Stateville- the Penitentiary in Mass Society
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The district court found that the denial of proper medical treatment amounted to deprivation of a constitutional right and assessed $500 damages against Twomey, one counselor, and two guards. The Seventh Circuit affirmed the district court’s award. The U.S. Supreme Court declined to hear the case by dismissing the state of Illinois’s motion for a writ of certiorari. It was the first time money damages had been successfully won against Stateville staff members, and the decision contributed significantly to a feeling among the top custodial officers that they would be financially ruined for trying to do their jobs.
Where decisions have been implemented, their impact has often been blunted. For example, contrary to the opinion of prison administrators that the courts have destroyed discipline, there is strong evidence at Stateville22 and elsewhere23 that the court decisions affecting prison discipline have had little effect on the number of inmates serving isolation and segregation time. The average daily number of prisoners in isolation jumped from thirty to fifty-two between 1967 and 1969 (see table 10).24 From 1970 to 1975 the average number of inmates in isolation was forty as compared with thirty-five for the years 1944–69. On the average, no more than 1.29 percent of the inmate population had ever been in isolation before 1969, when the percentage increased to 2.06 percent. In 1973 it rose to 2.69 percent. (In 1975 isolation was abolished. Serious disciplinary cases are now all handled in segregation in B house.)
A similar pattern is shown for segregation, the designation given to those cells in the isolation building that are assigned to the most severe disciplinary problems, individuals who allegedly cannot be allowed in the general population without jeopardizing the safety and security of the institution. The highest average number of inmates ever assigned to segregation was forty in 1960 until a record high of forty-eight was reached in 1969. The number has declined since 1969, but this does not necessarily mean that there are fewer inmates in conditions of special confinement. The segregation unit that served to confine Stateville’s troublemakers for four decades was found to be inadequate by the 1970s. First B house and then SPU were used for segregation. Beginning in 1969 there has been a greater percentage of the inmate population in segregation than in any previous year, even without taking into account the special segregation in B house and SPU which have consistently contained well over one hundred inmates between them.
The Stateville detention hospital has always served a dual purpose. It is a bona fide placement for inmates who suffer mental breakdowns. But it has also served as a residual segregation unit when the other cells were full or when, for one reason or another, it was thought necessary to give special treatment to a particular case. Both inmates and guards concur that the detention hospital has witnessed many confrontations between guards and violent inmates over the years, especially between 1969 and 1973 (see table 10).
Considering the average number of days served by inmates in isolation between 1946 and 1972, we also find that time so served in 1970 and 1972 is slightly higher than in other years (see table 11). Taken together, the statistics for twenty-four-hour confinement support the proposition that the court decisions have not prevented the administration from exercising control through traditional punishment mechanisms.
It might be hypothesized that while there were fewer inmates in special conditions for confinement from 1970 to 1974, they were being punished for more serious offenses. If this were true, it might indicate that the court decisions had the effect of forcing the prison staff to bring disciplinary charges only in cases of serious infractions. This does not, however, appear to have happened. Surveying isolation records to find the offenses for which inmates are serving time in isolation we find that the proportion of serious offenses (“Direct Challenges to Authority” and “Crimes against Prison Inmates”) has remained constant over time, at least between 1946 and 1970 (see table 12).25 Unfortunately, comparative data were not available for years after 1970.
A greater number and percentage of inmates are in special disciplinary confinement today than ever before. This can be explained by the fact that the same individuals continued to make the substantive disciplinary decisions. That the guard who writes the ticket is now barred from the decision-making function is hardly a decisive turn of events when his superior is the decisionmaker. The old disciplinary captain at Stateville became chairman of the new disciplinary committee in 1970, and one of his subordinates, a guard officer, was a second member of the committee. While the counselors had the third seat on the committee and were, at least until 1973, a somewhat dissenting voice, the crushing of their revolt and the pressure on their minority position brought them reluctantly into line.
The prison administrators found ways to “get around” the clear meaning, if not the letter, of the court decisions. Instead of being brought to a hearing within seventy-two hours of the alleged infraction, an inmate might be brought before the committee and “continued,” while being placed in “investigation” or “the reclamation gallery” or in some other form of sequestration not called segregation but equivalent to it.
Often inmates were not given written notice of the alleged infraction within the twenty-four-hour period. They were placed in isolation or segregation anyway. By the time the case was brought to court, it would be stale, and the factual dispute as to whether the inmate had actually received notice would be essentially unresolvable. The manner in which the Cannon administration “broke” the commissary boycott (discussed in chapter 6) by throwing the gang leaders in segregation without any hearings is a perfect case in point.26
While the courts might be able to impose a form of decision making on the prison, they are not in a position to overturn substantive decisions. The federal courts are totally unable to sort out who was lying in an old factual dispute or to question whether the substantive judgment of the prison officials, in instituting a lockup, was correct. By necessity the courts must assume the good faith of the administration. Therefore, unless the administration itself acts in good faith and assumes a responsibility to supervise the fairness of the process, inmates are essentially little better off than before, and without a remedy unless, of course, the administration completely fails to follow the required procedures.
The few reported federal court decisions discussed above give little indication of the degree to which the prison has become a legal battleground. We saw in chapter 2 that Ragen was called upon to defend approximately one lawsuit a year against him.27 In 1969 alone, sixty-six lawsuits were brought against Stateville administrators. The figure had doubled by 1971 and has held constant since that year.28 The head of the Prisoner Litigation Bureau of the Attorney General’s Office estimates that between 50 and 60 percent of the prisoner cases are thrown out on summary judgment, 15–20 percent are disposed of by settlement or by mootness, and 20 percent proceed to trial or hearing.29 Thus, not only has there been an explosion in the number of prisoner lawsuits, but more stringent rules on granting summary judgment and more liberalized rules on the consideration to be afforded pro se complaints have greatly increased the number of lawsuits reaching the discovery and trial stages. Each lawsuit that survives summary judgment may lead to broad requests for discovery, including searches of prison records, interrogatories, depositions, and affidavits. This has placed a tremendous strain on Stateville’s administrative resources.
Under the administrations of Pate, Twomey, and Cannon the organization did not meet the demands of the courts for formal rationality. This was partly due to, and partly reflected by, the absence of structural adaptations to the necessity of managing new challenges at the organization’s boundaries. Stateville has never had a lawyer on the staff, despite the fact that the prison has become a legal battleground. The chief clerk in the record office continues to prepare all interrogatories and affidavits. No file exists containing all the court decisions, much less consent decrees and court orders. The court decisions are poorly and inaccurately disseminated to the staff, even at the top levels. The litigation itself is handled by
various assistant attorneys general, mostly inexperienced lawyers with little feeling for prison organization. The Prison Litigation Bureau (of the Illinois Attorney General’s office), with eight part-time staff attorneys, has been in existence only since the summer of 1974.
The prevailing Stateville administrative belief that prison administration cannot be rationalized may have cost Warden Cannon his job. Failure to deliver to inmate subscribers the September 1973 issue of On Ice, published by the politically radical Chicago Connections, resulted in a $90 fine against Sielaff, Cannon, and the Stateville librarian. At issue was the failure of the Cannon administration to follow a court procedure regarding the censorship of incoming periodicals. An earlier case in federal court had been decided in favor of the admissibility of this same radical newspaper into the prison. Yet Cannon and other administrators (claiming that they were unaware of the court decision) summarily refused to allow distribution of the September issue, and neither informed the addressees and publishers nor submitted the issue to the literary committee responsible for censorship decisions. The Chicago Connections’ lawyers proceeded to bring the officials to court on a show cause order to determine why the Department of Corrections’ officials should not be held in contempt. The judge ordered the defendants to reimburse the plaintiffs for mailing costs.
The greatest impact of the court decisions on Stateville has come from the legal process itself. The decision makers don’t like to be sued, hate going to court, and fear personal liability.30 They feel that attorneys and inmates harass them with lawsuits and incessant demands for depositions and interrogatories.
The indirect consequences of the intrusion of juridical norms into the prison have been more significant than the few substantive holdings which have resulted from the many years of litigation. Seemingly unimportant court decisions pertaining to medallions, Qurans, and radical newspapers have given legitimacy to inmate protest against authoritarian rule. The Ragen system ultimately depended upon total suppression and total submission. The expression of inmate frustrations in terms of classic constitutional issues provided the ideological basis for a frontal attack upon the entire regime.
Adams, Miller, and Wolff (discussed earlier in this chapter) struck at the very heart of the authoritarian system, not because it was impossible to go through the form of a hearing and then throw inmates into segregation, but because they called into question the basis of authority itself. More than this, the battles before the courts exposed the deficiencies and limitations of the prison’s leaders and undermined the charismatic quality of their leadership.
Wardens Ragen and Pate had great difficulty articulating the bases for their decisions. Many of their actions were grounded in the tradition of overwhelming the inmate with their power and authority. An important source of Ragen’s political autonomy was his definition of the prison as a unique institution. The indirect consequence of the prisoner litigation was to further demystify the prison through the intrusion of the everyday rule of law.
The administrations of wardens Twomey and Cannon were no better able to respond to the demands of the courts for rationalization of the decision-making process. In this chapter it should become more clear that the halting attempts to implement the rehabilitative ideal at Stateville was not an explicit move toward greater bureaucratization. What bureaucratization there was during this period came from written rules emanating from the central office. Twomey and Cannon believed in “changing the tone,” “improving communication,” and “increasing respect.” Their regimes and the rehabilitative ideal which they embodied were no more rationalized than the Ragen-Pate organization. Both Twomey and Cannon became as disenchanted with the courts as the old Ragenites.
Lacking a strategy for simultaneously liberalizing the rules, maintaining control and following universalistic standards, the Twomey and Cannon administrations went from lawsuit to lawsuit and from crisis to crisis.31 The question for the future is whether Warden Brierton’s corporate model of management will enable him to consolidate reforms and maintain control under the rule of law. Brierton has moved swiftly toward creating a rational-legal bureaucracy. There will no longer be a question, for example, as to the validity of an inmate’s claim that he has not had a shower in two weeks or seen a counselor in two months. Showers are documented in writing. Counselors must keep a log of every contact with inmates and the actions they took with respect to their requests.
The limits to bureaucratization are obvious. Already there are daily hearings on discipline, literature, good time forfeiture, grievances, and appeals. On the horizon is the possibility of hearings and appeals on institutional and cell transfer and job assignment. The hearings themselves become more time-consuming and complex as due process safeguards (cross-examination, witnesses, transcripts) are added one by one. Each new decision for which a hearing is required generates more lawsuits, interrogatories, depositions, court testimony, and appeals. The limit to this process is marked by complete organizational paralysis.
Prison Legal Services
The proliferation of prisoners’ rights litigation has generated a continuous flow of attorneys into the prison. The sign-in records from the gatehouse through which visitors must pass show that average visits of attorneys between 1968 and 1974 have risen from 1.3 to 2.4 per day.32 Where the inmates are represented by counsel we can expect that demands for discovery are likely to be more frequent and more extensive, further burdening administrative resources.
Representation in prisoners’ suits has come from individual lawyers and legal groups representing different segments of the legal community. The establishment law firm of Jenner and Block, for example, has had a long tradition of accepting assignment of prison cases by the courts. It was the counsel for the plaintiff in Adams v. Pate, Thomas v. Pate and several of the other major cases over the years. The firm reportedly receives several hundred direct requests for assistance per year from state prisoners.33 Radical or “movement” lawyers like Jeffrey Haas and Mark Kadish, working out of the People’s Law Office and the Lawyers Guild, have participated in several important prisoners’ rights cases (Armstrong v. Bensinger and Miller v. Twomey). But, limited as they are by lack of resources and burdened by the tremendous demand for legal services among many segments of the poor, the impact of the radical lawyers upon the prison has been sporadic.
By far the most important outside legal group touching Stateville is Prison Legal Services (PLS).34 The history and development of this project illuminates the articulation of the public-interest legal community, government funding agencies, and the prison.
Prison Legal Services was begun in 1971 by three public-interest lawyers who were involved in both consumer law and prisoners’ civil litigation. Unable to support their activities from their fee-generating cases, they incorporated a not-for-profit corporation, Foundation for the New Business Ethic, and solicited contributions from the mainstream business community and the Department of Corrections, which first granted the foundation $17,000 in July 1972.
The three lawyers were only able to visit Stateville once or twice a month. In July 1972 they counseled only fourteen inmate clients. In August they hired Keith Davis, a Lutheran minister and former community organizer, to administer and develop the program. Between August 1972 and June 1973, Prison Legal Services had no full-time staff attorneys, although it operated closely with the three public-interest lawyers and several volunteers. Funding came from ninety-day grants from the Illinois Law Enforcement Commission, on which Bensinger sat as a director. The director of ILEC, David Fogel, who had sponsored a similar group of prison advocates when he was director of corrections in Minnesota, continued the grants, maintaining that it was healthy for prison administrators to be sued.
While Prison Legal Services had seen fourteen inmates in July 1972, by September 1972 it was seeing 130–140 inmates per month. Part of this increase is explained by a calculated strategy to become indispensable. “If you cease funding us, what would you like us to do with the 800 open
cases we have?” In June 1973 the first full-time staff attorney was hired. By the fall of 1974, PLS was the largest prison law project in the United States, with seven full-time attorneys and a staff of forty-seven paid employees (some part-time).
Originally PLS sold itself to Bensinger and the prison authorities as a civil legal-aid group which would handle divorces, debts, estates, and other noncriminal and non-prison-related problems. It soon became apparent that a substantial part of the civil legal aid would be civil rights class actions, filed under section 1983 of the Civil Rights Act against the prison authorities.35 Regular contacts were established with jailhouse lawyers and the omnipresent gang leaders.
The first PLS lawyers who came to Stateville in the fall of 1972 were contacted by the same inmates who contacted me when I entered Stateville that summer (see Appendix 1). The gang leaders approached one of the PLS attorneys with the request that he help Project ABLE (Adult Basic Learning Enterprise—see chapter 6), the nascent inmate council which they controlled, to incorporate as a not-for-profit corporation. The attorney carried out this favor, and ABLE obtained its long-desired charter in September 1972. During the next two and one-half years a continuous relationship was maintained between the gang leaders, in their capacity as ABLE representatives, and the PLS lawyers. They carried out such favors as making contacts for the leaders with legislators and community groups on the outside and running down former prison colleagues. The inmates continued to demand that PLS bring a federal suit to force the administration to recognize ABLE as a viable inmate council within the prison.36 In the fall of 1974, PLS took on remand (after the case was won by Jenner and Block at the appellate level) Falconer v. Bensinger, a suit on behalf of a member of the Black P Stone Nation wherein the inmate claimed that the prison unconstitutionally disciplined him because of his membership in the Black P Stone Nation, infringing his First Amendment rights to association and religion.37