Stateville- the Penitentiary in Mass Society

by James B Jacobs

  The establishment of the federal government’s Law Enforcement Assistance Administration, the concomitant growth in federal grants to state criminal justice agencies, and the great increase in state government itself have drawn the prison into a much more complicated organizational environment. Federal and state agencies issue guidelines that increase paper work and contribute to bureaucratization. In addition, they offer disgruntled employees a forum in which to air their grievances against the administrative elite.

  Chicago’s minority community had an important indirect effect upon prison decision makers after 1970. A greater concern for the rights and sensibilities of minorities is apparent in the administration of the prisons as in other areas of local, state, and federal government. While no prisoner or prison interest groups played a crucial role in lobbying for or drafting correctional policy, some of these groups served a watchdog function and were not hesitant to communicate to the press and to the public decisions and events within the prison system which they regarded as abuses.

  The press itself has become increasingly professionalized and more detached in its coverage of the prison. None of the recent wardens enjoys the kind of particularistic relationships with key reporters that Warden Ragen shared with Finstone, Erickson, and others. A new variable has entered the prison equation in the form of a radical press, which has been given access to prisoner audiences by the courts and which explicitly aims to politicize the prisoners.

  Intrusion of Juridical Norms

  While the impact of the federal courts on the prison has been profound, the means by which this impact has been made are subtle and indirect. It has been the threat of lawsuits, the dislike for court appearances, the fear of personal liability, and the requirement of rational rules rather than revolutionary judicial decisions that have led to the greatest change in the Stateville organization. While the precise holdings of the court decisions have often been quite modest and even conservative, the indirect ramifications of judicial intervention into the prison have been far-reaching.

  The Seventh Circuit Court of Appeals ruling in the Cooper case held that Muslim inmates could not be denied access to their religious literature, more precisely to their Bible, the Holy Quran. The court also held that, where security made it feasible, the Muslims, like other inmates, should be allowed to attend religious services. There would seem to be nothing in this rather cautious decision that might increase the probability of escape or of injury to inmates or staff. But the staff believed that by “giving” Muslims these rights, the courts were only encouraging broader expressions of protest.

  Since the Cooper case, and extending at least up to the Brierton administration, the Stateville elite defined the courts as the single greatest obstacle to “running the institution.” Almost any discussion with administrators or top guards elicits the same invectives against the courts, which are said to be “for the criminal,” “naive,” “unsympathetic,” and “ignorant” of the unique problems of administration in a maximum security prison. The Cooper decision was resisted because it was perceived as an intrusion into what had been the absolute prerogatives of the organizational elite. The administration implemented the decision in its very narrowest form, thereby necessitating years more litigation on related issues of the right of Muslims to Muhammad Speaks, religious medallions, and pork-free diets.

  In 1969 the U.S. Supreme Court held in Johnson v. Avery4 that inmates in prison had a right of access to jailhouse lawyers if they did not have adequate legal representation. The Stateville administration characteristically did not move to implement the spirit of the decision but sought to walk the fine line of minimum compliance. The administration did not, for example, assign the most skilled jailhouse lawyers full time to the library in order to be available on a regular basis to assist fellow prisoners, but only interpreted the decision to mean that if a jailhouse lawyer did (somehow) legitimately obtain possession of another inmate’s legal papers he would not be punished. Sometimes counselors were able to move legal papers from one inmate to another. At other times the inmates themselves exchanged them on an assignment, on the yard, or at the library. But the process of passing legal materials from inmate-client to jailhouse lawyers was never formalized; papers continued to be seized in shakedowns or “lost” or “misplaced.”

  In 1971 the Seventh Circuit delivered its historic decision in Adams v. Pate,5 which considered several inmates’ complaints against the Pate and Twomey administrations. Adams alleged that he was beaten by inmate nurses in the detention hospital (a frequent allegation over the years) on the orders of guards, and that he had not been afforded constitutionally required due process in being disciplined and placed in segregation.

  As for the alleged beating, the court held that the warden would not be responsible unless he could be shown to have directly ordered the beating. The court then reviewed the Stateville disciplinary procedure, whereby (at the time) the inmate was summoned to the captains’ office, informed by the disciplinary captain of the alleged rule violation, and given a chance to explain. The court, for the first time, recognized that some type of due process was applicable in disciplinary hearings, and then proceeded to find the existing procedure constitutionally adequate to meet all the process that was due. At a time when prison administrators were decrying judicial meddling, this decision reflected the great hesitancy of the federal courts (at least in the Seventh Circuit) to interfere.

  Inmate Miller alleged in his complaint, consolidated with Adams’s on appeal, that the deplorable conditions in the Stateville isolation cells amounted to cruel and unusual punishment. The Seventh Circuit court did not agree.

  With respect to the claim that the disciplinary confinements constituted cruel and unusual punishment in violation of the 8th Amendment Miller makes a general conclusory allegation that the cells were in an “inhuman, filthy and foul condition. . . .” While these alleged cell conditions undoubtedly would make confinement in such quarters unpleasant, they do not constitute conditions “so foul, so inhumane and so violative of basic concepts of decency” to fall within the proscriptions of the 8th Amendment.6

  The punishment cells which the Seventh Circuit held not to be violative of the Eighth Amendment sometimes held six or eight prisoners lying head to foot in a stifling closed cell containing a single sink and commode. Even to a passing outsider the stench from the sweating bodies was sickening. For a prisoner unlucky enough to be placed in such conditions of confinement with members of an opposing street gang, the punishment was multiplied. It was in the very cells used to maintain discipline at Stateville that some of the worst sexual assaults and other aggressive acts of violence were perpetrated. The Adams decision could certainly not be seen as an indication of strong judicial concern for the rights and dignity of the prisoners.

  No decision made by Bensinger was more fateful than the construction of the Special Program Unit (SPU) in one of the remodeled cell houses at the old Joliet prison. As early as 1969, Frank Pate was arguing that something had to be done to meet the expanding threat to security posed by the Chicago street gangs. Listed first among “top priorities” in John Twomey’s 1970 five-year plan for the Department of Corrections was a “maximum treatment-maximum security” unit to accommodate “a relatively small but highly visible and significant element which is extremely disruptive, difficult to control, and seriously threatening to the welfare of our institutions.”7

  In the summer of 1971, Bensinger was sharply criticized by the black and liberal communities because of the dragnet which was carried out at Stateville following the July 1971 ball diamond “riot.” More than one hundred alleged troublemakers were placed indefinitely on lockup in B house. SPU appeared to be a simultaneous answer to liberal criticism and conservative fear. In principle, SPU was supported by both Karl Menninger and Norval Morris, who believed that hard-core prison troublemakers could be humanely dealt with in a small treatment-intensive unit. Menninger was hired as a special consultant to the unit.

  SPU
had something for everyone; for the advocates of the individual treatment model and for liberal critics of the Department of Corrections, there was the three-tiered rudimentary behavior-modification plan and the promise of “treatment.”

  The general purpose of the Unit will be to attempt through intensive therapeutic application, to assist the individuals assigned to acquire the necessary motivation and desire essential for integration into the general prison population. Personnel assigned to the Special Program Unit will have the responsibility to create a therapeutic climate conducive to innovational diagnostic-treatment-program concepts.8

  SPU also promised an answer to the breakdown of order at Stateville and the old prison. It boasted intensified security measures like mesh grating over the bars, strip cells, a mobile iron cage which permitted guards to enter tiers without being vulnerable to attack, and even specially produced ballpoint pens. All this indicated a high level of anticipation of extreme violence. In the same manual from which the previous idealistic statement of purpose was taken, it was said:

  Such [a therapeutic] objective is not intended to imply that the Department of Corrections and its administrators are so naive as to assume that the program, no matter how well conceived or carried out, will be successful in changing behavior patterns of all or even a majority of the recalcitrant inmates assigned; however, it does clearly establish that creating the climate for positive behavioral change is our goal—not punitive practices and a pure “lock-up” philosophy—and this accountability for negative behavior becomes clearly the responsibility of the inmates assigned, as it must if we are to be able to defend correctional practices in this decade.9

  The therapeutic potential of the unit was never realized. Inmates were determined to resist the institution from the beginning. Assignment to SPU itself became a status symbol among some gang members. They tore down the wire mesh and the heavier bars which replaced it, broke up their cells, and used porcelain fragments from the sink and commode for missiles and fluorescent light tubes as spears. They threw feces and urine on guards and on Dr. Menninger himself. After several months, a great deal of solidarity among the gangs was achieved. Guards and those few inmates helping to run the unit were constantly harassed. In their massive resistance to SPU, the inmates were encouraged by a class action, Armstrong v. Bensinger, brought by the American Civil Liberties Union challenging the constitutionality of the unit.10

  The federal district court in Armstrong v. Bensinger held on 13 June 1972 that placement in SPU could not be justified on therapeutic grounds. Since SPU was a punitive disposition, assignment there required due process safeguards.11 But Judge William Bauer refused to declare that SPU itself constituted cruel and unusual punishment and further refused to accept the plaintiffs’ contention that they should be extended broader due process rights than were found satisfactory in Adams v. Pate. Specifically the plaintiffs had asked for (a) prior notice of the charges against the prisoner, (b) a recorded hearing before an impartial arbiter with an opportunity to cross-examine adverse witnesses, (c) the right to retain counsel or counsel substitute, (d) a decision rendered in writing, and (e) an opportunity to appeal.12 In citing the dicta in Adams, the court reiterated the judicial reluctance to question substantive judgments of prison administrators: “It is well established in this circuit and in others, that but for exceptional circumstances, internal matters of a correctional system, such as administration and discipline are the sole concern of the states.”

  The high-water mark in the success of prisoner suits in the Seventh Circuit was reached the next year. In Miller v. Twomey13 the Seventh Circuit considered the impact of the U.S. Supreme Court’s holding in Morrissey v. Brewer14 on the extent to which “prison officials are vested with wide discretion in controlling persons committed to their custody.” Here for the first time in the Seventh Circuit there was a lofty judicial pronouncement on a new relationship between prisoners and their captors.

  In view of the fact that physical confinement is merely one species of legal custody we are persuaded that Morrissey actually portends a more basic conceptual holding: Liberty protected by the due process clause may indeed, must to some extent—coexist with legal custody pursuant to conviction. The deprivation of liberty following an adjudication of guilt is partial, not total. A residuum of constitutionally protected rights remained. As we noted in Morales v. Schmidt the view once held that an inmate is a mere slave is now totally rejected. . . . Liberty and custody are not mutually exclusive concepts.15

  Even the Miller court was careful to point out, however, that “Morrissey reminds us that due process is a flexible concept which takes into account the importance of the interests of state.” It went on to hold that when charged with a rule violation that might lead to a “grievous loss,” an inmate was entitled to some due process but not as much as the parolee facing revocation.

  The prisoner must receive adequate advance written notice of the charges against him, he must be afforded a fair opportunity to explain his version of the incident, and, to insure a degree of impartiality the factual determination must be made by a person or persons other than the officer who reported the infraction.16

  This prescription of a limited and circumscribed due process in prison discipline cases was later held by a cautious U.S. Supreme Court to be all that is required by the United States Constitution. In Wolff v. McDonell17 the Court ruled that at prison disciplinary hearings there must be: (a) written notice of the charges no less than twenty-four hours before appearance before the disciplinary tribunal, (b) a written statement by the fact finders as to the evidence relied on and the reasons for the disciplinary action, (c) the opportunity to call witnesses and to present documentary evidence “when permitting him [the prisoner] to do so will not be unduly hazardous to institutional safety or correctional goals,” and (d) some assistance from an inmate or staff member where the inmate is illiterate. The U.S. Supreme Court, like the Seventh Circuit Court of Appeals, refused to apply the full Morrissey safeguards.

  Definition of due process in issues of prison discipline has been further sharpened in the latest Seventh Circuit decision arising out of a Stateville case, Labatt v. Twomey.18 In Labatt the court held that the civil rights of the inmates were not violated by the two-month lockup following the ball diamond incident. The court said, “In situations such as the present, where prison authorities are allegedly reacting to emergency situations in an effort to preserve the safety and integrity of the institution, the state’s interest in decisive action clearly outweighs the inmates’ interest in prior procedural safeguards.” However, the court seemed to suggest that had the lockup been more prolonged some sort of disciplinary hearing would need to be afforded.19

  A similar decision emerged out of the lockup of some 300 inmates following the September 1973 takeover of B house. In Murphy v. Wheaton20 it was held that the actions of the Stateville authorities in keeping petitioner Murphy in segregation without any hearing whatever for eighty-seven days did not violate the due process clause, at least in the aftermath of such an extraordinary event as a riot. Judge Herbert Will refused, however, summarily to reject the prisoner’s contention that when he finally did receive his hearing before the disciplinary committee he should have been allowed to call witnesses to attest to his innocence. The case did not go so far as to say that the prisoner has an absolute right to call witnesses on his behalf, but there is a presumption in favor of such a practice, and it cannot be denied for arbitrary and capricious reasons. Finally, the court held that the prisoner should be given the opportunity to offer proof as to whether the conditions in B house segregation following the riot degenerated to the point where they offended the Eighth Amendment.

  This brief review of the major prisoners’ rights cases in the Seventh Circuit provides little support for the proposition that revolutionary court decisions have made it impossible to administer the prisons. On the contrary, the court decisions in the Seventh Circuit have consistently shown great deference to prison admi
nistrators, typically requiring no more than the demonstration of a rational decision-making process.

  Where the federal courts have rebuked administrative practices and established new standards, there has sometimes been little change in the old ways. Court decisions do not enforce themselves. Orders must be framed, and an attorney of one of the parties of record must go back to court to ask for enforcement of decisions which have not been correctly implemented. This cannot be done when the original plaintiff has already been paroled or where no continuing relationship with counsel exists. Even when orders have been obtained, they have been difficult to frame so as to cover the multiplicity of contingencies that can and do arise.

  There are limits to the capacity of the courts to police decision making inside the prison. Wright v. Twomey21 suggests what is certain to be the most effective remedy devised by the courts for supervising administrative action-personal damages under section 1983 of the Civil Rights Act. Inmate Wright first sued the prison for providing improper medical services when he was in isolation. Judge Will dismissed the case as not amounting to a constitutional deprivation of right on the assurance of Warden Twomey that Wright could and would be provided adequate medical attention if a similar situation arose again. Two weeks later Wright was alleged to have been in a fight and was again disciplined and again placed in disciplinary lockup, and again he was not provided with the special diet required by his medical condition. Consequently he alleged severe medical and physical ramifications of this (mis)treatment.