Sostre v McGinnis Brief for Amici Curiae

    UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

MARTIN SOSTRE, :
Plaintiff-Appellee, :

-against- :
PAUL D. McGINNIS, Commissioner of :
Correction, VINCENT MANCUSI, Superin­
tendent of Attica Correctional :
Facility and HAROLD W. FOLLETTE,
Warden of Green Haven Correctional : Facility,

Defendants-Appellants.

)

NO. 35038

BRIEF FOR AMICI CURIAE 
N.A.A.C.P. LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC. AND THE NATIONAL OFFICE FOR 

_______THE RIGHTS OF THE INDIGENT

JACK GREENBERG 
STANLEY A. BASS

10 Columbus Circle 
Suite 2030
New York, New York 10019

WILLIAM BENNETT TURNER 
1095 Market Street Room 418
San Francisco, California 94103 

Attorneys for Amici Curiae



I N D E X

Pages

Statement of Interest of the Amici Curiae ... 1
Argument:

Introduction ............................  3
I. Procedural Due Process of Law in

Prison Disciplinary Procedures .....  10
A. Procedural Due Process of Law 

is Constitutionally Required 
Where Prison Officials Impose 
Punitive Segregation or Deprive 
an Inmate of Statutory "Good
Time" Credit................  10

B. The Court Below Properly Ordered 
the Officials to Promulgate New 
Rules and Regulations ..........  23

II. Cruel and Unusual Punishment .......  24
A. The District Court Properly Held 

that the Punishment Imposed
Violated the Eighth Amendment .... 24

B. Section 140 of the Correction 
Law Has No Application To ThisCase .........................  34

III. Censorship of Inmate Correspondence
and of Political Expression .......  35

IV. Restoration of Good Time ..........  41
V. Requiring Promulgation of New Rules 

and Regulations was a Permissible
and Desirable Equitable Technique .. 42

Conclusion .................................  44



AUTHORITIES CITED

Cases:----- Pages

Ayers v. Ciccone, 303 F.Supp. 637(W.D. Mo. 1969) .............................  42

Barnett v. Rodgers, 410 F.2d 995(D.C. Cir. 1970) .............................  32 3?

Brabson v. Wilkins, 19 N.Y. 2d 433 (1967) ......  36

Burns v. Swenson, 288 F.Supp. 4 (W.D. Mo. 1968) 17

Carothers v. Follette, No. 68 Civ. 3927
(S.D. N.Y. July 15, 1970 ....................  2, 3,7, 8, 14,

18, 19, 20, 33, 
34, 35, 40, 42, 44.Coffin v. Reichard, 143 F.2d 443

(6th Cir. 1944), Cert, denied, 355U.S. 887 (1945) .............................  9> 3g

Commonwealth of Pennsylvania v. Brown,
260 F.Supp. 323 (E.D. Pa. 1966), modified
on other grounds, 373 F.2d 771 (3rd cir. 1967) 9

Crum v. State Training School For Girls
413 F. 2d 1348 (5th Cir. 1969) ..... *.......... 43

Dennis v. United States, 341 U.S. 494 (1951) __ 36, 37

Edwards v. Duncan, 355 F.2d 993 (4th Cir. 1966) 8, 23

Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969) 7

Escalera v. New York City Housing Authority.425 F. 2d 853 (2d Cir. 1970) .................  19> 20

1 1



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

Gilmore v. Lynch, No. 45878 (N.D. Cal. May 28, 1970) ................

Goldberg v. Kelly, 397 U.S. 254 (1970)

Hancock v. Avery, 301 F.Supp 786 (M.D. Tenn. 1969) ...................

Holmes v. New York Housing Authority, 398 F.2d 262 (2d cir. 1968) .............

Holt v. Sarver, 309 F.Supp. 362 (E.D.Ark. 1970)

Houghton v. Shafer, 392 U.S. 639 (1968)

Inmates of the Cook County Jail v. Tierney, 
No. 68C504 (N.D. 111. Aug. 22, 1968) ..!

In Re Medley, 134 U.S. 160 (1890)

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

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

Johnson v. Avery, 393 U.S. 483 (1969)

Joint Anti-Fascist Refugee Com. v. McGrath 341 U.S. 123 (1951) ...................

Jordan v. Fitzharris, 257 F.Supp. 674 (N.D. Cal. 1966) ..................

Kritsky v. McGinnis, No. 69-CV-276 (N.D N Y June 12, 1970) ...............

33

24

11

7

8

2 ,43

7

8

27

9,

2 ,37

22

10, 

32, 

42

iii

, 43, 44

, 20, 29

24, 31, 33,

29, 33, 44 

9, 32, 36,

11

33



Pages
Landman v. Peyton, 370 F.2d 135 (4th Cir.1966) 15

Menechino v. Oswald, 7 Cr.L.Rptr. 2430 (2d Cir. Aug. 5, 1970) .... 15, 16

Monroe v. Pape, 365 U.S. 167 (1961) 7

Morris v. Travisono, 310 F.Supp. 857 (D.R.I. 1970) ........ 2, 13, 14, 20

Mosher v. LaVallee, No. 67CV174 (N.D N Y July 31, 1970) ..... 2, 3, 26, 33, 42

Mukmuk v. Zelker, No. 70 Civ. 3518 (pendinq S.D. N.Y.) ..........  y 2

Nolan v. Scafati, No. 7538 (1st Cir. Auq 14 1970) ....... 12, 17

Novak v. Beto, No. 68-H-483 (pending S.D. Tex.) 2

Palmigiano v. Affleck, Nos. 4296 and 4349 (D.R.I. Aug. 24, 1970) .... 2, 38, 39, 40

Parker v. McGinnis, No. 69-CV-71 (pendinq N D N.Y.) ............... 2

Pierce v. LaVallee, 293 F.2d 233 (2d Cir. 1961) 8

Pisacano v. State, 8 App. Div. 2d 334 (4th Dept. 1959) ...... 29

Pointer v. Texas, 380 U.S. 400 (1965) 20

Rivers v. Royster, 360 F.2d 592 (4th Cir. 1966) 1, 8, 37

Robinson v. California, 369 U.S. 660 (1962) 33

IV



Pages
Rodriquez v. McGinnis, 307 F.Supp. 627

(N.D. N.Y. 1969) ........................... . 42

Ruffin v. Commonwealth, 62 Va. 790 (1871) .....  3

Sa Marion v. McGinnis, 253 F.Supp. 738
(N.D. N.Y. 1966) .............................  24, 43

Schenk v. United States, 249 U.S. 47 (1919) ___ 36

Shakur v. McGrath No. 69 Civ. 4493
(S.D. N.Y. Dec. 31, 1969) ...................  37> 38

Shelton v. Tucker, 364 U.S. 479 (1960) ........  37

Smith v. MacDougall, No ______  (pending D. Conn.) 2

Sostre v. McGinnis, 334 F.2d 906 (2d Cir. 1964) 24, 43

Sostre v. Rockfeller, 312 F.Supp 863
(S.D. N.Y. 1970) ............................  2, 26

Specht v. Patterson, 386 U.S. 605 (1967) ......  22

Talley v. Stephens, 247 F.Supp. 683(E.D. Ark. 1965) ............................  7

Trop v. Dulles, 356 U.S. 86 (1958) ............  24, 25

United States ex rel. Campbell v. Pate, 401F - 2d 55 (7th Cir. 1968) .....................  28

United States ex rel. Gabor v. Myers, 237
F.Supp. 852 (E.D. Pa. 1965) .................  37

United States ex rel. Hancock v. Pate, 223
F.Supp. 202 (N.D. 111. 1963) ................  28, 33

v



Pages
Wallace v. Brewer, 39 U.S.L. Week 2002

(M.D. Ala. June 9, 1970 (3 judge court) ...... 41

Washington v. Lee, 263 F.Supp. 327
(M.D. Ala. 1966), aff'd, 390 U.S. 333 (1968) .. 43

Weems v. United States, 217 U.S. 349 (1910) .... 25, 32, 33

Wright v. McMann, 387 F.2d 519 (2d Cir. 1967) ... 5, 7, 8, 23

Wright v. McMann, No. 66CV77 (N.D. N.Y.July 31, 1970) .............................  5, 15> 16f 18>
25, 26, 27, 28 
29, 31, 33, 34 40, 44

Zwickler v. Koota, 389 U.S. 241 (1967) .........  8

Constitutional Provisions, Statutes and Rules:
First Amendment, United States Constitution ...  36, 37, 41

Sixth Amendment, United States Constitution ...  36, 40

Eighth Amendment, United States Constitution .... 24, 25, 33

Fourteenth Amendment, United States Constitution 10, 36, 40

42 U.S.C. § 1983 ...............................  7f 8/ g

Rule 23, F.R.C.P................................  43

New York Correction Law § 60.6(c) ..............  28

New York Correction Law § 140 ..................  34# 35

vi



New York Correction Law, § 230 12
Pages

New York Correction Law, § 236 21

Texts:
American Bar Association Report on Criminal Law 

Section panel discussion entitled "Correcting Corrections", 7 Cr. L. Rptr. 2445 (1970)

American Correctional Association, Manual of Correctional Standards (1966) 26, 27, 30, 31

American Law Institute, Model Penal Code, 
Proposed Final Draft § 304.7(3)(1962)

W. Burger, "For Whom the Bell Tolls", 25 
Rec. N.Y.C.B.A. 14 (supp. March 1970)

E. Cleaver, Soul On Ice (Delta 1968)

Cohen, The Legal Challenge to Corrections, A 
Joint Commission on Correctional Manpower 
and Training Consultant's Paper (March 1969)

The Cook County jail. Report of the December 1967 Cook County Grand Jury ............

H.J. Griswold, M. Misenheimir, A. Powers, E. 
Tromanhauser, An Eye For An Eye (Holt, Rinehart and Winston, 1970) ..........

Hirshkop and Milleman, The Unconstitutionality of Prison Life, 55 Va. L. Rev. 795 (1969) 9, 17

Kimball and Newman, Judicial Intervention in 
Correctional Decisions: Threat and Response14 Crime & Del. 1(1968) ..........

vix



Pages
Mattick & Aikman, The Cloacal Region of 
American Corrections, 381 Annals of the 
American Academy of Political and Social Sciences 109(1969) .... 6

McGee, The Administration of Justice: The 
Correctional Process, 5 N.P.P A J 225 (1959) ___ 6

Missouri State Penitentiary Personnel Informational Pamphlet 26

Note, Beyond the Ken of Courts: A Critique
Judicial Refusal to Review the Complaints of Convicts, 72 Yale L.J. 506 (1963) . 9

Note, Constitutional Limitations on the 
Conditions of Pretrial Detention, 79 Yale L.J. 941 (1970) ..... 6

Note, Constitutional Rights of Prisoners:
The Developing Law, 110 U. Pa. L. Rev. 985 (1962) ......... 9

Note, Prisoners' Rights Under Section 1983 57 Geo L.J. 1270 (1969) CO*r-

Note, The Right of Expression in Prison, 40 So. Cal. L. Rev. 407 (1967) 39

Policy Statement 7400.5, Federal Bureau of Prisons (Nov. 28, 1966) ___ 17, 20

President s Commission on Law Enforcement and Administration of Justice, 5

Report, The Challenge of Crime In a Free Society, Chapter 6 (1967) 5

Task Force Report: Corrections (1967) 5, 17

V I 11



Pages
Progress Report of the National Commission 
On The Causes and Prevention of Violence (1969) ......................................  5

Saferstein, Nonreviewability:A Functional
Analysis of "Committed to Agency Discretion"82 Harv. L. Rev. 367 (1968) .............. 23

Senate Subcommittee Hearings on Juvenile
Delinquency, 4 Cr. L. Rptr. 2 512 ............  6

Other:
New York Times, August 19, 1970, p.22, col.6   5

New York Times, August 25, 1970, P.35, col.5 ... 6

Time Magazine, "The Black Hole of Manhattan"August 25, 1970, pp. 28-29 ..................  6

T. Wicker, "Due Process For Prisoners", The
New York Times, June 18, 1970, editoral page .. 10

IX



STATEMENT OF INTEREST OF THE AMICI CURIAE

The NAACP Legal Defense and Educational Fund, Inc. 
is a non-profit corporation formed under the laws of the State 
of New York in 1939. The Fund was incorporated to assist 
black people to secure their constitutional rights by the pro­
secution of lawsuits. Under its charter, one of its purposes 
is to provide free legal assistance to Negroes who suffer in­
justice because of race and who are unable, on account of

1/poverty, to employ legal counsel.
A central purpose of the Fund is the legal eradication 

of practices in our society that bear with discriminatory harsh­
ness upon black people and upon the poor, deprived and friend­
less, who too often are black. To further this purpose, the 
Fund in 1967 established a separate corporation, the National 
Office for the Rights of the Indigent (N.O.R.I), having among 
its objectives the provision of legal representation to the 
poor in individual cases and the advocacy before appellate
courts of changes in legal doctrine which unjustly affect the 
poor.

In 1970 the Fund received a foundation grant for the 
purpose of promoting efforts toward prison reform. The grant 
contemplates that the Fund will do research to identify the

1/ The Fund|s charter was approved by a New York court, 
authorizing the organization to serve as a legal aid 
society. It is entirely independent of other organ­
izations, and is supported by contributions from the public.



ost serious and fundamental problems in corrections and will
bring test litigation or suggest administrative or legislative 
reform where appropriate.

The Fund has been involved in several important prison 
cases in several different states, including Jackson v. Godwin. 
400 F.2d 529 (5th Cir. 1968); Holt v. Sarver. 309 F.Supp. 362 
(E.D. Ark. 1970); Morris v. Travisono. 310 F.Supp. 857 (D. R.I.

? Palmigiano v. Affleck. Nos. 4296 and 4349 (D. R.I. Aug. 
24, 1970); Parker v. McGinnis. No. 69-CV-71 (pending N.D. N.Y); 
Mukmuk v. Zelker, No. 70 Civ. 3518 (pending S.D. N.Y); Novak v. 
Beto, No. 68-H-483 (pending S.D. Tex.), and Smith v. MacDouaall. 
No* (pending D. Conn.). The issues presented in these
cases cover a broad spectrum of the difficulties faced by 
prisoners in realizing their fundamental rights as American 
citizens.

Fund attorneys also represented the plaintiffs in two 
recent decisions by federal district judges in New York: 
Carothers v. Follette. No. 68 Civ. 3927 (S.D. N.Y. July 15, 
1970); and Mosher v. LaVallee. No. 67 CV 174 (N.D. N.Y. July 
31, 1970). in both instances, the plaintiff inmates of 
New York State prisons obtained injunctions against unconsti­
tutional policies maintained by the prison officials. Carothers 
involved the same warden and the same prison as in Sostre. In­
deed, John Carothers was in punitive segregation at the same 
time as Martin Sostre, and he testified in the trial below. 
Mosher raised many of the same issues. Both district Judge

-2-



Mansfield, .in Cargthera, and district Judge Foley, in Mosher, 
hold, Inter alia, that the inmates' rights to procedural due 
process of law were violated in prison disciplinary proceedings, 
and they ordered the defendant officials to promulgate new rules 
and regulations governing discipline, in accordance with the 
decision below.

ARGUMENT

INTRODUCTION

For most of our history, the complaints of prisoners
about the conditions of life in prison were ignored by the courts.

2/Judicial review was avoided under the "hands off" doctrine. The 
courts reasoned that the handling of persons convicted of crime 
was a difficult task that required considerable expertise not 
possessed by the courts. Therefore, the courts deferred in all
matters of treatment of prisoners to the presumed administrative 
expertise of prison officials. This immunity from judicial 
scrutiny meant that the rule of law was not implemented in the 
corrections phase of the criminal process. The elaborate

An extreme view of the status of a prisoner as a non­
person was classically expressed by the Supreme Court of Virginia:

"He (the convicted felon) has, as a consequence of 
his crime, not only forfeited his liberty, but all 
his personal rights except those which the law in 
its humanity accords him. He is for the time being 
the slave of the state." Ruffin v. Commonwealth.62 Va. 790 (1871) . ------------

-3-



constitutional protections afforded the accused before and 
during trial ceased after sentence was imposed. What happened 
to the convicted after he arrived in prison was not a matter of 
judicial or, indeed, public concern. As the Associate Adminis­
trator of the Law Enforcement Assistance Administration recently 
observed, the present deplorable state of corrections has its 
or^9in in "about two centuries of public apathy, neglect and 
outright hostility."

Yet more than 95% of the inmates of the nation's prisons, 
including those in New York, will be returned to society either 
on parole or upon the expiration of their sentences. The ex­
perience of these inmates while in prison will largely determine 
their post-release behavior and the chances of their becoming 
productive and law-abiding citizens. Thus, what happens in pri­
son is of critical importance not only to the relatively few
offenders who are caught and convicted of crime but also to the

4/general crisis of crime control that the nation is now facing.
It is perhaps with this in mind that Chief Justice Burger des­
cribed the prison system as "the most neglected, the most crucial
and probably the least understood phase of the administration of_=L/justice."

3/ Report of American Bar Association Criminal Law Section 
panel discussion entitled "Correcting Corrections" 7 Cr L. Rptr. 2445, 2446 (1970) .

4/ See generally, H.J. Griswold, M. Misenheimer, A. Powers, 
E. Tromanhauser, An Eye For An Eye (Holt, Rinehart and 
Winston, 1970); E. Cleaver, Soul On Ice (Delta 1968) .

5/ For Whom the Bell Tolls," 25 Record of N.Y.C.B.A 14 15 (supp. March 1970) . '

-4-



Even Presidential Commissions have concluded, after 
studying the matter, that lhe nation's correctional system, as 
now constituted, seems as likely to produce as to correct 
criminals. See, The Challenge of Crime In a Free Society, A 
Report by the President's Commission on Law Enforcement and 
Administration of Justice (1967) , Chapter 6; Task Force Report: 
Corrections (1967); Progress Report Of The National Commission 
On The Causes And Prevention Of Violence (1969).

The prisons in New York share the problems facing the 
nation s prisons. In some respects, New York prisons have 
fallen substantially below standards of elemental decency. For 
example, in Wright v. McMann. supra. Judge Foley found that the 
medieval conditions alleged by the prisoner did in fact exist, 
and the court held, in accordance with the decision of this Court, 
that the conditions were cruel and unusual. Compare, Wright v. 
McMann. 387 F.2d 519 (2d Cir. 1967).

State Senator Dunne, an informed critic, has described
New York prisons as "more fertile breeding grounds for crime
than the streets" and "less humane than our public zoos," and he
noted that the prisons "drive people to such frustrations that

-6/they can't wait to get out and take revenge on the public."
The present nationwide crisis in corrections is further under­
scored by a gathering number of public and private investigations, 
which continue to uncover sickening and inhumane conditions in

6/ New York Times, August 19, 1970, p.22, col. 6.

-5-



yjails and prisons.
The instant case presents issues of fundamental im­

portance. The real question is whether the rule of law will 
be implemented in prisons. We submit that immunity from judi­
cial review, under the "hands off" doctrine, let to a tradition 
of lawlessness in the correctional phase of the criminal process 
and further, contributed to the failure of prisons adequately 
to perform their role of encouraging the rehabilitation of 
offenders, and of keeping them in "safe and secure" custody.

United States District Judge John C. Oliver of Western 
Missouri recently observed that most of the reforms that have 
come about in the penal institutions have resulted from riots 
and scandals. An additional source of reform, however, which 
he felt held out hope for the future is "the quite substantial 
change in judicial attitude," in which courts have been forced 
to consider the merits of prisoners' complaints about what

y  see, THE COOK COUNTY JAIL, Report of the December 1967 Cook County Grand Jury; Senate Subcommittee Hearings 
on Juvenile Delinquency, 4 Cr. L. Rptr. 2512; TIME 
MAGAZINE, "The Black Hole of Manhattan," August 24,
1970, pp. 28-29; New York Times, August 25, 1970, p.35, 
col.5. See also, Mattick & Aikman, The Cloacal Region 
of American Corrections. 381 ANNALS OF THE AMERICAN 
ACADEMY OF POLITICAL AND SOCIAL SCIENCES 109 (1969); 
Note, Constitutional Limitations on the Conditions of 
Pretrial Detention. 79 Yale L.J. 941 (1970); and McGee, 
The Administration of Justice; The Correctional Process, 
5N.P.P.A.J. 225 (1959) (describing the typical county 
jail as "the lowest form of social institution on the American scene").

-6-



happens after they have been committed to prison.-
Appellants have not in this Court contested federal 

jurisdiction. However, we think it may be helpful to make 
explicit the principles governing federal jurisdiction in state 
prison cases. Although there have been uncertainties as to
exhaustion of state remedies in other kinds of civil rights 9/
actions, it is clear that in prisoners' rights cases under

10/Section 1983, no state judicial remedies need be exhausted. 
Exhaustion of state administrative remedies is not required 
unless there is an adequate administrative procedure specifi­
cally set up to provide a speedy and fair hearing of the

11/prisoner's grievance. In New York, there is no formal proce­
dure at all by which prisoners' claims can be determined 
administratively.

8/ Report of ABA panel discussion on "Correcting Corrections." 
supra, n.3. See also, Cohen, The Legal Challenge to Correc­
tions, A Joint Commission on Correctional Manpower and 
Training Consultant's Paper (March 1969); Kimball and 
Newman, Judicial Intervention in Correctional Decisions: Threat and Response 14 Crime & Del. 1 (1968).

9/ See e.g. Eisen v. Eastman. 421 F.2d 560 (2d Cir. 1969).
10/ See Houghton v. Shafer. 392 U.S. 639 (1968); Monroe v. Pape, 

365 U.S.167(1961); Wright v. McMann, 387 F.2d 519, 524 (2d 
Cir. 1967); Rivers v. Royster, 360 F.2d 592, 594 (4th Cir. 
1966); Hancock v. Avery. 301 F.Supp. 786 (M.D. Tenn. 1969); 
Carothers v. Follette. No.68 Civ. 3927 (S.D. N.Y. July 15, 
1970); Talley v. Stephens. 247 F.Supp. 683, 686 (E.D. Ark. 
1965); Note, Prisoners' Rights Under Section 1983. R7 r,Pn t t 1270, 1279 (1969) . ----------------------

11/ See Carothers v. Follette, supra. Compare Burns v. Swenson, 288 F.Supp. 4 (W.D. Mo. 1968), modified, 300 F.Supp. 759 
(W.D. Mo. 1969); Cupp v. Swenson, 288 F. Supp. 1 (W.D. Mo. 1968).

-7-



Nor does the doctrine of abstention apply to oust the
_ 12/  federal court of jurisdiction under Section 1983. This is
especially true where there is no administrative apparatus or
other means of hearing and determining the prisoners’ com-13/
plaints.

United States District Judge Julius J. Hoffman, in 
sustaining, against a motion to dismiss, a class action brought 
in 1968 by prisoners to improve the unlawful and inhumane con­
ditions at the county jail in Chicago, relied upon the famous 
judicial declaration:

"We yet like to believe that wherever the federal 
courts sit, human rights under the federal Consti­
tution are always a proper subject for adjudica­tion. " McNeese v. Board of Education. 373 TT.fi.668, 674 (1963).

He further stated:
"Although it might, indeed, be the easier course 
to dismiss this amended complaint as to these de­
fendants, 'we cannot flinch from our clear res­
ponsibility to protect rights secured by the 
federal Constitution.' Wright v. McMann. 387 F.2d 
519, 526 - 27 (2d Cir. 1967)." Inmates of the Cook County Jail v. Tierney. No. 68 C 504 (N.D.
111. Aug. 22, 1968), Transcript p.17.

In short, federal jurisdiction is clear, and the court 
must proceed to determine whether, on the merits, the prisoner

12/ See Zwickler v. Koota, 389 U.S. 241(1967); Wright v. McMann. 
supra, at 524-25; Holmes v. New York Housing Authority. 398 F. 2d 262 (2d Cir. 1968); Rivers v. Royster, supra; Pierce
v. Lavallee, 293 F.2d 233, 236 (2d Cir. 1961)7 Note,------Prisoners' Rights Under Section 1983. supra.

12/ See Edwards v. Duncan. 355 F.2d 993, 994-95 (4th Cir.1966); Carothers v. Follette. supra.

-8-



is entitled to^relief for violation of his federal rights under 
Section 1983.

In determining whether the prisoner's federally pro­
tected rights have been violated, the Court should start with 
the presumption that

"a prisoner retains all the rights of an ordinary 
citizen except those expressly or by necessary im­
plication, taken from him by law." Coffin v.
Reichard, 143 F.2d 443, 445 (6th CirT 1944), cert. denied. 355 U.S. 887 (1945). 15/

In other words, restrictions on the rights of pri­
soners must be justified by the very nature of imprisonment.
As the Fifth Circuit Court of Appeals has stated,

"....any further restraints or deprivations in 
excess of that inherent in the sentence and in 
the normal structure of prison life shoud be sub­ject to judicial scrutiny." Jackson v. Godwin.400 F.2d 529, 535 (5th Cir. 1968). ------

Viewed in light of these principles, we believe that 
the decision of the district court in this case was sound and 
should be affirmed. As one able commentor has put it, the 
decision below "ought to be welcomed" because

14/ Cf. Commonwealth of Pennsylvania v. Brown, 260 F. Supp.323, 
332(E.D. Pa. 1966), modified on other grounds. 373 F.2d 
771 (3rd Cir. 1967); Jackson v. Bishop. 404 F.2d 571 (8th 
Cir. 1968); Note, Constitutional Rights of Prisoners: The Developing Law. 110 U. Pa. L.Rev. 983, 987 (1962).

15/ See also Jackson v. Godwin. 400 F.2d 525, 532 (5th Cir. 
1968); Note, Beyond the Ken of the Courts: A Critique of 
Judicial Refusal to Review the Complaints of Convicts. 72 Yale L.J. 506 (1963); Note, Constitutional Rights of 
Prisoners: The Developing Law. 110 U. Pa. L. Rev. 985 
(1962); Hirschkop and Milleman, The Unconstitutionality of Prison Life. 55 Va. L.Rev. 795 (1969).

-9-



••••if those who supposedly represent decent 
society in [penal] institutions fail to observe 
minimal standards of law and order in their treatment 
of inmates, why should the latter develop any respect for those standards?" 16/

I.
PROCEDURAL DUE PROCESS OF LAW 

IN PRISON DISCIPLINARY PROCEDURES

A. Procedural Due Process of Law is Constitutionally 
Required Where Prison Officials Impose Punitive 
Segregation or Deprive an Inmate of Statutory "Good Time" Credit.

Appellants concede that due process is required in 
prison disciplinary proceedings (appellants' brief, p.14).
They properly state that the crucial question is "what due 
process requires in this particular context" (Id.). Although 
appellants do not discuss at all what they believe to be the 
requisites of procedural due process in the prison context, 
they apparently believe that none of the requirements specified 
by the district court is comprehended in the due process clause 
as it applies to prisoners.

In his concurring opinion in Joint Anti-Fascist Refugee 
Com^ v. McGrath, 341 U.S. 123 (1951), Mr. Justice Frankfurter 
stated what he thought were the proper considerations in

16/ Tom Wicker, "Due Process for Prisoners," The New York Times, June 18, 1970, editorial page.

-10-



determining the extent to which procedural due process is 
required:

"The precise nature of the interest that has been ad­
versely affected, the manner in which this was done, 
the reasons for doing it, the available alternatives 
to the procedures that were followed, the protection 
implicit in the office of the functionary whose con­
duct is challenged, the balance of hurt complained 
of and good accomplished —  these are some of the 
considerations that must enter into the judicial judgment." 341 U.S. at 163

The Supreme Court has adopted Mr. Justice Frankfurter's 
analysis, most recently in holding that welfare recipients are 
entitled to a full evidentiary hearing before their benefits 
can be terminated. Goldberg v. Kelly, 397 U.S. 254 (1970) 

Appraising the circumstances of the instant case in 
light of the tests advanced above persuasively demonstrates 
the inmate's right to procedural due process:
1* "The precise nature of the interest that has been adversely 
a.ffected. " Appellee's interest is the same type of interest 
involved in any criminal trial. As a result of the prison 
disciplinary procedures, he was removed from the general prison 
population and incarcerated in a separate punitive segregation 
facility with all the characteristics of a jail. His freedom 
of movement and his prison privileges were severely curtailed.
He was deprived of participation in any of the prison's rehabi- 

tati°n programs. Moreover, he was automatically deprived of 
the right to earn statutory "good time." Good time credits are, 
under New York law, the means by which an inmate can lower the 
minimum term of his sentence and advance parole consideration.

-11-



Correction Law § 230. To the extent that an inmate loses good
time credits, his overall term of imprisonment may be prolongedT”' 
Thus, the determination that Sostre should be sentenced to 
segregation operated in effect like a sentence to jail.

f—J_fte_manner in which this was done, the reasons for doing
— * Sostre was sentenced to segregation by the most summary 
procedures. As appellants' brief states (p.19), an inmate 
is provided with an opportunity "to explain a disciplinary 
charge in an informal "hearing" before a deputy warden. That 
is the extent of the due process protection afforded the inmate.

Despite the distinctly judicial character of the determina­
tions to be made, the following procedural safeguards are con­
spicuously missing from the proceedings:

(a) prior notice of the charge and the rule alleged 
to have been violated;
(b) hearing before an impartial board or officer not 
including the inmate's accuser;
(c) representation by counsel or a counsel substitute;
(d) confrontation and cross-examination of adverse 
witnesses;
(e) the right to call witnesses for the inmate;
(f) a decision based upon substantial evidence adduced 
at the hearing;

■LZ/ Cf. Nolan v. Scafati. No. 7538 (1st Cir. Aug. 14, 1970)(slip op. p.3, n.2).

17/

-12-



(q) an adequate record to make possible a meaningful 
appeal; and
(h) the right to appeal the decision before the punishment 
is imposed.
Although appellants suggest that prison officials necessarily 

must have expeditious means of dealing with unruly prisoners, 
they have presented no reason why more careful and fairer pro­
cedures could not have been used in this case. Appellants 
have presented no facts showing that there was any emergency or 
any urgency whatever concerning the charges against Sostre. it 
may be that, in some extraordinary cases, emergency segregation 
for at least a limited period of time, subject to later review, 
could be justified. For example, where an inmate is leading
an insurrection, we have no doubt that prison officials could 

. ̂  . 18/ justify isolating him forthwith. But, in the present case,
there is no excuse for the unseemly haste with which the inmate 
was consigned to prolonged segregated confinement.
3 * " [T]he available alternatives to the procedure that was
followed." The alternatives include not only the procedural 
due process guarantees specified by the court below. They in­
clude fairer disciplinary procedures adopted in other states.

18/ The Rhode Island regulations, which were drafted by the 
prison officials and approved by a federal district court 
upon agreement of the parties, do specifically provide 
for emergency procedures in cases where they are in fact 
needed, but they generally require much more careful and 
fairer procedures for ordinary disciplinary charges. See 
Morris v. Travisono, 310 F.Supp. 857, 874 (D. R.I. 1970).

-13-



In Carothers v. Follette, No. 68 Civ. 3927 (S.D. N.Y. July 15, 
1970), Judge Mansfield referred to the prison rules prevailing 
in the State of Missouri. There, the inmate is entitled to the 
following important safeguards: (1) written report by the employee
observing the misconduct; (2) investigation by the supervisor;
(3) prior notice of the charge given to the inmate; (4) hearing 
before a board of at least three officials, including a person 
from the non-custodial staff; (5) in a serious case, representa­
tion by a case worker or other competent employee; (6) dis­
closure to the inmate of the evidence against him; (7) the right 
to present evidence available to the inmate or others; (8) writ­
ten summary of the evidence and proceedings; (9) in a serious 
case, explanation of the rationale of the decision; and (10) 
formal administrative review before the decision becomes final. 
Similar rules have been adopted, pursuant to federal court order, 
in Rhode Island. See Morris v. Travisono. 310 F. Supp. 857 
(D. R.I. 1970).
4 * ”rTlhe protection implicit in the office of the functionary
whose conduct is challenged." Prison officials ordinarily 
have no training in or special sensitivity to problems of con­
stitutional law, are not directly responsive to any electorate

_19/ Appellants state that the court below requires the same 
type of hearing as in a criminal case (appellants' brief, 
p.15). This is simply not true. For example, there 
is no requirement of a jury trial, there is no require­
ment that guilt be proved beyond a reasonable doubt, and 
there is no requirement that the rules of evidence be 
followed. Indeed, the precise nature of the disciplin­
ary hearing is left to the prison officials who have 
been directed by the district court to promulgate new disciplinary rules and regulations.

-14



'""I l," ‘ *"1.1 Lively In hi- moi . i l l y  or  ini o 1 loo t u.i 1 l y  su perior  to
20 /any other class of government administrators. They have no 

special distinction which makes them the safe repositories of 
arbitrary power. As Circuit Judge Sobeloff has remarked:

Acton1s classic proverb about the corrupting in- 
influence of absolute power is true of prison guards 
no less than other men. in fact, prison guards may 
be more vulnerable to the corrupting influence of 
unchecked authority than most people. it is well 
known that prisons are operated on minimum budgets 

that poor salaries and working conditions make 
difficult to attract high caliber personnel. More­over, the 'training' of the officers in methods of 

dealing with obstreperous prisoners is but a euphemism 
in most states." Landman v. Peyton, 370 F.2d 135 140(4th Cir. 1966).

5 * " [T]he balance of hurt complained of and good accomplished."
The injury to the inmate has been discussed above. The good 
accomplished by placing the inmate in segregation in such a 
summary fashion has not been discussed by appellants. As we 
noted above, there was no need for any summary procedure in 
this case. Denial of a fair hearing may hide improper motives, 
but we are unable to perceive any useful public purpose that 
denial of fundamental fairness might accomplish.

Comparison of the facts of this case with the consider­
ations advanced in the recent decision of this Court, in 
Menechino v. Oswald, 7 Cr. L. Rptr. 2430, (2d Cir. Aug. 5, 1970),
is instructive. There, the Court held that there was no right 
to procedural due process in a Parole Board hearing at which

2_0/ Judge Foley remarked in Wright v. McMann, No. 66 CV 77 
(N.D. N.Y. July 31, 1970) that prison officials should 
not be immune from the limelight that all public agencies ordinarily are subject to."

-15-



the Board decides whether the inmate should be released on parole. 
The Court reasoned that (1) the Parole Board is not the inmate’s 
"adversary" because it is not punishing him but seeking to en­
courage his rehabilitation; (2) there need be no "notice of 
charges" because there are no "charges" against the prisoner;
(3) the Board is not necessarily called upon to resolve disputed 
issues of fact, "which might be the occasion for use of skills 
associated with lawyers, judges and the judicial process;" and
(4) the Board's determination is not final and may be reviewed 
and changed at any time.

In contrast, the avowed purpose of prison disciplinary 
proceedings is to ascertain guilt and impose punishment. Specific 
"charges" are placed against the prisoner. He is required to plead 
guilty or not guilty. A finding of guilty can result in the im­
position of punitive segregation or loss of good time credit. Even 
if the inmate does not deny the factual basis of the charge against 
him, he may contend that it does not merit any substantial punish­
ment. It is, thus, apparent that the interests of the officials 
and those of the prisoner are in conflict, which makes the hearing 
clearly adversarial.

Finally, in New York the hearing officer's determination 
is final and is not reviewed. The inmate has no opportunity to 
appeal before he is punished. As Judge Foley recognized in Wicicrht 
v. McMann. supra, the determinations made in the hearing are 
"practically judicial."

-16-



Appellants do not make a convincing case for disposing 
of any of the elements of due process required by the court below. 
Although defendants quote at length from the Task Force Report on 
Corrections, prepared by the President's Commission on Law Enforce­
ment and Administration of Justice, appellants omit the Commission's 
recommendation that where disciplinary charges may have an effect 
on the inmate's term of imprisonment

• • • the prisoner should be given reasonable notice of the charges, full opportunity to pre­
sent evidence and to confront and cross-examine 
witnesses, and the right to representation by

Task Force Report: Corrections, p. 86(1967) .
In federal prisons, disciplinary punishments revoking an inmats 's 
"good time" must be preceded by a hearing at which the prisoner, 
represented by a member of the staff, has the right to present evi­
dence, to call witnesses, to confront his accuser and cross-examine 
adverse witnesses. See Policy Statement 7400.5, Federal Bureau of 
Prisons (November 28, 1966). James V. Bennett, former Director of 
the Federal Bureau of Prisons, described such a proceeding as "an 
essential ingredient to good discipline." See Hirschkop and Milleman, 
The Unconstitutionality of Prison Life. 55 Va. L.Rev. 795, 831, 834 
(1969). Indeed, responsible "correctional authorities throughout 
the United States have begun to see the necessity of setting out 
fair procedures for the handling of prison conduct within penal in­
stitutions." Burns _v_._Swenson. 288 F.Supp. 4, 9 (W.D. Mo. 1968).

^  Nolan v..Scafati, 306 F.Supp. 1 (D. Mass. 1969), upon which 
appellants placed so much reliance, has been reversed by the 
First Circuit Court of Appeals (No. 7538, Aug. 14, 1970).

-17-



The importance of precise procedural guarantees for New 
York prisoners is illustrated by the decisions in Wright (Mosher) 
y\ McMann, No. 66 CV 77 (N.D. N.Y. July 31, 1970) and Carothers 
v. Follette, No. 68 Civ. 3927 (S.D. N.Y. July 15, 1970) . In 
Mosher, the inmate was "sentenced" to punitive segregation for an 
indeterminate term for the "offense" of refusing to sign a safety 
form in a prison industrial shop. Judge Foley found that the pri­
soner sincerely believed the document would waive his right to 
recover for any personal injuries sustained in the shop and this 
is why he refused to sign. Testimony at the trial showed that the 
prison officials in fact had no objection to adding words to the 
form to the effect that it did not constitute a waiver. More im­
portantly, the then warden testified that he did not believe that 
refusal to sign the form called for any disciplinary action at all; 
he did not even know the inmate had been punished. James V. Bennett, 
former Director of the Federal Bureau of Prisons, testified as an 
expert for the prisoner that the punishment was completely inap— 
propriate. Yet the deputy warden had summarily imposed segregation 
as a punishment and the inmate was held in segregation for a full 
year. On this record, Judge Foley found that the punishment was 
grossly disproportionate to any offense. He also found that "pro­
cedural safeguards with meaningful review and formal right to ap­
peal in this instance might have averted or corrected this improper 
punishment." Judge Foley entered a decree (see Appendix A to this 
brief) spelling out minimal due process guarantees and ordered 
the officials to promulgate new disciplinary rules and regulations 
in accordance with Judge Motley's decision in the instant case.

-18-



In Carothers v. Follette. supra, the inmate was "tried
for two disciplinary infractions on the same day. One of the in­
fractions was writing a letter to a judge which was critical of 
the prison administration. The other infraction was an alleged 
minor violation of a restriction on his exercise yard privileges. 
Although the prison records showed that the inmate was sentenced 
to an indeterminate term in segregation for writing the letter to 
the judge, the officials claimed on deposition that the records were 
"inaccurate" and that the sentence was really imposed for violation 
of the yard restriction. Judge Mansfield found that the punishment 
was "extremely harsh" and held that:

"We believe that such serious punishments 
should not be allowed to stand, at least 
until disciplinary procedures are adopted 
that will meet rudimentary standards of due 
process under the conditions encountered. A 
proceeding pursuant to such standards may 
then well result in a much lighter punish­ment than segregation."
We believe that each of the particular elements of due 

process specified by the district court is both appropriate and 
necessary in a prison setting. We consider them in order:

1. Notice of the charge against the inmate and the rule 
alleged to have been violated. This requirement is so fundamental 
that discussion of it seems superfluous. Any hearing conducted 
without prior notice to the person whose interest may adversely 
be affected would be a sham. Compare. Escalera v. New York City 
Housing Authority. 425 F.2d 853 (2d Cir. 1970). The requirement 
of notice of the rule alleged to have been violated simply assures

-19-



that there are in fact rules which guide the conduct of inmates, so 
that punishments may not be meted out in the unfettered discretion 
of prison officials. We do not understand appellants to quarrel 
with this notion.

2* Hearing before an impartial official with the right
—cross-examine his_accuser and call witnesses in his behalf. The

requirement of an impartial tribunal is fundamental to American no­
tions of fair play. A hearing before the inmate’s accuser is tanta­
mount to no hearing at all. See, Goldberg v. Kelly. 397 u.S. 254 
(1970); Escaleraj/.— New York City Housing Authority, supra. The 
right to call witnesses is essential where the facts are in dispute. 
Moreover, this should cause no difficulties in the prison setting. 
Both Missouri and Rhode Island permit prisoners to call witnesses 
in disciplinary hearings where the facts are in d i s p u t e . A l s o ,  
federal prisoners may call witnesses where revocation of good time 
credit is in issue. See, Policy Statement No. 7400.5, Federal Bureau 
of Prisons (November 28, 1966). Confrontation and cross-examination 
of accusers is admittedly a more difficult problem. While it is a 
fundamental element of due process in some settings, see Pointer 
— Tgxas, 380 U.S. 400 (1965), it may not be required in every 

prison disciplinary case. That is, the regulations to be proposed

22/ The Missouri procedures were noted by Judge Mansfield in 
Carothers v. Follette. No. 68 Civ. 3927 (S.D. N.Y. July 
15, 1970). The Rhode Island procedures are set forth in 
full in Morris v. Travisono. 310 F.Supp. 857 (D. R.I. 1970).

-20-



by appellants might specify that cross-examination would be per­
mitted only in very serious cases where the facts are in dispute 
and where the warden does not certify that permitting cross-examina­
tion would lead to the actual disruption of prison security.

3• Written record of the hearing, decision, reasons 
therefor and evidence relied upon. An adequate record is essential 
to any administrative proceeding. It assures that a hearing is 
actually held and operates as a check on arbitrary action. We do 
not understand the district court's order to require a verbatim 
transcript. We would suggest that it would be sufficient for the 
record to note the persons present, the substance of any testimony, 
any documents or physical evidence presented and the evidence relied 
upon.

The requirement that a decision-maker state the reasons 
for his determination and indicate the evidence he relied upon is 
a critical protection. It helps to assure that the decision is a 
reasoned one, which actually takes into consideration factors rele­
vant to prison security and, therefore, tends to guarantee relia­
bility of decision. This requirement should not be burdensome in 
New York, because officials are already required by statute to 
transmit the reasons for any deprivation of good time to the Commis­
sioner of Correction. See Correction Law, Section 236.

The requirement of an adequate record serves not only to 
make it more likely that the initial decision-maker will have a 
rational basis for the determination. Adequate findings are also

-21-



essential "to make meaningful any appeal that is allowed" to a war­
den or higher prison authority within the administrative process.
Cf. Specht v. Patterson. 386 U.S. 605, 610 (1967). Finally, it 
would serve to facilitate any judicial review, the scope of which 
might well narrow as the procedural fairness of the administrative 
process becomes more evident.

4. Retained counsel or a counsel substitute. This re­
quirement is admittedly novel, but has considerable merit. Repre­
sentation of inmates in disciplinary proceedings is not novel. Both 
Missouri and Rhode Island permit representation by prison classifica­
tion officers if the inmates desire such representation. Also, 
federal prisoners are permitted to be represented by a member of 
the staff in good time revocation proceedings. This being the case, 
we see no reason not to permit an inmate facing extremely serious 
punishment to seek to obtain the services of a lawyer or "counsel 
substitute," who might be a law student from a nearby law school, a 
member of the prison staff or perhaps a fellow inmate. Inmate as­
sistance has already been explicitly sanctioned by the Supreme Court 
in Johnson v. Avery. 393 U.S. 483 (1969) . It may be that appellants,
when they present their proposed disciplinary regulations to the 
court below, may justify distinctions between various types of dis­
ciplinary proceedings. They may be able to justify permitting inmates 
to have professional representation only in the most serious cases 
and in cases where no emergency justifies summary action. We do 
not understand the district court order to require the state to 
appoint a member of the bar to serve in every disciplinary proceed­
ing.

-22-



B. The Court Below Properly Ordered the Officials 
to Promulgate New Rules and Regulations_______

We do not believe that the federal courts should be asked 
to review individual prison disciplinary decisions. We think it 
would be wholly inappropriate, for example, for a federal judge to 
review whether an inmate had been denied movie privileges for viola­
tion of some minor prison rule. We do contend, however, that where 
the punishment is segregation or the loss of good time, federal 
questions are presented. The proper judicial approach in such a 
case is, we think, to inquire whether the prison system itself pro-

2vides adequate procedural due process in arriving at the decisions. 
If the procedural guarantees are inadequate in the sense that the 
decision-making process itself does not guard against arbitrariness 
and whimsy, serious punishments imposed thereunder certainly raise 
federal claims. Rather than review each disciplinary decision, 
however, the court should do precisely what Judge Motley did —  
strike down the decision-making process itself and require the offi­
cials to adopt new rules and regulations guaranteeing procedural 
fairness. In other words, although New York's default perhaps in­
dicates that the district court should "write some of the rules" 
(Wright v. McMann. 387 F.2d 519, 528 (2d Cir. 1967) (Lumbard, J.,
concurring)), it seems appropriate to require the prison officials

23/ Cf. Saferstein, Nonreviewability: A Functional Analysis
of "Committed to Agency Discretion." 82 Harv. L.Rev. 367,
383, 393 (1968); Edwards v. Duncan, 355 F.2d 993, 994-5 
(4th Cir. 1966) .

-23-



themselves to propose comprehensive disciplinary regulations. This 
is a recognized equitable remedy in prison c a s e s . W h e r e  adequate 
administrative procedures are followed by the prison administration, 
judicial review can be substantially more limited. For example, 
even where serious punishments such as those involved in the instant 
case are imposed, if there are adequate procedural guarantees the 
court need only determine that there was evidence to support the 
decision, as in the conventional administrative law context. Since 
making an adequate record of the proceedings is one of the most in­
dispensable elements of due process, this test would not be difficult 
for prison officials to meet.

II
CRUEL AND UNUSUAL PUNISHMENT

A. The District Court Properly Held that the Punish- 
ment Imposed Violated the Eighth Amendment_______

Even assuming that appellee broke a valid prison rule and 
that he was afforded procedural due process in the disciplinary 
proceeding, the punishment imposed was cruel and unusual. The 
limits of the Eighth Amendment's prohibition of cruel and unusual 
punishment are not easy to define with precision, for the Amendment's 
basic concept "is nothing less than the dignity of man." Trop

24/ See Sostre v. McGinnis. 334 F.2d 906 (2d Cir. 1964); SaMarion 
v. McGinnis. 253 F.Supp. 738, 741 (W.D. N.Y. 1966); Gilmore 
v. Lynch, No. 45878 (N.D. Cal. May 28, 1970); Holt v. Sarver.309 F.Supp. 362 (E.D. Ark. 1970).

-24-



v. Dulles, 356 U.S. 86, 99-101 (1958). It "must draw its meaning 
from the evolving standards of decency that mark the progress of a 
maturing society." Id. at 102; Weems v. United States. 217 U.S. 349, 
373 (1910) .

The limits of the prohibition have been exceeded in the 
instant case. The totality of the circumstances of appellee's pun­
ishment cannot be squared with our present-day constitutional stan­
dards. The most significant circumstances are the following:

1. Deprivation of Minimal Comforts and Prison Privileges.
A state prisoner does not begin with much. He is confined behind 
foreboding walls, far from family and friends. He is deprived of 
normal sexual relationships. He has no freedom of movement. He has 
no real privacy, and every detail of his daily existence is closely 
watched by his guards.

But he does have some creature comforts and some privi­
leges which can make prison life tolerable for a flexible man. 
Punitive segregation takes these away. In this case the material 
facts as to the routine deprivation of privileges and austere condi­
tions of life in segregation are not in dispute. While they are not 
the barbaric conditions alleged and proved in Wright v. McMann. No.
66 CV 77 (N.D. N.Y. July 31, 1970), they fully support the district 
court's findings as to the degradation and mental anguish suffered 
by inmates in segregation.

2. Excessively Long Period of Segregation. Sostre was 
held in segregation for about a year. So was Robert Mosher, whose

-25-



confinement in virtually identical conditions was held by Judge 
Foley, in the consolidated Wright decision, supra, to be cruel and 
unusual. Mosher v. LaVallee. 67 CV 174 (N.D. N.Y. July 31, 1970).
In both Sostre and Mosher, the prolonged punishment vastly exceeded 
the limits set by accepted and conservative prison authorities. In 
Mosher, former Federal Prison Director James V. Bennett testified 
that even in Alcatraz, which housed the most recalcitrant of federal 
prisoners, punitive segregation was never used for more than ten 
days. The Missouri prison system also sets ten days as the upper 
limit.- The Manual of Correctional Standards, which represents 
the thinking of prison authorities throughout the country, states 
that, ordinarily, punitive segregation should not exceed 15 days an3 
should never exceed 30 days.— 7 The ALI Model Penal Code would al­
low segregation "for serious or flagrant breach of the rules" deter­
mined after careful proceedings, for a period of 30 days.^-^ The 
point is that where the inmate does not respond quickly to punitive 
segregation, other techniques should be tried —  more exposure to 
treatment personnel, experimentation with work programs, transfer 
to a different institution, etc. This is not just common sense; the 
considered opinion of recognized correctional authorities is that 
prolonged segregation is not only ineffective but serves to embitter

25/ Missouri State Penitentiary Personnel Informational Pamphlet, p. 7.
2_6/ American Correctional Association, Manual of Correctional Standards. 414-15, 418 (1966) .
27/ Proposed Final Draft §304.7(3) (1962).

-26-



the inmate and diminish the likelihood of his rehabilitation.It 
is not only self-defeating but also cruel to impose continued punish­
ment without access to treatment programs and without trying to get 
at the root of the inmate's problem.

3. Dangers Presented by Segregation. All the authorities
recognize that punitive segregation is a potent weapon and may have

2 9/disastrous consequences. It may bring a short-term superficial
conformity in some inmates, but it breeds deep hostility in more.
And it may even, if prolonged, cause mental illness. The curious 
precautions against suicide taken by New York wardens seem to recog­
nize this. For example, in Wright v. McMann. supra. Warden Follette 
testified that he thinks suicide should be prevented by confining all 
inmates in segregation without clothes or towels. To assert that 
a man must be reduced to a caged animal to keep him from taking his 
life is surely to confess a poverty of thinking about treatment and 
corrections. Of course, the fact that the segregated inmate is not 
in fact made mentally ill does not mean that there was not cruel 
and unusual punishment; it is enough to subject him to the substan­
tial risk.

28/ See testimony of James V. Bennett and Dr. Joseph Satten 
in Wright v. McMann; Manual of Correctional Standards. supra, at 413.

29/ See note 28, supra. It has long been recognized that soli­
tary confinement or segregation cannot be considered a mere 
regulation as to the safe custody of prisoners and that it 
can cause mental illness, induce suicidal tendencies and 
interfere with the possibility of rehabilitation. See In 
re Medley. 134 U.S. 160, 167-8 (1890).

-27-



4- Lack of Fair Procedures. As discussed under point I 
above, appellants' inadequate disciplinary procedures independently 
constitute a deprivation of constitutional rights. But the lack of 
procedural fairness also contributes to the cruelty of the punish­
ment. Procedures which are not perceived to be fair increase the 
punished inmate's frustration, resentment and sense of helplessness.-̂

5. Loss of "Good Time." It must be remembered that the 
imposition of segregation in New York is really a double punishment.
No statutory "good time" credit may be earned while an inmate is con­
fined to punitive segregation. See 7 N.Y.C.R.R. §60.6(c). Thus, 
confinement to segregation necessarily delays eligibility for parole 
and prolongs the inmate's overall period of imprisonment. The loss 
of good time and consequent deferral of parole consideration alone 
persuaded the Seventh Circuit Court of Appeals that a prisoner's 
complaint of arbitrary disciplinary punishment must be heard. See 
United States ex rel Campbell v. Pate. 401 F.2d 55 (7th Cir. 1968); 
see also United States ex rel Hancock v. Pate. 223 F.Supp. 202 (N.D.
111. 1963).

6. Lack of Justification. Appellants have failed to 
offer any justification for the extreme and extraordinary depriva­
tions of punitive segregation.

30/ See testimony of Dr. Joseph Satten in Wricrht v. McMann. supra; 
trial transcript at pp. 412-478. Judge Foley in his decision 
noted that Dr. Satten was "eminent . . .  in this field of 
study on prison confinement and its consequences" and relied 
heavily on his testimony. Similar but more limited testi­
mony was given in the instant case by Dr. Seymour Halleck.

-28-



As in Wright v. McMann. supra, the officials did not 
even offer their own opinion to show that without segregation pri­
son security would be in danger. The officials did not plead 
poverty they did not assert that they lacked the personnel or 
funds to treat inmates in accordance with sound and humane correc­
tion principles. Of course, as Judge (now Justice) Blackmun has 
stated in a landmark prison case,

"Humane considerations and constitutional 
requirements are not, in this day, to be 
measured or limited by dollar considera­
tions. . . ." See Jackson v. Bishop. 404
F.2d 571 (8th Cir. 1968).11/

Judge Blackmun's opinion in Jackson is instructive here. The court 
there held that corporal punishment —  use of the strap as a dis— 
ciplinary punishment —  was unconstitutional. In many respects, 
the instant case is stronger. In Jackson. whipping was "the pri­
mary method of discipline used" and the warden made a showing that 
the funds for alternative methods were limited. Furthermore, there 
was actual testimony that whipping was needed to preserve discipline 
and effective to meet this need. Finally the prison system had 
adopted regulations governing use of the strap. Nevertheless, the 
court, after considering the totality of the circumstances, held 
that the strap constituted cruel and unusual punishment.

31/ See also Pisacano v. State. 8 App.Div.2d 334 (4th 
Dept. 1959) (prison officials must provide reason­
able and adequate medical care "unaffected by bud­
getary considerations"); cf. Goldberg v. Kelly. 397 
U.S. 254 (1970) (hearings required despite fiscal 
and administrative burdens on state).

-29-



We do not contend that punitive segregation is the equiva­
lent of whipping and must be condemned per se. While in some re­
spects it is worse -- some of the dangers it poses (mental illness 
and suicide) are not caused by whipping the buttocks —  some form 
of isolation of severely recalcitrant inmates is probably needed to 
maintain order in the prison. But we do contend that the use (or 
abuse) of punitive segregation in this case exceeded legitimate 
bounds.

7. Interference with Rehabilitation. Since most inmates 
will eventually leave prison through the front door and return to 
society, the Manual of Correctional Standards recognizes that the
prison's "basic purpose" is "the rehabilitation of those sent there

32/by society."—  The authorities in the field now recognize that
notions of retribution are outmoded and that individualized treatment 
of the man to be returned to society is most important.

But the record in this case demonstrates that punitive 
segregation is hostile to these objectives. In the first place, 
the segregated inmate is cut off from all rehabilitative opportun­
ities at the prison: he is not permitted to work or participate in
vocational training; he cannot attend the prison school or parti­
cipate in its educational program; he is barred from attending re­
ligious services; his recreational opportunities are severely cur­
tailed and he must submit to a degrading strip search to obtain his

32/ American Correctional Association, Manual of Correctional 
Standards. 421 (1966) .

-30-



one hour of recreation; he is not seen by a psychiatrist or psycholo 
gist and the reasons for his behavior are not explored; and he is 
completely isolated from meaningful human contact with fellow in­
mates as well as contact with the outside world.

In Holt v. Sarver. 309 F.Supp. 362 (E.D. Ark. 1970), the 
court held that the deprivation of participation in rehabilitative 
programs was one constitutionally significant factor in the court s 
conclusion that the totality of the circumstances rendered the 
Arkansas prison system unconstitutional.

But far more important than the temporary deprivation of 
rehabilitative opportunities is the fact that punitive segregation 
militates against the actual rehabilitation of offenders. The Man­
ual of Correctional Standards contains a candid recognition by 
prison officials themselves that

"Perhaps we have been too dependent on 
isolation or solitary confinement as the 
principal method of handling the violators 
of institutional rules. Isolation may 
bring short-term conformity for some, but
brings increased disturbances and_deeper
grained hostility to more."^/

As Dr. Halleck testified in this case, and as Dr. Satten testified 
in wriaht v. McMann. supra, punitive segregation is not only danger 
ous and destructive to human personality; it is counter-productive 
in that it does not aid in rehabilitation or help to change the 
attitude of recalcitrant inmates.

33/ American Correction Association, Manual_of_Correctional
Standards. 413 (1966) (emphasis added).

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In other words, the mindless continuation of punitive 
segregation, with no exploration of the reasons for the in­
mate's conduct, is futile and self-defeating. See, Jordan v. 
Fitzharris, 257 F. Supp. 674, 680-81 (N.D. Cal. 1966). This 
kind of treatment "erodes the very foundations upon which [the 
inmate] can prepare for a socially useful life." cf_. Barnett
v. Rodgers, 410 F.2d 995, 1002 (D.C. Cir. 1969). It is "more
likely to breed contempt for the law" and discourages prisoners 
from "cooperating in their rehabilitation." cf. Jackson v. 
Godwin. 400 F.2d 529, 535 (5th Cir. 1968).

Although we assume that prison officials have an area 
of administrative discretion in dealing with inmates who are 
in fact disruptive,

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

Thus, while defendants are entitled to some administrative leeway,
this "does not eliminate the need for reasons imperatively
justifying the particular retraction of rights challenged at
bar." Barnett v. Rodgers. 410 F.2d 995, 1000-01 (D.C. Cir.
1969). Here, however, appellants have failed to justify the
prolonged imposition of punitive segregation.

As the court below held, the prolonged period of segre­
gation was wholly disproportionate to any offense committed.
It is a " p r e c e p t  o f  j u s t i c e  t h a t  p u n i s h m e n t  f o r  c r i m e  s h o u l d  

b e  g r a d u a t e d  a n d  p r o p o r t i o n e d  to t h e  o f f e n s e . "  W e e m s  v.

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United States, 217 U.S. 349, 367 (1917). This principle 
applies to prison disciplinary punishments. in Fulwood v. 
Clemmer. the court said:

"Despite the power of prison authorities to make 
ProPe  ̂rules and regulations for the government °f prisoners, and to maintain discipline in the 
prison population, a prisoner may not be unreason­ably punished for the infraction of a rule. A 
punishment out of proportion to the violation may bring it within the bar against unreasonable 
punishments." 206 F.Supp. 370, 379 (D. D.C. 1962)

Other courts have expressed the same principle. See Jackson v.
Bishop, 404 F.2d 571, 577-78 (8th Cir. 1968); Holt v. Sarver,
309 F.Supp. 362 (E.D. Ark. 1970); United States ex rel Hancock
v. Pate, 223 F.Supp. 202, 205 (N.D. 111. 1963); Jordan v.
Fitzharris, 257 F.Supp. 674, 679 (N.D. Cal. 1966); cf. Robinson
v* •*-•‘-̂ Q--‘r.n -̂a» 370 U.S. 660, 676 (1962) (concurring opinion).

The notion of disproportionality was the basis of 
the district court's holding that Sostre's rights under the 
Eighth Amendment had been violated. it was also the basis of 
Judge Foley's holding in Wright (Mosher) v. McMann, 67 CV 174 
(N.D. N.Y. July 31, 1970), that cruel and unusual punishment 
had been imposed. Further, it was the basis of Judge Mansfield's 
decision in Carothers v. Follette. No. 3927 (S.D. N.Y. July 15, 
1970), that the deprivation of good time for writing a letter 
critical of the prison administration was unlawful. in all 
these cases, it is readily apparent that the punishment was not 
reasonably proportioned to any offense committed by the prisoner. 
The court must weigh all of the circumstances of segregation 
(discussed above at pp.25-27) against the relative insignificance

-33-



o f  t h e  o f f e n s e  (or n o n — o f f e n s e )  c o m m i t t e d .  T h e  q u e s t i o n  is 

n o t  e v e n  c l o s e .  T h e  p u n i s h m e n t  w a s  c l e a r l y  b e y o n d  p e r m i s s i b l e  

b o u n d s .

B. Section 140 of the Correction L a w  H a s  No Application To This Case.____ _______________________
Appellants' argument, that only a three-judge court 

had authority to limit segregation to 15 days, is without merit.
It should be noted that, at the time of the events in 

this case, New York prison officials were no longer using the 
authority of Section 140 of the Correction Law, which refers 
to "solitary confinement," not "punitive segregation." Al­
though both are forms of disciplinary isolation, solitary con­
finement is different in kind from segregation. In solitary 
confinement, an inmate has no communication whatever with other 
inmates; his existence is truly "solitary". Accordingly, 
Section 140 was interpreted by prison officials to authorize 
placing an inmate in a "dark cell." The conditions prevailing 
in dark cells were thoroughly explored in the trial of Wright 
v. McMann, supra. Inmates relegated to dark cells were con­
fined completely naked, in complete darkness behind a solid 
steel door, without bed, mattress, toilet, sink or furnishings 
of any kind, on a diet of bread and water and a meal every three 
days.

T h i s  b a r b a r i c  p r a c t i c e  h a s ,  f o r t u n a t e l y ,  b e e n  t e r ­

m i n a t e d  b y  N e w  Y o r k  w a r d e n s .  i n  W r i g h t , t h e  w a r d e n  t e s t i f i e d  

t h a t  t h e  d o o r s  h a d  b e e n  r e m o v e d  f r o m  th e  d a r k  c e l l s  s h o r t l y  

b e f o r e  t h e  t r i a l  o f  t h a t  a c t i o n .  in C a r o t h e r s  v. F o l l e t t e ,

-34-



s u p r a . W a r d e n  F o l l e t t e  t e s t i f i e d  t h a t  the d a r k  c e l l s  h a d  b e e n  

u s e d  o n l y  t h e  f i r s t  y e a r  h e  w a s  w a r d e n  at G r e e n  H a v e n .

In carothers. the prison officials were specifically 
asked in interrogatories "whether Section 140 of the Correction 
Law has ever been invoked with respect to plaintiff Carothers." 
The answer was unequivocally "no". John Carothers was con­
fined to punitive s e g r e g a t i o n  at G r e e n  H a v e n  during the same 
time that Martin Sostre was so confined, a n d  the conditions of 
their confinement were identical. it is, thus, apparent that 
Section 140 was not the authority used for the punitive segre­
gation of Sostre, and, therefore, has no application to this 
case. But, even if the officials can be said to have acted 
pursuant to Section 140, no three-jjdge court was required here 
because the court below did not actually hold the statute un­
constitutional or enjoin its application; it merely construed 
the law, in order to avoid a constitutional problem, by limit­
ing any segregation to 15 day s .

III.

CENSORSHIP OF INMATE CORRESPONDENCE 
AND OF POLITICAL EXPRESSION

Appellants have offered up the "shibboleth of prison 
discipline", instead of valid reasons, as justification for 
their overbroad and unnecessary interference with prisoners' 
freedom of political expression and right to communicate with

-35-



counsel a n d  o t h e r s  a n d  to p e t i t i o n  f o r  r e d r e s s  o f  g r i e v a n c e s ,

all protected by the First, Sixth, and Fourteenth Amendments.
But, as J u d g e  K e a t i n g  s e n s i b l y  s t a t e d  in h i s  d i s s e n t ,  in

Brabson v. Wilkins. 19 N.Y. 2d 433, 437 (1967):
"I believe that courts should look behind inappro­
priate slogans so often offered up as excuses for 
ignoring or abridging the constitutional rights of our citizens." id, at 440.

In the First Amendment area, the Supreme Court has 
announced two tests: the "clear and present danger" test, 
originally advocated by Justices Holmes and Brandeis in Schenk 
v. United States. 249 U.S. 47, 52 (1919), and the modification 
of this test as enunciated in Dennis v. United States. 341 U.S 
494 (1951), analyzing the need for restrictions on freedoms in 
terms of the consequences which would result if no restrictions 
existed - the employment of less burdensome alternatives to 
accomplish the desired result should be considered.

In a p p l y i n g  t h e  D e n n i s  v e r s i o n  o f  t h e  c l e a r  a n d  p r e ­

s e n t  d a n g e r  t e s t  in a p r i s o n  c o n t e x t ,  o n e  C o u r t  o f  A p p e a l s  s a i d

" [In the area of First Amendment freedoms] we have 
pointed out that stringent standards are to be applied 
to governmental restrictions .... and rigid scrutiny 
must be brought to bear on the justifications for en­
croachments on such rights. The state must show 
some substantial and controlling interest which re­
quires the subordination or limitation of these im­
portant rights, and which justifies their infringe­
ment ....; and in the absence of such compelling 
justification the State restrictions are impermissible infringements of the fundamental and preferred rights.

Moreover, in examining the justification for state infringement (in the area of First Amendment freedoms) 
the Supreme Court has recognized and declared the prin­
ciple that the means used by the State, as well as the 
ends, must be legitimate. Even the most legitimate 
of legislative ends cannot justify the infringement

-36-



of fundamental rights of individual citizens if 
these ends may be accomplished by the use of less 
restrictive alternative means which result in 
less invasion of these fundamental rights". 37/

This two-step analysis was further articulated by the 
Court of Appeals for the District of Columbia circuit in Barnett 
v. Rodgers, 410 F.2d 995 (D.C. Cir. 1969). That is, prison 
officials may not limit First Amendment activity unless there 
is a compelling state interest underlying the limitation, and 
unless there is no less restrictive way of serving that interest.

In a growing body of cases, the federal courts have 
looked behind officials' asserted justification for censorship 
of prisoners' communications, and have concluded that such res­
trictions upon constitutionally protected activity are not 
justified by any legitimate penal interest. E.g. Jackson v. 
Godwin, 400 F.2d 529 (5th Cir. 1968)(Negro prisoners held en­
titled to receive Negro newspapers and magazines); Rivers v. 
Royster, 360 F.2d 593 (4th Cir. 1966)(Negro prisoners held 
entitled to receive non-subversive Negro newspaper); United 
States ex rel. Gabor v. Myers. 237 F.Supp. 852 (E.D. Pa. 1965)
(Hungarian refugee entitled to communicate in foreign language 
through prison mail); Shakur v. McGrath, No. 69 Civ. 4493

37/ Jackson v. Godwin, 400 F.2d 529, 541 (5th Cir. 1968).
See also, Barnett v. Rodgers, 410 F.2d 995 (D.C. Cir. 
1969). In Shelton v. Tucker, 364 U.S. 479 (1960), the Court said at 488:

"Even though the governmental purpose be legitimate 
and substantial, that purpose cannot be pursued by 
means that broadly stifle fundamental personal liber­
ties when the end can be more narrowly achieved. The 
breadth of legislative abridgment must be viewed in 
the light of less drastic means of achieving the same basic purpose."

-37-



(S.D. N.Y. Dec. 31, 1969)(Black Panthers held entitled to re­
ceive Black Panther newspaper, notwithstanding the Court's 
characterization of it as a "lurid, poorly edited, and pro­
vocative political pamphlet").

In Palmigiano v. Affleck. Nos. 4296 and 4349 (D. R.I. 
Aug. 24, 1970), Judge Pettine granted a temporary restraining 
order against certain phases of prison mail censorship in the 
State of Rhode Island. in a 43 page opinion, he began with 
the statement from Coffin v. Reichard. 143 F.2d 443, 445 (6th 
Cir. 1944), that "a prisoner retains all the rights of an 
ordinary citizen except those expressly, or by necessary impli­
cation, taken from him by law", and then observed: "Implicit 
in this retention of rights concept is the need to define them 
in relation to the restrictions demanded for prison security 
and orderly administration. Opinion, at 16.

Judge Pettine recognized that the prevention of es- 
caPes# riots and assaults by inmates are legitimate goals of 
prison authorities, and that, therefore, they must be allowed 
to take all necessary steps to prevent the introduction of 
objects into the prison such as weapons and hacksaw blades; 
highly inflamatory writings advocating the violent overthrow 
of governing authorities can legitimately be screened out; and 
the mails should not be used to convey illegal materials into 
the prison such as narcotics and drugs or hard core pornography. 
However, in taking steps to prevent the introduction of such 
items into the prison, even though the purpose or end in view

-38-



is legitimate, prison officials must use means which are 
legitimate and which provide the least restrictive of the 
alternative methods of accomplishing the desired end.
Opinion, at 2 5.

Despite pronouncements in older cases that prison
officials have broad powers of censorship, Judge Pettine
found compelling justification "only for fewer restrictions
because total censorship serves no rational deterrent, rehabili-

38/tative or prison security purposes." Id., at 18.
"We argue for fewer restrictions on letter writing.
Letter writing keeps the inmate in contact with the 
outside world, helps to hold in check some of the 
morbidity and hopelessness produced by prison life 
and isolation, stimulates his more natural and human 
impulses, and otherwise may make contributions to 
better mental attitudes and reformation." Note,
The R i g h t  of Expression in Prison, 40 So. Cal. L.
Rev. 407, 418 (1967)

Judge Pettine further observed that the use of corres­
pondence control to suppress criticism of institution officials 
went beyond the legitimate role of prison authorities. He said:

38/ Judge Pettine ordered that prison officials cannot 
open or otherwise inspect letters to or from state 
or federal public officials (legislative, executive and judicial) as well as the inmate's attorney or 
other Rhode Island attorney. He further ordered 
that officials can open and inspect, but not read, 
letters from persons on a prisoner's approved mail­
ing list, and that they can open, inspect and read 
letters from all other persons in order to detect expressly defined objectionable material. Finally, 
he ordered that outgoing letters to persons other 
than public officials cannot be opened, inspected or read, except with a search warrant.

-3 9 - :



"I fail to appreciate such an attitude which 
smothers information to the public about pri­
soners and prison life —  it serves no rational 
social purpose supportive of prison objectives.
It merely serves to destroy one of the few 
vehicles prisoners have of informing the public 
about their existence —  a public which should 
know so that it can exercise its responsibility 
in a meaningful way." Opinion, at 26.
In Carothers v. Follette. No. 68 Civ. 3927 (S.D. N.Y. 

July 15, 1970), Judge Mansfield, in ruling that prisoner corres­
pondence with the Court cannot even be opened and that a letter 
to an inmate's parents could not be withheld, stated:

" [A]ny prison regulation or practice which re­
stricts the right of free expression that a 
prisoner would have enjoyed if he had not been 
imprisoned must be related both reasonably . . . 
and necessarily . . .  to the advancement of 
some justifiable purpose of imprisonment. . . .
[I]f the state had given some explanation . . . 
that indicated the action was reasonably and 
necessarily related to prison security or the 
prisoner's rehabilitation, we would be reluc­
tant to interfere with its internal administra­
tion and regulations. . . .  It can hardly be contended that plaintiff's comments intended 
for his parents would threaten prison security, 
much less present a clear and present danger to 
the discipline of the prison." .Id., at 18, 19- 
20 .
The right to communicate freely with one's lawyer is 

also protected by the Sixth and Fourteenth Amendments. Any at­
torney who has received prisoner letters couched in euphemistic 
terms knows of the deterrent effect that prison mail censorship 
has upon free communication. Since visitation conferences at the 
prison are confidential and, therefore, allow for transmission of

-40-



all kinds of messages, it is difficult to understand why reading
of mail communications with counsel is either necessary or serves
any legitimate purpose. Judge Foley stated, in Wright v. McMann.
No. 66 CV 77 (N.D. N.Y. July 31, 1970):

"As Judge Motley did, I adopt the view of Judge 
Keating (dissenting in Brabson v. Wilkins, supra).
There is no support for the fears that unhampered 
lawyer-prisoner correspondence may endanger sec­
urity." Id.., at 30-31.
Appellants have wholly failed to demonstrate any com­

pelling justification for interfering with Sostre's exercise of 
his First Amendment rights. No clear and present danger to the 
institution by Sostre's actions has been shown. Specifically, 
there is no evidence that Sostre was in fact organizing an insur­
rection, disseminating his "inflammatory writings," or inciting 
others to violence. Compare. Wallace v. Brewer. 39 U.S.L.Week 
2002 (M.D. Ala. June 9, 1970) (3-judge court). Instead, appellants 
fall back upon tired threats and slogans which add heat, but no 
light, to the issues at bar.

IV.
RESTORATION OF GOOD TIME

Appellants contend, without stating any reasons, that 
the district court improperly ordered appellants to restore the 
good time credit which appellee was unable to earn because of pun­
itive segregation (appellants' brief, pp. 35-36). This contention

-41-



is wholly without merit. Indeed, it would plainly have been error 
for the district court to have denied such relief since it found 
that confinement to segregation was itself unconstitutional. The 
remedy was required to make the inmate whole insofar as this can 
be accomplished by the law.

The restoration of "good time" credits has been required 
by federal district courts in New York in a number of recent deci­
sions. See Carothers v. Follette. supra; Mosher v. LaVallee. supra; 
Kritsky v. McGinnis. No. 69-CV-276 (N.D. N.Y. June 12, 1970); 
Rodriquez v. McGinnis. 307 F.Supp. 627 (N.D. N.Y. 1969); see also
Ayers v. Ciccone, 303 F.Supp. 637 (W.D. Mo. 1969). Appellants have
suggested no reasons for overturning the effect of these decisions. 
Since good time credit was wrongfully taken from the inmate, famil­
iar principles of equitable relief require simply that it be re­
stored .

v .
REQUIRING PROMULGATION OF NEW RULES AND REGULATIONS WAS A PERMISSIBLE AND 

DESIRABLE EQUITABLE TECHNIQUE______

Appellants have quarreled with the district court's re­
quirement tha t they promulgate new rules and regulations govern­
ing matters which have formerly been within their unfettered dis­
cretion that the district court found had been abused. But

-42-



similar injunctive provisions have been required in may prison 
cases. For example, federal courts have ordered prison officials 
to promulgate new regulations governing inmate legal assistance^/ 
and religious exercise.^ Federal courts have also required the 
submission of comprehensive plans to bring about racial integration

41/in prisons.—  And m  an Arkansas case, where the entire prison 
system was held to be unconstitutional, the court required a com­
prehensive plan for remedying the deficiencies of the system.-^/

In short, federal district courts are armed with ample 
equitable power to remedy the constitutional defects in question.
In this case, requiring the submission of new rules and regulations 
seems to us entirely appropriate and well within the discretion of 
a trial judge.

Appellants argue that since this was not formally desig­
nated a class action under Rule 23, it was improper to require any 
relief going beyond that required for the individual plaintiff. 
Appellants fail to recognize, however, that a single inmate cannot 
be preferred in matters of prison discipline and that disciplinary

39/ See Gilmore v. Lynch. No. 45878 (N.D. Cal. May 28, 1970) (3-judge court).
40/ See SaMarion v. McGinnis. 253 F.Supp. 738, 741 (N.D. N.Y. 

1966); Sostre v. McGinnis. 334 F.2d 906 (2d Cir. 1964).
41/ See Washington v. Lee. 263 F.Supp. 327 (M.D. Ala. 1966),

'd 390 U.S. 333 (1968); Crum v. State Training School for Girls. 413 F.2d 1348 (5th Cir. 1969).
42/ See Holt v. Sarver. 309 F.Supp. 362 (E.D. Ark. 1970).

-43-



rules of necessity must apply across the board to all inmates. Even 
though not formally designated a class action, the necessary effect 
of a ruling in this case is that all similarly situated inmates will 
be treated alike. This was explicitly recognized by the Eighth 
Circuit in Jackson v. Bishop. 404 F.2d 571 (8th Cir. 1968), which 
treated the case as a class action although it was not brought as 
such. Similarly, in Gilmore v. Lynch, supra, the court directed the 
promulgation of new rules and regulations even though that case, 
too, was not brought as a class action. The courts in Wright v. 
McMann, supra, and Carothers v. Follette. supra, did likewise.

CONCLUSION

The judgment of the district court should be affirmed.
Respectfully submitted,

JACK GREENBERG 
STANLEY A. BASS

10 Columbus Circle Suite 2030
New York, New York 10019

WILLIAM BENNETT TURNER 
1095 Market Street Room 418
San Francisco, California 94103 

Attorneys for Amici Curiae 
September, 1970

-44-



/f/^A/>\X /V

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK
______________________________________________

UNITED STATES OF AMERICA ex rel :
ROBERT MOSHER, 67-Civ-174

-vs-
HON. J. EDWIN LA VALLEE, Warden of 
Clinton Prison, Dannemora, N.Y., :

Defend a n t .  :
______________________ ■____ ___ x

• DECREE

This action having come on for trial before the Court, 
sitting without a jury, and the issues having been duly tried 
and decision rendered on July 31, 1970, it is hereby:

ORDERED, ADJUDGED and DECREED as follows:
I . I n j u n c t i v e  R e l i e f

Defendant, his agents, employees, successors and 
all others under his control or acting in concert with him, 
are hereby enjoined as follows:

A. D i s c i p l i n a r y  P r o c e d u r e s

1. Defendant shall not confine plaintiff to 
punitive segregation or subject him to any other punishment as 
a result of which he may lose accrued "good time" credit or be 
unable to earn "good time" credit without affording him at least
the following rights:

(a) Adequate prior notice of the
charge against him and the possibility that 
he may be sent to segregation or lose good time.

(b) Fair hearing procedures, including 
the right to appropriate representation, to present 
his version of the facts, to challenge the facts 
constituting the charge, to call witnesses where 
the facts are disputed and to have an adequate 
record made of the proceedings.

(c) Where the decision is made to send
i
| plaintiff to segregation, an ir,determinate sentence



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shall not be imposed but plaintiff shall be told 
the exact length of his term; in addition, the 
reasons for such decision shall be recorded, 
and the decision shall be reviewed by the Warden 
before it becomes final. A regular and formal 
means cf administrative appeal shall be provided 

i from the decisions of the disciplinary board and
the Warden.

2. Defendant shall promulgate and act in 
accordance with reasonable rules and regulations governing 
prison disciplinary proceedings. Defendant shall submit pro­
posed rules and regulations to the Court and counsel for 
plaintiff at the same time as the Department of Correction sub­
mits such rules and regulations to the District Court for the 
Southern District of New York in Sostre v. Rockefeller. 68 Civ. 
4058. Plaintiff's attorney shall have 10 days thereafter to 
submit and serve objections, if any, to the rules and regulation?; 
If objections are presented, they may be considered at a hearing 
to be fixed by the Court.

B . R e s t o r a t i o n  o f  G o o d  Time

Defendant shall forthwith restore to plaintiff 
616 days of good time, comprising 440 days of accrued good time 
taken from plaintiff in disciplinary proceedings during confine­
ments to punitive segregation in 1967 and 1968 and 176 days 
which plaintiff was barred from earning because of such confine­
ments.

C. Observation Cells
1. Plaintiff shall not be confined in any 

psychiatric observation cell for disciplinary purposes or 
without psychiatric justification.

2. Defendant shall promulgate and act in 
accordance with reasonable rules and regulations governing 
(a) the conditions which prevail in psychiatric observation 
cells and (b) the procedures used in determining whether to 
confine an inmate ir. such a cell. Defendant shall submit 
proposed rules and regulations to the Court and counsel for

I



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plaintiff within 30 days after the entry of this decree. 
Plaintiff's attorney shall have 10 days thereafter to submit 
and serve objections, if any, to the rules and regulations. If 
objections are presented, they may be considered at a hearing to 
be fixed by the Court.

censor or interfere in any way with any correspondence between 
plaintiff and his attorney.

advice or assistance to each other. Defendant may, however, 
promulgate reasonable rules and regulations governing the 
time, place and manner of rendering legal assistance among 
inmates.

II. Costs and Expenses
The costs of this action shall be borne by defendant.

The costs shall include (a) the costs of the depositions intro­
duced in evidence, (b) the traveling expenses and reasonable 
fees of the two expert witnesses who testified on behalf of 
plaintiff, and (c) the reasonable traveling expenses of 
appointed counsel for the purpose of taking depositions and 
attending the trial. The parties are directed to attempt to 
agree on the amount of such costs; application to the Court may 
be made if agreement cannot be reached.

III. Retention of Jurisdiction
The Court retains jurisdiction of the case for the 

purpose of supervising compliance with this decree.

E. Inmate Legal Assistance -
Defendant shall permit inmates to render legal

Approved as to form:

LOUIS J. LEFKOWITZ, Attorney General
by Timothy F. O'Brien 

.Attorney for Defendant

WILLIAM BENNETT TURNER 
Attorney for Plaintiff - 3

b •’



(
*
f

_ ____ ____________;__ _____