
          A decade of litigation a Southern 'Devil's Island.'
          Reviewed by McDonald, LaughlinLaughlin McDonald
          Vol. 12, No. 2, 1990, pp. 17-19
          
          Reform and Regret by Larry W. Yackle (New_York: Oxford
University Press. 1989. 322 pp.).
          Reform and Regret, by Larry W. Yackle, is an
engrossing, carefully written story of two federal lawsuits, Pugh v. Locke and James
v. Wallace, filed in 1974 to reform the Alabama prison
system. The need for reform was great.
          As Yackle describes it, most inmates were warehoused in large,
unsupervised dormitories where the strong preyed on the weak. None of
the state's institutions met basic public health standards or the
state's fire safety code. Medical care was grossly inadequate. Inmates
were poorly fed, denied adequate exercise and reasonable opportunities
to visit with their families, and there were few educational and
vocational programs.
          The disciplinary unit within Draper Prison epitomized the worst of
the system. Inmates in the doghouse, as the disciplinary unit was
called, had no beds, no lights, no toilets, no running water, and no
reading material. They were fed once a day and allowed to shower only
once every eleven days. They were never released for exercise. Each
punishment cell was only thirty-two square feet in area--the size of a
sheet of plywood. Despite that, as many as six men were crammed into a
single cell, for weeks at a time.
          The conditions at Draper were not unique. Severe overcrowding was
routine throughout the system, as was violence. Rapes and beating were
common. There was no system of classification to separate the violent
from the nonviolent inmates, and there was a shortage of guards. At
Fountain, two officers supervised some 1,000 prisoners. The number of
guards was reduced at night with the predictable result that those on
duty, for their own safety, never ventured into the dormitories after
dark.
          "Discipline" was often maintained by the inmates
themselves. Prisoners, called "strikers," supervised inmates on work
details and enforced order with hoe handles, broomsticks, and homemade
knives. Other prisoners, called "flunkies," patrolled the dormitories
at night and were responsible for breaking up fights. It is not
surprising that inmates seemed always heavily armed. According to
Yackle, prisoners felt it was better to risk being caught with a
weapon by a guard than to chance being caught without one by another
inmate.
          An Alabama newspaper referred to the state's prison system as a
"Devil's Island." Robert Sarver, a former director of the Arkansas
Department of Corrections, and an expert witness in the lawsuits, gave
an equally damning assessment. Prisons were "very dirty and
unbelievably overcrowded." Prisoners lived in a "veritable jungle,"
and on food he could not "attempt" to eat himself. Inmates were like
"caged animals" and lived a "demoralizing, debasing, degrading and
ultimately destroying existence."

          The plaintiffs in Pugh and James were inmates who filed their initial complaints
pro so, or representing themselves. Jerry Lee Pugh, a 27-year old
white male, had been severely beaten during a race riot at Fountain in
1973 and charged that prison officials had failed to afford him
adequate protection. Worley James was an eighty-year-old black_man who
spent more than a quarter-century behind bars. He claimed that prison
officials had failed to provide him with adequate medical care and to
rehabilitate him while he was in custody.
          Fortunately for Pugh and James, their cases were assigned to Judge
Frank M. Johnson Jr. in Montgomery, one of the brightest and most
activist judges in the federal judiciary. Judge Johnson took the
complaints seriously and quickly appointed two local lawyers to
represent the plaintiffs. The lawyers in turn agreed to coordinate
their efforts and broadened the suits into class actions challenging
the operation of the prison system as a whole. They also enlisted the
aid of several civil_rights organizations--the Southern Poverty Law
Center, the Civil Liberties Union of Alabama and the National Prison
Project. As a result of this series of events, the pro
se complaints of two obscure Alabama inmates were transformed
into major public interest litigation.
          The plaintiffs made three related, but progressively more
ambitious, arguments. First, the Eighth Amendment's prohibition on
cruel and unusual punishment is violated when prison officials
maintain conditions that produce a pattern of violence against
individual inmates. Second, inmates have a right to rehabilitation,
and the maintenance by prison officials of conditions which frustrate
that right or cause deterioration is also cruel and unusual
punishment. Third, reliance on long-term incarceration with limited
parole opportunities in large, secure, rural prisons is itself a
violation of the Eighth Amendment. This last claim was clearly the
most radical, for it was nothing less than an attack on the
traditional American system of incarcerating people for the commission
of crimes.
          The cases went to trial in the summer of 1975. After six days of
devastating testimony, the state conceded that its prison system was
in violation of the Eighth Amendment. Judge Johnson ordered certain
immediate reforms, such as closing the doghouse at Draper, and issued
a full opinion in January 1976. He ruled that the totality of
conditions in the prisons constituted cruel and unusual punishment. He
also accepted the first two theories of unconstitutionality put
forward by the plaintiffs: prison officials had failed in their
"duty to provide inmates reasonable protection from constant threat
of violence," and "prison conditions were so debilitating that
they necessarily deprive inmates of any opportunity to rehabilitate
themselves, or even to maintain skills already possessed." He
declined, however, to rule that the Alabama prison system itself was a
violation of the constitution.
          The court ordered sweeping changes to bring the system up to
constitutional standards. The population of each facility was
restricted to "design capacity." The state was held to the minimum
standards established by the U.S. Public Health Service and was
ordered to establish a plan for the classification of all prisoners,
including identifying and segregating violent inmates. At least one
guard had to be stationed inside and one outside each dormitory at all
times.
          The prison system was required to hire new guards and reduce "the
racial and cultural disparity" between the staff and the inmate
population. Prisoners had to be given a "bed off the floor" and a
minimum of 60 square feet of living space, three square meals a day,
"meaningful" jobs and a chance to enroll in basic education courses
and vocational training programs.
          What followed were years of legal wrangling and foot dragging by
the state, which Yackle describes in exquisite detail. There were
appeals, modifications of decrees, the appointment of monitors, and
numerous compliance hearings. Implementation became so problematical
that the court placed the entire prison system in receivership in
1979.
          Judge Johnson, who moved to the Eleventh U.S. 

Circuit Court of
Appeals, was replaced on the case by Robert Varner, and lawyers, all
of whom exceptionally able and dedicated, shuffled in and out of the
litigation as it proceeded through its permutations.
          The legal maneuvering was accompanied on the political side by
fingerpointing and grandstanding by state officials upon whom fell the
responsibility of implementing the federal_court order. Prison
administrators accused the legislature of not appropriating enough
money to make needed changes, while the legislature accused prison
officials of being inefficient and wasteful. Governor George_Wallace,
who had castigated the judiciary during the battle over desegregation
in the 1960s, charged that "thugs and federal judges had
"just about taken over society."
          By November 1984, however, as a result of judicial cajoling and
coercion, including the actual release of prisoners from overcrowded
facilities, enough progress had been made to allow the plaintiffs to
enter into an agreement dismissing litigation, subject to being
reopened in the event of backsliding by the state. Judge Varner signed
the agreement into law and the prison litigation came to an end.
          Yackle surveyed the prison system two years later and assessed the
extent of reform. Four new prisons and a variety of community
facilities had been built which significantly relieved
overcrowding. Prison staff had doubled and many of the new
correctional officers were black. A system-wide classification system
was in operation, and there were greater opportunities to participate
in work release and educational programs. The level of violence had
dropped substantially. Medical and mental health_care were much
improved and disciplinary cells were equipped with bunks, mattresses,
toilets, and electric lights.
          To be sure, the reform was far from complete or adequate, and the
cost of even limited reformation had been eleven years of frustrating,
bitter litigation. But these are not Yackle's principal
regrets. Rather, they are that "something fundamental had not
changed; men and women were still kept in cages, and long enough to
ensure that they could never again function as ordinary
citizens."
          Regrets, of course, are a function of expectation and the
possible. It was probably unrealistic to expect a judge, even one as
sensitive to constitutional claims as Frank Johnson, to invalidate the
prison system itself. The author might have enhanced our sense of lost
opportunities, however, by spelling out in more detail alternatives to
the routine use of long-term confinement. There may be better ways for
society to deal with people who commit crimes, but Yackle does not
tell us what they are. Surely one alternative, and it has nothing
whatever to do with penology, is the development of a society that
does not breed crime, a society in which those who need decent jobs,
housing, and educational opportunities can get them.
          
            Laughlin McDonald is director of the Southern Regional
Office of the American Civil Liberties Union and a lawyer who has
himself been actively involved in numerous cases involving prisons,
noting rights and civil_rights.
          
        
