Haines v. Kerner Reply Brief of Petitioner

    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.