming 
prison inmates and measures taken to 
protect the inmates from attacks by oth­
er inmates and the condition of the iso­
lation ceils was made on May 3 and was 
approved and accepted as an interim re­
port by order of May 28, 1970. A re­
quired progress report showing prison 
conditions as of June 30, 1970, was filed 
by the Commissioners. The record 
shows no action taken thereon.

Additional facts to the extent neces­
sary will be set out in the discussion of 

» the issues.

It is desirable a t this point to observe 
that some issues decided by the trial 
court are not before us on this appeal.
It appears from the interim reports and 
the court’s action thereon that the racial 
integration requirement of the court’s 
decree has been fully met. No contrary 
contention is made in the briefs.

Petitioners on March 18, 1970. filed 
notice of cross-appeal. No brief in sup­
port of the cross-appeal has been filed.

Petitioners in the trial court raised 
the issue tha t their Thirteenth Amend­
ment protection against involuntary ser­
vitude had been violated by requiring in­
mates to perform forced labor. The 
trial court rejected such contention. Pe­
titioners in response to an inquiry in 
oral argument advised us tha t they are 
not here attacking the trial court’s de­
termination on the Thirteenth Amend­
ment issue. The cross-appeal was dis­
missed on motion of appellant on Janu ­
ary 8. 1971.

The primary issue before us is wheth­
er the trial court erred in holding that

confinement of prisoners at Cummins 
and Tucker under conditions described 
constitutes cruel and inhuman treatment, 
violative of the Eighth Amendment 
Respondents urge that they are entitled 
to a reversal tor the following reasons:

I. The suit is in effect one against 
the State of Arkansas and as such is 
barred by the Eleventh Amendment.

II. The court erred in refusing to ex­
clude or strike the testimony of the wit­
ness Bennett and the report of Dr. Friel.

III. The court’s findings are not sup­
ported by substantial evidence.

"  e reject each of such contentions for 
the reasons hereinafter stated, and a f ­
firm.

I.

[1] The court overruled respondents’ 
motion to dismiss, based on the ground 
that the suit is in effect a suit against 
the State and as such is barred by the 
Eleventh Amendment. It is quite true 
that the prison units here in controversy 
are state agencies and that the funds 
necessary to operate the institutions 
must come from State appropriations.

The Eleventh Amendment argument 
here made is completely answered by 
Judge Matthes in Board of Trustees of 
Arkansas A & M College v. Davis, 8 
Cir., 396 F.2d 730, 732-733. The college 
in tha t case, like the prisons in our 
present case, is a State agency. As 
pointed out in Davis, the Supreme Court 
has since the foundation case of Ex parte 
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L. 
Ed. 714, repeatedly recognized that an 
act of a state official which violates a 
federally guaranteed constitutional right 
may be enjoined upon the basis that the 
officer is “stripped of his official or 
representative character and is subjected 
in his person to the consequences of his 
individual conduct. The state has no 
power to impart to him any immunity 
from responsibility to the supreme au-~ 
thority of the United States.” 396 F.2d 
730, 732, quoting from Ex parte Young 
209 U.S. pp. 159-160. 28 S.Ct. 441, 52 . 
L.Ed. 714. Numerous applications of



HOLT v.
Cite  ns 442 F

such principle arc cited in Davis. We 
adhere to the legal principles there s ta t ­
ed.

[2J In Jackson v. Bishop. 8 Cir.. 4 0 4  

F.2d 571. an action against the superin­
tendent of the two identical prisons here- 
involved. we determined that corporal 
punishment administered in the prisons 
constituted cruel and inhuman punish­
ment. AVe enjoined the administration 
of corporal punishment. We adhere to 
the principles stated in Jackson includ­
ing the admonition that a federal court 
should be reluctant to interfere with the 
operation and discipline of a state prison 
and that intervention is warranted only 
upon a clear showing of a violation of a 
federally guaranteed constitutional 
right. See Burns v. Swenson. 8 Cir.. 
430 F.2d 771, 775; Sostre v. McGinnis,
2 Cir.. 442 F.2d 178 i 1971); Wilwording 
v. Swenson, 8 Cir., 439 F.2d 1331 (1971).

Petitioners in their  amended com­
plaint did not contest the validity of the 
imposed sentences which they are serv­
ing nor do they ask to be released from 
custody. No claim for money damages 
is made. The Commissioner of Correc­
tions and the members of the Board of 
Corrections are made parties both in 
their official and individual capacities... 
Relief sought is to enjoin the respond­
ents from inflicting punishment viola­
tive of the F.ighth Amendment. Ju r is ­
diction is established under 42 U.S.C.A. 
§ 1983 and 28 U.S.C.A. § 1343(3).

The motion to dismiss was properly 
denied.

II.
[3] Respondents’ contention that the 

court committed prejudicial e rro r  in re­
ceiving and refusing to strike expert 
testimony of James W. Bennett, retired 
director of federal prisons, and the re­
port of Dr. Fried made to the Arkansas 
Commission on Crime and Law Enforce­
ment. lacks merit. A proper foundation 
for expert testimony on the part of Mr. 
Bennett has clearly been laid. We 
placed considerable reliance upon Mr. 
Bennett’s testimony in Jackson v. Bish-

SARVER 307
2d not Iintl)

op, supra. The fact that Mr. Bennett 
had not visited the Arkansas prisons re­
cently does not disqualify him as an ex­
pert witness but goes to the weight of 
hi.s testimony.

[4J Respondents, as required by 
FRAP Rule 28<et. have not set out in 
brief or appendix or given record cita­
tions to the questions, objections and an­
swers of which they complain. We are 
not required to search the record for er­
ror. Moreover, as is pointed out in the 
next division, the evidence supporting 
the court’s findings is strong.

Neither the appendix nor the part of 
the original record certified to us shows 
the report made by Dr. Friel to the Ar­
kansas Commission on Crime or the cir­
cumstances under which such report was 
made. Apparently Dr. Friel made the 
report bv virtue of his employment by 
the Arkansas Commission on Crime. Re­
spondents have failed to establish that 
the report was improperly received over 
appropriate objection. Respondents 
have likewise failed to demonstrate that 
prejudicial e rro r  was committed in re­
ceiving the report.

[5] In non-jury cases tried to the 
-  court it  is well settled that we will not

reverse for the erroneous reception of 
evidence unless it  appears that the com­
petent evidence is insufficient to sup­
port the judgment or tha t  the court was 
induced by incompetent evidence to make 
an essential finding which it  would not 
otherwise have made. Friedman v. 
Fordyce Concrete. Inc.. 8 (fir., 362 F.2d 
386, 389; Joseph A. Bass (Co. v. United 
States, to Use of Peter Kiewit Sons’ Co., 
8 Cir., 340 F.2d 842, 845. No such 
showing has here been made.

III.
[6] Respondents in their  brief urge 

that the evidence is insufficient to sup­
port some subsidiary fact findings made 
by the court. We are convinced from an 
examination of the voluminous record 
tha t Judge Henley’s basic findings upon 
which the judgment and.decree are pred­
icated are supported by overwhelming



308
442 FEDERAL REPORTER, 2d SERIES

! vid,nc" “ d . « *  ~ < *  fl«4inn-q , .7 • “ ,,u ulaL sucn linn
nation 3 Ilrm ba8ijl f° r his at.on tha t imprisonment of inmates at
the Cummins and Tucker units consti-
utes cruel and unusual punishment vio-
3 ' j 6 tbc Eighth Amendment under

conditions shown to have existed a t  the

w n i^  thC ^?Cree‘ Xo usefa‘ Purpose 
will be served by a deta.led discussion of
the events and the retreading of the
ground so well covered by Judge Henley
,n his opinion. Judge Henley had pre-

r t d" r ined ‘n H<>lt V‘ Saner D‘300 F -SuPP- 825 (Holt I j .  which 
opinion was filed on June 20. 19G9, that 
substantially the same constitutional de- 
Hciences existed at the institutions here

that det 3PPeal WaS taken from
o n ! d  ,erm ,nat,° n- ° ther recent o p t ­ions dealing with Eighth Amendment vi­

olations a t  these institutions include Tal- 
ley v. Stephens. D.C.. 247 F.Supp. 683;

804 I" lV' B‘Sh0P' D C-  268 F -SuPP- 804. Jackson v. Bishop. 8 Cir., 404 F.2d

2d l l8 5 ° Urtney BiSh°P> 8 Cir-  J09 F -

Commissioner Sarver. who also served 
as superintendent a t the Cummins unit 
as a witness frankly admitted that the 
Physical facilities a t both units were in­
adequate and in a total state of disre-
n?lr  I f 31 C° Uld ° nly be described as de­
plorable. Additionally, he testified that 
trusty inmates, some of whom were

t  ° r  l0n? term 3entences, con- 
uted 9j%  of the security force of the

r»M ° ,ys“ m- F»r the =pp--«in.it*v;
world ( T '  P° PuIation on'y  eight free world (non-inmate) guards were em­
ployed and these guards were poorly 
paid and lacked proper training. One

whno ? 5 ' i f ' 7 gUn Carryin* ^ e s "ontrol all of the weapons a t  the

r ;  tT 51 be relied upon to guard andprotect the prisoners.
The trusties sell desirable jobs to pris­

oners and also traffic  in food, liquor a" d

to^icq’t / r,ST erS frcduently become in- 
r ° d and unrul-v- The prisoners 

sleep in dormitories. Prisoners arc fre­
quently attacked and raped in the dormi-

s X d  *"<?> 3nd death3 have re-■ SleeP and rest are seriously di3 -

ruptod. No adequate means exist to pro­
tect the prisoners from assaults. There

knnVSaa n d aCtr y ° f kee‘,in* v'uns.knnes  and other weapons away from the 
piison population.

The reports fiIed by the Commissioner 
a t  the c o u r ts  d ^ ^ ' io H  clearly c o n f im  
the findings of Eighth Amendment vio­
lations. We deem it unnecessary to go 
m o any greater detail in discussing the

“ L r ™  -

f j ' ] . , Ei8hth Amendment violations 
term the basis for federal court in ter­
vention in the administration of a state 
prison A factual showing of cruel and 
unusual punishment violative of the 
Eighth Amendment is a prerequisite. 
Jackson v. Bishop, supra; Sostre v 
-McGinnis, supra. In Sostre, Judge 
Kaufman aptly states:

Eor a federal court, however, to 
Place a punishment beyond the power 
o: a state to impose on an inmate is a 
drastic interference" with the s ta te ’s 
free political and administrative pro­
cesses. I t  is not only that we. trained 
as judges, lack expertise in prison ad­
ministration. Even a lifetime of 
study m prison administration and 
se\eral advanced degrees in the field 
would not qualify US as a federal 
court to command state officials to 
shun a policy that they have decided 

suitable because to us the choice 
may seem unsound or personally re­
pugnant. As judges we are obliged to 
school ourselves in such objective 
sources as historical usage, see Wilk- 
erson v. Utah. 99 U.S. 130. 25 L Ed 
345 (1870J, practices in other juris-
d!C7tl° |13’ soee Weems v. United States.
-17 U.S. 349. 30 S.Ct. 544, 54 L Ed 
793 (1910). and public opinion, see
rr°fibinflon cV- Callfornia’ 370 U.S. 660. 
bG6. 82 S.Ct. 1417, 8 L.Ed.2d 758
(1962). before we may responsibly ex­
ercise the power of judicial review to 
declare a punishment unconstitutional 
under the Eighth Amendment.

“Accordingly, we have in the past 
declined to find an Eighth Amend-

. ;  i

t.. ' - V-
k'r'vtrq'y:-’f -jA. ■* if.*?,
iVKvVc r .y'L XC) r- 

■iSftfo iUmfc



: t-% £  i
V ? $
;  ’• &  • ,
■’ ' 'C,;. I |

P-• ‘ f }\- •?-».•;'•,! ’
- *. • •*

■< -»Vi

»,• •« ’ • . . .

HOLT v. SARVEF.
H2 K.Sd.lOt ilhTli

309

mont violation unless the punishment 
can properly he termed 'barharous 0 1  
‘shocking to the conscience.'” 442 t  • 
2d 178. 183-185.
judge Henley recognized such stand­

ards as is reflected by his statement 
readinp:

"The Court, however, is limited in 
its inquiry to the question of whethei 
or not the constitutional rights of in­
mates are being invaded, and with 
whether the Penitentiary itself is un­
constitutional. The Court is not judi­
cially concerned with questions which 
in the last analysis are addressed to 
legislative and administrative judg­
ment. A practice that may be bad 
from the standpoint of penology may 
not necessarily be forbidden by the 
Constitution. And a prison system 
that would be excellent from the view 
point of a modern prison administra­
tor may not be required by the provi­
sions of the Constitution with which 
the Court is concerned." 309 F.Supp. 
362. 369.

REMEDY.
No criticism is made by any party of 

the form of relief granted. Judge Hen­
ley in his opinion expressed a realization 
that conditions a t a prison cannot be 
corrected overnight. Legislative appro­
priations are required to obtain funds 
needed for the correction of constitu­
tional deficiencies. Time is needed to 
recruit and tra in  qualified free world 
guards. Judge Henley, by way of direc­
tions to state officials, in his opinion 
s ta te s :

“ If  Respondents will move in good 
faith and with diligence in the areas 
of prison life just  discussed, namely, 
the trusty system, the barracks sys­
tem. inmate safety, and the isolation 
cells, the Court thinks that subsidiary 
problems will tend to take care of 
themselves. It would be a mistake to

1. Toward the end of I In* lMli Century 
John Howard was Sheriff of Bedford- 
shire. Because of the deplorable con- 
ditiotm in London prison* ho resigned 
to spend the remainder of his life work-

order too much at this time; but. in • 
the areas just mentioned Respondents 
will be required to move." 31)9 F. 
Supp. 3*12. 385.
The reports on file show substantial 

progress in meeting the constitutional 
deficiencies. Money has been appropri­
ated for new buildings and needed im­
provements and for the employment cf 
additional free world guards. The trial 
court has recognized that the State is 
making a sincere effort to remedy the 
deficiencies. The last report before us 
covers the period to June 30. 1970. The 
court upon remand should require an 
up-to-date report on the progress made 
in meeting the constitutional violations. 
A hearing thereon should be held to de­
termine whether appropriate steps have 
been taken to cure the constitutional de­
ficiencies found by the court, aftei 
which such further order as may be ap­
propriate should be entered.

[S] Supervision over the state pris­
ons by a federal court should of course 
not be kept in force for any longer peri­
od than necessary to provide reasonable 
assurance tha t incarceration therein will 
not constitute cruel and inhuman pun­
ishment violative of the Eighth Amend­
ment.

The judgment is affirmed. The case 
is remanded to the trial court for fu r­
ther proceedings consistent with the 
views herein expressed.

LAY, Circuit Judge (concurring).
I fullv concur. I sincerely hope it  is 

not wasted rhetoric to express addition­
al judicial condemnation of the condi­
tions and practices carried out by the 
State of Arkansas in operating its sys­
tem of “correction.” Contemporary con­
ditions in Arkansas do not vary greatly 
from those condemned in England in the 
1700’s.1 The Eighth Amendment pro­
hibiting "cruel and unusual punishment" 
relates to "evolving standards of decency

ing fur prison reform in I'.nghiml. Hr 
found that prisons were not sanitary or 
secure; there was no effective super­
vision of prisoners; there existed "phys­
ical and morul corruption of the com-

i ' . 
i v



442 FEDERAL REPORTER. 2d SERIES310

that mark the progress <>f a maturing 
society.” See Trop v. Duller. :U5G V S. 
Hi!. 101, 7H S .r t .  590. 598. 2 L.Kfi.2d r.:’.n 
I195H), The present record reflects the 
prison system at Cummins Prison Farm 
to he not only shocking to “standards of 
decency." hut immoral and criminal as 
well.

New buildings and additional iruards. 
although essential for compliance with 
the court s decree, tail far short of rem­
edying the defilement of individuals and 
the inhumane treatment of prisoners 
practiced in the name of the state. Im­
prisonment in buildings of newly laid 
t»rick with the most rijrid security will 
not alleviate the depravity and criminali­
ty which are fostered by the Arkansas 
prison system. The district court recog­
nized this when it stated:

“The absence of an affirmative pro­
gram of training and rehabilitation 
may have constitutional significance 
where in the absence of such a pro­
gram conditions and practices exist 
which actually militate against reform

nion w ards  siiiiI y a rd s " :  th e re  wen- no
M-parnrn cells fo r  so le  s leep ing ;  th e re  
wns no useful  work pe r fo rm ed  In- rln* 
p r isoners .  no rd  ucn t ionni e f fo r ts  uunlo on 
tl iei r  behalf.  uiul no moral  o r  rel igious 
ins truc tion  to r e s to r e  them as useful 
members of  society. ( \  [{. Jiccenria.
f>n ( ' r im es  \  P un ishm en ts  (1704 i : .1.
I fowurd. T h e  S ta te  of  the P r isons ,  etc. 
i l i u ) .  as  found in Km-ychtpedia Ilrifnii- 
"ion. " P r i s o n ."  Vol. I s .
( l!i.*,G>. 2

2. As f a r  buck as l.s7t) the A m erican  P r i s ­
on Association recognized rehabil i ta t ion  
and moral  regenera t ion ,  r a t h e r  th a n  vin- 
d ie t i \e  re t r ibution ,  to he tiie fundamenttil  
a im s of  eorree tion .  See palter  given to 
American  ( ’o r ree tiona l  Ass'n  bv Huber t  
Kiilnk. O m aha. N ebraska .  Oi l. 15. 11)7 0 . 
Monograph. Outside Looking In ( L E \ V  
lUTfi •.

Severa l  s t a te s  have recognized the  need 
for  im plem enta t ion  of correc t iona l  t r e a t ­
ment. See e. g. N.Y. ( 'o rrce . l . i iw  « l.'KI 
(M cK inney 's  ( 'onsid.I .aws, c. Id. 11M:.sI ;

" T h e  objective of prison education in 
its b roadest  sense  should be th e  so- 
cinlization of the  inm ates  th rough  
varied im press iona l  and express ioual  
activities,  with  em phas is  on individual 
inm ate  needs.  T h e  objective of  th is

and rehabilitation " ;’d>p F.Supp. ;,t
•'179.
Until immediate and cntitr.tcd , rr.pha- 

sis is given to an affirmative program 
of rehabilitation the district court 
should retain jurisdiction.-

L'N’ITKD STATUS of America, 
Plaint iff-Appellee, 

v.
Frank AI.TOBFLI*.\ and Jam es M oxley, 

D efends nts-Appellants.
N os. 182.74, 182.7.7.

United States Court of Appeals, 
Seventh Circuit.

April 8. 1971.
Rehearing Denied May 26. 1971.

Defendants were convicted before 
the United States District Court for the

program shall  l»- the r e t u r n ' o f  thes.. 
inm ates to society w ith  a  more wind— 
some a t t i tu d e  tow ard  living, w ith  a 
desire  to conduct themselves as  good 
citizens and  w ith  tip- skill and  knowl- 
edge wiiicli will give them a reasonable  

' chalice to m ain ta in  th .-molves and  th e i r  
dependents  th rough  honest l.ilmr. T o  

i th is  end each p r isoner  sha ll  tic given a 
program of educat ion  which, on t In- basis 
of available  d a ta ,  seems most likely to 
fu r th e r  the process of social izat ion uml 
rehabil i ta t ion .  Tie- t ime dai ly devoted 
to such education shall he such as is 
required for meeting the above objec­
tives. T h e  d irec to r  of education, s u b ­
ject  to the direction of tie* commission! r 
of correction and  a f te r  consulta tion  by 
sm h commissioner with  tlie s t a te  com ­
missioner of education ,  shall  develop the 
curricu la  and  tin* i-ducatain p rogram s 
Unit a r c  required to meet the  special 
needs iif each prison and  refi ihnaturv  in 
tiie d ep a r tm en t ."

Mu.A n n .S la t ,  5 'JlU.Oiku 11 ( 1 f >t ;i2) reads:  
" | J | n  flic correctional  t rea tm en t  applied 
to each inm ate ,  reform ation  of tin* in ­
mate. his social and moral improvement,  
and  Ids rehabil i ta t ion  tow ard  useful,  
productive and  law-nbidiug ci t izenship  
shall  he guidiug fac to rs  and  a ims."



UNITED STATES
;i- 1(2 K 2

Northern bistrivt uf Illinois, William J. 
Lynch. J.. of violating federal conspir­
acy .statute and of violating statute pro­
hibiting travel or transportation in com­
merce in aid of racketeering enterprises, 
and they appealed. The Court of Ap­
peals. Stevens. Circuit .1 udge. held that 
use of mails by bank through which ex­
tortion victim's check, which was drawn 
on Pennsylvania bank, was cleared after  
it had been cashed in Illinois and pro­
ceeds given to defendants did not give 
basis for federal jurisdiction under ei­
ther  of such statutes.

Reversed.

1. Conspiracy C = 2 8  
Threats C=l< 1)

L'se of mails by bank through whiph 
extortion victim’s check, which was 
drawn in Pennsylvania bank, was cleared 
a f te r  it had been cashed in Illinois and 
proceeds given to defendants did not give 
basis for federal jurisdiction under fed­
eral conspiracy statute or federal statute 
prohibiting travel nr transportation in 
commerce in aid of racketeering enter- 
pri«es. 18 U.S.C.A. $$ 371. 1952.

2. Commerce C=82
Purpose of s tatute prohibiting trav­

el or transportation in commerce in aid 
of racketeering enterprises is to attack 
criminal activities extending beyond bor­
ders of one state by providing federal 
assistance in situations in which local law 
enforcement is ineffective. 18 U.S.C.A. 
$ 1952.

Thomas D. Decker, Ronald P. Alwin, 
Federal Defender Program, Chicago, 
111., for defendants-appellants.

Craig M. Bradley, Attv.. Dept, of Ju s­
tice, Criminal Div., Washington, D. C..

1. lii.K.-v.sint., <Mi. :tK. $ it;-i <iixat>.
2. P a t te r so n  was sep a ra te ly  im lie te i l ; a f t e r  

the conviction of Altobella and Mosley, 
the  charges  ag a ins t  her  were dismissed.

3. In  tile ensiling severa l days Altoisdla  
showed her nil a p a r tm e n t  lie had rented

v. ALTOBELLA 3 H
l an11 e.'Ti i

William J. Bauer. l \  S At:.... Chicago. 
111., for plaintiff-appellee.

Before SWYGERT. ' htci Circuit 
Judge. ENOCH, Senior Circuit Judge, 
and STEVENS, Circuit Judge.

STEVENS. Circuit Judge.
The squalid facts of this ease give rise 

to a serious question of federal jurisdic 
tion. The record discloses a plain viola 
tion of the Illinois sta tu te  prohibiting ex 
tortion.1 The issue f<«r us to decide is 
whether defendants are also guilty of 
violating either the federal conspiracy 
statute. 18 U.S.C. $ 871. or the federal 
statute enacted in 1981 "to prohibit 
travel or transportation in commerce in 
aid of racketeering enterprises." 75 Stat. 
498. 18 U.S.C. 5 1952. Although the 
"Travel Act" can be read to cover this 
case, we have concluded that this prose­
cution is beyond the limits of the crim­
inal jurisdiction which Congress intend­
ed to confer on the federal courts.

I
The jury  found both appellants guilty 

on both counts. To clarify the federal 
question, we shall first summarize the 
evidence disclosing a violation of Illinois 
law.

The participants in the extortion were 
appellants Altobella and Moxley and a 
young entertainer named Joan P a t te r ­
son.2 Patterson’s testimony described 
the plan. She agreed to help Altobella 
and Moxley "to make a fast buck." She 
was to pick up a businessman, preferably 
one who was married and had a family, 
in one of the hotel bars in the loop area. 
"A fte r  I met him I was supposed to lead 
him to believe that he was a Don Juan, 
and then take him to an apartm ent and 
* * * get him into a compromising
position so that pictures could be tak­
en.”3

(Im* |»ni«l tin* weekly m i l  of $.‘'.0 in ad- 
vanee on S ep tem ber  27, Oetolier  .r>, and  
October 12).  11•• explained how tin* ]»i«*-
turn* would bo taken,  mid pointed out  
th a t  a  te lephone had boon installed to on- 
abb* hor to ra i l  before .she b rough t  the 
badger  to the  a p a r tm e n t .  I n  general,  Al-



309 FEDERAL SUPPLEMENT

Law rence J. HOLT et al., P etitioners, 
v.

R obert SA RV ER , C om m issioner o f Cor­
rections, S ta te  o f A rkansas; John H a­
ley, P ayton  Kolb, M arshall R ush, W. L. 
Currie, and W illiam  L ytle, Individually  
and in their capacities as M em bers of 
the Board o f Corrections of the S tate  
of A rkansas, R espondents.

T ravis E ugene FIE LD S, Petitioner, 
v.

R obert SARVER, C om m issioner o f Cor­
rections, e t al., R espondents.

G eorge W . OVERTON, Petitioner,
v.

R obert SARVER, C om m issioner of Cor­
rections, e t al., R espondents.

S tan ley W . BROOKS et al., P etitioners, 
v.

R obert SA RV ER , C om m issioner of Cor­
rections, e t  al.. R espondents.

Jack A llen  BARBER, P etitioner, 
v.

R obert SARVER, C om m issioner o f Cor­
rections, e t  al., R espondents.

Jerry DENHAM , Petitioner, 
v.

R obert SA RV ER , C om m issioner of Cor­
rections, e t al., R espondents.

Carlton J. CARNEY et al., P etitioners, 
v.

R obert SA RV ER , C om m issioner o f  Cor­
rections, e t a l .  R espondents.

T hom as M itchell H ILD ERBR AN DT, 
Petitioner, 

v.
R obert SA RV ER , C om m issioner o f  Cor­

rections, e t a l .  R espondents.
N os. P B -69-C -24, 25, 29, 71, 75,

76, 80 and 91.
U nited S ta tes D istrict Court,

E. D. Arkansas,
P ine B lu ff D ivision.

Feb. 18, 1970.

Action by state prisoners to have 
declared unconstitutional conditions and

practices in state prison system. The 
District Court, Henley, Chief Judge, 
held, inter alia, th a t  conditions and prac­
tices in Arkansas penitentiary system, 
including trus ty  system whereby trus­
ties ran prison, open barracks system, 
conditions in isolation cells, and absence 
of meaningful rehabilitation program, 
were such th a t  confinement of persons 
in system amounted to cruel and unusual 
punishment prohibited by Eighth and 
Fourteenth Amendments.

Order in accordance with opinion.

1. Courts 0=281
Federal district court had jurisdic­

tion of civil r ights  action brought by 
state prisoners for declaratory judgment 
with respect to violations of prisoners 
constitutional r ights  by prison officials. 
U.S.C.A.Const. Amends. 8, 13, 14; 28 
U.S.C.A. § 1343(3); 42 U.S.C.A. § 1083.

2. C onstitutional Law  0= 83(2 )
Forced uncompensated labor of 

state convicts did not violate Thirteenth 
Amendment. U.S.C.A.Const. Amend. 13.

3. C onstitutional Law  0=270
Conditions and practices in Arkan­

sas penitentiary system, including trusty 
system whereby trusties ran prison, 
open barracks system, conditions in iso­
lation cells, and absence of meaningful 
rehabilitation program, were such that 
confinement of persons in system 
amounted to “cruel and unusual punish­
ment” prohibited by Eighth and Four­
teenth Amendments. U.S.C.A.Cons’,  
Amends. 8, 14.

See publication Words and Phrase* 
for other judicial constructions and 
definitions.

4. P risons C=4
To extent th a t  unconstitutional ra­

cial discrimination was being practiced 
in state prison system, such discrimina­
tion was to be eliminated. U.S.C.A 
Const. Amend. 14.

5. C onstitutional Law  0=47  
In state prisoners’ civil right.* *t-

tion, federal court was limited to ques­
tion of whether or not constituticad

righ ts of 
and w ith v 
unconstitu 
da lly  cone-, 
last analys 
tive and ad

6. Prisons <
Practii 

standpoint 
sarily  be to 
tion, and i 
excellent fr  
adm inistrat 
Constitutioi

7. Constituli
Purposi 

was to aboli 
tices relates 
C.A.Const. 1

8. Constituti
Arkans: 

victs was n<. 
sense of tei 
13.

See pub 
for other 
definition.--

' 9. Criminal 1
Concept 

ishment is i 
which parth  
jected to pui 
an individual 
given institu  
and unusual 
ment is char, 
practices so 1 
conscience of 
even though 
er personally 
nary action. 
14.

10. Prisons C- 
Confinen. 

tional penal ; 
tutional simp: 
not operate s< 
training or ot 
and services, : 
program of t 
may have <•■



Jade H°]t, J r ., Philip Kaplan, Little 
Kock, Ark., for petitioners.

The
lire.
-ac­
orn,
tis-
cm,
■nee
am,
ons
ual

and

dic-

icnt
ers
ials.

183

nth

an
usty
son,
iso-

tfful
that
Tom
nsh
our
nst.

t iced
ma-

.C.A.

ional

. .wif r .
rights of inmates were being invaded 
and with whether penitentiary itself was 
unconstitutional, and court was not jud i­
cially concerned with questions which in 
last analysis were addressed to legisla­
tive and administrative judgment.
6. Prisons 0=12

Practice tha t may be bad from 
standpoint of penology may not neces­
sarily be forbidden by Federal Constitu­
tion, and prison system tha t  would be 
excellent from point of view of modern 
administrator may not be required by 
Constitution.

HOLT v. SARVER
Cite ns 300 F.Supp. 302 (1970)

7. Constitutional Law <3=83(2)
Purpose of T hirteenth  Amendment 

was to abolish A frican slavery and prac­
tices related or analogous thereto. U.S. 
C.A.Const. Amend. 13.

8. Constitutional Law C=>83(2)
A rkansas system of working con- 

victs was not "slavery” in constitutional 
sense of term . U.S.C.A.Const. Amend.

See publication Wonls and Phrases 
for other judicial constructions and 
definitions.

9. Criminal Law 0=1213
■ l ^ onc®p  ̂ Cfuel and unusual pun­
ishment is not limited to instances in 
which particu lar prison inm ate is sub­
jected to punishm ent directed a t him as 
an individual; confinement itself w ithin 
given institu tion  may am ount to “cruel 
and unusual punishm ent” where confine­
ment is characterized by conditions and 
practices so bad as to be shocking to the 
conscience of reasonably civilized people, 
even though particu lar inm ate may nev­
er personally be subject to any discipli­
nary action. U.S.C.A.Const. Amends. 8, 
14.

10. Prisons C=»12
Confinement in otherwise unexcep­

tional penal institu tion  is not unconsti- 
tutional simply because institu tion  does 
not operate school, or provide vocational 
training or other rehabilitative facilities 
and services, but absence of affirm ative 
program of tra in ing  and rehabilitation 
may have constitutional significance

where in absence of such program  condi­
tions and practices exist which actually 
m ilitate against reform  and rehabilita- 
tion.

11* Criminal Law C=1213
Term "cruel and unusual punish­

m ent” cannot be defined w ith specifici­
ty  ; i t  is flexible and tends to broaden 
as society tends to pay more regard to 
human decency and dignity  and becomes, 
or likes to th ink th a t i t  becomes, more 
humane.

12. Criminal Law < =̂1213
Generally speaking, punishm ent th a t 

am ounts to torture, when it  is grossly 
excessive in proportion to offense fo r 
which it  is imposed, or th a t is inherently 
unfair, o r th a t is unnecessarily degrad­
ing, or th a t is shocking or disgusting to 
people of reasonable sensitiv ity  is a 

cruel and unusual punishm ent” ; and 
punishm ent th a t is not inherently cruel 
and unusual may become so by reason of 
m anner in which it is inflicted.

13. Constitutional Law C=3223
Fourteenth  Amendment prohibits 

racial discrim ination w ithin prisons, and 
prohibition extends to racial segregation 
of inm ates. U.S.C.A.Const. Amend. 14.

14. Prisons <S=4
Elim ination of tru s ty  system under 

which tru sties had unsupervised power 
over o ther inm ates was essential to es­
tablishm ent of prison system m eeting 
constitutional standards. U.S.C.A.Const 
Amends. 8, 14.

15. Prisons 0=4
Obligation of prison officials to 

elim inate existing unconstitutionalities 
did not depend upon w hat legislature 
m ight do or upon w hat government 
m ight do or upon w hat officials m ight 
actually be able to accomplish; if  sta te  
was to operate peniten tiary  system it 
was required to have system counte­
nanced by Federal Constitution.

363



309 FEDERAL SUPPLEMENT364

Don Langston and Mike Wilson, Asst. 
Attys. Gen., State of Arkansas, for re­
spondents.

Memorandum Opinion

HENLEY, Chief Judge.
These eight class actions have been 

brought by inmates of the Cummins 
Farm  Unit of the Arkansas State Peni­
tentiary System and the Tucker In te r­
mediate Reformatory which is a p a r t  of 
th a t  System against the members of the 
Arkansas State Board of Corrections 
and the State Commissioner of Correc­
tions who administer the system. Plain­
t if fs  contend on behalf of themselves 
and on behalf of other inmates and on 
behalf of other persons who may in the 
fu ture  be confined at Cummins or a t 
Tucker tha t  the forced, uncompensated 
farm  labor exacted from Arkansas con­
victs for the benefit of the State is vio­
lative of the Thirteenth Amendment to 
the Constitution of the United States. 
They contend fu r ther  tha t  conditions 
and practices within the System are 
such th a t  confinement there  amounts to 
a cruel and unusual punishment pro­
scribed by the E ighth  Amendment to the 
Constitution of the United States, as 
carried forward into the Fourteenth 
Amendment. And they contend still 
fu r the r  tha t  unconstitutional racial seg­
regation is being practiced within the 
System in violation of the Fourteenth 
Amendment. Federal jurisdiction is in­
voked under the provisions of 28 U.S.C. 
A. § 1343(3) and 42 U.S.C.A. § 1983.

I t  appearing to the Court tha t  consti­
tutional questions raised by the petitions 
submitted by the complaining inmates 
per sese were substantial, the Court ap­
pointed Messrs. Jack Holt, J r .  and Phil- 

'ip Kaplan of the Little Rock Bar to 
represent Petitioners without charge. 
Messrs. Holt and Kaplan accepted the 
appointments and have done yeoman 
service on behalf of the ir  clients. The 
Court wishes to thank them for the ir  ef­
forts.

Petitioners’ complaints are well sum­
marized in Paragraph  20 of the Consoli­

dated Amended and Substituted Com­
plaint which is follows:

“20. The actions of defendants 
have deprived members of the plain­
t i f f  class of rights, privileges and im­
munities secured to them by the due 
process and equal protection clauses of 
the Fourteenth Amendment to the 
Constitution of the United States, in­
cluding (a) the r igh t  not to be impris­
oned without meaningful rehabilita­
tive opportunities, (b) the right to be 
free from cruel and unusual punish­
ment, (c) the r ight to be free from 
arb itrary  and capricious denial of re­
habilitation opportunities, (d) the 
r igh t to minimal due process safe­
guards in decisions determining fun­
damental liberties, (e) the right to be 
fed, housed, and clothed so as not to 
be subjected to loss of health or life, 
(f)  the r igh t  to unhampered access to 
counsel and the courts, (g) the right 
to be free from the abuses of fellow 
prisoners in all aspects of daily life, 
(h) the r ight to be free from racial 
segregation, (i) the r ight to be free 
from forced labor, and ( j)  the right 
to be free from the brutality of being 
guarded by fellow inmates.”

The prayer is for a declaratory judg­
ment to the effect tha t  Respondents’ 
acts, policies, and practices violate Thir­
teenth and Fourteenth Amendment 
rights  and for appropriate permanent 
injunctive relief.

[1] Shortly before the cases, herein­
af te r  called collectively a t times simply 
“ the case” or “this case,” were tried, Re­
spondents, represented by Messrs. Don 
Langston and Mike Wilson of the Office 
of the Arkansas Attorney General 
moved to dismiss the petitions on the 
ground tha t  the case was nothing more 
than an effort  to coerce the Arkansu 
Legislature into appropriating more 
money for the System, and that the 
Court was without jurisdiction to enter­
tain such an action. The Court did net 
and does not so characterize the ca«e. 
and the motion was denied. The Court 
is satisfied tha t  it  has jurisdiction u>

any coi

der th 
and si 

On 
contei 
“good' 
W ith 
th a t n 
the 1 
they f! 
consti; 
uncon. 
th a t t 
w ith  i 
sonnel 
th a t o 
ber o: 
been r 
say thi 

This 
mentio 
practii 
been ] 
amoun 
self, j 
is the 
tacked

The 
poses 
Court 
tire  w. 
and a 
evident 
the ber 
recogni 
the ir m 
nett wl 
of the 
Court 1 
views o 
York ( 
gist, wl 
Osborri' 
served . 
te n tia n  
the ArK 
22 of IV 
The vii 
forth in 
mission 
copy of 
evidence 
availabl



lituted Corn-

defendants 
of the plain- 
leges and im- 
n by the due 
ion clauses of 
ment to the 
ed States, in- 

. to be impris- 
ul rehabilita- 
he r igh t to be 
msual punish- 
be free  from 

; denial of re- 
ies, (d) the 
process safe- 

ermining fun- 
Ihe r igh t to be 
d so as not to 
health or life, 

pered access to 
, (g) the r igh t 
buses of fellow 
s of daily life, 
.ee from racial 
ight to be free 
l ( j)  the right 
itality of being 
tes.”
claratory judg- 

it Respondents’ 
es violate Thir- 
h Amendment 
•iate permanent

lie cases, herein- 
a t times simply 
” were tried, Re- 
by Messrs. Don 
;on of the Office 
torney General, 
petitions on the 
as nothing more 
cc the Arkansas 
ropriating more 
n, and th a t  the 
sdiction to cnter- 
he Court did not 

ictcrize the case, 
nied. The Court 
i jurisdiction un-

HOLT v. SARVER
Cite ns 300 K.Supp. 302 (1070)

der the federal statutes heretofore cited, in letter 
and so finds.

On the merits, Respondents do not 
contend that they are operating a 
“good” prison or a “modern” prison.
With commendable candor they concede 
that many of the conditions existing at 
the Penitentiary  are bad. However, 
they deny that they are operating an un­
constitutional prison or are engaging in 
unconstitutional practices. They say 
that they are doing the best they can 
with extremely limited funds and per­
sonnel. They point, justly, to the fact 
tha t over the past several years a num­
ber of significant improvements have 
been made within the System and they 
say that more are in the offing.

This case, unlike earlier cases to be 
mentioned which have involved specific 
practices and abuses alleged to have 
been practiced upon Arkansas convicts, 
amounts to an attack on the System it­
self. As fa r  as the Court is aware, this 
is the f i rs t  time tha t  convicts have a t­
tacked an entire penitentiary system in 
any court, either State or federal.

The cases were consolidated for pur­
poses of trial and were tried to the 
Court without a ju ry  for almost an en­
tire week. Much testimony was taken 
and a substantial body of documentary 
evidence was introduced. The Court had 
the benefit of the expert testimony of a 
recognized authority  on prisons and 
their administration, Mr. James Y. Ben­
nett who for many years was Director 
of the Federal Bureau of Prisons. The 
Court had indirectly the benefit of the 
views of Mr. Austin McCormick of New 
York City, another recognized penolo­
gist, who is Executive Director of the 
Osborne Association, Inc., and who 
served as Chief Consultant to the Peni­
tentiary Study Commission created by 
the Arkansas Legislature in 1967. (Act 
22 of 1967, approved January  31, 1967.)
The views of Mr. McCormick are set 
forth in the formal report of the Com­
mission submitted on January  1, 1968, a 
copy of which report was introduced in 
evidence. There has also been made 
available to the Court a copy of a report

form from Dr. Charles M. 
Friel, Director of Research, Institu te  of 
Contemporary Corrections and the Be­
havioral Sciences, Sam Houston State 
University, Huntsville, Texas, to the A r­
kansas Commission on Crime and Law 
Enforcement. That report is dated Jan u ­
ary 29, 1970, which date was the third 
day of the trial of this case. While the 
report was not formally introduced in 
evidence, i t  will be made pa r t  of the 
record, and the Court feels a t  liberty to 
consider it.

Apart  from the foregoing, the Court 
heard the testimony of inmates and free 
world employees of the Penitentiary 
System ; the Court also saw a motion 
picture film depicting certain prison 
conditions and has examined a number 
of photographs and other documentary 
material.

This Memorandum incorporates the 
Court’s findings of fact and conclusions 
of law. In view of the serious nature of 
the case, in view of the fact tha t  in a 
sense the real Respondents are not limit­
ed to those formally before the Court 
but include the Governor of Arkansas, 
the Arkansas Legislature, and ultimately 
the people of the State as a whole, the 
issues presented have been given the 
most careful consideration of which the 
Court has felt itself capable. The ques­
tions presented are grave and will be 
discussed fully. The Court deems it  
well, however, to state in advance of dis­
cussion its ultimate findings and conclu­
sions on the constitutional issues 
presented.

[2] 1. The Court rejects the con­
tention of the Petitioners tha t  the 
forced, uncompensated labor of Arkan­
sas convicts violates the Thirteenth 
Amendment.

[3J 2. The Court sustains the claim
that conditions and practices in the Pen­
itentiary System are such th a t  confine­
ment of persons therein amounts to a 
cruel and unusual punishment prohibited 
by the E ighth  and Fourteenth Amend­
ments.

365

: i

! I

II:

k

i >
i <*
Mi"

i f
: i r

f
!;

i ;!i

i
ij if .
. * i i ;

.1.



366 309 FEDERAL SUPPLEMENT

5 :!j

M

ii

[4] 3. The Court sustains the claim
tha t  to the extent tha t unconstitutional 
racial discrimination is being practiced 
in the System i t  must be eliminated.

Having so stated its findings and con­
clusions, the Court will proceed to dis­
cuss them and thereaf ter  will pass to a 
consideration of the relief to be award­
ed.

I.  I n tr o d u c tio n

The Arkansas State Penitentiary Sys­
tem consists of the 16,000 acre Cummins 
Farm  located in Lincoln County; the 
Tucker Intermediate Reformatory locat­
ed on a 4,500 acre farm in Jefferson 
County; and the small Women’s Re­
formatory located on the Cummins 
Farm .1

The inmate population a t  Cummins 
now consists of somewhat less than 
1,000 persons; about 325 persons most 
of whom are under 21 years of age are 
confined a t  Tucker. P r io r  to the pas­
sage of Act 377 of 1969 the Tucker In ­
termediate Reformatory was known sim­
ply as the Tucker Farm  Unit of the A r­
kansas State Penitentiary. I t  is a much 
smaller institution than Cummins and 
its problems and those of its inmates are 
not nearly as severe as those existing at 
Cummins. For tha t  reason discussion 
will be directed chiefly a t  Cummins, and 
references to the “Penitentiary” will in 
general be references to Cummins. Spe­
cific mention of Tucker will be made 
where such mention appears necessary 
or  desirable.

The report of the Penitentiary  Study 
Commission to which reference has been 
made contains as its second section a 
historical account of the Arkansas penal 
system prepared originally a t  some un­
specified time by John L. Ferguson, 
State Historian, and covering the period 
from 1838 to 1933.

Arkansas was admitted to the Union 
in 1836. In 1838 the Legislature autho­
rized the construction of a “Jail and

I. All of  th e  P e t i t ione rs  in th is  case a re
men. How ever ,  the  C o u r t  heard  some
evidence a b o u t  the  W o m e n ’s R e fo rm a to ry .

Penitentiary,” and in 1840 such an insti­
tution was constructed in the City of 
Little Rock. I t  was a jail type structure 
located on the present site of the Arkan­
sas State Capitol. When it  was decided 
to build the Capitol on its present site, 
the Penitentiary  was moved to another 
location in the southwestern pa r t  of the 
City and became known as the Peniten­
tia ry  Walls.

In 1902 the State purchased the Lin­
coln County lands th a t  became Cummins 
F a r m ; some years later the smaller 
Tucker Farm  was acquired. In  1933, 
due a t  least in p a r t  to financial strin­
gencies imposed by the Depression, the 
Walls were abandoned as far  as prison 
use was concerned, and the entire peni­
tentiary  operation was transferred to 
the farms. While Cummins has custom­
arily been the headquarters of the Peni­
ten tiary  System, the electric chair for 
executions was installed a t  Tucker and 
the cells for condemned men were locat­
ed at Tucker.

Tucker was designed primarily for the 
confinement of young white convicts and 
for the confinement of both whites and 
Negroes awaiting execution. Negro con­
victs, other than those condemned to die, 
were confined a t  Cummins, and Cum­
mins was also used as a place of confine­
ment for more hardened white convicts.

P r io r  to the Civil W ar Arkansas con­
victs were leased to private employers 
and were frequently mistreated seriously 
by the lessees. There was strong public 
opposition to the system for both hu­
manitarian and economic reasons and it 
was abolished in 1913. Since that time 
Arkansas convicts have been required to 
work for the State, and their work has 
consisted largely of agricultural and 
other manual labor for which they are 
paid nothing either actually or construc­
tively.

At both Cummins and Tucker the in­
mate population is divided into three 
categories. At the bottom of the list are

T h a t  in s t i tu t io n  houses about 35 inmates;
n o t  a ll  of  them  a rc  f e lo n s ; some are
simply chronic  alcoholics.

Pri 
kansn 
about 
were 
from 
tions ;

The 
las tin? 
public 
fa ir  ti

2. Wh; 
offii



367

n insti- 
"ity of 
•ucture 
Arkan- 
decided 
nt site, 
■mother 

of the 
’eniten-

he Lin- 
lmmins 
smaller 
n 1933, 
tl s trin - 
ion, the 
s prison 
re peni- 
rred  to 
custom- 

he Peni- 
hair fo r 
■ker and 
■re locat-

y fo r the 
victs and 
nites and 
■gro con­
od to die, 
nd Cum- 
C confine- 

convicts.

nsas con- 
■mployers 
seriously 

mg public 
both hu­

ms and it 
th a t time 

equired to 
w ork has 

lural and 
i they are 
■ construc-

.er the in- 
into three 
i lie list are

HOLT v. SARVER
Cite ns 309 F.Supp. 302 (1970)

ordinary laboring convicts known as 
“rankers.” A t the top of the list are  
privileged inm ates known as “tru stie s .” 
Between those two categories is a th ird  
class of convicts known as “do pops;” 
how they came to be so called is not 
clear.

As indicated, most of the inm ates a t 
Tucker are  young men who are  not, in 
general, a particularly  vicious lot, a l­
though there  are exceptions. The Cum­
mins population is extremely varied. 
Some are run-of-the-mill non-violent 
crim inals; others are extremely violent 
and dangerous ; many are  incorrig ib les; 
some are properly classified as either so- 
ciopathic or psychopathic, if  not psy­
chotic. A few of them have to be kept 
in isolation cells fo r 24 hours a day to 
protect them from  other inm ates or to 
protect o ther inm ates from  them.

Certain characteristics of the A rkan­
sas prison system  serve to distinguish it 
from most o ther penal institu tions in 
this country. F irs t, i t  has very few 
paid employees; armed trusties guard 
rank and file inm ates and tru sties per­
form other tasks usually and more prop­
erly perform ed by civilian or “free 
world” personnel. Second, convicts not 
in isolation are  confined when not work­
ing, and are required to sleep a t n igh t 
in open dorm itory type barracks in 
which rows of beds are  arranged side by 
side; there are  large num bers of men in 
each barracks. Third, there is no m ean­
ingful program  of rehabilitation w hat­
ever a t Cummins; while there is a 
promising and helpful program  a t Tuck­
er, it is still minimal.

Prior to about 1965 the people of A r­
kansas as a whole knew little or nothing 
about their penal system although there 
were sporadic and sensational “exposes” 
from time to time about alleged condi­
tions at the farm s.

Those "exposes” created little, if  any, 
lasting impressions on the A rkansas 
public. As of th a t time it is probably 
fair to say th a t many otherwise well in-

2. Wliilo M onroe v. P a p e  involve*I police
officers who had  u n law fu lly  searched  a

formed A rkansas people viewed the Pen­
iten tiary  as a self-sustaining even prof­
it-m aking institu tion , operated by a few 
strong willed men who were able to 
make the convicts behave themselves and 
w ork; while i t  was recognized th a t the 
life of the convicts was probably hard, 
th a t was as it  should b e ; they had been 
sent to the P en iten tiary  to be punished 
and were not entitled to lead a “country 
club” existence. Reports of whippings 
m ight cause passing concern which was 
easily allayed by the thought th a t the 
convicts who were whipped deserved to 
be whipped, and th a t a man who went 
down to the Pen iten tiary  and behaved 
him self and did his work would be tre a t­
ed fairly  and would get along fairly  
well.

T hat popular impression of the Peni­
ten tiary  was not accurate in form er 
years, and to the extent th a t it  is still 
present it is not accurate today, as will 
be seen presently. However, the m yth 
tends to be preserved by glowing reports 
of members of conducted tours of the 
farm s who are  shown in daylight hours 
w hat th e ir conductors w ant them to see, 
who talk to selected convicts, and who 
are fed a good meal accompanied by the 
assurance th a t they are eating  “ju s t 
w hat the inm ates eat.”

In 1961 the Supreme Court of the 
United S tates handed down its landm ark 
decision in the case of Monroe v. Pape, 
365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 
492, holding th a t old section 1979 of the 
Revised S tatu tes, derived from  section 1 
of the “Ku Klux A ct” of 1871, and 
which became 42 U.S.C.A. § 1983, gave 
to individual citizens a viable remedy in 
the federal courts fo r deprivations of 
federally protected righ ts by persons 
acting under color of law.2

By 1965 A rkansas convicts were be­
coming more articu late  about the condi­
tions under which they lived than in 
years past and were having more success 
in bringing th e ir complaints to the a t­
tention of free world authorities, includ-

private* dw elling, i ts  a p p licab ility  to  con­
v ic ts  and  th e ir  keepers w as obvious.

in m a te s ; 
som e a re



309 FEDERAL SUPPLEMENT

ing the federal courts s ittin g  in this 
State.

In  th a t year litigation about Peniten­
tia ry  conditions began in th is Court and 
has continued here and in the Court of 
Appeals ever since. The litigation has 
up to this time produced three published 
opinions of the D istric t Court and two 
opinions of the Court of Appeals. A r­
ranged chronologically, those opinions 
a re : Talley v. Stephens, E.D.Ark., 247 
F.Supp. 683, opinion by th is  w rite r; 
Jackson v. Bishop, E.D.Ark., 268 F. 
Supp. 804, jo in t opinion of Judges Gor­
don E. Young and Oren H arris, reversed 
in part, 8 Cir., 404 F.2d 571; Courtney 
v. Bishop, 8 Cir., 409 F.2d 1185; Holt v. 
Sarver, E.D.Ark., 300 F.Supp. 825, opin­
ion by th is  w rite r and here inafter called 
H olt I?

had failed and was failing to discharge 
th a t du ty ; the Court also found th a t due 
to overcrowding confinem ent in the 
Cummins isolation cells was unconstitu­
tional.

The decree entered in Holt I  in the 
summer of 1969 brought about some im­
provements in conditions a t Cummins, 
notably w hat appears to be an elimina­
tion of gross overcrowding in the isola­
tion cells. However, continuing com­
plaints from  inm ates of both Cummins 
and Tucker and disturbing information 
th a t financial difficulties m ight have 
caused a retrogression to form er condi­
tions to set in prompted the Court not to 
approve the report of the Commissioner 
filed in Holt I  and to give fu rth e r con­
sideration to overall conditions a t both 
institutions.

In all of those cases, except Courtney, 
i t  was found th a t unconstitutional p rac­
tices were being carried on a t the Peni­
ten tiary , and injunctive relief was 
granted. The final resu lt of the Talley 
and Jackson cases was th a t corporal 
punishm ent of inm ates, practiced for 
years a t the farm s, was outlawed along 
w ith  the use of such devices of to rtu re  
as the "Tucker Telephone” and the “ tee­
te r  board.” In Holt I  th is  C ourt held 
th a t the S tate owed a constitutional duty 
to  inm ates a t Cummins to use ordinary 
care fo r th e ir  safety, and th a t the State

Aside from  the litigation ju s t out­
lined, there have been significant recent 
developments a t the farm s. In the late 
sum m er of 1966 serious trouble with in­
m ates broke out th a t led to a full inves­
tigation  of conditions a t  both farm s by 
the A rkansas S tate Police and by the 
Federal Bureau of Investigation. That 
investigation plus an additional investi­
gation brought about by another violent 
episode a t Cummins in October 1968 
produced certain  prosecutions in the Cir­
cuit Court of Jefferson  County, Arkan­
sas, and in th is Court.4

3. H o l t  I  w as a c tu a lly  tlirec  cases w hich 
w ere  consolida ted  fo r p u rposes o f tr ia l  
an d  w ere  tr ie d  in  1909. T h ose  cases w ere 
n ev er a c tu a lly  te rm in a te d , an d  th ey  a re  
p re se n tly  before th e  C o u rt a long  w ith  five 
ad d itio n a l cases w hich  th e  C o u rt p e r ­
m itted  to  bo com m enced an d  p rosecu ted .

4. F o llow ing  the  1900 in v estig a tio n  c e r ta in  
fo rm er em ployees a t  th e  T u c k e r  F a rm  
w ere  charged  in th e  C irc u it  C o u rt of 
Je ffe rso n  C oun ty , A rk an sas , w ith  h av ing  
v io lated  A rk .S ta ts . § 4 0 -1 5 8  w hich  m ade 
i t  a  felony fo r a n y  P e n ite n tia ry  em ployee 
to  in flic t a p u n ish m en t on a  convic t in 
excess o f th e  p u n ish m en t p rescribed  by 
th e  then  P e n ite n tia ry  H oard . T h e  C ir ­
c u it  C o u rt held th a t  th e  A rk a n sa s  s ta tu te  
w as v io la tive  of th e  A rk a n sa s  C o n s titu ­
tio n  in t h a t  i t  involved an  in v a lid  delega­
tio n  o f leg isla tive  pow er to  th e  B oard . 
T h e  in fo rm atio n s w ere  d ism issed  by the

C irc u it  C o u rt, and th e  Suprem e Court 
o f A rk a n sa s  affirm ed . S ta te  v. B ruton, 
240 A rk . 2N8, 437 S .\V .2d 795.

In  1908 a n u m b er o f p riso n ers  a t  Cum­
m ins w en t on a  s it  dow n s tr ik e  and re­
fused to  d isperse. T hey  w ere fired upon 
w ith  sh o tg u n s loaded w ith  b irdsho t by a 
n u m b er o f free w orld  people and trusty 
g u a rd s . Som e in m ates w ere wounded, one 
se riously . F o rtu n a te ly , no one w as killed.

T h o  ab o rtio n  o f th e  S ta te  cou rt prosecu­
tio n s  an d  th e  1908 episode ju s t  described 
caused  the  U n ited  S ta te s  D epartm ent of 
Ju s tic e  to  ask  th e  C o u rt to  call the 
federa l G ran d  J u r y  fo r the  E aste rn  Din- 
t r ic t  o f  A rk a n sa s  in to  special session in 
th e  su m m er o f 1909. T h a t  w as done, nnd 
a  n u m b er o f  in d ic tm en ts w ere returned 
a g a in s t P e n ite n tia ry  employees nnd 
fo rm er em ployees and  ag a in s t a number 
o f fo rm er in m a tes  charg in g  violations of 
18 U .S .C .A . § 242. T h e  C o u rt conducted

m
th
po
Ci
th.
ry
wl:
St;t
net



369T
discharge 
1 th a t due 
t in the
, nconstitu-

t I  in the 
t some im- 
Cummins, 

tn elimina- 
i the isola­
t i n g  com- 
i Cummins 
inform ation
night have 
’•mer condi-
Court not to \1
■ mmissioner V

fu rther con- I
ions a t both I

i

,n ju s t out-
'
1

ficant recent |
In  the late 

able w ith  in-

%
|
i

a full inves- 
ith farm s by 1f

and by the ia,
igation. T hat t|
ional investi- I

nother violent 
October 1968 
ns in  the Cir- 

ounty, A rkan-

ipromc Court 
itc v. Bruton,
M 70S. 
oners nt Cum- 
strike nnil re- 
ore fired ui>on 
birdsliot by n 

ide and trusty
0 wounded, one 
one was killed.
■ court prosecu- 
. just described
Department of 

rt to call the 
lie Eastern l>is- 
M'cial session in 
,t was done, and
1 were returned 
employees and 
:ainst n number 
inB violations of
Court conducted

■V , l

HOLT v. SARVER
Cite as 300 F.Supp. 302 (1970)

When the Legislature convened in 
January  1967 it  prom ptly created the 
Pen iten tiary  Study Commission. The 
Emergency Clause included in Act 22 of
1967 creating  the Commission and di­
recting it to make a detailed study of 
the farm s recited th a t widespread pub­
licity about the P eniten tiary  had “raised 
serious questions in the minds of public 
officials and the general public regard ­
ing the facilities, practices, and disci­
plinary procedures a t the S tate Peni­
ten tiary  and th a t it is necessary th a t a 
thorough study and evaluation of the 
penal system in A rkansas be made as 
soon as possible.”

The Commission’s study was detailed, 
and its report was sharply critical of 
many aspects of the prison system ; nu­
merous reform s were recommended. Re­
sponding to the report, the Legislature 
in special session in early 1968 adopted 
Act 50 of th a t year, a sweeping sta tu te  
dealing w ith the prison system and 
which recognized th a t tra in in g  and reha­
bilitation should be essential objectives 
of the farm s. T hat Act, among other 
things, created the D epartm ent of 
Corrections which took the place of the 
old P eniten tiary  Board.

The legislation adopted in 1967 and
1968 and Act 377 of 1969 establishing 
the Tucker Interm ediate Reform atory 
are forw ard looking; bu t a t least as yet 
they have not had any significant im­
pact on the distinctive characteristics of 
the A rkansas penal system mentioned 
heretofore.

Returning now to th is case, the te s ti­
mony of D irector Bennett, the repo rt of 
the Study Commission, and the 1969 re­
port of Dr. F riel to the Commission on 
Crime and Law Enforcem ent, are  all to 
the effect th a t the A rkansas Pen iten tia­
ry System is substandard and outmoded 
when measured by accepted penological 
standards, and th a t improvements are 
needed in many areas. Commissioner

a number of jury trials which with one 
exception resulted in verdicts of not 
guilty, although the evidence in all of the 
cases was ample to convict. In one case 
the jury was not able to agree. As to 

309 F.Supp.— 24

Sarver him self has come forw ard w ith 
sweeping recommendations fo r radical 
improvements to be made over a period 
of about ten years.

[5, 6] The Court, however, is lim ited 
in its  inquiry  to the question of w hether 
or not the constitutional righ ts  of in­
m ates are being invaded and w ith 
w hether the P en iten tiary  itself is uncon­
stitutional. The Court is not judicially 
concerned w ith questions which in the 
last analysis are  addressed to legislative 
and adm inistrative judgm ent. A p rac­
tice th a t may be bad from the stand­
point of penology may not necessarily be 
forbidden by the Constitution. And a 
prison system th a t would be excellent 
from  the point of view of a modern p ris ­
on adm inistra tor may not be required by 
the provisions of the Constitution w ith  
which the Court is concerned.

II. The T h irteen th  Am endm ent Claim
The Court takes up f irs t  the T h ir­

teenth Amendment contention of P e ti­
tioners. Some facts relevant to th a t 
claim have been stated  already; o ther 
facts to be stated are relevant not only 
to the T hirteen th  Amendment claim but 
also to Petitioners’ claims based on the 
Fourteen th  Amendment.

The T hirteen th  Amendment, adopted 
immediately a fte r  the Civil W ar, pro­
vides explicitly th a t:

“N either slavery nor involuntary 
servitude, except as a punishm ent for 
crime w hereof the p a rty  shall have 
been duly convicted, shall exist w ithin 
the U nited States, or any place subject 
to th e ir ju risd iction .’’

[7] The purpose of the Amendment 
was, of course, to abolish A frican slav­
ery and practices related or analogous 
thereto. I t  will be observed th a t the 
T hirteenth  Amendment, unlike the Four­
teenth and certain  o ther Amendments, is 
more than a prohibition upon the States.

that ease the defendant ultimately pleaded 
nolo contendere, and another plea of nolo 
contendere was entered by another de­
fendant.



309 FEDERAL SUPPLEMENT370

The T hirteenth  Amendment abolishes 
slavery and involuntary servitude, except 
as punishm ent fo r crime, everywhere in 
the United States, its  T erritories, and 
possessions.

The T hirteenth  Amendment claim 
w ith which the Court is concerned re­
lates prim arily  to the requirem ent th a t 
A rkansas convicts work fo r long hours 
w ithout pay in the fields on the farm s 
fo r the financial benefit of the State. 
N ot all rank and file A rkansas convicts 
are required to perform  labor of tha t 
type, but substantial num bers of them 
are. As in o ther contexts, the principal 
problem is a t Cummins. T hat is true  
because the farm ing operation now 
being conducted a t Tucker is limited to 
the production of food for inmate con­
sumption. Tucker farm lands not used 
for th a t purpose have been leased to p r i­
vate operators.

Cummins Farm  is located on fertile 
land well adapted to producing ju s t 
about any kind of crop th a t can be 
grown in A rkansas. The principal crops 
produced on the farm  are  cotton, soy­
beans, rice, vegetables, fru its , and ber­
ries. O ther substantial farm  operations 
include livestock, dairying, and poultry 
production.

According to the report of the Study 
Commission, there w ere 9,070 acres of 
land in cultivation a t Cummins as of De­
cember 15, 1967. As of the same date 
the Farm  had 2,070 cattle, 800 hogs, 40 
horses, 160 mules, and 1,600 poultry.

A gain according to the Commission, 
during 1967 60 percent of the cultivated 
acreage a t Cummins was devoted to 
crops raised fo r sale on the m arket; 30 
percent to crops th a t supported the live­
stock and pou ltry ; and 10 percent to 
garden vegetables and other crops for 
the feeding of civilian personnel and in­
mates.

The Commission’s report reflects th a t 
w ith respect to the fiscal year ending 
June 30, 1966, the Penitentiary , both 
farm s apparently, derived an income of 
$1,415,419.43 from  the sale of crops, in ­
cluding field crops, vegetables, fru it, and 
pecans; the corresponding figure for

the year ending June 30, 1967, was $1,- 
242,191.38. Sales of farm  products other 
than crops amounted to $213,561.22 for 
fiscal ’66 and to $131,806.13 fo r fiscal 
'67.

Total receipts of the Penitentiary  
from  all sources fo r fiscal ’66 was $1,- 
763,487.09 and total expenditures came 
to $1,473,497.70. Corresponding figures 
fo r fiscal ’67 were $1,566,712.76 and 
$1,785,570.33.

The December 15, 1967, inventory of 
equipm ent a t Cummins, appearing at 
page 6.09 of the Commission’s report, 
indicates th a t there has been substantial 
mechanization of the F arm ’s operation. 
However, the evidence reflects that 
much of the work is still done by hand, 
and the fact th a t in 1967 the Farm 
owned 160 mules indicates th a t a good 
deal of power utilized a t the F arm  is 
“mule power.”

In 1967 the F arm  had a cotton allot­
m ent of 962 acres worked largely by 
hand, and the production of fru its  and 
vegetables involves a g rea t deal of what 
is commonly called “stooped labor.”

Men assigned to the fields are re­
quired to work long hours six days a 
week, except for a few holidays, if 
w eather perm its. They are worked re­
gardless of heat, and summers can be 
very hot a t C um m ins; in the winter 
they are not required to work when the 
tem perature is below freezing, but they 
are  required to work in merely bad or 
wet w eather regardless of the season of 
the year. The men are not supplied by 
the S tate w ith particularly  warm cloth­
ing for w inter work, nor are they fur­
nished any bad w eather gear. There is 
evidence th a t a t times men have been 
sent to the fields w ithout shoes or with 
inadequate shoes. The field work is a r­
duous and is particularly  onerous in the 
case of men who have had no previous ex­
perience in chopping and picking cotton 
or in harvesting vegetables, fruits, and 
berries. W hat skills they may acquire in 
connection w ith th e ir field work are of 
very little, if any, value to them when ;
they re tu rn  to the free world. j

*<1
iv

' l i *  .
t t ■ ' •'

! •

m :: t 
. ■" « !
•, ",

• f  •

m , '  •'• ‘

1
v f :V ’i,i  • S  .7 .



371'67, was $1,- 
oducts o ther 
13,561.22 fo r 
'3  for fiscal

P eniten tiary  
'66 was $1,- 
litures came
■ ding figures 
6,712.76 and

inventory of 
appearing a t  
ion’s report, 
n substantial 
i’s operation, 
eflects th a t 
one by hand, 
■7 the F arm  

tha t a good 
the F arm  is

cotton allot- 
1 largely by 
>f f ru its  and 
deal of w hat 
1 labor.”

ields are re- 
s six days a 

holidays, if 
a worked re- 
imers can be 
i the w in ter 
ork when the 
ing, but they 

Merely bad or 
the season of 
it supplied by 

warm cloth- 
are they fur- 
ar. There is 

on have been 
shoes or w ith 
id work is ar-
■ nerous in the 
io previous ex- 
sicking cotton 
s, fru its , and 
iay acquire in 
1 work arc of 
o them when 
d.

1
*

HOLT v. SARVER
Cite as 309 F.l

N aturally, the inm ates do not like to 
work in the fields. P rio r to the decision 
of the Court of Appeals in Jackson, su­
pra, most of them could be forced to do 
so by applications of the strap . Now 
there is no sanction, except confinement 
in isolation, to compel the men to work, 
and many of them are willing to under­
go solitary confinement in order to 
avoid field work.

Rankers assigned to work in the fields 
do so in groups known as "long lines.” 
The num bers of men in long lines may 
vary considerably. Theoretically, each 
long line is under the supervision of a 
free world employee known as a field 
warden. Actually, the rankers are  un­
der the immediate and direct supervision 
of trusties known as “long line rid e rs” 
and inm ate "pushers.” As his name im­
plies, the long line rider is a mounted 
man who rides back and fo rth  among 
the working men. Since he is in very 
close proxim ity to the rankers and is 
somewhat vulnerable to a ttack  from  
them, he ordinarily does not carry  a 
firearm , although he may do so on occa­
sions. The real guarding of the rankers 
in the field is done by o ther trusties 
armed either w ith high powered rifles 
and known as “high powers,” or w ith 
shotguns and known, logically, as “shot­
guns.”

upp. 302 (1970)

may be fired upon. In addition to run­
ning the risk  of being shot by an over- 
zealous guard  or by one w ith merely 
poor judgm ent there is always the possi­
bility th a t a guard will deliberately m ur­
der an inm ate on the pretense th a t he 
was try ing  to escape.

As stated, the men are paid nothing 
fo r th e ir work. I f  an inm ate w ants to 
earn money legitim ately in his spare 
time while in the Peniten tiary , there  are 
only two ways in which he can do it. 
The inm ates as a class are perm itted  to 
have an Inm ate W elfare Fund which op­
erates a commissary type store and 
which also operates a blood bank. P ro f­
its from the store and the blood bank in­
ure to the Fund which, parenthetically, 
appears as of this moment to have more 
money available to it than Respondents 
have available to them to run the Peni­
ten tiary . A very limited num ber of in ­
m ates are employed in the store and are 
paid small monthly salaries. O ther in ­
m ates can sell th e ir  blood once a week at 
the blood bank and receive $5 per visit. 
The inm ates re fe r to selling th e ir blood 
as “bleeding a t the blood bank.” How­
ever, not all inmates are perm itted to 
“bleed” and, hence, cannot earn the $3; 
for example, the bank will not accept 
blood from  an inm ate w ith a morbid 
condition of the liver.

According to the Study Commission’s 
report, a long line a t Cummins on a typ­
ical date m ight be made up of, say, 56 
rankers, nine tru sty  guards, and a long 
line rider. The perim eter of the plot in 
which the rankers are w orking is occu­
pied by guards armed w ith rifles; 
guards armed w ith shotguns work in 
closer px-oximity to the rankers.

If a ranker tries to escape, the tru s t­
ies are insti'ucted to fire  one w arning 
shot into the a ir ;  if the ranker persists 
in his effo rt to get away, the tru sties 
fire at him to “stop” h im ; it makes no 
difference w hether he is killed or not. 
Whether a i-anker is try ing  to escape is 
at times subject to question, and the 
question is answered sum m arily by the 
guards. Thus, a ranker who unw itting­
ly strays across an im aginary deadline

W hat small comforts and luxuries the 
inm ates have legitim ately ai-e not fu r­
nished by the S tate but by the W elfare 
Fund, and it is the Fund, not the State, 
th a t gives a departing  inm ate the nomi­
nal sum of $25 to see him on his way.

Director Bennett testified  th a t in­
mates of federal prisons and of many 
State prisons can earn legitim ate al­
though usually vei’y low wages while 
confined. He thinks th a t such wage 
paym ents are  desirable for several i-ea- 
sons: they give a man an incentive to 
work; they impi-ove his m orale; they 
enable him to be of some assistance to 
his dependents; and they perhaps enable 
him to build up a small stake for him ­
self against the day on which he is to be 
released from  prison. Mr. Bennett con­
ceded, however, th a t there are still some



309 FEDERAL SUPPLEMENT

States, like Arkansas, th a t pay th e ir 
convicts nothing.

The picture of w orking conditions a t 
Cummins th a t has been painted is not 
a ttractive, and the system would not be 
called humane by modern standards. 
But, the question for decision a t this 
moment is w hether the system is prohib­
ited by the T hirteen th  Amendment.

[8] The A rkansas system of working 
convicts is not “slavery” in the constitu­
tional sense of the term . The S tate does 
not claim to own the bodies of its  p ris­
oners. The situation  does involve “ser­
vitude,” and there is no doubt whatever 
th a t the “servitude” is “ involuntary.”

But, it is equally clear th a t this servi­
tude has been imposed as punishm ent 
fo r crimes whereof the inmates ha \e  
been duly convicted. Conceding th a t the 
work required is hard and tedious, th a t 
i t  is perform ed under harsh  conditions, 
th a t the State requires i t  to produce in­
come for the State, and th a t the system 
serves little other purpose, if any, the 
Court is not persuaded th a t the system 
violates the T hirteen th  Amendment.

According to D irector Bennett, the 
idea th a t prisons and prisoners ought to 
support themselves is as old as Ameri­
can penology. He referred  to the fact 
th a t the convict-leasing system came 
into existence a t a very early stage as 
the States found th a t it  was more pro f­
itable to lease th e ir convicts than to 
work them themselves. And he pointed 
out th a t one of the best descriptions of 
the leasing system is to be found in 
M argaret Mitchell’s Civil W ar novel, 
"Gone W ith The W ind.”

When Congress subm itted the T h ir­
teenth Amendment to the States, it m ust 
have been aware of generally accepted 
convict labor policies and practices, and 
the Court is persuaded th a t the Amend­
m ent’s exception m anifested a Congres­
sional in ten t not to reach such policies 
and practices.

Heflin v. Sanford, 5 Cir., 142 F.2d 
798, is instructive on th is  phase of the 
case although it  did not involve convict 
labor. Heflin, a conscientious objector,

was ordered to report for work of na­
tional importance during World W ar I I ;  
his compensation would have been but 
nominal. He refused to report and was 
sent to the penitentiary  for violating the 
Selective Service Act. On habeas corpus 
he contended th a t to require him to do 
work of national importance w ith little 
or no pay amounted to prohibited slav­
ery and involuntary servitude. H is con­
tention was rejected. The Court pointed 
out th a t there is a difference between 
“ involuntary servitude” and “uncompen­
sated service,” and th a t the Thirteenth 
Amendment prohibits the one, except as 
punishm ent for crime, but does not pro­
hibit the other.

III. Fourteenth Am endm ent Claim— 
Cruel and Unusual Punishm ent.

The E ighth  Amendment to the Consti­
tu tion  of the United States prohibits the 
infliction of “cruel and unusual punish­
m ents.” Originally a restriction  on the 
federal government, it has been held that 
the E ighth  Amendment has been carried 
forw ard into the Fourteen th  Amend­
ment, Robinson v. California, 370 U.S. 
660, 82 S.Ct. 1417, 8 L.Ed.2d 758, and it 
was on the basis of the E igh th  Amend­
ment th a t relief was granted in Talley, 
Jackson, and Holt I, all supra.

An individual convict may, of course, 
be subjected to a cruel and unusual pun­
ishm ent actually inflicted on him person­
ally, as by his being beaten with the 
P en iten tiary  strap , or by being shocked 
electrically by the Tucker Telephone, or 
by being compelled to stand upon the 
“tee ter board” for long periods of time, 
or by other means of punishm ent or tor­
tu re .

[9] I t  appears to the Court, how­
ever, th a t the concept of “cruel and un­
usual punishm ent” is not limited to in­
stances in which a particu lar inmate is 
subjected to a punishm ent directed at 
him as an individual. In the Court s es­
tim ation confinement itself within a gi\- 
en institu tion  may am ount to a ciuel 
and unusual punishm ent prohibited by 
the Constitution where the confinement



373
of na- 
a r  I I ;  
•n but 
id was 
ng the 
corpus 
i to do 
h little 
d slav- 
is con- 

oointed 
etween 
>mpen- 

iteen th  
cept as 
ot pro-

'laim— 
nent.
Consti- 
bits the 
punish- 
on the 

old th a t 
carried  
Amend- 
70 U.S. 
, and it 
Amend- 

i Talley,

course, 
ual pun- 
person- 

vith the 
shocked 
hone, or 
pon the 
of time, 
t or tor-

t, how- 
and un­
ci to in­

ornate is 
eetcd at 
curt’s es- 
in a giv- 

a cruel 
hited by 
finement

HOLT v, SARVER
C ite  a s  300 F .S u n n . 302 (1970)

is characterized by conditions and prac­
tices so bad as to be shocking to the con­
science of reasonably civilized people 
even though a particu lar inm ate may 
never personally be subject to any disci­
plinary action. To pu t it  another way, 
while confinement, even a t  hard labor 
and w ithout compensation, is not consid­
ered to be necessarily a cruel and unusu­
al punishm ent it may be so in certain  
circumstances and by reason of the con­
ditions of the confinement. T hat is cer­
tainly the law in the case of prisoners 
confined in isolation, Courtney v. B ish­
op, supra, Holt / ,  supra, and cases there  
cited; and the Court sees no reason why 
i t  is not the law in cases of prisoners 
confined “in population,” as it  is called.

In the in stan t case Petitioners contend 
th a t overall conditions in the A rkansas 
penal system, including but not limited 
to those relating  to inm ate safety, may 
be so bad th a t it am ounts to an uncon­
stitutional cruel and unusual punishm ent 
to expose men to those conditions, re­
gardless of how those conditions may op­
erate fortuitously on particu lar individu­
als. Is th a t contention sustained by the 
evidence?

The distinguishing aspects of A rkan­
sas penitentiary  life m ust be considered 
together. One cannot consider separate­
ly a tru sty  system, a system in which 
men are confined together in large num­
bers in open barracks, bad conditions in 
the isolation cells, or an absence of a 
meaningful program  of rehabilitation. 
All of those th ings exist in com bination; 
each affects the o ther; and taken to­
gether they have a cumulative im pact on 
the inmates regardless of th e ir status. 
That should be borne in mind as one 
reads the following descriptions of the 
trusty system, the barracks system, the 
isolation cells, and other aspects of p ris­
on life.

Again, these descriptions are  based 
primarily on conditions a t Cummins. 
They are based on a large volume of tes­
timony much of which was really a rep­
etition of w hat the Court heard when it  
tried Holt 1.

The T rusty  System .

No one questions the propriety or de­
sirability  of according tru s ty  sta tu s to 
deserving convicts, and perhaps all p ris­
ons do. But the tru s ty  system as it ex­
ists in A rkansas is sui generis. The 
trusties run the prison. They not only 
guard other inm ates; they also perform  
many adm inistrative tasks normally per­
formed by free world people, and th e ir  
au thority  over o ther convicts of lesser 
rank is great. Commissioner Sarver 
testified  w ithout contradiction th a t more 
than 90 percent of prison functions re ­
lating  to inm ates are  perform ed by 
trusties. The few free world people are 
only nominally in command of the situa­
tion a t Cummins, and the trusties could 
take it over in a moment. Perhaps the 
reason they do not do so is th a t they do 
not w ant to spoil a good thing.

The extent of A rkansas’ reliance on 
tru sties is apparent when it is realized 
th a t there are  only 35 free world em­
ployees a t Cummins in ostensible charge 
of slightly less than 1,000 men. Of 
those 35 only eight are available for 
guard duty, and only two of them are  on 
duty a t night.

The use of tru s ty  guards is universal­
ly condemned by penologists, and the 
system is now in use only in Arkansas, 
Louisiana, and M ississippi. According 
to D irector Bennett, the reliance tha t 
Louisiana places upon tru s ty  guards is 
much less than th a t which exists in A r­
kansas. He did not testify  w ith respect 
to M ississippi. The reasons for penolog­
ical disapproval of the use of tru sty  
guards arc th a t it creates an unhealthy 
prison climate and atm osphere; it 
breeds fear and hatred between the 
guards, on the one hand, and those 
guarded, on the o ther h a n d ; it tends to 
be brutal and to endanger the lives of 
inm ates who live and work “under the 
guns” of o ther convicts; and it leads to 
o ther abuses.

In  this connection it may be observed 
th a t some inm ates of the Peniten tiary  
have refused to accept tru sty  guard sta ­
tus due to th e ir  feeling th a t it  is



“w rong” for one convict to guard anoth­
er and to th e ir fear of w hat m ight hap­
pen to them  should they ever be demoted 
to the ranks. And Mr. Bennett testified  
th a t when he was head of the Bureau of 
Prisons, it was frequently necessary to 
take strong  protective measures w ith re­
spect to inmates of federal prisons who 
had form erly been tru s ty  guards in A r­
kansas.

A part from  the use of tru s tie s  as 
guards, they can be given too much au­
tho rity  in other areas of prison life. 
When th a t is done, various abuses come 
into existence. When all is said and 
done, the fact rem ains th a t a tru sty  is a 
convict, and many tru sties will on occa­
sions act like felons and thieves. They 
will take bribes, they will engage in ex­
tortion , they will smuggle contraband, 
and they will connive a t violations of 
prison rules. O pportunity for abuse is 
particularly  present where, as in A rkan­
sas, tru sties have access to prison 
records pertain ing to themselves and to 
o ther inm ates. A tru s ty  w ith such ac­
cess can remove dam aging m aterial, 
such as a detainer, from  an inm ate’s 
file ; he can insert im proper m ateria l; 
or he can im part to o ther inm ates confi­
dential inform ation th a t ought not to be 
im parted. The undesirability of having 
prison telephone communications w ith 
the outside world in the control of tru s t­
ies, as it  is in A rkansas, is too obvious 
to require description.

This does not mean th a t tru sties 
should never be given responsible jobs. 
One of the chief functions of rehabilita­
tion is to teach convicts to assume and 
discharge responsibilities. But, i t  does 
mean th a t the areas of tru s ty  responsi­
bility  should be limited, and th a t the 
tru sties, both individually and as a body, 
should be under the full control and ade­
quate supervision of free world people.

The danger of excessive reliance on 
tru sties  was discussed fully in the report 
of the Study Commission, and one of the 
recommendations of the Commission was 
th a t the system be retained “insofar as 
it conforms to the type found in the bet­
te r  American sta te  and federal prisons,”

but th a t “tru sties no longer be given du­
ties, responsibilities or au thority  that 
should be given only to civilian em­
ployees who can be held legally responsi­
ble.”

As the C ourt’s description of the 
tru s ty  system in A rkansas proceeds, it 
will be seen, to the extent th a t it  has not 
become apparent already, th a t ju s t about 
every abuse which the system is capable 
of producing has been produced and is 
being practiced in th is State.

An inm ate gets to be a tru s ty  in Ar­
kansas by promotion from  the ranks or 
from  “do pop” status. While promo­
tions and demotions are form ally made 
by committees of free world personnel, 
as a practical m atte r such actions are 
usually based uncritically on initial rec­
ommendations of trusties. In  the case 
of a field worker, the recommendation is 
usually made by a long line rider.

Actually, few, if any, objective crite­
ria  are used in selecting tru s t ie s ; that a 
man is a bad man, or a dangerous man, 
or th a t he has a bad crim inal record is 
by no means a disqualification; on the 
contrary, it may be a recommendation. 
In the case of a tru s ty  guard probably 
the principal criterion of promotion is 
his willingness to prevent escapes and 
support the free world people vis a vis 
the general inm ate population, shooting 
to kill if necessary to achieve those 
objectives. A tru s ty  is not expected to 
take any steps to protect an inmate from 
violence a t the hands of another inmate, 
and the tru sties do not do so.

In a very real sense tru s ty  guards 
have the power of life and death over 
o ther inmates. Some guards are doubt­
less men of some judgm ent and humani­
ty ; others are not. I t  is within the 
power of a tru sty  guard to murder an­
other inm ate w ith practical impunity, 
and the danger th a t such will be done is 
always clear and present. Very recently 
a gate guard killed another inmate 
“carelessly.” One wonders. And there 
is evidence th a t recently a guard on 
n ight duty fired a shotgun into a crowd­
ed barracks because the inmates would 
not tu rn  off th e ir television set. In any

309 FEDERAL SUPPLEMENT

P.
in!
St;
P i ­

rn;.



375
en du-
y th a t
n em-
•■ponsi-

of the
eds, it

has not
t  about i
capable i
and is 1

(

in Ar-
anks or !
promo-

ly made f
rsonnel, 5

ions are i
dial rec- 4.
ihe case 1*
dation is

ve crite-
;; th a t a
ous man,
record is
; on the

:endation.
probably

.notion is
apes and
vis a vis

. shooting
eve those
•tpected to
mate from
er inmate.

ty guards
loath over
are doubt-
id humani-

ithin the
.»urder an-

impunity.
be done is

■ry recently
ier inmate

And there
i guard on
ito a crowd-
nates would
set. In any

HOLT v. SARVER
C ite  as  309 F .S u p p . 302 (1970)

event, the rankers live in deadly fea r of 
the guards and en terta in  deadly hatred  
fo r them, and th e ir  feelings are  recipro­
cated fully.

The Study Commission recommended 
tha t the guard  system be phased out as 
soon as possible, s ta rtin g  w ith the tru s t­
ies guarding field workers. The Court 
thinks th a t th a t is a good recommenda­
tion, but the tru s ty  guard system itself, 
bad as it  is, does not give the Court as 
much trouble as do o ther facets of the 
overall tru s ty  system.

By v irtue of th e ir positions of au tho r­
ity and the functions they perform  
trusties can make or break rankers and 
“do pops.” They can make prison life 
tolerable or they can make it unbearably 
hard. They can and do sell favors, easy 
jobs, and coveted positions; they can 
and do ex tort -money from inm ates on 
any and all pretexts. They operate 
rackets w ithin the prison, involving 
among other th ings the forcing of in­
mates to buy from them th ings like cof­
fee at exorbitant prices. They lend 
money to rankers and then use force or 
threats of force to collect the debts.

Controlling the slaughter house, the 
kitchen, and the prison stores, trusties 
steal food and other commodities from  
the institu tion  and then sell them to o th­
er inmates. An inm ate can eat well a t 
the Penitentiary  if  he can pay fo r w hat 
he gets; if  he cannot pay, he eats as 
regular issue w hat the tru sties  have 
seen f it to leave.

Trusties have ra th e r  broad privileges 
about leaving the farm s. Coming back 
they bring w ith them  weapons, liquor, 
and drugs which they sell to less p riv i­
leged inmates. As m ight be expected 
liquor is much in demand, and its price 
is high. A p in t of taxpaid whiskey sells 
for $10, much more than twice its free 
world price.

When a new inmate arrives a t the 
Penitentiary, about the f irs t  person to 
interview him Is a tru sty  who frequently  
starts out to relieve him by th rea ts  or 
promises of w hat money and property he 
may possess.

An en terprising  tru s ty  who makes the 
most of his opportunities can do quite 
well for himself. Some do so well th a t 
they do not w ant to leave the institution. 
While it  can hardly be said th a t the 
tru sty  system in A rkansas is a “free” 
enterprise system, i t  is certainly a capi­
talistic system w ith some of the worst 
features commonly a ttribu ted  to “M af­
ia” techniques in organized crime.

One of the w orst features of the sys­
tem  is th a t the tru sties form  a living 
b a rrie r  between ordinary inmates and 
institu tional facilities and services th a t 
are available and to which an inm ate 
ought to be able to have access as a m at­
te r  of course. I f  a ranker can pay or is 
on good term s w ith the trusties, he can 
get w hat he needs when he needs i t ; he 
can get to the in firm ary  when the doc­
tor is th e re ; he can get prescribed med­
ications. I f  he cannot pay or does not 
get along w ith the tru sties, the case is 
fa r  otherwise.

Additionally, inm ate access to free 
world personnel too often depends on 
tru s ty  good will, whim, or caprice. This 
Court has long been convinced th a t 
many of the complaints th a t it  receives 
from  inmates stem from  a simple lack of 
communication between the complainants 
and civilian personnel, the lack being 
due to tru sty  in terference or in d iffe r­
ence.

Not only can the tn is tie s  prevent a 
ranker from  getting  into contact w ith a 
civilian employee; they can and fre ­
quently do b ring  unm erited discipline 
down on the head of a ranker by "w rit­
ing him up” for unsatisfactory  work or 
fo r refusal to w ork; th e ir reports are 
frequently, if  not usually, taken a t face 
value by the employees to whom they are 
made.

In  fairness to the tru sties it should 
perhaps be said th a t th e ir  roses are not 
w ithout thorns. Ju s t as a tru sty  can 
make or break a ranker, so can he be 
broken or demoted by a superior tru sty  
or by free world personnel. And if  he is 
demoted to the ranks, he is a t  the tender 
mercy of those whom he may have per-



376 309 FEDERAL SUPPLEMENT

< p i  i
•• i'* • , .i■r*v:
f t  ’*- t

8  Hi

' f> <■

secuted or exploited, and it  may become 
necessary to pu t him in isolation fo r his 
own protection.

Before leaving its  description of the 
tru s ty  system, the C ourt will say th a t it  
has not overlooked the fac t th a t many of 
the abuses practiced by tru sties  could 
also be practiced by free world person­
nel, bu t the Court th inks th a t free world 
people, carefully selected and properly 
paid, would be fa r  less likely to commit 
such abuses than are  the felons now 
holding positions of authority .

L ife  In  The Barracks.

The report of the Study Commission 
reflects th a t there are  eight barracks a t 
Cummins and three a t  Tucker. Only 
five of the barracks a t Cummins appear 
to be in use a t the presen t time perhaps 
due to the fact th a t the population of 
Cummins is lower now than  it  has been 
in years past. W hite tru sties occupy 
one barracks; Negro tru sties occupy an ­
other ba rrack s; w hite rankers have a 
barracks of th e ir own; and Negro rank ­
ers have a barracks of th e ir  own. A t 
the present time "do pops” a t Cummins 
have th e ir  own b a rrack s; the record 
does not disclose w hether there are  any 
Negro “do pops.” The Commission’s re ­
port indicates th a t when “do pops" are 
not sleeping in the ir own barracks, they 
are housed w ith rankers.

A barracks is nothing more than a 
large dorm itory surrounded by bars; 
the barracks are  separated from each 
other by wide hallways, and the complex 
of hallways is referred  to as the “yard.” 
A t the present time the barracks house 
more than 100 men each assigned w ith­
out regard  to anything bu t rank and 
race. The inhabitants of a given b ar­
racks have free access to each o ther a t 
all times. Only two free world people 
are on duty in the yard a t  night. In ­
m ate “ floor walkers" are stationed in­
side the barracks proper fo r the purpose 
of keeping order and reporting  d isturb­
ances. In th e ir  barracks the trusties 
are not armed except w ith th e ir  own 
knives which they continually keep at

hand; however, there are probably one 
or more arm ed tru sties  in picket posts 
w ith in  the barracks building.

In Holt I  the Court discussed life in 
the Cummins barracks in some detail; 
i t  was said (pp. 830-831 of 300 F .S u p p .):

“Prisoners who are  not confined in 
the isolation unit sleep in open bar­
racks. There are  two barracks for 
tru sties  and two fo r ‘dopops’ and 
rankers. Those barracks am ount to 
enclosed dorm itories in which the in­
m ates sleep on cots arranged in rows. 
A t n igh t there are one or more free 
world guards on duty outside the bar­
racks proper, but they are not actually 
inside the sleeping area. Those areas 
a re  supposedly patrolled by inmate 
‘floorwalkers’ whose duty it  is to re­
port disturbances to the guards.

“Since the inm ates sleep together in 
the barracks, an inm ate has ready ac­
cess to any other inm ate sleeping in 
the same barracks. Many of the in­
m ates have weapons of one sort or an­
other, and the evidence indicates that 
in spite of efforts to do so it is impos­
sible from  a practical standpoint, to 
prevent inm ates from  having small 
weapons such as knives or scissors in 
th e ir  possession.

“A t tim es deadly feuds arise be­
tween particu lar inm ates, and if  one 
of them can catch his enemy asleep it 
is easy to crawl over and stab him. 
Inm ates who commit such assaults are 
known as ‘craw lers’ and ‘creepers,’ and 
other inmates live in fea r of them. 
The Court finds th a t the ‘floorwalk­
e rs ’ are ineffective in preventing such 
a ssa u lts ; they are either afra id  to call 
the guards or, in instances, may be in 
league w ith the assailants.

“The undisputed evidence is to the 
effect th a t w ithin the last 18 months 
there have been 17 stabbings a t Cum­
mins, all but one of them taking 
place in the barracks,' and four of 
them  producing fata l results. At least 
two of the petitioners now in isolation 
have been assailants in stabbing inci-



377
dents and others have been the vic­
tim s of such incidents.

Respondent and his subordinates 
deplore the situation ju s t  described 
but insist tha t until the maximum se­
curity  un it can be put into use there 
is nothing th a t they can do about it 
Respondent testified  th a t when he was 
the head of a penitentiary  in  another 
S tate convicts there slept in individual 
cells and there were 170 paid guards; 
he also testified  th a t the incidence of 
stabbings a t Cummins was no higher 
than  th a t a t the o ther institu tion  he 
had headed. He conceded, however, 
th a t more free world guards a t  Cum­
mins m ight am eliorate the situation  
somewhat.

“The Court recognizes, of course, 
th a t assaults, fights, stabbings, and 
killings may and do occur in penal in ­
stitu tions th a t are  unquestionably well 
equipped, well staffed, and well man­
aged. I t  occurs to the Court, how­
ever,. th a t such incidents in such in sti­
tutions take place in spite of all rea­
sonable precautions taken by prison 
authorities. A t Cummins there are  no 
precautions worthy of the name, and 
the ‘creepers’ and ‘craw lers’ take dead­
ly advantage of th a t fact.

The Court is of the view th a t if  
the S tate of A rkansas chooses to con­
fine peniten tiary  inm ates in barracks 
w ith o ther inmates, they ought a t 
least to be able to fall asleep a t n ight 
w ithout fear of having th e ir  th roats 
cut before morning, and th a t the S tate 
has failed to discharge a constitution­
al duty in failing  to take steps to en­
able them  to do so.’’

HOLT v. SARVER
C ite  a s  309 F .S u p p . 382 (1970)

the United States, and there is a g rea t 
deal of i t  practiced a t Cummins, some 
consensual, a g reat deal nonconsensual.

n inmate who is physically a ttrac tive  
to o ther men may be, and frequently  is 
raped m the barracks by o ther inm ates’ 
No one comes to his assistance; the 

oor walkers do not in te rfe re ; the 
trusties look on w ith indifference or sa t­
isfaction ; the two free world people on 
duty appear to be helpless.

Inm ates who are  passively homosexual 
are called ‘‘punks.’’ There are varieties

k’ !ncIudin£ the “pressure 
punks who will engage in homosexual 
acts if  more or less pressure is pu t upon 
them to induce or compel them  to do so.

In an e ffo rt to protect young men 
from  sexual assaults, they are generally 
assigned to the two rows of cots nearest 
he fron t bars of the barracks, which 

portion of the barracks is called “punk 
row. I t  appears, however, th a t if  
would-be assailants really w ant a young 
man, his being assigned to the “row” is 
no real protection to him.

To the extent th a t consensual homo­
sexual acts take place in the barracks 
they are not carried out in any kind of 
privacy but in the full sigh t and hearing  
of all o f the o ther inmates.

Conditions in those barracks have not 
changed significantly  since Holt I  was 
decided, except th a t there has been a de­
cline in the rate  of stabbings. There is, 
however, som ething more to be said 
about the barracks in the light o f the 
evidence produced in this case.

The Court heard much testim ony 
about homosexuality in the barracks and
O  Q O U r V l A t ^ n  r .  4- C _________ • _ . - r r

• Sf ^ Ua assaults’ fights, and stabbings 
in  the barracks put some, inm ates in 
such fea r th a t i t  is not unusual for them 
to come to the fron t o f the barracks and 
chng to the bars all night. T hat prac­
tice, which is of doubtful value is called 
coming to the b a rs” or “grabbing the 

Pars Clearly, a man who has clung to 
the bars all n igh t is in poor condition to 
work the next day.

Conditions in the barracks are  wors­
ened by the prevalent consumption of 
liquor and beer and by the use of drugs, 
t is not uncommon fo r many, if  not all 

of the inm ates of a particu lar barracks’ 
to become intoxicated by drugs and alco­
hol all a t the same time. The resulting 
commotion, violence, and confusion are 
quite imaginable. The free world people

elsewhere a t Cummins. Homosexuality a f t u a S ^ t o t

prob» ”  " in a"  ”  in -

ably one 
:et posts

1 life in 
e detail; 
’.S upp .):

■ fined in 
pen bar- 
icks for 
>ps’ and 
lount to 
i the in- 
in rows. 

iore free 
the bar- 
actually 
se areas 

inm ate 
is to re-

rether in 
eady ac­
eping in 
" the in- 
r t  or an- 
ites th a t 
's impos- 
point to 
lg small 
issors in

i rise be- 
1 if  one 
asleep it  
tab him. 
aults are 
ers,’ and 
of them, 
oorwalk- 
ing such 
id to call 
ay be in

is to the 
i months 
a t Cum- 

i taking 
four of 
A t least 
isolation 
ing inci-



•^S '

I
f

\

i.
£
b
L
n
q :
f<
si

P
ti.
sr
gi
fi.
of
al\
P<
da
fc!
is
isl
pu
Ul:
tin
pri

[
lor
COI
am 
is j

309 FEDERAL SUPPLEMENT

and the floor walkers frequently partic i­
pate in the orgies.

All of th is is not to say . th a t a b a r­
racks system of confinement pioperly 
regulated and limited may not have a 
place in a well run penal institu tion . If  
barracks assignm ents are confined to 
small groups of men, properly classified 
and selected and subject to adequate 
control, the barracks system  is not 
objectionable and in certain  respects 
may be preferable to confinem ent in in­
dividual cells. I t  is obvious, however, 
th a t the Cummins barracks do not satis­
fy  those conditions.

The Isolation Cells.

The isolation cells a t Cummins, locat­
ed in a building set ap art to itself and 
surrounded by a fence, were consideied 
by the Court in Holt I. They were 
found to be overcrowded, filthy, and un­
sanitary . P u rsuan t to the C ourt’s order 
in th a t case, the overcrowding seems to 
have been am eliorated; the other condi­
tions still exist.

The Study Commission’s report refers 
to the existence of 12 isolation cells and 
the  construction of 28 more. A fter the 
Commission’s report was filed, the Leg­
islature authorized the construction of a 
maximum security un it a t Cummins 
which will be in operation, hopefully, in 
1971. A fter th a t authorization was giv­
en, construction of the additional isola­
tion cells was halted. W hile there are 
12 cells in the isolation unit, one of them 
has been fitted  up as a shower room so 
th a t actually there are  only 11 cells for 
the confinement of prisoners.

The isolation un it is guarded by tru s t­
ies, and free world people seldom come 
around it. T hat situation  is a source of 
constant trouble. The tru sties  threaten  
and harass the prisoners, and the p iis- 
oncrs probably reciprocate in kind. The 
isolation diet is carelessly served to the 
inm ates of the cells and a t  tim es is per­
m itted to become cold and wet.

The cells are occupied by prisoners 
who have been confined there  fo r disci­
plinary reasons or fo r “protective custo­

dy.” The isolation inmates who are in 
“protective custody” are some of the 
most incorrigible and dangerous prison­
ers in the Penitentiary . They are socio- 
pathics w ith no constructive motivation 
whatever. They damage and destroy 
fix tu res in the cells to the extent of 
th e ir  ability  to do so ; they set fire  to 
th e ir bedding -nd  to th e ir  clothing. 
They take no in terest in the conditions 
of the cells except to complain about 
them. They refuse to obey a t times the 
lawful orders of free world people, and 
obedience has to be compelled by force 
exerted by free world people and trusty 
g u a rd s ; the inm ates resist violently and 
then complain about th e ir  “ ill trea t­
m ent.”

As the Court understands it, the isola­
tion cells a t Tucker are located in the 
main building of the institu tion . Some 
of them  are, or a t least have been from 
tim e to time, occupied by Cummins in­
m ates sent to Tucker for protective cus­
tody. The condition of the Tucker iso­
lation cells is about the same as that of 
the Cummins cells, except th a t the Tuck­
er cells are inexcusably infested by rats, 
a problem th a t does not seem to be par­
ticularly troublesome a t Cummins.

In view of the fact th a t the isolation 
cells are  no longer grossly overcrowded, 
and in view of the fact th a t most of the 
conditions existing therein  are due to 
the conduct of the inm ates themselves, 
the cells do not give the Court as serious 
a constitutional problem as do other as­
pects of P eniten tiary  life.

Lack O f A  Rehabilitation Program.

In  Act 50 of 1968 the Legislature rec­
ognized the im portant place of training 
and rehabilitation in the Arkansas penal 
program  and directed the Department of 
Corrections to in itia te  and prosecute 
such a program . A program  has been 
in itiated a t Tucker and is doing much 
good. N othing has been done at Cum­
mins.

While inmates newly arriv ing at the 
Pen iten tiary  are  given intelligence and 
aptitude tests disseminated by the Voca-



379
are  in 
of the 
prison-
0 socio- 
; ivation 
destroy 
ten t of
fire  to 

lothing. 
nditions 
n about 
imes the 
pie, and 
by force 
d tru s ty  
ntly and 
11 trea t-

1 he isola- 
d in the 
n. Some 
een from 
imins in- 
etive cu3- 
icker iso- 
is th a t of 
lhe Tuck- 
d by ra ts , 
1 0  be p a r­
as.
■ isolation 
rcrowded, 
ost of the 
re due to 
hemselves, 
as serious 

i o ther as-

ram.

Mature rec- 
>f tra in ing  
insas penal 
■artment of 

prosecute 
n has been 
loins much 
uc a t Cum-

ving a t the 
lligencc and 
>y the Voca-

HOLT v. SARVER
C ite  ns 309 F .S u p p . 302 (1970)

tional R ehabilitation Service, the results 
of the tests are of little official interest. 
No regard  is paid to the tests and the ir 
results in assigning prisoners to b ar­
racks or to work. As fa r  as the inm ates 
are  concerned, the tests are of no bene­
f i t  whatever.

A large proportion, perhaps a m ajo ri­
ty, of the inm ates of the P eniten tiary  
are ignorant and unskilled. Many are 
illiterate. The contribution of ignorance 
and lack of skills and specialization to 
crime today is well known. I f  a man who 
is ignorant and unskilled when he goes 
into prison can come out w ith some edu­
cation and some usable skill, he has an 
improved chance of staying out of p ris ­
on in the fu tu re . I f  he comes out as ig­
norant and unskilled as he goes in, re­
cidivism on his p a rt is almost inevitable.

Since it  costs money to ^confine con­
victs, more than many taxpayers realize, 
it would seem to be in the enlightened 
self-interest of all S tates to try  to reha­
bilitate th e ir convicts, as the A rkansas 
Legislature and Respondents have recog­
nized. But, does the Constitution re ­
quire a program  of rehabilitation, or 
forbid the operation of a prison w ithout 
such a program ?

Many penologists hold today th a t the 
prim ary purpose of prisons is rehabilita­
tion of convicts and the ir restoration  to 
society as useful citizens; those penolo­
gists hold th a t other aims of penal con­
finement, while perhaps legitim ate, are 
of secondary importance. T hat has not 
always been the prevailing view of w hat 
penitentiaries are  for, if, indeed, it  is to­
day. In years past many people have 
felt, and many still feel, th a t a crim inal 
is sent to the penitentiary  to be pun­
ished for his crimes and to protect the 
public from his fu rth e r depredations. 
Under tha t view, while there is no objec­
tion to rehabilitation, it  is not given any 
priority.

[10] This Court knows th a t a socio­
logical theory or idea may ripen into 
constitutional law; many such theories 
and ideas have done so. But, th is Court 
is not prepared to say th a t such a ripen­

ing has occurred as yet as f a r  as reha­
bilitation of convicts is concerned. Giv­
en an otherwise unexceptional penal in ­
stitu tion , the Court is not willing to hold 
th a t confinement in it is unconstitu­
tional simply because the institu tion  
does not operate a school, or provide vo­
cational tra in ing , or o ther rehabilitative 
facilities and services which many insti­
tutions now offer.

That, however, is not quite the end of 
the m atter. The absence of an a ffirm a­
tive program  of tra in ing  and rehabilita­
tion may have constitutional significance 
where in the absence of such a program  
conditions and practices exist which ac­
tually m ilitate against reform  and reha­
bilitation. T hat is the situation th a t ex­
ists in A rkansas today, completely a t 
Cummins and to a lesser degree a t Tuck­
er.

I t  can be said safely th a t except in a 
very, very few and unusual cases con­
finem ent in the A rkansas S tate Peniten­
tia ry  today is the opposite of beneficial. 
As a generality it may be stated th a t 
few individuals come out of it  better 
men for th e ir  experience; most come 
out as bad as they went in, or worse.

Living as he m ust under the condi­
tions th a t have been described, w ith no 
legitim ate rew ards or incentives, in fear 
and apprehension, in degrading su r­
roundings, and w ith no help from  the 
State, an A rkansas convict will hardly 
be able to reform  himself, and his expe­
rience in the P en iten tiary  is ap t to do 
nothing but instill in him a deep or 
deeper hatred  fo r and alienation from  
the society th a t pu t him there. And the 
failure of the S tate to help him become 
a good citizen will be compounded by the 
ever present willingness of his fellow in ­
m ates to tra in  him to be a worse crim i­
nal.

Thus, the absence of rehabilitation 
services and facilities of which Petition­
ers complain rem ains a factor in the 
overall constitutional equation before the 
Court.



309 FEDERAL SUPPLEMENT

Other Prison Conditions.

Like the absence of a m eaningful re ­
habilitation  program , there are  o ther as­
pects of prison life which in and of 
themselves do not rise to constitutional 
d ignity  but which aggravate the more 
serious prison defects and deficiencies. 
The Court will mention some of those 
aspects briefly.

Medical and dental facilities leave 
much to be desired. I t  is not so much 
th a t the facilities and services them ­
selves are  particularly  inadequate fo r in­
stitu tions like Cummins and Tucker; 
ra ther, it is the ir unavailability to an in ­
m ate when needed th a t creates the prob­
lem. T hat is largely the fau lt of the 
tru sty  system. If an inm ate needs to 
see the doctor or the dentist, th a t need 
is not filled if  he is not perm itted to go 
to the in firm ary ; and it  does him no 
good to go to the in firm ary  if  the doctor 
is not there when he arrives. Nor does 
prescribed medication do him any good 
if  it  is withheld by a tru sty . Making 
due allowance for m alingering, and the 
Court is sure th a t there is much of it, 
there is a g reat deal of room fo r im ­
provem ent in th is area of prison life.

Sanitary  conditions in the kitchen at 
Cummins are deplorable according to the 
testim ony of Respondents’ own medical 
w itness. Again, th a t is due largely to 
the fact th a t trusties are  in charge of 
the kitchen and do not care w hether it is 
kept clean or not.

to say nothing of being a good citizen in 
the free world when he is released.

I t now becomes necessary for the 
Court to consider in combination the as­
pects of the P eniten tiary  System which 
it has endeavored to describe separately, 
and to determ ine w hether the situation 
as a whole is such th a t confinement in 
the A rkansas P eniten tiary  constitutes a 
cruel and unusual punishm ent w ith in  the 
prohibition of the Constitution.

In  Jackson v. Bishop, supra, 404 F.2d 
571, the Court discussed the concept of 
“cruel and unusual punishm ent” in some 
detail; and in the recent crim inal cases 
th a t have been mentioned th is  Court un­
dertook to define the term  to tria l juries.

[11, 12] The term  cannot be defined 
w ith specificity. I t  is flexible and tends 
to broaden as society tends to pay more 
regard  to human decency and dignity 
and becomes, or likes to th ink th a t it  be­
comes, more humane. Generally speak­
ing, a punishm ent th a t am ounts to to r­
ture , or th a t is grossly excessive in pro­
portion to the offense fo r which it is im­
posed, or th a t is inherently unfair, or 
th a t is unnecessarily degrading, or that 
is shocking or disgusting to people of 
reasonable sensitivity  is a "cruel and un­
usual” punishm ent. And a punishment 
th a t is not inherently cruel and unusual 
may become so by reason of the manner 
in which it is inflicted.

Assume th a t a person accused of an 
ordinary felony in Arkansas, say grand 
larceny, pleads not guilty and stands 
tria l before a ju ry . The ju ry  finds him 
guilty, and under A rkansas law may fix 
his punishm ent a t im prisonm ent in the 
P en iten tiary  fo r any num ber of years 
not less than  one nor more than 21. 
The C ircuit Judge accepts the verdict 
and acting more or less m inisterially im­
poses sentence in accordance w ith the 
verdict of the ju ry .

y.ii ;;
f c .  ;

* 1  'if'

The evidence is to the effect th a t the 
S tate supplies its  convicts w ith nothing 
but the bare necessities of life ; no nice­
ties are  supplied. G ranted, th a t the 
S tate may not be required constitution­
ally to make it  possible for a convict to 
live comfortably, its failure to do so cer­
tainly operates to lower inm ate morale. 
A man who gets only one toothbrush and 
one tube of toothpaste, who is supplied 
w ith no towels, and w ith insufficient 
socks and underclothing, and who is re ­
quired to sleep n igh t a f te r  n igh t on 
filthy  bedding is certainly not stim ulat­
ed to take any pride in himself or to try  
to be a good inmate of the P eniten tiary

The convicted person receives his sen­
tence of course; but, he receives much 
more than that. By his sentence he is 
subjected to the conditions th a t have 
been described; conditions about which 
the tria l ju ry  probably knew little, if



HOLT v.
C ite  ns 309 F

anything, and about which the sentenc­
ing judge may have been equally igno­
rant.

For the ordinary convict a sentence to 
the A rkansas P eniten tiary  today 
amounts to a banishm ent from civilized 
society to a dark  and evil world com­
pletely alien to the free world, a world 
tha t is adm inistered by crim inals under 
unw ritten rules and customs completely 
foreign to free world culture.

A fter long and careful consideration 
the Court has come to the conclusion 
that the Fourteenth  Amendment prohib­
its confinement under the conditions 
that have been described and th a t the 
Arkansas P en iten tiary  System as it ex­
ists today, particularly  a t Cummins, is 
unconstitutional.

Such confinement is inherently dan­
gerous. A convict, however cooperative 
and inoffensive he may be, has no assu r­
ance w hatever th a t he will not be killed, 
seriously injured, or sexually abused. 
Under the present system the S tate can­
not protect him.

A part from  physical danger, confine­
ment in the P eniten tiary  involves living 
under degrading and disgusting condi­
tions. This Court has no patience w ith  
those who still say, even when they 
ought to know better, th a t to change 
those conditions will convert the prison 
into a country c lu b ; the Court has not 
heard any of those people volunteer to 
spend a few days and nights a t either 
Tucker or Cummins incognito.

The peril and the degradation to 
which Arkansas convicts are subjected 
daily are aggravated by the fact th a t the 
treatment which a convict may expect to 
receive depends not a t all upon the grav­
ity of his offense or the length of his 
term. In point of fact, a man sentenced 
to life imprisonm ent fo r f irs t degree 
murder and who has a long criminal 
record may expect to fare  b e tter than a 
country boy w ith no serious record who 
is sentenced to a term  of two years for 
stealing a pig.

It is one th ing fo r the S tate to send a 
man to the Penitentiai'y  as a punish-

. SARVER 2 8 1
S upp . 3G2 (1970)

m ent for crime. I t  is another th ing  for 
the S tate to delegate the governance of 
him to other convicts, and to do nothing 
m eaningful for his safety, well being, 
and possible rehabilitation. I t  is one 
th ing  fo r the S tate  not to pay a convict 
fo r his labor; it  is som ething else to 
subject him to a situation  in which he 
has to sell his blood to obtain money to 
pay for his own safety, or for adequate 
food, or fo r access to needed medical a t­
tention.

However constitutionally tolerable the 
A rkansas system may have been in 
form er years, it simply will not do today 
as the Tw entieth Century goes into his 
eighth decade.

IV. The Fourteenth Am endm ent— 
Racial Segregation.

[13] The Fourteenth  Amendment 
prohibits racial discrim ination w ithin 
prisons, and the prohibition extends to 
the racial segregation of inmates. 
Board of M anagers of the A rkansas 
T rain ing School for Boys a t W rights- 
ville v. George, 8 Cir., 377 F.2d 228, 
232; cf. Cooper v. Pate, 378 U.S. 54G, 84 
S.Ct. 1733, 12 L.Ed.2d 1030, and Lee v. 
Tahash, 8 Cir., 352 F.2d 970.

As to Tucker the Court finds th a t 
th a t facility is essentially integrated, 
and th a t no substantial desegregation 
problem exists there. W ith respect to 
Cummins, certain  aspects of prison life 
have been integrated, and Respondents 
recognize th e ir duty to elim inate all ves­
tiges of racial segregation, including 
separate barracks for white and Negro 
inmates, both rankers and trusties.

Respondents contend, however, and 
the Court agrees, th a t to order immedi­
ate desegregation of the barracks would 
create disciplinary problems th a t Re­
spondents are not able to solve a t the 
moment and would tend to make the al­
ready bad situation a t the P eniten tiary  
substantially worse than it is.

I t  m ust be remembered th a t we are 
not dealing here w ith school children. 
We are not dealing w ith free world 
housing; we are  i ^ t  dealing w ith



382 309 FEDERAL SUPPLEMENT

th rea tres, restau ran ts, or hotels. We 
are  dealing w ith crim inals, many of 
whom are violent, and we are  dealing 
w ith  a situation in which the civilian 
personnel a t the Pen iten tiary  are not in 
control of the institution.

In such circumstances, while the in ­
m ates a t Cummins are  going to have to 
be integrated, the Court thinks th a t the 
process should be p a r t of the overall 
transition  of the Pen iten tiary  from  an 
unconstitutional to a constitutional insti­
tution, which transition  will be discussed 
in the following and fina l section of th is 
opinion.

V. The Relief To Be Granted.

As has been seen, Petitioners seek 
both declaratory and injunctive relief. 
They also seek relief fo r themselves as 
individuals and fo r o ther convicts simi­
larly situated. Two aspects of those 
prayers give the Court little  or no trou ­
ble.

As fa r  as the individual claims of the 
individual Petitioners are concerned, in­
cluding the individual complaints of in ­
m ates now in isolation, the Court does 
not consider th a t any of the Petitioners 
has made a case fo r specific individual 
relief.5 However, all of the Petitioners 
are  subject to the overall situation 
which renders the P en iten tiary  unconsti­
tu tional and all are entitled to class re­
lief w ith respect to th a t situation.

As to the claim fo r declaratory relief, 
the  Court will declare th a t to the extent 
indicated heretofore confinement in the 
A rkansas P eniten tiary  System under ex­
isting  conditions am ounts to a cruel and 
unusual punishm ent constitutionally pro­
hibited. While the situation  a t Tucker 
is much b etter than  th a t which exists a t 
Cummins, the fact rem ains th a t Tucker

5. O ne of th e  P e titio n e rs , Jn m es E . Jnekson ,
:i N egro inm ate  of th e  iso la tion  u n it  a t  
C um m ins w ro te  th e  C o u rt in  advance 
o f tr ia l exp ressing  th e  view th a t  th e  O iu r t  
w as biased, p re jud iced  an d  c o rru p t, and 
th a t  the  C o u rt is  a  ra c is t . Ja ck so n  re­
peated  h is s ta te m e n ts  w hen called  to  the  
w itn ess s ta n d . W hile  th e  C o u rt is  n o t 
sensib le of an y  feelings o f b ias  o r  p re j-

inmates, like those a t Cummins, are sub­
ject to the tru sty  system, including the 
tru sty  guard system, and are  also con­
fined in large num bers in open barracks. 
T hat the situation  a t Tucker is less se­
vere than th a t a t Cummins seems to the 
Court to be more sign ifican t from  the 
standpoint of the injunctive relief to be 
ordered than from  the standpoint of de­
claratory relief.

The Court will also declare th a t racial 
discrim ination in the P en iten tiary  Sys­
tem, including racial segregation of in­
mates, is a violation of the Equal P ro­
tection Clause of the F ourteen th  Amend­
ment and m ust be eliminated.

T hat brings the Court to the question 
of injunctive relief, and it will take oc­
casion to repeat here w hat was said in 
Holt I  when the Court reached the point 
in th a t opinion which it has now reached 
in th is  opinion (p. 833 of 300 F.Supp.):

“The task  of the Court in devising 
a remedy in this case is both difficult 
and delicate.

“ Subject to constitutional limita­
tions, A rkansas is a sovereign State. 
I t  has a rig h t to make and enforpe 
crim inal laws, to im prison persons 
convicted of serious crimes, and to 
m aintain order and discipline in its 
prisons. This Court has no intention 
of entering  a decree herein th a t will 
d isrup t the P eniten tiary  or leave Re­
spondent and his subordinates helpless 
to deal w ith  dangerous and unruly 
convicts.

“The Court has recognized hereto­
fore the financial handicaps under 
which the Pen iten tiary  system is la­
boring, and the Court knows tha t Re­
spondent cannot make bricks without 
straw .”

ntjice in th e  case and is n o t aw are  of 
an y th in g  th a t  w ould ju s t ify  a  charge of 
racism  o r co rru p tio n , th e  C o u rt nevertho- 
less d isqua lified  itse lf  in open co u rt as 
f a r  as Ja c k so n 's  in d iv idual elnim  is con­
cerned . H e is free  to  litig a te  th a t  claim 
f u r th e r  before som e o th e r  Ju d g e  if he 
ca re s  to do so.



mam

HOLT v
Cite ns 309 P.

Respondents will be ordered to make a 
prom pt and reasonable s ta r t  toward 
elim inating the conditions th a t have 
caused the Court to condemn the System 
and to prosecute th e ir  e ffo rts  w ith all 
reasonable diligence to completion as 
soon as possible. The lives, safety, and 
health of human beings, to say nothing 
of th e ir dignity, are  a t stake. The s ta r t 
m ust be prompt, and the prosecution 
m ust be vigorous. The handw riting is 
on the wall, and it  ought not to require 
a Daniel to read it. Unless conditions a t 
the P eniten tiary  farm s are brought up 
to a level of constitutional tolerability, 
the farm s can no longer be used for the 
confinement of convicts.

The questions th a t trouble the Court 
a t this junctu re  a re : W hat m ust be 
done w ithin the immediate fu tu re , and 
how long should Respondents be allowed 
to achieve th e ir  ultim ate objective? 
In approaching those questions certain 
things should be kept in mind.

F irs t, over the past several years con­
ditions a t the Pen iten tiary  have amelio­
rated somewhat, due in part, but by no 
means entirely, to the decrees of this 
Court in the earlier stages of the overall 
litigation. The alleviation began in the 
mid-sixties when Dan D. Stephens be­
came Superintendent of the P eniten tia­
ry, and it has continued under his suc­
cessors. While the P eniten tiary  is still 
a bad place, an unconstitutional place in 
the Court’s eyes, it is in some respects a 
better place than i t  was several years 
ago.

Second, the legislation adopted in 
1967, 1968, and 1969, the report of the 
Study Commission, and the report to the 
Commission on Crime and Law Enforce­
ment, indicate th a t the A rkansas S tate 
government is more interested than ever 
before in the prison system and is aware 
of the fact th a t the system is deficient. 
That increasing awareness of the prob­
lem is evidenced not only by the items 
just mentioned but also by increased ap­
propriations for the P eniten tiary  over 
the past several years.

Third, notice may be taken of the fact 
that the Governor of A rkansas has is-

SARVER
S upp . 302 (1970)

sued his call for the Legislature to meet 
in special session on March 2 of the cu r­
ren t year. Legislation for the benefit of 
the P eniten tiary  is included among the 
numerous items on the agenda, although 
the specific nature  of the legislation to 
be sought has not yet been spelled out, 
and the scope of it  may depend to some 
extent on the provisions of the C ourt’s 
decree in this case.

I t  is obvious th a t money will be re ­
quired to meet the constitutional defi­
ciencies of the institu tion , and there is 
no reason to believe that, subject to the 
overall financial needs and requirem ents 
of the State, the Legislature will be un­
willing to appropriate necessary funds.

Finally, if  Respondents had unlimited 
funds a t th e ir disposal tomorrow, they 
could not solve th e ir  constitutional prob­
lem overnight. Obviously, free world 
people are going to have to be recruited 
and employed, and th a t is going to take 
some time. In th is connection it  should 
be emphasized th a t to replace trusties 
w ith venal, corrupt, sadistic, and under­
paid civilian employees would be but to 
substitu te  another form  of ty ranny  for 
th a t which now exists. Thus, Respond­
ents are going to have to be allowed 
some reasonable period of transition  
w ithin which to achieve th e ir  objective, 
but th a t period is going to have to be 
m easured in months, not years.

The Court thinks in th is  context, as it 
has thought in other contexts, tha t Re­
spondents should be given an opportuni­
ty  to come forw ard w ith a plan to elimi­
nate existing unconstitutionalities, to 
sta te  w hat they plan to do, and how long 
they plan to  take to do it. The Court 
also thinks, however, th a t it should now 
proceed to lay down some guidelines for 
Respondents and should mention w hat it 
now considers will probably be minimum 
requirem ents if  persons are going to 
continue to be confined in the Peniten­
tiary.

[14] This Court rejects out of hand 
any approach th a t would phase out the 
tru s ty  guard system as such while leav­
ing intact o ther aspects of the overall



309 FEDERAL SUPPLEMENT

sible or a t least would be made much 
more difficult. Additionally, gate 
guards have opportunities fo r extortion 
and corruption th a t o ther guards do not 
possess. The gate guards should be re­
placed by free world personnel as soon 
as possible. }

The system of field guards and the 
system of using tru sty  long line riders 
and inm ate pushers go hand in hand, 
and the combination of the two is one of 
the th ings th a t makes the field guard 
system so dangerous to rankers. Field 
guards are much less likely to fire  on a 
ranker or on a group of rankers in the 
immediate presence of a civilian long 
line supervisor than they are  in a situa­
tion where the rankers are actually 
being worked by other inm ates. I t  ap­
pears to the Court th a t the answer, how­
ever unpalatable it  may be, is to elimi­
nate the positions of long line rider and 
inm ate pusher and to put each long line 
under the immediate charge of one or i
more free world people.

The barracks system of confinement 
has got to be changed, and the change 
cannot w ait on the completion of the 
maximum security un it th a t has been 
mentioned. The barracks are  going to 
have to be made sm aller by subdividing 
existing barracks or otherwise, and more 
discrim ination, o ther than  racial, is 
going to have to be practiced in assign­
ing men to barracks. I t  m ay be neces­
sary  to proceed w ith the construction of 
more isolation cells a t Cummins to take 
care of men who simply should not be 
assigned to barracks.

A part from  the foregoing Respondents 
are  going to have to do more than they 
have done in the past about keeping or­
der in the barracks a t n igh t and about 
protecting inm ates from  violent assaults 
of w hatever kind.

1
As to the isolation cells, while the 

plight of the inmates is largely of their 
own doing, they are su ffering  seriously 
from neglect. Free world people may no i
longer leave those inm ates to the mer­
cies of tru sty  guards; additionally, the 
Court thinks th a t the method of serving

tru s ty  system even more objectionable 
than the guard system itself. All of the 
tru sties  are going to have to be brought 
under control; and tru sties, w hether 
guards or not, are going to have to be 
stripped of the ir au thority  over the lives 
and living conditions of o ther convicts. 
Responsibilities th a t ought to be dis­
charged by free world people may no 
longer be delegated to tru sties  w hether 
in the office, in the in firm ary , the kitch­
en, or the fields. T rusties m ust not have 
it  in th e ir  power to b ring  about promo­
tions or demotions of o ther inm ates and 
m ust not be allowed to stand as obstacles 
to reasonable access of ordinary inmates 
to civilian employees. The rig h t of a 
man to talk to the Superintendent or the 
A ssistant Superintendent, or to go to 
the in firm ary  when necessary, or receive 
necessary treatm en t or medication, m ust 
not be perm itted to depend on the whim 
of one or more tru sties. I t  should be 
taken out of the power of trusties to 
steal prison food fo r resale, and it 
should go w ithout saying th a t trusties 
ought not to have access to addictive or 
stim ulating drugs in the prison pharm a­
cy.

The Court thinks th a t when the tru s t­
ies as a class are deprived of th e ir  au­
tho rity  over inmates, they will largely 
lose the power of extortion and other 
undesirable powers which they now pos­
sess. This does not mean th a t trusties 
may not be assigned responsible jobs, 
bu t they m ust be “jobs,” not “offices of 
p ro fit,” and they m ust be perform ed un­
der adequate supervision.

While the Court is not prepared at 
th is juncture  affirm atively to order the 
elim ination of the tru s ty  guard system 
or a commencement of a general phase 
out of the system, the system is going to 
have to be overhauled. The tower 
guards and picket guards give the Court 
no particu lar problem; the gate guards 
and the field guards do.

As to the gate guards, it  seems evi­
dent to the Court th a t w ithout the con­
nivance of such guards the widespread 
sm uggling of contraband into the prison 
which is now practiced would be impos-

384



them th e ir food m ust be changed so as 
to make sure th a t it  gets to them in 
more san itary  and palatable condition. 
In that connection the report to the 
Commission on Crime and Law Enforce­
ment points out, among other things, 
that the people in isolation have "no de­
cent or C hristian" way in which to eat 
their food. The report suggests th a t 
prisoners in isolation be taken from  the 
cells to the main dining hall to eat ei­
ther before or a fte r  o ther inm ates have 
been served. T hat recommendation 
should be w ithin the power of Respond­
ents to follow w ithout substantial ex­
pense and w ithout danger to any in­
mates.

If  Respondents will move in good 
faith and w ith diligence in the areas of 
prison life ju s t discussed, namely, the 
trusty system, the barracks system, in­
mate safety, and the isolation cells, the 
Court thinks th a t subsid iary  problems 
will tend to take care of themselves. I t  
would be a m istake to order too much at 
this tim e; but, in the areas ju s t men­
tioned Respondents will be required to 
move. And, of course, the rem aining 
vestiges of racial segregation m ust be 
eliminated.

The Court will not be dogmatic about 
time just now. I f  there a re  th ings th a t 
Respondents can do now w ith available 
funds and personnel, they will be expect­
ed to do them  now. I f  necessary steps 
cost money, and they will, Respondents 
must move as rapidly as funds become 
available. The opening of the new max­
imum security un it in 1971 should be set 
as at least a tentative ta rg e t date for 
the completion of the removal of uncon­
stitutional conditions and practices. 
The schedule on which Respondents will 
be required to move may be shortened or 
lengthened as circumstances and devel­
opments may dictate.

At the moment Respondents will be 
ordered to subm it to the Court and to 
counsel for Petitioners not later than 
April 1 of this year a report and plan 
showing what, if  anything, they have 
done up to th a t tim e to meet the re-

309 F.Supp.— 25

RU SSO  v. S H A P IR O
Cite as 309 F.Supp. 3S5 (19(59)

quirem ents of the Court, w hat they plan 
to do, and when they plan to do it.

I f  the initial report is approved, the 
Court may require additional reports 
from  tim e to tim e and may require spe­
cific inform ation in certain  areas. I f  
the initial report is not approved, it  will 
then become necessary fo r the Court to 
consider w hat specific steps it  will take 
to implement its declarations of the un­
constitutionality  of the existing system.

[15] Let there be no m istake in the 
m a tte r; the obligation of the Respond­
ents to elim inate existing unconstitu- 
tionalities does not depend upon w hat 
the Legislature may do, o r upon w hat 
the Governor may do, or, indeed, upon 
w hat Respondents may actually be able 
to accomplish. If  A rkansas is going to 
operate a P en iten tiary  System, it  is 
going to have to be a system th a t is 
countenanced by the Constitution of the 
United States.

A decree in accordance w ith the fore­
going will be entered.

K£T NUMltB STSTEN2>

Lorraine RUSSO, on behalf o f  herself and  
on behalf o f her m inor children; E r­
n estine Snow , on behalf o f herself and  
on behalf o f  her m inor cliildren; Clare- 
th a  Brown, on behalf o f  h erself and 
on b ehalf o f  her m inor child; and on 
behalf o f  a ll others sim ilarly  situated  

v.
Bernard SH APIRO , C om m issioner o f  
W elfare o f  the State o f C onnecticut.

Civ. No. 13409.

United States District Court,
D. Connecticut.
Dec. 19, 1969.

Action against sta te  w elfare commis­
sioner by w elfare m others and th e ir 
school-age children seeking declaration 
th a t s ta te  w elfare commissioner’s direc-



825%
■nd pend- 
lequately 
mstances 
erwhelm- 
on which 

and the 
nen t im-

v W
>

p ursuant *

th a t de- s

d and has
■r be de- t

)
■ased pur-

lition s o f •
1
5$ 3 1 4 6 (a )

is appear- »r

*1

to believe t

ase w hich !i

lan t’s ap- ♦i
c if ied  be-

1 4 6 (a ) (4 ) . t

4
n that de- 4

I pending 
■ Is denied inber 29,
■ IKila ntid V

onn.lOtiS) i
idnnts be y
lien], de- 1-
Crutcher, V

350 (I>. y

is for rc-
denied) ; |

npp. 1012
iitiiin for j

i. denied) ; *.
Supp. 323

1motion to
inted). -<

id Connel-
wns sen- ■■
10 years

IS u .s .c .
r r e n t  term
conspiracy 

He was 
offense for 

years un- 
aiis|HirtiiiK

i

rk City to |onneetieut. 
•al upon a

i

i
i

I
I

HOLT v. SARVER
Cite as 300 F.Supp. 825 (1909)

(3) The Court accordingly orders th a t 
defendant Joseph Asparro be released 
pending appeal only upon posting a 
$50,000 surety  bond or upon depositing 
cash in th a t amount w ith the Clerk of 
this Court in lieu of bond.

righ ts which C onstitution protects, in­
cluding rig h t to be free from cruel and 
unusual punishm ent, court may and 
should intervene to protect those righ ts 
and to put an end to unconstitutional 
practices. U.S.C.A.Const. Amends. 8, 
14.

Law rence HOLT et al., P etitioners, 
v.

Robert SA RV ER , C om m issioner o f  Cor­
rections, R espondent.

Travis E ugene FIE LD S et al., P etitioners, 
v.

Robert SARVER, C om m issioner of 
Corrections, R espondent.

George VV. OVERTON et al., P etitioners, 
v.

Robert SARVER, C om m issioner of 
Corrections, Respondent.

N os. P B -69-C -24, 69-C -25 and 69-C -29.

United States District Court 
E. D. Arkansas,

Pine Bluff Division.
June 20, 1969.

Action by sta te  prisoners seeking 
declaratory and injunctive relief relating  
to alleged deprivation of th e ir constitu­
tional righ ts  by those in charge of p ris­
on. The D istrict Court, Henley, Chief 
Judge, held th a t evidence established 
that sta te  which operated prison where 
inmates slept on cots in open barracks 
with no guard w ithin actual sleeping 
area failed to discharge its constitution­
al duty to protect inmates and th a t con­
finement in isolation cells which were 
overcrowded, dirty , unsanitary , and per­
vaded by bad odors from toilets consti­
tuted cruel and unusual punishment.

Order accordingly.

1. Prisons C=>4
If state, acting through its penal 

authorities, is depriving convicts of

2. C rim inal Law  C=1205, 1206(2)
Punishm ent or system of punish­

ment is unconstitutional if it  offends 
concepts of decency and human dignity 
and precepts of civilization which 
Americans profess to possess, o r if  it  is 
disproportionate to offense, or if it  vio­
lates fundam ental standards of good 
conscience and fairness. U.S.C.A.Const. 
Amends. 8, 14.

3. Criminal Law C=>1217
Solitary confinement or close con­

finem ent in isolation un it of prison is 
not unconstitutional per se, but, depend­
ing on circumstances, it may be.

4. Convicts C=2
State owes to those whom it has de­

prived of th e ir liberty an even more fun­
damental constitutional duty to use ordi­
nary  care to protect the ir lives and safe­
ty  while in prison even though sta te  is 
not insurer of safety  of its convicts.

5. P risons C=12
Where unconstitutional situation  is 

found to exist in given prison, prison 
authorities cannot escape responsibility 
fo r it by merely pointing to existence of 
same situation in o ther prisons, or by 
establishing th a t conditions in the ir 
prison are “b e tte r” or “no worse th an ” 
conditions prevailing elsewhere.

6. P risons 0=4
Prisoners who claim th a t m anner in 

which prison is operated violates the ir 
constitutional righ ts  have burden of es­
tablishing such violation by preponder­
ance of evidence.

7. P risons 0=17
While medical and dental facilities 

of prison left good deal to be desired, 
deficiencies were not such as to raise 
constitutional problem.

300 F.Supp.— 52 Va

£■:!p

. ‘l b !
i ■
| lift:

\ M  -
i

i ill
M

’
TA

•'ofe-

#
'U
i s, ■■ tf* 

' §

> m

: ! . P
i

■<>rt

1 !

$
: . s■ n'u



300 FEDERAL SUPPLEMENT

8. P risons C=17
Constitution does not require tha t 

prisoners in isolation be served tasty  or 
a ttrac tive  dishes.

9. Convicts C=>2
Evidence as to alleged assaults on 

certain  prisoners by prison employees 
and tru sty  guards was insufficient to 
w arran t relief.

10. P risons C=17
State which operated prison where 

inm ates slept on cots in open barracks 
w ith no guard w ith in  actual sleeping 
area failed to discharge its constitution­
al duty to protect inmates.

11. Prisons 0=17
“Grue” consisting of meat, potatoes, 

vegetables, eggs, oleo, syrup and season­
ing baked all together and served in 
four inch squares was sufficient diet for 
man in isolation unit.

12. Criminal Law C=1213
Confinement of inm ates in isolation 

cells which were overcrowded, dirty , un­
sanitary , and pervaded by bad odors 
from  toilets constituted cruel and unusu­
al punishment. U.S.C.A.Const. Amends. 
8, 14.

13. D eclaratory Judgm ent 0=383
Court which found certain  condi­

tions of sta te  prison to be violative of 
prisoner’s constitutional rig h ts  would 
not specify specific steps to be taken to 
remedy situation  but would g ran t sta te  
commissioner of corrections 30 days to 
set fo rth  w hat steps he planned to take.

826

Steele Hays and Je r ry  D. Jackson, 
L ittle Rock, Ark., for petitioners.

Don Langston, Deputy A tty. Gen., and 
Mike Wilson, Asst. A tty . Gen., S tate of 
Arkansas, L ittle Rock, Ark., fo r respon­
dent.

Memorandum Opinion

HEN LEY , Chief Judge.
The several petitioners in subject cas­

es are inm ates of the Cummins Farm  
U nit of the A rkansas S tate P eniten tiary

located in Lincoln County, Arkansas, 
some miles south of the City of Pine 
B luff and near the towns of Grady, 
Gould, and Dumas. Petitioners com­
plain th a t those in charge of the Farm  
are  depriving them of rig h ts  protected 
by the Fourteenth  Amendment to the 
C onstitution of the United States.; Fed­
eral jurisd iction  under 28 U.S.C.A. § 
1343(3) and 42 U.S.C.A. § 1983, is not 
questioned and is established. Under 
those sections the Court is authorized to 
g ran t both declaratory and injunctive 
relief to the extent th a t petitioners may 
have shown th a t they are entitled to re­
lief.

The principal complaints of petition­
ers are th a t confinement in cells in the 
isolation un it of the F arm  am ounts to 
cruel and unusual punishm ent prohibited 
by the E ighth  Amendment as carried 
forw ard into the Fourteenth, Robinson 
v. California, 370 U.S. 660, 82 S.Ct. 
1417, 8 L.Ed.2d 758; Jackson v. Bishop, 
8 Cir., 404 F.2d 571, reversing Jackson 
v. Bishop, E.D.Ark., 268 F.Supp. 804; 
Talley v. Stephens, E.D.Ark., 247 F. 
Supp. 683; th a t they are  denied ade­
quate medical attention, Talley v. Ste­
phens, supra ; and th a t the Penitentiary 
au thorities have failed to take adequate 
steps to protect inm ates from  assaults 
by other inmates, Cf. Johnson v. United 
S tates Government, E.D.Va., 258 F. 
Supp. 372, and Cohen v. United States, 
N.D.Ga., 252 F.Supp. 679.

Respondent, Robert Sarvcr, is the 
Commissioner of Corrections of the 
S tate  of Arkansas, having been named 
to th a t position in November 1968. Mr. 
Sarver is the adm inistrative head of the 
Cummins Farm  U nit and also of the 
much smaller Tucker Farm  U nit located 
some miles from  C um m ins; the Tucker 
F arm  is in Jefferson  County and is lo­
cated near the town of England. Mr. 
Sarver serves under the A rkansas State 
Board of Corrections, an agency in the 
Executive Branch of the S tate  govern­
m ent which was created by the Legisla­
tu re  in 1967. Respondent, who is repre­
sented by the A ttorney General of Ar-



T
msas, 

Pine 
' lady, 
com- 

!'’arm  
octed 

•> the 
Fed- 

A . § 
s not 
tnder 
ed to 
ictive 

may
0 re-

tion-
1 the 
ts to 
:>ited 
tried  
nson 
S.Ct. 
hop, 
kson 
304;
; f .
ade-
Ste-
iary
uate
uilts
ited

F.
ites,

the 
the 

:ned 
Mr. 
the 
the 
i ted 
ker 
lo- 

Mr. 
ate 
the 
■rn- 
da- 
tre- 
Ar-

HOLT v. SARVER
Cite ns 300 P .Snpp. S25 (10(i!l)

827

kansas, denies th a t the petitions have 
merit and asks th a t they be dismissed.

The petitions were subm itted by the 
inmates pro se. The Court perm itted 
them to be filed and prosecuted as class 
actions in form a pauperis and consoli­
dated them for hearing. The Court ap­
pointed Mr. Steele Hays of Little Rock, 
an experienced and capable tria l a tto r­
ney, to represent petitioners w ithout 
charge.

Mr. Hays accepted the appointment. 
He and one of his associates, Mr. Je rry  
Jackson, w ithout expectation of compen­
sation or reim bursem ent, proceeded to 
the Farm  where they interviewed peti­
tioners and others and took photographs 
of the facilities. Both Mr. Hays and 
Mr. Jackson vigorously represented peti­
tioners a t the ra th e r extended hearing 
which consumed two full tria l days and 
part of one night. The Court is most 
grateful to M essrs. Hays and Jackson 
for their services.

The three cases, hereinafter referred  
to collectively as though they were a sin­
gle case, have been subm itted on oral 
testimony, photographs, documentary 
evidence, and memorandum briefs. This 
opinion incorporates the C ourt’s find­
ings of fact and conclusions of law.

I.

[1] A t this junctu re  it  may be noted 
that the Court’s inquiry here is lim ited 
to whether A rkansas convicts as a class, 
or individual convicts, have been and are 
being deprived of federal constitutional 
rights. The Court is not concerned in 
general w ith prison policies, adm inistra­
tion, or discipline. However, if the 
State, acting through its penal au thori­
ties, is depriving convicts of righ ts 
which the C onstitution protects, includ­
ing the rig h t to be free from  cruel and 
unusual punishm ent, the Court may. and 
should intervene to protect those righ ts 
and to put an end to unconstitutional 
practices. Courtney v. Bishop, 8 Cir., 
409 F.2d 1185; Jackson v. Bishop, su­
p ra ; Talley v. Stephens, supra.

[2] The opinion of the Court of Ap­
peals in Jackson v. Bishop, supra, makes 
clear th a t the concept of “cruel and un­
usual punishm ent” is a flexible and ex­
panding one, and th a t a punishm ent or 
system of punishm ent is unconstitu­
tional if it  offends concepts of decency 
and human dignity and precepts of civil­
ization which Americans profess to pos­
sess, or if it  is disproportionate to the 
offense, or if it violates fundam ental 
standards of good conscience and fa ir ­
ness. 404 F.2d a t 577—579.

[3] Solitary confinement or close 
confinement in an isolation un it of a 
prison is not unconstitutional per se, but 
depending on the circumstances it  may 
be. Courtney v. Bishop, su p ra ; Graham 
v. W illingham, 10 Cir., 384 F.2d 307; 
Kostal v. Tinsley, 10 Cir., 337 F.2d 845; 
Jordan v. F itzharris , N.D.Cal., 257 F. 
Supp. 674.

In Jordan the Court held th a t solitary 
confinement in “slit cells” in a Califor­
nia correctional institu tion  was in the 
circumstances shown by the evidence un­
constitutional. I t  was said, 257 F.Supp. 
a t 680, th a t the prison authorities had 
"abandoned elemental concepts of decen­
cy by perm itting  conditions to prevail of 
a shocking and debased n a tu re” to the 
extent th a t the Court was required 
promptly to intervene “to restore the 
prim al rules of a civilized community in 
accord w ith the mandate of the Consti­
tu tion  of the United S tates.”

[4] I t  is plain, then, th a t the S tate 
m ust refra in  from  imposing cruel and 
unusual punishm ents on its convicts. 
And the Court is convinced th a t the 
S tate owes to those whom it has de­
prived of the ir liberty  an even more fun ­
damental constitutional duty to use ordi­
nary care to protect the ir lives and safe­
ty  while in prison. The Government 
owes th a t duty to federal prisoners, 
Johnson v. United S tates Government 
and Cohqn v. U nited States, both supra ; 
and the Court thinks th a t a S tate p ris­
oner is entitled to the same measure of 
care from  the State, although the State, 
of course, is not an insurer of the safety 
of its  convicts.

; j

1

m



■m

300 EEDERAL SUPPLEMENT

0
P.
it<
a
ei
by
of
ru
aii'
iaf.
am
ha i
los.
be
ba.1

1
Sta
Dis
J U I l  

suf 
pun 
v. {■
S U p l

ther
You
holti
tion

W 
Bisli 
use ■ 
case 
pend 
tend' 
conti 
The i 
to CO 
th a t 
tio n a1 
gardl 
is in: 
which 
Bishe

[5] W here an unconstitutional s itua­
tion is found to exist in a given prison, 
the prison au thorities cannot escape re­
sponsibility fo r it by merely pointing to 
the existence of the same situation in 
other prisons, or by establishing tha t 
conditions in the ir prison are  “b etter” 
or "no worse th an ” conditions prevailing 
elsewhere.

[6] The record in th is case is volu­
minous and covers a num ber of areas of 
prison life. The burden is upon the pe­
titioners to show by a preponderance of 
the evidence th a t th e ir  constitutional 
righ ts  and those of o ther inm ates sim i­
larly situated have been violated, and th a t 
they are entitled to equitable relief w ith 
respect to the alleged violations.

The Court has considered the entire 
record in the light of the principles 
heretofore mentioned. The Court thinks 
it  desirable to sta te  a t th is point its  u lti­
mate findings and conclusions and to 
discuss some of them in detail a t later 
points in the opinion.

[7] P la in tiffs  have failed to sustain 
th e ir burden of proof w ith respect to the 
medical and dental facilities. While 
those facilities leave a good deal to be 
desired, the Court does not consider th a t 
the deficiencies are such as to raise a 
constitutional problem.

[8] P la in tiffs  have also failed to 
sustain  th e ir complaint about food 
served to prisoners while in isolation. 
As will be seen, the food is not appetiz­
ing ; it  is not intended to be, and the 
Constitution does not require th a t p ris­
oners in isolation be served tasty  or a t­
tractive dishes.

[9] The Court heard some evidence 
as to alleged assaults on certain prison­
ers by prison employees and tru sty  
guards. The Court does not th ink th a t 
evidence sufficient to ju s tify  relief in 
th is case. . Respondent and his subordi­
nates are already forbidden by the in­
junction issued in the Jackson case from 
inflicting  corporal punishm ent on con­
victs, and the Court is not persuaded 
th a t th a t injunction has been violated.

The Court does find from  a prepon­
derance of the evidence th a t the State 
ha? failed and is failing to discharge its 
constitutional duty with respect to the 
safety of certain  convicts, and th a t the 
conditions existing in the isolation cells, 
including overcrowding, render confine­
ment in those cells under those condi­
tions unconstitutional.

W ith respect to the areas in which un- 
constitutionalities are found to exist, 
there is persuasive evidence th a t when a 
new maximum security un it is completed 
and put into operation in the next year 
or so the F arm ’s problems of inmate 
safety and confinem ent in isolation will 
be much ameliorated if not eliminated 
entirely. However, the Court is per­
suaded th a t present inm ates are entitled 
to some injunctive relief in those areas 
a t this time.

II.
The h istory  of Cummins Farm , which 

consists of more than 15,000 acres, and 
which has a present inmate population 
of som ething less than 1,000, has two 
phases.

The f irs t  phase lasted for years and 
did not come to an end until January 
1968. D uring tha t long period of time 
there were extremely few paid “free 
world” employees a t the Farm . Prison­
ers were guarded by armed trusties, and 
those tru sties  and other inmates re­
ferred to for some reason as “dopops” 
exercised a g rea t deal of authority  and 
control over o ther inmates. In fact, it 
may be said accurately th a t the institu­
tion was being run  in large measure by 
inmates.

Using free convict labor, both Cum­
mins Farm  and Tucker Farm  produced 
field crops and other agricultural com­
modities which were sold on the market, 
and the income from those sales was 
generally sufficient, or was supposed to 
be sufficient to cover the limited operat­
ing costs of the Farm s, and it was fre­
quently, though inaccurately, said that 
the S tate was operating  the Farm s at a 
profit, a fact to which successive State 
adm inistrations pointed with pride.

Tin 
Farm  
a cess 
supers 
but a I 
creasi i 
ployec 
proven 
impro- 
mum



■ Hfi I

Prio r to the appointm ent of Thomas 
0. Murton as Superintendent of the 
Penitentiary in 1967 inmates of the Pen­
itentiary were disciplined by the use of 
a large leather strap , and were not gen­
erally punished in any other way except 
by forfeitures of good tim e in the event 
of escapes. Prisoners were whipped for 
rule violations, refusal to work, escapes, 
and failure to perform  sufficient or sa t­
isfactory work. A prisoner who escaped 
and was recaptured was whipped and 
had his head shaved; additionally, he 
lost his s ta tu to ry  good time and m ight 
be faced w ith a new criminal charge 
based on the escape.

In 1965 and again in 1967 the United 
States D istrict Court for the Eastern  
D istrict of A rkansas issued limited in­
junctions against the unregulated or in­
sufficiently regulated use of corporal 
punishment at the Penitentiary . Talley 
v. Stephens, sup ra ; Jackson v. Bishop, 
supra, 268 F.Supp. 804. However, nei­
ther this w rite r nor Judges Gordon E. 
Toung and Oren H arris  were willing to 
hold corporal punishm ent unconstitu­
tional per se.

When the D istrict Court in Jackson v. 
Bishop refused to enjoin ou trigh t the 
use of the strap , the petitioners in th a t 
case appealed. While the appeal was 
pending, Mr. M urton was made Superin­
tendent of the Penitentiary , and he dis­
continued the practice adm inistratively. 
The Court of Appeals, however, declined 
to consider the question moot, and held 
that corporal punishm ent is unconstitu­
tional, regardless of its severity and re­
gardless of the conditions under which it 
is imposed or of the safeguards with 
which it  is surrounded. Jackson v. 
Bishop, supra, 404 F.2d 571.

The second phase of the history of the 
Farm has been characterized not only by 
a cessation of whipping, which has been 
superseded by confinement in isolation, 
but also by the employment of an in­
creasing num ber of free world em­
ployees. There have been marked im­
provements a t the Farm  and additional 
improvements, including the new maxi­
mum security unit, are to be expected.

HOLT v. SARVER
Cite ns 300 F.Supp. 823 (1069)

However, it appears to the Court th a t 
the Farm  is still in a transitional period, 
and much of the old regim e is still visi­
ble. Convicts still work long hours in 
•the fields and in institutional facilities; 
they are paid nothing, e ither actually or 
constructively, for the ir labor; they 
have few privileges and few incentives 
to be cooperative, rules-observing mem­
bers of the prison community. They are 
still guarded principally by armed tru s t­
ies, and the ordinary convicts, known as 

rankers, are still subject in some de­
gree to the au thority  of tru sties  and 
“dopops.”

The only legitim ate way in which a 
convict a t Cummins can earn money is 
to sell blood to the prison blood bank. 
However, there are many illicit ways of 
earning money, and the convicts take 
full advantage of them. T rusties smug­
gle in contraband, including liquor and 
knives. A kind of home made beer is 
produced frequently on the Farm  prem ­
ises and is sold to and consumed by in­
m ates of all grades.

Convicts are not perm itted to have 
United S tates currency arid coins in 
th e ir physical possession since an inmate 
w ith money in his pocket is more likely 
to attem pt to escape and more likely to 
escape successfully than an inm ate who 
is penniless. In order to have a medium 
of exchange fo r such legitim ate business 
transactions as take place w ithin the in­
stitu tion  prisoners w ith money to the ir 
credit on the prison books are issued 
small metal coins in denominations of 
five and ten cents, which "money” is 
known as “brozine.” I f  a convict is 
found with “free world money" on 
his person, th a t money is confiscated 
and put into an inm ate w elfare fund.

A pparently, the educational level a t­
tained by Farm  inmates is quite low. 
Many of the inm ates arc  psychopathic 
and sociopathic; some of them are  ag­
gressive homosexuals. Many of the in­
m ates are  hardened crim inals and some 
of them are extremely dangerous to soci­
ety in general, to th e ir keepers, and to 
fellow inmates. Many of them are mal­
ingerers and will go to any lengths to



300 FEDERAL SUPPLEMENT

avoid work. Many are prone to destroy 
S tate property, even items designed for 
th e ir  w elfare and comfort.

In view of w hat has been said i t  is ob­
vious th a t Respondent and his subordi­
nates a t Cummins are faced w ith grave 
problems of security and discipline. In 
grappling w ith those problems, and w ith 
others, Respondent is severely hampered 
by lack of money.

T hat lack is due in p a rt to the h isto ri­
cal concept of the Farm  as a self-sus­
ta in ing  or profit-m aking institu tion  
which should not require appropriations 
of large sums of State money. I t  is also 
due in pax't to an understandable reluc­
tance on the p a rt of those in charge of 
the revenues and disbursem ents of the 
S tate to spend large sums on prisons 
while o ther agencies and institu tions 
providing services for law abiding peo­
ple are under-funded.

In the circumstances Respondent m ust 
perforce still rely ra ther heavily on in­
m ates to perform  functions which in 
most prisons are perform ed by free 
world people. And continued reliance on 
inm ates assumes th a t if the tru sty  
guard system  as it  exists a t the F arm  is 
attacked in the courts, it will survive the 
attack.

This case does not involve such an a t­
tack, although, as stated, there was some 
evidence about alleged tru sty  bru tality . 
No one questions the propriety of g ran t­
ing tru s ty  sta tu s to dependable convicts 
and perm itting  them to perform  certain  
services. The services may be valuable 
in themselves, and they can certainly be 
of value in improving inm ate morale and 
aiding rehabilitation. A serious ques­
tion can be raised, however, as to the 
constitutionality of the system a t Cum­
mins where inadequately supervised 
trusties, many of whom are  hardened 
crim inals, are  perm itted to guard and 
exercise au thority  over other inm ates 
some of whom are less evil and danger­
ous than the trusties themselves.

I f  the system  is attacked and does not 
survive, the services now perform ed by 
tru s ty  guards will have to be perform ed

by outside people who will have to be 
paid fo r th e ir services.

III.
W ith the foregoing by way of back­

ground, the Court tu rns to the question 
of inmate safety.

The Superintendent a t Cummins is 
Ralph Roberts, and the Associate Super­
intendent is J . R. Price, both of whom 
appear to be competent men. The Chief 
Security O fficer is Ed Walker, and he 
has 17 free world arm ed guards working 
under him. In addition, a member of 
the A rkansas S tate Police is regularly 
stationed a t Cummins. The total number 
of paid employees at the Farm  is 56.

Prisoners who are not confined in the 
isolation un it sleep in open barracks. 
There are two barracks for tru sties and 
two for “dopops” and rankers. Those 
barracks am ount to,enclosed dormitories 
in which the inm ates sleep on cots ar­
ranged in rows. At n ight there are one 
or more free world guards on duty out­
side the barracks proper, but they are 
not actually inside the sleeping area. 
Those areas are  supposedly patrolled by 
inm ate “ floorwalkers” whose duty it  is 
to report disturbances to the guards.

Since the inm ates sleep together in 
the barracks, an inmate has ready access 
to any other inm ate sleeping in the same 
barracks. Many of the inm ates have 
weapons of one so rt or another, and the 
evidence indicates th a t in spite of ef­
fo rts  to do so it  is impossible from a 
practical standpoint to prevent inmates 
from  having small weapons such as 
knives or scissors in the ir possession.

At tim es deadly feuds arise between 
particu lar inmates, and if one of them 
can catch his enemy asleep it is easy to 
crawl over and stab him. Inm ates who 
commit such assaults are known as 
“craw lers” and “creepers,” and other in­
mates live in fear of them. The Court 
finds th a t the “ floorwalkers” are inef­
fective in preventing such assaults; 
they are  e ither afra id  to call the guards 
or, in instances, may be in league with 
the assailants.

T 
feet 
havi 
but 
racl 
rest) 
now 
stab 
the -

R. 
plor 
sist 
unit 
tha t 
test i 
peni 
ther 
wen 
that 
min. 
e r
conn 
guai 
the >

Ti 
assa 
may 
that 
well 
curs 
cidei 
spiti 
by , 
then  
nanr 
take

[1
the b 
penil 
othei 
able 
of h; 
ing, . 
char 
take

Tli
sists 
ing 
Insic: 
rang



HOLT v. SARVER
Cite ns 300 F .Supp. 625 (1969)

The undisputed evidence is to the ef- the building, 
feet th a t w ithin the last 18 months there 
have been 17 stabbings a t Cummins, all 
but one of them taking place in the b ar­
racks, and four of them producing fatal 
results. A t least two of the petitioners 
now in isolation have been assailants in 
stabbing incidents and others have been 
the victims of such incidents.

Respondent and his subordinates de­
plore the situation ju s t described bu t in­
sist th a t until the maximum security 
unit can be put into use there  is nothing 
tha t they can do about it. Respondent 
testified th a t when he was the head of a 
penitentiary in another S tate convicts 
there slept in individual cells and there 
were 170 paid guards; he also testified 
that the incidence of stabbings a t Cum­
mins was no higher than th a t a t the oth­
er institu tion  he had headed. He 
conceded, however, th a t more free world 
guards a t Cummins m ight ameliorate 
the situation somewhat.

The Court recognizes, of course, th a t 
assaults, fights, stabbings, and killings 
mav and do occur in penal institu tions 
tha t are unquestionably well equipped, 
well staffed, and well managed. I t  oc­
curs to the Court, however, th a t such in­
cidents in such institu tions take place in 
spite of all reasonable precautions taken 
by prison authorities. A t Cummins 
there are  no precautions w orthy of the 
name, and the “creepers” and “craw lers” 
take deadly advantage of th a t fact.

[10] The Court is of the view th a t if 
the S tate of A rkansas chooses to confine 
penitentiary inm ates in barracks w ith 
other inmates, they ought a t least to be 
able to fall asleep a t n igh t w ithout fear 
of having th e ir thi'oats cut before morn­
ing, and th a t the State has failed to dis­
charge a constitutional duty in failing to 
take steps to enable them  to do so.

IV.
The isolation unit a t Cummins con­

sists of a one-story concrete block build­
ing surrounded by a tall metal fence. 
Inside th a t building are 12 cells a r­
ranged in a single row on one side of

Eleven of those cells are 
used to confine inm ates; the o ther has 
been fitted  up as a shower room. The 
building is heated by gas, and there  are 
blowers to provide ventilation. In hot 
w eather the exterior door or doors of 
the building are  le ft open to provide c ir­
culation.

The building has no w indow s; howev­
er, electric lights are burned so th a t the 
inm ates are not confined in darkness 
during daylight hours. The fron ts of 
the individual cells are closed in part by 
concrete walls and for the re s t by solid 
metal doors. A t the bottom of each door 
is a small movable g ra ting  through 
which food tray s  are pushed and la ter 
recovered.

The individual cells are ten feet long 
by approximately eight feet w ide; the 
record does not reflect how high they 
are, bu t photographs indicate th a t the 
distance from  floor to ceiling substan­
tially exceeds the height of a man. The 
cells are completely bare of fu rn itu re , 
probably due to the tendency of inmates 
to te a r  up pieces of fu rn itu re  th a t m ight 
be pu t in the cells. Each cell contains a 
drinking fountain, and each is equipped 
w ith a concrete toilet. An exam ination 
of the photographs makes it ra th e r clear 
th a t while the toilets will flush, they 
cannot be flushed by a person inside the 
cell. I t  is not clear w hether the toilets 
can be covered firm ly so as to hold down 
odors; the photographs suggest th a t 
some of them  are covered w ith pieces of 
tarpaulin  or other m aterial.

There seem to be three classes of in­
m ates in the isolation cells: (1) P rison­
ers confined in isolation for rule in frac­
tions; (2) P risoners held in the cells as 
a measure of “protective custody,” the 
purpose of which is to protect them 
from  other inm ates; (3) Prisoners who 
are  general escape or security risks or 
who are  aw aiting tria l on additional 
crim inal charges.

Theoretically, a prisoner is not com­
m itted to isolation fo r a rule infraction 
until he has been found guilty by the ad­
m inistrative court described in the evi­
dence. In practice, however, a prisoner



300 FEDERAL SUPPLEMENT

may be put In the unit before hearing 
and may stay  there fo r several days 
prior to hearing. An infraction of rules 
usually produces a sentence of a definite 
num ber of days, and some of the sen­
tences are fo r ra th e r  long periods. 
Common rule infractions resulting in 
confinement in the unit are  insubordina­
tion, fighting , and refusing  to work, and 
it  appears th a t some prisoners deliber­
ately refuse to work or tem porarily disa­
ble themselves to avoid work.

An inmate of the Farm  may be put 
into the un it for protective custody if  he 
requests th a t action provided th a t the 
P eniten tiary  au thorities th ink th a t he 
needs protection. Protective custody 
confinements are usually of indefinite 
duration.

[11] Inm ates in protective custody 
usually are sent to th e ir  regular work 
each day and are  served regular prison 
food. Inm ates who are kept in the unit 
24 hours a day are served a food mix­
tu re  known as “grue.” “Grue” consists 
of meat, potatoes, vegetables, eggs, oleo, 
syrup, and seasoning baked all together 
in a pan and served in four inch 
squares. The Court finds th a t while 
“grue” is not appetizing and is not 
served attractively, it  is a wholesome 
and sufficient diet for men in close con­
finem ent day a fte r  day. The Court ob­
served all of the petitioners, and none of 
them appeared to be su ffering  from  mal­
nutrition .

The “grue” is delivered a t  the isola­
tion un it on plates or trays and is 
pushed to the inm ates through the g ra t­
ings a t the bottoms of the doors. At 
tim es portions of the food are  knocked 
off of the plates as they are pushed 
through the gratings. There is some 
evidence th a t a t times trays of food are 
le ft on the ground outside the unit, and 
th a t in instances the food has been 
tainted by dogs or birds. However, the 
Court is convinced th a t such instances 
have been rare  i f  they have occurred at 
all.

The Court finds th a t the isolation 
cells are d irty  and unsanitary , th a t they

are pervaded by bad odors from  the toi­
lets, and th a t the plain cotton mattresses 
on which the inm ates sleep are uncov­
ered and dirty . Those conditions are 
due a t least in part to the fact tha t the 
inm ates take little or no in terest in 
keeping th e ir cells clean and in part to 
the overcrowded conditions of the cells 
presently to be described.

Confinement in the isolation cells is 
not “solitary confinem ent” in the con­
ventional sense of th a t term . On the 
contrary, the cells are  substantially  over­
crowded. As of the time of the hearing 
only two of the cells were occupied by 
one man only, and they were so occupied 
only because of the fact th a t the two in­
dividuals confined therein are too dan­
gerous to be put w ith other prisoners. 
The average number of men confined in 
a single cell seems to be four, but at 
times the num ber has been much higher. 
In extrem e circumstances as many as 
ten or eleven men have been in the same 
cell a t the same time.

As stated, inm ates of the isolation 
unit sleep on m attresses which are 
spread on the cell floors. D uring day-, 
light hours the m attresses are  removed 
from the cells of the men who are re­
quired to rem ain in the cells 24 hours a 
day. The m attresses of the “protective 
custody” inm ates who work rem ain in 
the cells all day. The m attresses that 
are removed from the cells are piled in­
discrim inately in the corridor of the 
unit and are indiscrim inately returned 
to the inm ates a t night. Thus an in­
mate has no assurance th a t the mat­
tress alloted to him on any night is 
the same one th a t he had the night be­
fore or the same one th a t he will have 
the next night. T hat problem is aggra­
vated by the fact th a t some of the in­
mates of the cells su ffe r from infectious 
diseases. In th a t connection the evi­
dence discloses tha t one inm ate died re­
cently in the in firm ary  of infectious 
hepatitis a f te r  having been confined in 
isolation for a number of days. And 
one of the petitioners who is in the same 
cell as o ther men testified th a t he is suf­
fering  from  venereal disease. I t  should



833HOLT v. SARVER
Cite as 300 F .Supp. S2S (10(!0)

be said, however, th a t there is no evi­
dence th a t any inmate has as yet con­
tracted a serious contagious disease 
from another inmate.

Theoretically, inm ates are perm itted 
to take showers twice a week. In prac­
tice, th a t schedule is not adhered to con­
sistently, and it is possible th a t individ­
ual inmates may not avail themselves of 
an opportunity to shower.

Inmates of the cells who are  there for 
purposes of discipline are not perm itted 
to exercise outside th e ir  cells. P rio r to 
May 28 the same rule applied to inmates 
in protective custody who did not w o rk ; 
the Court understands, however, th a t 
since th a t date such inm ates have been 
allowed reasonable exercise. The in­
mates who work get exercise, of course, 
while they are a t th e ir daily tasks.

W ithout undertaking to sta te  w ith 
specificity the exact point a t which one 
of the isolation cells becomes “over­
crowded” ra ther than simply “crowded,” 
and two men are a crowd in an 8 x 10 
cell when they have to stay  there 24 
hours a day for days or weeks on end, 
the Court finds th a t the cells have been 
chronically overcrowded, and th a t over­
crowding to a g rea ter or lesser extent 
will unavoidably continue until such 
time as more isolation cells are available.

In evaluating from  a constitutional 
standpoint confinement in isolation as 
practiced a t Cummins, the Court will ob­
serve th a t it does not find th a t any of 
the present inmates of the isolation were 
put there unnecessarily, unjustly, a rb i­
trarily, or discrim inatorily.. The in­
mates of the un it who are there for dis­
cipline have deserved the ir punishment. 
Those who are there fo r the protection 
of themselves and other inm ates should 
be kept away from  the general prison 
population.

Confinement in isolation is now the 
only stringent disciplinary measure 
available a t Cummins since the Court of 
Appeals has enjoined the use of the 
strap. If  confinement of th a t type is to 
serve any useful purpose, it m ust be rig ­
orous, uncomfortable, and unpleasant.

300 F.Supp.—53

[12] However, there are  lim its to 
the rigo r and discomfort of close con­
finem ent which a S tate may not consti­
tutionally exceed, and the Court finds 
th a t those lim its have been exceeded 
here. The Court finds th a t the pro­
longed confinement of num bers of men 
in the same cell under the conditions 
th a t have been described is mentally and 
emotionally traum atic as well as physi­
cally uncomfortable. I t  is hazardous to 
health. I t  is degrading and debasing; 
it  offends modern sensibilities, and, in 
the C ourt’s estim ation, am ounts to cruel 
and unusual punishm ent.

V.
The task  of the Court in devising a 

remedy in th is case is both d ifficult and 
delicate.

[13] Subject to constitutional lim ita­
tions, A rkansas is a sovereign State. I t  
has a rig h t to make and enforce criminal 
laws, to imprison persons convicted of 
serious crimes, and to m aintain order 
and discipline in its prisons. This Court 
has no intention of entering  a decree 
herein th a t will d isrup t the Peniten tiary  
or leave Respondent and his subordi­
nates helpless to deal w ith  dangerous 
and unruly convicts.

The Court has recognized heretofore 
the financial handicaps under which the 
P eniten tiary  system is laboring, and the 
Court knows th a t Respondent cannot 
make bricks w ithout straw .

However, the Court is convinced th a t 
given the will Respondent w ith the 
means now available to him and th a t 
will become available to him a t the com­
mencement of the new fiscal year th a t 
begins on July 1 can make a substantial 
s ta r t  toward alleviating the conditions 
th a t the Court has found to be unconsti­
tutional. He will be ordered to do so.

The Court will not undertake a t this 
tim e to prescribe any specific immediate 
steps to be taken by Respondent. The 
Court would like to know f ir s t  w hat Re­
spondent thinks th a t he can do, and 
w hat he is willing to undertake to do. 
There are some suggestions th a t the 
Court is prepared to make.



m * th

300 FEDERAL SUPPLEMENT

F irs t, in allocating funds and assign­
ing free world personnel to duties, Re­
spondent should give the highest p riori­
ty  to the safety  of inm ates of the b ar­
racks and to alleviating existing condi­
tions in the isolation unit. If  th a t is 
done, Respondent may find th a t he can 
put free world guards into the barracks 
proper and dispense w ith the “floorwalk­
ers. Although the C ourt recognizes 
th a t it  m ight be unwise to spend a large 
am ount of money on tem porary facilities 
in view of the contemplated construction 
of the new maximum security  unit, Re­
spondent may also find th a t he will be 
able to build some additional isolation 
cells.

Second, there is evidence to the effect 
th a t some inm ates are more of a prob­
lem a t one farm  than they are  a t the 
other. Consideration m ight be given to 
tran sfe rrin g  certain individual inm ates 
from  Cummins to Tucker.

Third, every effo rt should be made to 
hold the num ber of persons confined in 
a single isolation cell a t one time to a 
minimum. T hat may involve more selec­
tiv ity  in imposing isolation as a punish­
ment, or shorter sentences, or more flex­
ible sentences. In the field of criminolo­
gy it has been observed th a t long term s 
of im prisonm ent imposed on persons 
convicted of crime are not necessarily 
more efficacious as crime deterrents 
than shorter sentences, and the same 
th ing  may hold good w ithin the walls of 
penal institutions.

Fourth , in ordinary cases inmates 
should not be long confined in isolation 
in advance of hearing, and consideration 
m ight be given to an autom atic review 
of the actions of all sentencing panels.

Finally, Respondent ought to be able 
a t minimum expense to do something 
about the san itary  conditions of the cells 
and he m ight give consideration to doing 
so w ithout much regard to the a ttitudes 
of the inmates. Certainly, something 
can be done about the condition of the 
m attresses and it can be assured a t least 
th a t an inm ate will sleep on the same 
m attress every night. Most im portant,

seriously ill men should not be confined 
in close contact w ith o ther prisoners.

The foregoing suggestions happen to 
be those th a t occur to the Court a t the 
moment; the Court does not suggest 
th a t they are necessarily all of the steps 
th a t can and should be taken.

In the decree to be entered Respon­
dent will be directed to report to the 
Court w ithin 30 days as to w hat steps 
he in fact plans to take, and jurisd iction  
of the case will be retained fo r all ap­
propriate purposes.

KEY NUMBER SYSTEM2>

W ni. F . cleHAAS, and Colorado Interna­
tional Corp., a Colorado corpo­

ration, P lain tiffs, 
v.

EM PIRE PETROLEUM  COMPANY, a  
Colorado corporation, E ugene M. Stone 
and A m erican Industries, Inc., a  N e­
vada corporation, D efendants.

Civ. A . N o. 66-C-167.

United States District Court 
D. Colorado.

June 26, 1969.

Action attacking validity of disput­
ed m ergers brought about by defendants 
individual and corporation. The Dis­
tric t Court, William E. Doyle, J„  held, 
in ter alia, th a t examination of evidence 
showed th a t letters of corporations to 
public shareholders disclosed all relevant 
and m aterial facts before plan of reorga­
nization was subm itted fo r shareholder 
consideration and th a t p lain tiffs failed 
to prove th a t the inform ation was in­
complete or fraudulently deceptive. 

Judgm ent accordingly.
See also D.C., 286 F.Supp. 809.

1. L icenses 0>39.36
Claim for relief under rule of Secu­

rities and Exchange Commission prohib-



I I . THE DISTRICT COURT HAD THE AUTHORITY TO AWARD
COUNSEL FEES AGAINST THE DEPARTMENT OF CORREC­
TION

The D i s t r i c t  C o u r t  a w a r d e d  c o u n s e l  f e e s  b e c a u s e  t h e  p e t i ­

t i o n e r s  h a d  a c t e d  i n  b ad  f a i t h .  410 F . S u p p .  a t  2 8 1 - 2 8 5 .  The  

C o u r t  o f  A p p e a l s  h e l d  t h a t  s u c h  an  a w a r d  was  a l s o  a u t h o r i z e d  by 

t h e  C i v i l  R i g h t s  A t t o r n e y ' s  F e e s  Aw ar d s  A c t  o f  1 9 7 6 .  548 F . 2 d  a t

7 4 2 .  E a ch  o f  t h e s e  g r o u n d s  p r o v i d e s  an  i n d e p e n d e n t  b a s i s  f o r  

s u s t a i n i n g  t h e  a w a r d .

A. C o u n s e l  F e e s  May Be Aw ar d e d  A g a i n s t  S t a t e  
O f f i c i a l s  Or A g e n c i e s  Whi ch  Have A c t e d  I n  
Bad F a i t h

I n  A l y e s k a  P i p e l i n e  S e r v i c e  Co.  v .  The  W i l d e r n e s s  S o c i e t y  

4 2 1 ' U . S .  240 ( 1 9 7 5 ) ,  t h i s  C o u r t  r e i t e r a t e d  t h e  l o n g  s t a n d i n g  r u l e  

t h a t  a c o u r t  may a s s e s s  c o u n s e l  f e e s  i n  a  c a s e  i n  w h i c h  t h e  

l o s i n g  p a r t y  h a s  " a c t e d  i n  bad  f a i t h ,  v e x a t i o u s l y ,  w a n t o n l y ,  o r  

f o r  o p p r e s s i v e  r e a s o n s  . . . . "  421 U . S .  a t  2 5 9 .  T h i s

r u l e  h a s  b e e n  a p p l i e d  t o  a v a r i e t y  o f  f o r m s  o f  c o n d u c t ,  i n c l u d i n g  

a n  i n t e n t i o n a l  v i o l a t i o n  o f  t h e  p l a i n t i f f ' s  c o n s t i t u t i o n a l  

o r  s t a t u t o r y  r i g h t s ,  a n  i n e x c u s a b l e  d e f a u l t  on a n  o b l i g a t i o n

_/  S e e  a l s o  Runyon  v .  M c C r a r y , 427 U . S .  1 6 0 ,  183 ( 1 9 7 6 ) ;
F . D .  R i c h  v .  v .  I n d u s t r i a l  Lumber  C o . ,  417 U . S .
1 1 6 ,  129 ( 1 9 7 4 ) ;  H a l l  v .  C o l e , 412 U . S .  1 ,  5 ( 1 9 7 3 ) ;  Newman v . 
P i g g i e  P a r k  E n t e r p r i s e s , 390 U . S .  4 0 0 ,  4 0 2 ,  n . 5  ( 1 9 6 8 ) .

_ /  The  s e m i n a l  c a s e  i s  R o l a x  v .  A t l a n t i c  C o a s t  L i n e  R. C o . , 186 
F . 2 d  473 ( 4 t h  C i r .  1 9 5 1 ) ,  c i t e d  w i t h  a p p r o v a l  i n  R i c h , 40 L . E d . 2  a t  
7 1 4 ,  n . 1 7 ,  H a l l , 41 2  U . S .  a t  5 ,  a n d  Va ug h n  v .  A t k i n s o n , 369 U . S .  
5 2 7 ,  530 ( 1 9 6 2 ) .  S e e  a l s o  B e l l  v S c h o o l  B d . o f  P o w h a t a n  C o u n t y ,
321  F . 2d 494 ( 4 t h  C i r .  1 9 6 3 ) ,  c i t e d  w i t h  a p p r o v a l  i n  R i c h  and  
H a l l ; R i c h a r d s o n  v .  C o m m u n i c a t i o n s  W o r k e r s  o f  A m e r i c a , 530 
F . 2 d  1 2 6 ,  13 2  ( 8 t h  C i r .  1 9 7 6 ) ;  Doe v .  P o e l k e r , 515 F . 2 d  5 4 1 ,
547 ( 8 t h  C i r . , 1 9 7 5 ) .



_ /
t o  r e m e d y  a  p a s t  o r  e x i s t i n g  v i o l a t i o n ,  u n j u s t i f i a b l e

_ /
d e f e n s e  o f  c l e a r l y  u n l a w f u l  c o n d u c t ,  o r  d i l a t o r y ,  f r a u d u -  

l e n t ,  o r  o t h e r w i s e  i m p r o p e r  l i t i g a t i o n  t a c t i c s .  Each  o f  

t h e s e  f o r m s  o f  b a d  f a i t h  u n f a i r l y  b u r d e n s  n o t  o n l y  t h e  a d v e r s e  

p a r t y  b u t  a l s o  t h e  f e d e r a l  c o u r t s .  C f .  I l l i n o i s  v .  A l l e n , 397  

U . S .  3 3 7 ,  347 ( 1 9 7 0 ) .

I n  t h e  i n s t a n t  c a s e  t h e  D i s t r i c t  C o u r t  made a  f a c t u a l  

f i n d i n g  t h a t  t h e  p e t i t i o n e r s  " h a v e  a c t e d  i n  b a d  f a i t h  and  

o p p r e s s i v e l y  a nd  t h a t  t h e  c a s e  f a l l s  w i t h i n  t h e  ' b a d  f a i t h '  

e x c e p t i o n  t o  t h e  A l y e s k a  r u l e . "  410 F . S u p p .  a t  2 8 4 .  The 

D i s t r i c t  C o u r t  b a s e d  t h i s  f i n d i n g  on s e v e r a l  d i s t i n c t  g r o u n d s :  

( 1 )  p e t i t i o n e r s  h a d  o p e r a t e d  " a  p a t e n t l y  u n c o n s t i t u t i o n a l  p r i s o n  

s y s t e m "  p r i o r  t o  t h e  comme nce me n t  o f  t h i s  a c t i o n  ( 2 )  t h e  

p e t i t i o n e r s  h a d  s hown p e r s i s t e n t  a nd  i n c r e a s i n g  u n w i l l i n g n e s s  

t o  r e m e d y  i n t o l e r a b l e  c o n d i t i o n s  u n l e s s  o r d e r e d  t o  do s o  by t h e  

c o u r t ,  ( 3 )  a l t h o u g h  t h e  p l a i n t i f f s  r e p e a t e d l y  b r o u g h t  t o  l i g h t  

t h r o u g h  d i s c o v e r y  p a t t e r n s  o f  m i s c o n d u c t  s o  e g r e g i o u s  t h a t  

p e t i t i o n e r s  r e c o g n i z e d  t h e y  h a d  t o  be c o r r e c t e d ,  p e t i t i o n e r s  

i n e x p l i c a b l y  f a i l e d  t o  make  i n q u i r i e s  o f  t h e i r  own i n t o  w h a t  

w as  o c c u r r i n g  i n  t h e  p r i s o n s  f o r  w h i c h  t h e y  w e r e  r e s p o n s i b l e ,

( 4 )  d e s p i t e  a  s e r i e s  o f  h e a r i n g s  a nd  w r i t t e n  and  o r a l  o r d e r s  

f r o m  t h e  c o u r t  o v e r  t h e  c o u r s e  o f  t h e  l i t i g a t i o n ,  c o n s t i t u ­

t i o n a l  v i o l a t i o n s  c o n t i n u e d .  410 F . S u p p .  a t  2 8 4 - 2 8 5 .  I n  v i e w  

o f  t h e  d i s t r i c t  j u d g e ' s  u n i q u e  f a m i l i a r i t y  w i t h  t h e  c o n d u c t

_ /  B r a d l e y  v .  R i ch mo n d  S c h o o l  B o a r d , 416 U . S .  6 9 6 ,  7 0 7 ,  n .
10 ( 1 9 7 4 ) ;  Va u gh n  v .  A t k i n s o n , 369 U . S .  a t  5 3 0 - 3 1 ;  Mc E n t e g g a r t  
v .  C a t a l d o , 451  F . 2 d  1 1 0 9 ,  1 1 1 2  ( 1 s t  C i r .  1 9 7 1 ) ,  c i t e d  w i t h  
a p p r o v a l  i n  R i c h ,  S i ms  v .  Amos,  340  F . S u p p .  6 9 1 ,  694  ( N .D .  A l a .  
1 9 7 2 ) ,  a f f ' d  409 U . S .  9 4 2 .

_ /  Newman v .  P i g g i e  P a r k  E n t e r p r i s e s , s u p r a ; F a i r l e y  v . 
P a t t e r s o n , 493  F . 2 d  5 9 8 ,  606 ( 5 t h  C i r .  1 9 7 4 ) .

_ /  U n i v e r s a l  O i l  P r o d u c t s  Co.  v .  R o o t  R e f i n i n g  C o . , 328 U . S .  
5 7 5 ,  580 ( 1 9 4 6 ) .

-  2 -

\ 1



a n d  a t t i t u d e  o f  t h e  p e t i t i o n e r s  g a r n e r e d  o v e r  7 y e a r s  f r o m  

n u m e r o u s  h e a r i n g s  h i s  f i n d i n g  o f  b a d  f a i t h  i s  e n t i t l e d  

t o  p a r t i c u l a r l y  g r e a t  w e i g h t .

The  C o u r t  o f  A p p e a l s ,  a l t h o u g h  r e l y i n g  p r i m a r i l y  on t h e  

C i v i l  R i g h t s  A t t o r n e y ' s  F e e s  A w a r d s  A c t ,  c o n c l u d e d  t h a t  " t h e  

r e c o r d  f u l l y  s u p p o r t s  t h e  f i n d i n g  o f  t h e  d i s t r i c t  c o u r t  t h a t  

t h e  c o n d u c t  o f  t h e  s t a t e  o f f i c i a l s  j u s t i f i e d  t h e  a w a r d  u n d e r  

t h e  b a d  f a i t h  e x c e p t i o n  e n u m e r a t e d  i n  A l y e s k a  P i p e l i n e  S e r v i c e  

Co.  v .  W i l d e r n e s s  S o c i e t y . "  548 F . 2 d  a t  7 4 2 ,  n .  6 .  S u c h  a 

c o n c u r r e n t  f i n d i n g  o f  f a c t  by two c o u r t s  b e l o w  i s  n o t  s u b j e c t  

t o  r e v i e w  i n  t h i s  C o u r t  i n  t h e  a b s e n c e  o f  e x t r a o r d i n a r y  c i r c u m ­

s t a n c e s  n o t  p r e s e n t  h e r e .  B e r e n y i  v .  I m m i g r a t i o n  S e r v i c e , 385  

U . S .  6 3 0 ,  635 ( 1 9 6 7 ) ;  G r a v e r  Mfg.  Co.  v .  L i n d e  C o . , 336 U . S .  

2 7 1 ,  275  ( 1 9 4 9 ) ;  s e e  Runyon  v .  M c C r a r y ,  427 U . S .  1 6 0 ,  184 

( 1 9 7 6 ) .  The c o r r e c t n e s s  o f  t h i s  f i n d i n g  d o e s  n o t  a p p e a r  t o  be 

q u e s t i o n e d  by p e t i t i o n e r s .

The  o r d e r  o f  t h e  d i s t r i c t  c o u r t  p r o v i d e s

The  c o u r t  now a w a r d s  c o u n s e l  f o r  p e t i t i o n e r s  
t h e  sum o f  $ 2 0 , 0 0 0 . 0 0  a s  a n  a t t o r n e y s '  f e e  on 
a c c o u n t  o f  s e r v i c e s  p e r f o r m e d  by t he m i n  t h i s  
l i t i g a t i o n  s i n c e  t h e  r e m a n d  r e s u l t i n g  f r o m  
F i n n e y  v .  A r k a n s a s  B r o a d  o f  C o r r e c t i o n , 505 
F . 2 d  194 ( 8 t h  C i r .  1 9 7 4 ) .  The  c o u r t  a l s o  
d i r e c t s  t h a t  c o u n s e l  be  r e i m b u r s e d  f o r  t h e  
r e a s o n a b l e  a n d  n e c e s s a r y  e x p e n s e s  p a i d  o r  i n ­
c u r r e d  by t h e m ,  i n c l u d i n g  t h e  e x p e n s e s  o f  em­
p l o y i n g  l a w  s t u d e n t s  t o  a s s i s t  i n  t h e  p r e p a r a ­
t i o n  o f  t h e  c a s e ,  s i n c e  t h e  r e m a n d ,  b u t  n o t  t o  
e x c e e d  $ 2 , 0 0 0 . 0 0 .  C o u n s e l  s h o u l d  be  a b l e  t o  
a g r e e  on t h e  a m o u n t  o f  t h e  e x p e n s e s ;  i f  n o t ,  t h e y  
c a n  t a k e  up  t h e  m a t t e r  w i t h  t h e  c o u r t .  T h e s e  
a w a r d s  a r e  t o  be  p a i d  o u t  o f  D e p a r t m e n t  o f  
C o r r e c t i o n  f u n d s .

C o u n s e l  f o r  p e t i t i o n e r s  h e r e  o b j e c t s  o n l y  t o  t h e  l a s t  s e n t e n c e

o f  t h i s  d e c r e e ,  d i r e c t i n g  t h a t  t h e  f e e s  and  c o s t s  be p a i d  o u t

o f  t h e  f u n d s  o f  t h e  D e p a r t m e n t  o f  C o r r e c t i o n s  w h i c h  a r e

u n d e r  t h e  c o n t r o l  o f  t h e  p e t i t i o n e r s .  I f  t h i s  o b j e c t i o n  i s

s u s t a i n e d  t h e  r e s t  o f  t h e  o r d e r  w i l l  s t a n d ,  a nd  t h e  a w a r d  w i l l

s t i l l  h a v e  t o  be  p a i d  by  Mr.  H u t t o  and  t h e  o t h e r  p e t i t i o n e r s ,
-  3 -



_ /
p r e s u m a b l y  o u t  o f  t h e i r  p e r s o n a l  r e s o u r c e s .  C o u n s e l  f o r  

p e t i t i o n e r s  a s s e r t s  t h a t ,  a l t h o u g h  p e t i t i o n e r s  may be  d i r e c t e d  

t o  p a y  t h e  a w a r d e d  sum,  t h e y  may n o t  be d i r e c t e d  t o  do so  o u t  

o f  D e p a r t m e n t  f u n d s .

The  q u e s t i o n  o f  w h e t h e r  c o u n s e l  f e e s  a r e  among t h e  

r e m e d i e s  o r d i n a r i l y  p r e c l u d e d  by  t h e  E l e v e n t h  Amendment  h a s  b e e n  b e f o r  

t h e  C o u r t  on t h r e e  p r e v i o u s  o c c a s i o n s .  I n  S i ms  v .  Amos ,

340 F . S u p p .  6 9 1 ,  695  ( N .D .  A l a .  1 9 7 2 ) ,  c o u n s e l  f e e s  w e r e  

a w a r d e d  a g a i n s t  e l e c t e d  A l a b a m a  s t a t e  o f f i c a l s  i n  t h e i r  o f f i c i a l  

c a p a c i t y .  The  s t a t e  a t t o r n e y  g e n e r a l  a p p e a l e d ,  c l a i m i n g  s u c h  

a n  a w a r d  "was  t a n t a m o u n t  t o  t h e  a w a r d  o f  a  money j u d g m e n t

a g a i n s t  t h e  S t a t e  o f  A l a b a m a  i n  d i r e c t  v i o l a t i o n  o f  t h e  d o c -
_ /

t r i n e  o f  s o v e r e i g n  i m m u n i t y , "  b u t  t h i s  C o u r t  u n a n i m o u s l y
_ /

a f f i r m e d  t h e  a w a r d  w i t h o u t  o p i n i o n .  409 U . S .  9 4 2 .  I n  

A l y e s k a  P i p e l i n e  S e r v i c e  Co.  v .  The W i l d e r n e s s  S o c i e t y , 421 

U . S .  240 ( 1 9 7 5 ) ,  t h e  m a j o r i t y ,  w h i l e  f i n d i n g  no  o c c a s i o n  t o  

d i s c u s s  t h e  E l e v e n t h  Amendment  i s s u e  ( 4 2 1  U . S .  a t  2 6 9 ,  n .  4 4 , )  

n o t e d  t h a t  t h e  a w a r d  u p h e l d  i n  S i m s  r e s t e d  i n  p a r t ,  a s  h e r e ,  on 

t h e  b a d  f a i t h  o f  t h e  d e f e n d a n t s .  421  U . S .  a t  2 7 0 ,  n .  4 6 .  I n  

B i t z e r  v .  M a t t h e w s , No.  7 5 - 2 8 3 ,  d e c i d e d  s u b .  nom.  F i t z p a t r i c k

_ /  U n l i k e  t h e  s i t u a t i o n  i n  E d e l m a n  v .  J o r d a n , 415 U . S .  6 5 1 ,  
665  ( 1 9 7 4 ) ,  t h e  p a y m e n t  o f  t h e  a w a r d  o u t  o f  p e t i t i o n e r s '  
p e r s o n a l  f u n d s  i s  b o t h  p o s s i b l e ,  i n  l i g h t  o f  t h e  a m o u n t  i n ­
v o l v e d ,  a nd  e n t i r e l y  j u s t i f i a b l e ,  s i n c e  t h e  b a d  f a i t h  r e l a t e s  
t o  t h e  p e r s o n a l  c o n d u c t  o f  Mr .  H u t t o  a nd  h i s  p r e d e c e s s o r s .

_ /  J u r i s d i c t i o n a l  S t a t e m e n t ,  p .  __ .

_ /  T h i s  i s s u e  was  d i s c u s s e d  a s  w e l l  a t  t h e  o r a l  a r g u m e n t  i n  
E d e l m a n  v .  J o r d a n , 415 U . S .  651  ( 1 9 7 4 ) ,  b u t  was n o t  m e n t i o n e d  
i n  t h e  o p i n i o n s .

-  4 -

i*



v .  B i t z e r , 427 U . S .  445 ( 1 9 7 6 ) ,  t h e  m a j o r i t y  a g a i n  d i d  n o t

r e a c h  t h e  i s s u e ,  427 U . S .  a t  _____ , b u t  Mr.  J u s t i c e  S t e v e n s

c o n c u r r e d  on  t h e  g r o u n d  t h a t  c o u n s e l  f e e s ,  l i k e  o t h e r  l i t i g a ­

t i o n  c o s t s ,  w e r e  n o t  s u b j e c t  t o  t h e  E l e v e n t h  Ame nd men t .  427 

U . S .  a t  4 6 0 .  C e r t i o r a r i  was  g r a n t e d  t o  d e c i d e  t h i s  i s s u e  i n  

S t a n t o n  v .  B o n d , No.  7 5 - 1 4 1 3 ,  b u t  t h e  c a s e  was  s u b s e q u e n t l y  

r e m a n d e d  f o r  c o n s i d e r a t i o n  o f  t h e  C i v i l  R i g h t s  A t t o r n e r y  F e e s  

A c t  o f  1 9 6 7 .  50 L . E d . 2 d  581 ( 1 9 7 6 ) .  The  c o u r t s  o f  a p p e a l s  a r e

d i v i d e d  on  t h i s  q u e s t i o n .

As i n i t i a l l y  a d o p t e d  s e c t i o n  2 o f  A r t i c l e  I I I  p r o v i d e s  i n

part that "[t]he judicial Power shall extend to all cases, in
Law a n d  E q u i t y ,  a r i s i n g  . . . b e t w e e n  a S t a t e  and  C i t i z e n s  o f

a n o t h e r  s t a t e  . . . a n d  b e t w e e n  a  S t a t e  . . . a nd  f o r e i g n  .

C i t i z e n s  o r  S u b j e c t s . "  I n ' 1 7 9 8 ,  i n  t h e  wake  C h i s h o l m  v .

G e o r g i a , 2 D a l i .  (2  U . S . )  419 ( 1 7 9 8 ) ,  t h e  E l e v e n t h  Amendment

was adopted to repeal this language. Unchanged since then, the
Eleventh Amendment provides:

The j u d i c i a l  p o w e r  o f  t h e  U n i t e d  S t a t e s  s h a l l  
n o t  be c o n s t r u e d  t o  e x e n t  t o  a n y  s u i t  i n  l aw 
o r  e q u i t y ,  commenced  o r  p r o s e c u t e d  a g a i n s t  
o ne  o f  t h e  U n i t e d  S t a t e s  by C i t i z e n  o f  
a n o t h e r  S t a t e  o f  by C i t i z e n s  o r  S u b j e c t s  
o f  a n y  F o r e i g n  S t a t e .

-  5 -

/  T h r e e  c i r c u i t s  h a v e  h e l d  s u c h  a w a r d s  p e r m i s s i b l e .  S o u z a  
v 7  T r a v i s o n o ,  512  F . 2 d  1137  ( 1 s t  C i r  1 9 7 5 ) ;  C l a s s  v .  N o r t o n ,
505 F . 2 d  123 ( 2 d  C i r .  1 9 7 4 ) ;  J o r d a n  v .  F u s a r i , 496 F . 2 d  646 (2d  
C i r .  1 9 7 4 ) ;  B r a n d e n b u r g e r  v .  T h o m p s o n , 494 F . 2 d  885 ( 9 t h  C i r .
1 9 7 4 )  . Two c i r c u i t s  h a v e  c o n c l u d e d  t h a t  t h e  E l e v e n t h  Amendment  
a p p l i e d  t o  s u c h  a w a r d s .  J o r d a n  v .  G i l l i g a n , 500 F . 2d  701 ( 6 t h  
C i r .  1 9 7 4 ) ;  T a y l o r  v .  P e r i n i , 501 F . 2 d  899 ( 6 t h  C i r .  1 9 7 4 ) ;  
S k e h a n  v .  B o a r d  o f  T r u s t e e s , 503 F . 2 d  31 ( 3d  C i r .  1 9 7 4 ) .  Two 
c i r c u i t s  a r e  d i v i d e d .  T h o n e n  v .  J e n k i n s , 517 F . 2 d  3 ( 4 t h  C i r .
1 9 7 5 )  ( a w a r d s  p e r m i s s i b l e ) ;  H a l l m a r k  C l i n i c  v .  N o r t h  C a r o l i n a  
D e p t ,  o f  Human R e s o u r c e s , 519 F . 2 d  1315 ( 4 t h  C i r . ( 1 9 7 5 )  ( a w a r d s  
p r o h i b i t e d ) ;  M i l b u r n  v .  H u e c k e r , 500  F . 2 d  1279 ( 5 t h  C i r .  1 9 7 4 )  
( a w a r d s  p e r m i s s i b l e ) ;  Named I n d i v i d u a l  Member v .  T e x a s  H i ghwa y  
D e p t . , 496 F . 2 d  1017 ( 5 t h  C i r .  1 9 7 4 ) .

5



A l t h o u g h  t h e  a m e n d m e n t ,  r e a d  l i t e r a l l y ,  m e r e l y  d e l e t e s  t h e  

q u o t e d  l a n g u a g e  f r o m  A r t i c l e  I I I ,  i t  h a s  b e e n  c o n s t r u e d  by  t h i s  

C o u r t  a l s o  t o  l i m i t  t h e  j u d i c i a l  p o w e r  u n d e r  o t h e r  c l a u s e s  o f  

A r t i c l e  I I I .  I n  Hans  v .  L o u i s i a n a , 134 U . S .  1 ( 1 8 9 0 ) ,  t h e  

C o u r t  e x t e n d e d  t h e  E l e v e n t h  Amendment  i m m u n i t y  t o  s u i t s  a g a i n s t  

a  s t a t e  by i t s  own c i t i z e n s .  I n  Hagood v .  S o u t h e r n , 117 

U . S .  52 ( 1 8 8 6 ) ,  t h e  C o u r t  h e l d  t h a t  t h e  E l e v e n t h  Amendment  

c o u l d  be  a s s e r t e d  t o  p r e c l u d e  r e l i e f  a g a i n s t  a n  i n d i v i d u a l  

d e f e n d a n t  w h e r e  t h e  r e a l  d e f e n d a n t  a f f e c t e d  by t h e  o r d e r  was  a 

S t a t e .  117 U . S .  a t  6 7 .  S e e  a l s o  F o r d  M o t o r  Co.  v .  D e p a r t m e n t  

o f  T r e a s u r y , 323 US. 4 5 9 ,  464 ( 1 9 4 5 ) .  I t  i s  t h i s  l a t t e r  

d o c t r i n e  w i t h  w h i c h  t h i s  c a s e  i s  c o n c e r n e d .

The  f a c t  t h a t  a n  o r d e r  a g a i n s t  a  s t a t e  o f f i c i a l  d i r e c t s  

t h e  o f f i c a l  t o  u s e  o r  d i s b u r s e  s t a t e  f u n d s  w i t h i n  h i s  o r  h e r  

c o n t r o l  d o e s  n o t ,  by i t s e l f ,  b r i n g  t h e  o r d e r  w i t h i n  t h e  

p r o h i b i t i o n  o f  t h e  E l e v e n t h  Ame nd men t .  Ex p a r t e  Y o u n g , 209 

U . S .  123 ( 1 9 0 8 ) ,  h e l d  t h a t  t h e  E l e v e n t h  Amendment  d i d  n o t  

p r e c l u d e  t h e  f e d e r a l  c o u r t s  f r o m  d i r e c t i n g  s t a t e  o f f i c a l s  t o  

c o n f o r m  t h e i r  c o n d u c t  t o  t h e  r e q u i r e m e n t  o f  t h e  F o u r t e e n t h  

Ame nd men t .  I n  Graham v .  R i c h a r d s o n , 403 U . S .  365  ( 1 9 7 1 )  a n d  

G o l d b e r g  v .  K e l l y , 397  U . S .  254 ( 1 9 7 0 ) ,  t h i s  C o u r t  u p h e l d  o r d e r s  

d i r e c t e d  t o  s t a t e  w e l f a r e  o f f i c i a l s  c l e a r l y  h a d  s u b s t a n t i a l  

f i s c a l  c o n s e q u e n c e s  f o r  t h e  s t a t e  t r e a s u r i e s  i n v o l v e d .

I n  E d e l m a n  v .  J o r d a n , 415 U . S .  651 ( 1 9 7 4 ) ,  t h i s  C o u r t  

e x p l a i n e d  t h a t  t h e  v a l i d i t y  o f  an  o r d e r  a f f e c t i n g  t h e  u s e  o f  

s t a t e  f u n d s  t u r n e d  on w h e t h e r  t h e  o r d e r  was  " i n  p r a c t i c a l

_ /  I n  E m p l o y e e s  J u s t i c e  B r e n n a n ,  d i s s e n t i n g ,  e x p r e s s e d  
t h e  v i e w  t h a t  Ha sn  was  w r o n g l y  d e c i d e d ,  a n d  t h a t  t h e  E l e v e n t h  
Amendment  s h o u l d  n o t  be a p p l i e d  t o  s u i t s  a g a i n s t  s t a t e  by i t s
own c i t i z e n s .  _____  U . S .  _____ . A l t h o u g h  we b e l i e v e  t h a t
J u s t i c e  B r e n n a n ' s  a n a l y s i s  was  c o r r e c t ,  t h a t  i s s u e  n e e d  e 
r e o p e n e d  i n  o r d e r  t o  r e s o l v e  t h i s  c a s e .

-  6 -



e f f e c t  i n d i s t i n g u i s h a b l e  . . . f r o m  an  a w a r d  o f  d a m a g e s

a g a i n s t  t h e  S t a t e , "  415 U . S .  a t  6 6 8 ,  o r  was  m e r e l y  " a n c i l l a r y "  

t o  a n  o r d e r  d i r e c t i n g  s t a t e  o f f i c i a l s  t o  c o n f o r m  t h e i r  p r e s e n t  

a n d  f u t u r e  c o n d u c t  t o  t h e  r e q u i r e m e n t  o f  t h e  f e d e r a l  C o n s t i ­

t u t i o n  and  l a w s .  I n  E d e l m a n  t h i s  r u l e  was  a p p l i e d  t o  p r e c l u d e  

t h e  r e t r o s p e c t i v e  a w a r d  o f  w e l f a r e  p a y m e n t s  w h i c h  h a d  b e e n  

u n l a w f u l l y  d e l a y e d  o r  w i t h h e l d ;  t h e  C o u r t  e m p h a s i z e d  t h a t  s u c h  

a n  a w a r d ,  h o w e v e r  l a b e l e d ,  was  i n d i s t i n g u i s h a b l e  f r o m  d a m a g e s  

s i n c e  " m e a s u r e d  i n  t e r m s  o f  a  m o n e t a r y  l o s s  r e s u l t i n g  f r o m  a 

p a s t  b r e a c h  o f  a  l e g a l  d u t y  on  t h e  p a r t  o f  t h e  d e f e n d a n t  s t a t e  

o f f i c a l s . "  415 U . S .  a t  6 6 8 .  T h r e e  y e a r s  l a t e r  i n  M i l l i k e n  v .

B r a d l e y , 53 L . E d . 2 d  745 ( 1 9 7 7 ) ,  t h i s  C o u r t  s u s t a i n e d  an o r d e r  

d i r e c t i n g  M i c h i g a n  o f f i c i a l s  t o  p a y  o v e r  $5 m i l l i o n  i n  s t a t e  

f u n d s  t o  t h e  D e t r o i t  S c h o o l  B o a r d  f o r  t h e  o p e r a t i o n  o f  c e r t a i n  

p r o g r a m s  e s t a b l i s h e d  t o  r e m e d y  p a s t  r a c i a l  d i s c r i m i n a t i o n .  The  

o r d e r  was  de eme d  a n c i l l a r y  t o  a nd  a n e c e s s a r y  c o n c o m i t a n t  o f  

t h e  d i s t r i c t  c o u r t  i n j u n c t i o n  e s t a b l i s h i n g  t h o s e  r e m e d i a l  

p r o g r a m s .

A l t h o u g h  " t h e  d i f f e r e n c e  b e t w e e n  t h e  t y p e  o f  r e l i e f  

b a r r e d  by t h e  E l e v e n t h  Amendment  and  t h a t  p e r m i t t e d  u n d e r  Ex 

p a r t e  Young w i l l  n o t  i n  many i n s t a n c e s  be t h a t  b e t w e e n  d a y  

a n d  n i g h t , "  E d e l m a n  v .  J o r d a n , 415 U . S .  a t  6 6 7 ,  t h e  a p p l i c a t i o n  

o f  t h a t  d i s t i n c t i o n  i n  t h i s  c a s e  i s  l a r g e l y  r e s o l v e d  by t h i s  

C o u r t ' s  d e c i s i o n  i n  F a i r m o n t  C r e a m e r y  v .  S t a t e  o f  M i n n e s o t a ,

275  U . S .  70 ( 1 9 2 7 ) .  I n  t h a t  c a s e ,  a r i s i n g  o u t  o f  a  s t a t e  c o u r t  

p r o s e c u t i o n  o f  t h e  F a i r m o n t  C r e a m e r y  Company ,  t h i s  C o u r t  

o v e r t u r n e d  t h e  C o m p a n y ' s  c o n v i c t i o n  and  a w a r d e d  i t  c o s t s .  

S u b s e q u e n t l y  t h e  s t a t e  f i l e d  a  m o t i o n  t o  r e t a x  c o s t s  on t h e  

g r o u n d  t h a t  s u c h  a  m o n e t a r y  a w a r d  v i o l a t e d  t h e  s o v e r e i g n t y  and  

i m m u n i t y  o f  t h e  s t a t e .  T h i s  C o u r t  u n a n i m o u s l y  u p h e l d  i t s

7



p o w e r  t o  make s u c h  a w a r d s  o f  c o s t s  a g a i n s t  a s t a t e  a s  w i t h i n  

t h e  i n h e r e n t  a u t h o r i t y  o f  t h e  c o u r t  i n  t h e  o r d e r l y  a d m i n i s ­

t r a t i o n  o f  j u s t i c e  a s  b e t w e e n  a l l  p a r t i e s  l i t i g a n t . "  275 U . S .  a t  

7 4 .  The  C o u r t  n o t e d  t h a t  t h e  e x e r c i s e  o f  t h i s  a u t h o r i t y  was  

p a r t i c u l a r l y  a p p r o p r i a t e  a nd  i m p o r t a n t  w h e r e  c o s t s  w e r e  a w a r d e d  

b e c a u s e  t h e  a c t i o n  was  " a  ' l i t i g i o u s  c a s e , ' s o - c a l l e d ,  i . e .  

b e c a u s e  t h e  d e f e n d a n t  h a d  b e e n  u n d u l y  i n t r a n s i g e n t .

As t h i s  C o u r t  n o t e d  i n  F a i r m o n t  C r e a m e r y , 275  U . S .  a t  7 7 ,  

t h e  f e d e r a l  c o u r t s  h a v e  t r a d i t i o n a l l y  a w a r d e d  c o s t s  a g a i n s t  a 

s t a t e ,  d i r e c t l y  o r  t h r o u g h  i t s  o f f i c i a l s ,  when t h e  s t a t e  

b e c o m e s  i n v o l v e d  i n  l i t i g a t i o n  i n  a  f e d e r a l  c o u r t  i n  i t s  own 

name o r  on b e h a l f  o f  i t s  o f f i c i a l s .  S i n c e  t h e  J u d i c i a r y  A c t  o f  

1789  ^ t h e  f e d e r a l  c o u r t s  h a v e  b e e n  e x p r e s s l y  e mp o wer ed  t o  

a w a r d  c o s t s .  P r o v i s i o n s  a u t h o r i z i n g ,  a n d  a t  t i m e s  r e q u i r i n g ,  

t h e  a w a r d  o f  c o s t s  a nd  e x p e n s e s  a r e  t o  be f o u n d  t h r o u g h o u t  t h e  

F e d e r a l  R u l e s  o f  C i v i l  P r o c e d u r e ,  t h e  F e d e r a l  R u l e s  o f

Criminal Procedure, the Federal Rules of Appellate
_ /  _ /

Procedure, the Rules of the Supreme Court, and the
United States Code. These rules and statutes are literally

/  1 S t a t .  7 3 ,  9 3 ;  H e n k e l  v .  C h i c a g o ,  e t c . ,  R . R . ,  284 U . S .
444 ( 1 9 3 2 ) .

/  F e d e r a l  R u l e s  o f  C i v i l  P r o c e d u r e ,  R u l e s  3 0 ( g ) ,  3 7 ( a ) ( 4 ) ,  
4 1 ( d ) ,  4 3 ( f ) ,  5 4 ,  5 5 ( b ) ( 1 ) ,  5 6 ( g ) ,  6 5 ( c ) ,  6 8 .

/ “  F e d e r a l  R u l e s  o f  C r i m i n a l  P r o c e d u r e ,  R u l e  3 8 ( a ) ( 3 ) .

/ Federal Rules of Appellate Procedure, Rules 7 ,  3 8 ,  3 9 .

/  R u l e s  o f  t h e  S u p r e m e  C o u r t ,  R u l e s  1 4 ,  1 8 ,  3 6 ( 3 ) ,  5 7 ,  6 0 .

_ /  S e e  e . g .  28 U . S . C .  § § 1 3 3 1 ,  1 3 3 2 ,  1 4 4 6 ,  1 9 1 1 - 2 9 ,  2 1 0 1 ( f ) ,
2 1 0 3 .

8



a p p l i c a b l e  t o  a l l  f e d e r a l  l i t i g a t i o n ,  r e g a r d l e s s  o f  t h e  i d e n t i t y  

o f  t h e  p a r t i e s ,  a n d  h a v e  b e e n  u n i f o r m l y  a p p l i e d  e v e n  w h e r e  t h e  

p a r t y  l i a b l e  f o r  c o s t s  i s  a  s t a t e  o r  a  s t a t e  o f f i c i a l .  The  

C l e r k  o f  t h i s  C o u r t  t a x e s  c o s t s  a g a i n s t  a  l o s i n g  p a r t y  w i t h o u t  

r e g a r d  t o  t h e  o f f i c i a l  s t a t u s  o f  t h a t  p a r t y .  C o s t s  a r e  r o u t i n e ­

l y  a w a r d e d  by  t h i s  C o u r t  a g a i n s t  ( a )  s t a t e  a g e n c i e s  w h i c h  a r e  

t h e  d e f e n d a n t s  i n  f e d e r a l  c i v i l  a c t i o n s  f o r  i n j u n c t i v e  r e l i e f ,

( b )  s t a t e  o f f i c i a l s  who a r e  t h e  d e f e n d a n t s  i n  f e d e r a l  c i v i l  

a c t i o n s  f o r  i n j u n c t i v e  r e l i e f ,  ( c )  s t a t e  o f f i c i a l s  who a r e  t h e  

d e f e n d a n t s  i n  f e d e r a l  h a b e a s  c o r p u s  a c t i o n s ,  ( d )  s t a t e  a g e n c i e s  

w h i c h  a r e  t h e  d e f e n d a n t s  i n  c i v i l  a c t i o n s  o r i g i n a t i n g  i n  s t a t e  

c o u r t ,  a nd  ( e )  s t a t e s  i n  c r i m i n a l  p r o s e c u t i o n s  o r i g i n a t i n g  i n  

s t a t e  c o u r t s .  I n  f e d e r a l  h a b e a s  c o r p u s  a c t i o n s  a g a i n s t  s t a t e  

o f f i c i a l s  i n  w h i c h  t h e  p r i s o n e r  p r o c e e d s  i n  f o r m a  p a u p e r i s  a nd  

t h e  p r i n t i n g  c o s t s  a r e  p a i d  by  t h i s  C o u r t ,  i f  t h e  p r i s o n e r  

p r e v a i l s  t h e  C l e r k  d i r e c t s  t h a t  t h e  c o s t  o f  t h e  p r i n t i n g  

b e  p a i d  t o  t h e  C o u r t ,  n o t  by t h e  named i n d i v i d u a l  d e f e n d a n t  

o f f i c i a l ,  b u t  by " t h e  s t a t e "  by w h i c h  t h e  o f f i c i a l  i s  e m p l o y e d .

A l i s t  o f  t h e  c a s e s  i n  w h i c h  s u c h  a w a r d s  w e r e  made i n  O c t o b e r  

T e r ms  1 9 7 0 - 7 6  i s  s e t  o u t  i n  t h e  A p p e n d i x  t o  t h i s  b r i e f .

T h a t  a w a r d s  o f  c o s t s  a r e  n o t  s u b j e c t  t o  t h e  E l e v e n t h  

Amendment  i s  c o n s i s t e n t  w i t h  t h e  a n a l y s i s  i n  E d e l m a n . The 

a m o u n t  o f  c o s t s ,  u n l i k e  d a m a g e s ,  a r e  n o t  m e a s u r e d  by t h e  

f o r s e e a b l e  a m o u n t  o f  h a r m c a u s e d  by  t h e  d e f e n d a n t s '  v i o l a t i o n  o f  

i t s  l e g a l  r e s p o n s i b i l i t i e s .  C o s t s  a r e  o n l y  a n c i l l a r y  t o  a n y  

r e l i e f  w h i c h  may be  p r a y e d  f o r  i n  a  c o m p l a i n t ,  a nd  a r e  n o t  

c o n s i d e r e d  i n  a s s e s s i n g  w h e t h e r  a  c a s e  p r e s e n t s  t h e  $ 1 0 , 0 0 0  i n  

c o n t r o v e r s y  r e q u i r e d  by  28 U . S . C .  § 1 3 3 1 .  I f  an  a c t i o n  w e r e  won 

by d e f a u l t ,  o r  s e t t l e m e n t ,  i m m e d i a t e l y  a f t e r  f i l i n g  t h e r e  w o u l d  

be  v i r t u a l l y  no c o s t s  i n c u r r e d .  The u l t i m a t e  a w a r d  o f  c o s t s  i n

-  9 -



a n  i n j u n c t i v e  a c t i o n  i s ,  l i k e  t h e  e x p e n s e s  i n c u r r e d  by t h e  

s t a t e ' s  own c o u n s e l ,  a n  a n c i l l a r y  f i s c a l  a s p e c t  o f  t h e  c o n d u c t  

o f  l i t i g a t i o n  f o r  p r o s p e c t i v e  r e l i e f .

Petitioners in this case do not appear to deny that, as 
a general matter, the federal courts may award costs against 
states and state officials. Such awards are the normal inci­
dent of a successful action for declaratory or injunctive 
relief, and their "ancillary effect on the state treasury is a 
permissible and often an inevitable consequence of the principle 
announced in Ex Parte Young." Edleman v.Jordan, 415 U.S. 6 5 1 ,  

668 ( 1 9 7 4 ) .  Were this Court to held such awards impermissible 
under the Eleventh Amendment, it would be required to rule 
unconstitutional insofar as they apply to state officials, 
every federal court rule any every provision of the United 
States Code authorizing awards of costs.

P e t i t i o n e r s  m a i n t a i n ,  h o w e v e r ,  t h a t  c o u n s e l  f e e s  c a n n o t  

be  i n c l u d e d  among t h e  a w a r d a b l e  c o s t s ,  a nd  t h a t  s u c h  f e e s  a r e  

r e a l l y  a  f o r m  o f  d a m a g e s .  We n o t e  a t  t h e  o u t s e t  t h a t  i f  

p e t i t i o n e r s '  c o n t e n t i o n  i s  s u s t a i n e d ,  t h e n  t h e  a w a r d  o f  c o u n s e l  

f e e s  i n  t h i s  c a s e  m u s t  be p a i d  by A r k a n s a s  a s  a  m a t t e r  o f  

s t a t e  l a w .  ' A r k a n s a s  A c t  543 o f  1 9 7 7 ,  w h i c h  b eca me  l aw  on 

M a r ch  1 8 ,  1977  p r o v i d e s  i n  p e r t i n e n t  p a r t  t h a t  t h e  S t a t e  " s h a l l  

p a y  a c t u a l  d a m a g e s  a d j u d g e d  by a s t a t e  o r  f e d e r a l  c o u r t  . . .  

a g a i n s t  o f f i c e r s  o r  e m p l o y e e s  o f  t h e  S t a t e  o f  A r k a n s a s  . . . 

b a s e d  on an  a c t  o r  o m i s s i o n  by t h e  o f f i c e r  o r  e m p l o y e e  w h i l e  

a c t i n g  w i t h o u t  m a l i c e  a nd  i n  g o o d  f a i t h  w i t h i n  t h e  c o u r s e  and  

s c o p e  o f  h i s  e m p l o y m e n t  a n d  i n  t h e  p e r f o r m a n c e  o f  h i s  o f f i c i a l  

d u t i e s . "  W h a t e v e r  t h e  d e c i s i o n  o f  t h i s  C o u r t  t h e  r e s u l t  w i l l  

r e m a i n  t h e  s a m e .  I f  t h e  C o u r t  c o n c l u d e s  c o u n s e l  f e e s  a r e  a w a r d -

10



a b l e  a s  c o s t s ,  i t  w i l l  s u s t a i n  t h e  d i s t r i c t  c o u r t  o r d e r  d i r e c t ­

i n g  t h e  f e e  be  p a i d  f r o m  s t a t e  f u n d s ;  i f  t h e  C o u r t  c o n c l u d e s  

t h a t  c o u n s e l  f e e s  a r e  " r e a l l y "  d a m a g e s ,  i t  may o v e r t u r n  t h e  

r e q u i r e m e n t  t h a t  t h e  f e e  be  p a i d  f r o m  s t a t e  f u n d s ,  b u t  t h e  

s t a t e  w i l l  t h e n  p a y  i t  v o l u n t a r i l y  i n  p l a c e  o f  Mr.  H u t t o .

There is, we believe, no basis for distinguishing counsel 
fees from other items of costs, such as transcripts, printing 
expenses, filing or docketing fees, or the expenses of wit­
nesses, experts or interpreters. Awards of counsel fees, where 
proper, have long been regarded as a part of costs. The 
earliest authority for such awards in England was contained in
a s t a t u t e  a d o p t e d  i n  1278 p r o v i d i n g  f o r  t a x a t i o n  o f  " c o s t s  o f

_ /
h i s  w r i t  p u r c h a s e d . "  The  f i r s t  c o n g r e s s i o n a l  e n a c t m e n t s  

r e g u l a t i n g  t h e  a w a r d  o f  c o u n s e l  f e e s  t r e a t e d  t h e m a s  an  i t e m  o f  

t a x a b l e  c o s t s .  1 S t a t .  9 3 ,  3 3 2 ;  10 S t a t .  161  ( 1 8 5 3 ) ;  

s e e  28 U . S . C .  § 1 9 2 3 ( a ) .  I n  r e c e n t  y e a r s  C o n g r e s s  h a s  a d o p t e d  

mo r e  t h a n  a s c o r e  o f  s t a t u t e s  a u t h o r i z i n g  a w a r d s  o f  a t t o r n e y s '  

f e e s ;  i n  v i r t u a l l y  e v e r y  c a s e  t h a t  a w a r d  was  made an  i t e m  

t o  be  i n c l u d e d  a s  p a r t  o f  t h e  t a x a b l e  c o s t s .  T h i s  C o u r t

/  S t a t u t e  o f  G l o u c e s t e r ,  1 2 7 8 ,  6 Edw. 1 ,  c 1 ;  F l e i s c h m a n  
D i s t i l l i n g  C o r p .  v . M a i e r  B r e w i n g  C o . , 388 U . S .  7 1 4 ,  7 1 7 ,  n . 7  
( 1 9 6 7 ) .

/  S e e  e . g .  5 U . S . C .  § 5 5 2 ( a ) 2 E  ( c o u r t  may a s s e s s  " a t t o r n e y s '  
f e e s  a nd  o t h e r  l i t i g a t i o n  c o s t s " ) ;  7 U . S . C .  § ' 2 1 0 ( f )  ( s u c c e s s ­
f u l  p e t i t i o n e r  t o  be a l l o w e d  " a  r e a s o n a b l e  a t t o r n e y  s  f e e  t o  
be  t a x e d  a n d  c o l l e c t e d  a s  p a r t  o f  t h e  c o s t s  o f  t h e  s u i t " ) ;  7 
U . S . C .  § 4 9 9 g ( b )  ( s u c c e s s f u l  p e t i t i o n e r  t o  be  a l l o w e d  "a  
r e a s o n a b l e  a t t o r n e y ' s  f e e  t o  be  t a x e d  and  c o l l e c t e d  a s  a  p a r t  
o f  t h e  c o s t s  o f  t h e  s u i t " ) ?  15 U . S . C .  §15 ( p l a i n t i f f  i n  a n t i ­
t r u s t  a c t i o n  t o  r e c o v e r  " t h e  c o s t  o f  s u i t ,  i n c l u d i n g  a  r e a s o n ­
a b l e  a t t o r n e y ' s  f e e " ) ;  15 U . S . C .  §72  ( p e r s o n  i n j u r e d  by  i l l e g a l

11



h a s  c o n s i s t e n t l y  m a i n t a i n e d  t h e  v i e w  t h a t ,  i f  c o u n s e l  f e e s  a r e  

t o  be  a w a r d e d ,  i t  s h o u l d  o r d i n a r i l y  b e  a s  p a r t  o f  c o s t s .  S i n c e  

28 U . S . C .  §1923  a u t h o r i z e s  b u t  s e v e r e l y  l i m i t s  i n  a m o u n t  t h e  

a w a r d  o f  c o u n s e l  f e e s  a s  c o s t s ,  t h i s  C o u r t  i n  Al y e s k a  P i p e l i n e  

S e r v i c e  v .  W i l d e r n e s s  S o c i e t y , 421 U . S .  240 ( 1 9 7 5 ) ,  c o n c l u d e d  

t h e  s t a t u t e  p r e c l u d e d  an  o p e n  e n d e d  p o w e r  t o  a w a r d  f e e s  a s  

a  m a t t e r  o f  e q u i t a b l e  d i s c r e t i o n .  I n  F l a n d e r s  v .  T w e e d , 15 

W a l l  ( U . S . )  450 ( 1 8 7 3 ) ,  t h e  C o u r t  h e l d  t h a t  a  j u r y  c o u l d

n o t  a w a r d  a n  f e e  i n  e x c e s s  o f  t h a t  p e r m i t t e d  by § 1983  by 

d e n o t i n g  t h e  a d d i t i o n a l  c o u n s e l  f e s  a s  d a m a g e s  r a t h e r  t h a n  

c o s t s . .  15 W a l l  a t  4 5 2 - 5 3 .  S e e  a l s o -  Tr u s t e e s  v .  G r e e n o u g h ,

105 U . S .  527 ( 1 8 8 2 ) .

/  [ C o n t i n u e d ]

i m p o r t a t i o n  t o  r e c o v e r  " t h e  c o s t  o f  t h e  s u i t  i n c l u d i n g  a 
r e a s o n a b l e  a t t o r n e y ' s  f e e " ) ;  15 U . S . C .  § 7 7 k ( e )  ( c o u r t  may 
a w a r d  t o  p r e v a i l i n g  p a r t y  " t h e  c o s t s  o f  s u c h  s u i t ,  i n c l u d i n g  
r e a s o n a b l e  a t t o r n e y ' s  f e e " ) ;  15 U.S.C. .  § 7 8 i ( e )  ( c o u r t  i n  
s e c u r i t i e s  c a s e  may " a s s e s s  r e a s o n a b l e  c o s t s ,  i n c l u d i n g  
r e a s o n a b l e  a t t o r n e y s '  f e e s " ) ;  15 U . S . C .  § 7 8 r ( a )  ( c o u r t  may 
" a s s e s s  r e a s o n a b l e  c o s t s  i n c u d i n g  r e a s o n a b l e  a t t o r n e y s '  
f e e s " ) ;  17 U . S . C .  §116 ( c o u r t  i n  p a t e n t  a c t i o n  may a w a r d  
"a  r e a s o n a b l e  a t t o r n e y ' s  f e e  a s  p a r t  o f  t h e  c o s t s " ) ;  18 U . S . C .  
§ 1 9 6 4 ( c )  ( p e r s o n  i n j u r e d  by  r a c k e t e e r i n g  may s u e  a n d  r e c o v e r  
" t h e  c o s t  o f  t h e  s u i t ,  i n c l u d i n g  a r e a s o n a b l e  a t t o r n e y ' s  f e e " )  
20 U . S . C .  § 1617  ( c o u r t  i n  s c h o o l  d e s e g r e g a t i o n  c a s e  may a l l o w  
" a  r e a s o n a b l e  a t t o r n e y ' s  f e e  a s  p a r t  o f  t h e  c o s t s " ) ;  33 U . S . C .  
§ 1 3 6 5 ( d ) ( c o u r t  may a w a r d  " c o s t s  o f  l i t i g a t i o n  ( i n c l u d i n g  
r e a s o n a b l e  a t t o r n e y  a nd  e x p e r t  w i t n e s s  f e e s ) " )  33 U . S . C .
§ 1 4 1 ( g ) ( 4 )  ( c o u r t  may a w a r d  " c o s t s  o f  l i t i g a t i o n  ( i n c l u d i n g  
r e a s o n a b l e  a t t o r n e y  a nd  e x p e r t  w i t n e s s  f e e s ) " )  42 U . S . C  
§ 1 8 5 7 h - 2 ( d ) ( c o u r t  may a w a r d  " c o s t s  o f  l i t i g a t i o n  ( i n c l u d i n g  
r e a s o n a b l e  a t t o r n e y  a n d  e x p e r t  w i t n e s s  f e e s ) " ) ;  42 U . S . C ,

12



C o u n s e l  f e e s  d i f f e r  f r o m  o t h e r  i t e m s  o f  c o s t s  o n l y  i n  t h a t

b e c a u s e  o f  t h e  A m e r i c a n  R u l e ,  28 U . S . C .  § 1 9 2 3 ,  a n d  t h e  v a r i e t y

of statutes noted at n.__, whether fees can be taxed varies
considerably from case to case, whereas docketing fees and 
transcripts are ordinarily taxable costs in all cases. The 
characteristics of other items of costs which render them 
ancillary under the standard of Edelman are also true of 
counsel fees. The amount of those fees are not measured by 
some past injury, they are not the gravamen of the action, and 
they will not, to a significant degree, be incurred or awardable 
if the action is resolved immediately after it is commenced. 
Frequently the fiscal impact of a fee award will be minor in 
comparison with that on the injunctive relief which is the 
primary focus of the actions in the instant case, for example,
the litigation resulted in the constrution of a $ ___ building
Cummins, the cost of which was __ times greater than the fee
awarded. In light of these considerations the District Court 
correctly concluded that the Eleventh Amendment does not affect 
awards of counsel fees.

_ /  [ C o n t i n u e d ]

§ 2 0 0 0 a - 3 ( b ) ( c o u r t  i n  p u b l i c  a c c o m m o d a t i o n s  c a s e  may a l l o w  
" a  r e a s o n a b l e  a t t o r n e y ' s  f e e  a s  p a r t  o f  t h e  c o s t s " ) ;
42 U . S . C .  § 2 0 0 0 e - 5 ( k )  ( c o u r t  i n  e m p l o y m e n t  d i s c r i m i n a t i o n  
c a s e  may a l l o w  " a  r e a s o n a b l e  a t t o r n e y ' s  f e e  a s  p a r t  o f  t h e  
c o s t s " ) ;  42 U . S . C .  § 4 9 1 1 ( d )  ( c o u r t  may a w a r d  " c o s t s  o f  
l i t i g a t i o n  ( i n c l u d i n g  r e a s o n a b l e  a t t o r n e y  a n d  e x p e r t  w i t n e s s  
f e e s ) " ) ;  45 U . S . C .  § 1 5 3 ( p ) ,  ( c o u r t  i n  R a i l w a y  L a b o r  A c t  c a s e  
m u s t  a l l o w  p r e v a i l i n g  e m p l o y e e s  " a  r e a s o n a b l e  a t t o r n e y ' s  
f e e ,  t o  be  t a x e d  a nd  c o l l e c t e d  a s  p a r t  o f  t h e  c o s t s  o f  
t h e  s u i t " ) ;  46 U . S . C .  § 12 2 7  ( s u c c e s s f u l  p l a i n t i f f  t o  r e c o v e r  
" t h e  c o s t  o f  s u i t ,  i n c l u d i n g  a r e a s o n a b l e  a t t o r n e y ' s  f e e " ) ;  47 
U . SC .  §206 ( c o u r t  t o  a w a r d  " r e a s o n a b l e  c o u n s e l  o r  a t t o r n e y ' s  
f e e "  w h i c h  " s h a l l  be  t a x e d  a n d  c o l l e c t e d  a s  p a r t  o f  t h e  c o s t s  
i n  t h e  c a s e " ) ;  49 U . S . C .  §8 ( c o u r t  t o  a w a r d  " r e a s o n a b l e  
c o u n s e l  o r  a t t o r n e y ' s  f e e s "  w h i c h  " s h a l l  be t a x e d  and  
c o l l e c t e d  a s  p a r t  o f  t h e  c o s t s  o f  t h e  c a s e " ) ;  49 U . S . C .
§ 1 6 ( 2 )  ( c o u r t  t o  a w a r d  " r e a s o n a b l e  a t t o r n e y ' s  f e e ,  t o  
be  t a x e d  a nd  c o l l e c t e d  a s  p a r t  o f  t h e  c o s t s  o f  t h e  s u i t "  ) ;
49 U . S . C .  § 9 0 8 ( b ) ( c o u r t  t o  a w a r d  " a  r e a s o n a b l e  c o u n s e l  o r  
a t t o r n e y ' s  f e e "  w h i c h  " s h a l l  be  t a x e d  a nd  c o l l e c t e d  
a s  p a r t  o f  t h e  c o s t s  , i n  t h e  c a s e " ) .

13



R e s p o n d e n t s  m a i n t a i n  t h a t  t h e  a d o p t i o n  o f  t h e  F o u r t e e n t h  

Ame nd men t ,  w o r k e d  a  p r o  t a n t o  r e p e a l  o f  t h e  E l e v e n t h  Ame nd men t ,  

a n d  t h a t  t h e  E l e v e n t h  Amendment  t h u s  h a s  no a p p l i c a t i o n  i n  a 

F o u r t e e n t h  Amendment  c a s e  s u c h  a s  t h i s .  T h i s  C o u r t  n o t e d  t h e  

e x i s t e n c e  o f  t h i s  q u e s t i o n  b u t  d i d  n o t  d e c i d e  i t ,  i n  M i l l i k e n  

v .  B r a d l e y , 53 L . E d . 2 d  7 4 5 ,  7 6 2 ,  n . 2 3  ( 1 9 7 7 ) .  S e e  a l s o  E d e l m a n  

v .  J o r d a n ,  415  U . S .  6 5 1 ,  6 9 4 ,  n . 2  ( 1 9 7 4 )  ( M a r s h a l l ,  J . ,  d i s s e n t ­

i n g ) .  Our  v i e w s  a s  t o  t h e  i m p a c t  o f  t h e  F o u r t e e n t h  Amendment  

a r e  s e t  o u t  i n  t h e  B r i e f  A m i c u s  C u r i a e  o f  t h e  N . A . A . C . P .  L e g a l  

D e f e n s e  a nd  E d u c a t i o n a l  F u n d ,  I n c .  i n  E d e l m a n  v .  J o r d a n , No.  

7 2 - 1 4 1 0 .  S e e  a l s o  t h e  B r i e f  A m i c u s  C u r i a e  o f  t h e  L a w y e r s

Committee for Civil Rights, p p .  _______ , in Bitzer v. Matthews,
No.  7 5 - 2 8 3 .  I f  t h e  C o u r t  c o n c l u d e s  t h a t  t h e  E l e v e n t h  Amendment  

d o e s  n o t  a p p l y  t o  a w a r d s  o f  c o u n s e l  f e e s  i t  w i l l  n o t  be  n e c ­

e s s a r y  t o  d e c i d e  t o  w h a t  e x t e n t  t h a t  Amendment  was  m o d i f i e d  by 

t h e  s u b s e q u e n t  e n a c t m e n t  o f  t h e  F o u r t e e n t h  Amendmen t .

14



IN THE
SUPREME COURT OF THE UNITED STATES 

O c t o b e r  T e rm,  1977 

No. 7 6 —1660

TERRELL DON HUTTO, et al.,
Petitioners,

-  v -

ROBERT FINNEY, et al.

On W r i t  o f  C e r t i o r a r i  t o  t h e  U n i t e d  
S t a t e s  C o u r t  o f  A p p e a l s  f o r  t h e  

E i g h t h  C i r c u i t

BRIEF FOR RESPONDENTS

PHILIP E.  KAPLAN
1650 Tower  B u i l d i n g  
L i t t l e  R o c k ,  A r k a n s a s  72201

JACK HOLT, J R .
1100 N o r t h  U n i v e r s i t y  
E v e r g r e e n  P l a c e  
L i t t l e  R o c k ,  A r k a n s a s

PHILIP E. McMATH
McMath,  L e a t h e r m a n  & Woods ,  P . A .  
711 Wes t  T h i r d  S t r e e t  
L i t t l e  Ro ck ,  A r k a n s a s  72201

JACK GREENBERG 
JAMES M. NABRIT, I I I  
CHARLES STEPHEN RALSTON 
STANLEY BASS 
ERIC SCHNAPPER 
LYNN WALKER

10 Co l umb u s  C i r c l e
New Y o r k ,  New York  10019

J a n u a r y  1 9 7 8 .



CITATIONS TO OPINIONS BELOW

The o p i n i o n s  o f  t h e  c o u r t s  b e l o w  a r e  a s  f o l l o w s :

1 .  Memorandum O p i n i o n  o f  J u n e  2 0 ,  1 9 6 9 ;  H o l t  v .

S a r v e r , 300 F . S u p p .  8"25 (E. 'B.  A r k .  1 9 0 9)  h e r e i n a f t e r  r e f e r r e d  

t o  a s  HOLT I .

2 .  Memorandum O p i n i o n  o f  F e b r u a r y  1 8 ,  1 9 7 0 ;  H o l t  v . 

S a r v e r , 3QJ- F . S u p p .  "362 ( E vp .  A r k .  1 9 7 0)  a f f i r m e d  and  r e m a n d e d  

442 F . 2 d \ ^ 0 4  (8t^i  C i r .  t ^ J l )  h e r e i n a f t e r  r e f e r r e d  t o  a s

HOLT I I .

3 .  Memorandum O p i n i o n  o f  A u g u s t  1 3 ,  1 9 7 3 ;  H o l t  v . 

H u t t o , 3 6 J  F . S u p p .  1*4 (EvD.  A r k .  0 - 9 7 3 ) ,  r e v e r s e d  s u b  nom. 

F i n n e y  v .  A r k a n s a s  B oa r d  o f  C o r r e c t i o n ,  505 F . 2d  194 ( 8bh C i r  

I 944) h e r e i n a f t e r  r e f e r r e d  t o  a s  HOLT I I I .

4 .  Memorandum O p i n i o n  o f  March  1 9 ,  1 9 7 6 ,  F i n n e y  v . 

H u t t o , 400 F . S u p p .  "2-51 ( E \ p .  A rk . O- 1976) ;  C l a r i f y i n g  Memorandum 

O p i n i o n  o f  A p r i l  2 ,  1 9 7 6 ,  u n r e p o r t e d ;  a f f i r m e d  5^8 F . 2d  7^0

( 8 t t M 3 i r . 1 ^ 7 7 ) .

5 .  The Memorandum O p i n i o n  o f  S e p t e m b e r  2 9 ,  1977 i n  

G r a v e s  v .  L o c k h a r t , E . D .  A r k .  C i v i l  N o s .  P B - 7 4 - C - 8 1  and 

P B - 7 4 - C - 1 0 7 , i s  u n r e p o r t e d .



QUESTIONS PRESENTED