Haines v. Kerner Reply Brief of Petitioner
Public Court Documents
November 30, 1971

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Brief Collection, LDF Court Filings. Haines v. Kerner Reply Brief of Petitioner, 1971. 4c99971b-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/990b2798-be9d-4f1f-afff-2c921f56b239/haines-v-kerner-reply-brief-of-petitioner. Accessed May 17, 2025.
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Supreme Gen"- U.S. F I L ------ m V a n IQ?] 1 IN THE j i* j 1 i T • J — — E, ROBERT SEAVER, CLERK j su p rem e u ) u r t o i tn e u m rea s ta te s No. 70-5025 FRANCIS HAINES, Petitioner, v. OTTO J. KERNER, FORMER GOVERNOR, STATE OF ILLINOIS, et al, Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT REPLY BRIEF OF PETITIONER O f Counsel: JACK GREENBERG JAMES M. NABRIT, III WILLIAM B. TURNER ALICE DANIEL MAX STERN STANLEY A. BASS 10 Columbus Circle Room 2030 New York, N.Y. 10019 Attorney for Petitioner Washington. D. C ■ T H IE L P R E S S - 202 - 393-0625 TABLE OF CONTENTS Page ARGUMENT .................................................................................... 1 CONCLUSION............ ........................................ ..................... .. • 4 TABLE OF AUTHORITIES Cases: Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)......................... 2, 3 Landman v. Peyton, 370 F.2d 135 (4th Cir. 1966), cert, denied, 388 U.S. 920 (1 9 6 7 )............................................. 2 Roth v. United States, 354 U.S. 476 (1957) .............................. 3 Talley v. Stephens, 247 F.Supp. 683 (E.D. Ark. 1965) . ............. 2 Wright v. McMann, 387 F.2d 519 (2d Cir. 1967)................. .. 2 Miscellaneous: American Correctional Association, Manual of Correctional Standards (2d ed. 1966)........................................ 3 (i) IN THE Supreme Court of the United States No. 70-5025 FRANCIS HAINES, Petitioner, v. OTTO J. KERNER, FORMER GOVERNOR, STATE OF ILLINOIS, et al, Respondents. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT REPLY BRIEF OF PETITIONER ARGUMENT Respondents, as expected, have taken the position that the action taken against Haines “was necessary to the main tenance of proper prison discipline and security.” R. Br., at 8. In their attempt to support this unproven assertion, they speculate that Illinois prisoners might abuse such basic implements of personal hygiene as soap, towel, toothbrush and a bed. R. Br., at 37. It is further suggested that the State of Illinois may not be able to afford a more humane system of prison discipline. R. Br., at 38. 2 Significantly, no evidence has yet been introduced to show whether or not this particular prisoner would have misused the rudimentary essentials of decency. Cf. Wright v. McMann, 387 F.2d 519, 526 n. 15 (2d Cir. 1967). To deny these necessary items to all persons as a matter of course is to act arbitrarily, without rational basis, and in direct threat to inmate health—hardly a legitimate state interest. And, as the Eighth Circuit observed, in Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968), “Humane considera tions and constitutional requirements are not, in this day, to be measured or limited by dollar considerations.” Id., at 580. No showing has been made by Illinois officials that the use of more human alternatives, which are employed in many, if not most, other jurisdictions,1 would be inadequate to preserve good order and discipline in Illinois prisons. In the final analysis, respondents seek refuge in the discredited “hands-off’ doctrine, in order to avoid any judicial scrutiny of their patently inhumane practices. At a minimum, prison officials must adopt “ appropriate safeguards” surrounding the use of punitive techniques which pose a danger to human health. Talley v. Stephens, 247 F. Supp. 683, 689 (E.D. Ark. 1965). The instant record fails to reveal any Department of Correction regulations providing for adequate supervision by higher officials over lower eche lon custodial personnel, cf., Landman v. Peyton, 370 F.2d 135, 141 (4th Cir. 1966), cert, denied, 388 U.S. 920 (1967), or requiring that due consideration be given to an inmate’s physical health in connection with the use of onerous soli tary confinement, or requiring some administrative finding, reviewable by a Warden or Deputy Warden, that a particular prisoner might abuse articles of personal hygiene, before such materials are deliberately withheld from him. 1 As of the filing of this Reply Brief for Petitioner, twenty eight states had responded to our questionnaire concerning conditions of solitary confinement, with the following results: a) 24 states responded that they still made use of solitary con finement; 4 replied that they had abandoned this practice. 3 Moreover, as the experience of the Eighth Circuit indicates, Jackson v. Bishop, 404 F.2d 571,579 (8th Cir. 1968), the use of precautionary conditions may still be insufficient to save certain practices, which are so contrary to contemporary standards2 of decency and humanity, either generally or as applied in a particular case as here, that they would con stitute cruel and unusual punishment per se. Respondents have referred to the Manual of Correctional Standards issued by the American Correctional Association, and have apparently conceded that cells should not be com pletely dark3 and that acceptable sanitary conditions should be maintained. R. Br. at 35. But, they have overlooked the following instructive passages: “It is a major disciplinary measure, which can have damaging effect on some inmates, and should be judiciously used when other forms of action prove inadequate. . . Few will deny that there are some prisoners who need to be segregated for a time under humane con ditions, to permit them to settle down after expres sions of uncontroled rage, or for other reasons. But to use it as a standard disciplinary action for almost the entire range of offenses is hardly a solution to b) All 24 states used lighted cells. c) All 24 provided mattresses and 20 of 24 provided beds. d) 22 of 24 provided soap; 21 of 24 provided a towel; 21 of 24 provided other elements of personal hygiene. e) 21 of 24 allowed shave and shower at least weekly. f) 14 of 24 provided weekly exercise; 9 of these daily. g) 21 of 24 provided visits by a physician. 2Compare, Roth v. United States, 354 U.S. 476 (1957) (“Contem porary Community Standards” test for obscenity). 3 Respondents’ hairsplitting contention that petitioner “did allege that his cell was dark, but not completely without light,” R. Br., at 38, hardly accords the liberal construction which, as respondents pre viously acknowledged, R. Br., at 22 n. 20, is due pro se prisoner com plaints. 4 disciplinary problems. . . .(emphasis added). MANUAL, at 412-13. CONCLUSION Respondents’ failure to give specific reasons for the uncivilized treatment of the petitioner in this case, com pounded by their apparent lack of adequate procedural safeguards surrounding the infliction of this type of soli tary confinement in Illinois, demonstrates the need for judi cial scrutiny of such low visibility decisions, which are dan gerous to inmate health, which constitute cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States. Respectfully submitted, Stanley A. Bass Attorney for Petitioner* O f Counsel: Jack Greenberg James M. Nabrit, III William B. Turner Alice Daniel Max Stern November, 1971 ’"Counsel wishes to acknowledge with appreciation the able assist ance in the preparation of this Reply Brief of Steven Burton, Columbia Law School, Class of 1971.