HOLT v. SARVER II - 1970 - THE SUPREME COURT ADDRESSES THE DARK & EVIL WORLD - Law - http://maxpages.com/arklaw/Holt_v_Sarver_II_Part

The extent of Arkansas' reliance on trusties is apparent when [**32] it is realized that there are only 35 free world employees at Cummins in ostensible charge of slightly less than 1,000 men. Of those 35 only eight are available for guard duty, and only two of them are on duty at night.

The use of trusty guards is universally condemned by penologists, and the system is now in use only in Arkansas, Louisiana, and Mississippi. According to Director Bennett, the reliance that Louisiana places upon trusty guards is much less than that which exists in Arkansas. He did not testify with respect to Mississippi. The reasons for penological disapproval of the use of trusty guards are that it creates an unhealthy prison climate and atmosphere; it breeds fear and hatred between the guards, on the one
hand, and those guarded, on the other hand; it tends to be brutal and to endanger the lives of inmates who live and work "under the guns" of other convicts; and it leads to other abuses.

In this connection it may be observed that some inmates of the Penitentiary have refused to accept trusty guard status due to their feeling that it is [*374] "wrong" for one convict to guard another and to their fear of what might happen to them should they ever be demoted [**33] to the ranks. And Mr. Bennett testified that when he was head of the Bureau of Prisons, it was frequently necessary to take strong protective measures with respect to inmates of federal prisons who had formerly been trusty guards in Arkansas.

Apart from the use of trusties as guards, they can be given too much authority in other areas of prison life. When that is done, various abuses come into existence. When all is said and done, the fact remains that a trusty is a convict, and many trusties will on occasions act like felons and thieves. They will take bribes, they will engage in extortion, they will smuggle contraband, and they will connive at violations of prison rules. Opportunity for abuse is particularly present where, as in Arkansas, trusties have access to prison records pertaining to themselves and to other inmates. A trusty with such access can remove damaging material, such as a detainer, from an inmate's file; he can insert improper material; or he can impart to other inmates confidential information that ought not to be imparted. The undesirability of having prison telephone communications with the outside world in the control of trusties, as it is in Arkansas, [**34] is too obvious to require description.

This does not mean that trusties should never be given responsible jobs. One of the chief functions of habilitation is to teach convicts to assume and discharge responsibilities. But, it does mean that the areas of trusty responsibility should be limited, and that the trusties, both individually and as a body, should be under the full control and adequate supervision of free world people.

The danger of excessive reliance on trusties was discussed fully in the report of the Study Commission, and one of the
recommendations of the Commission was that the system be retained "insofar as it conforms to the type found in the better American state and federal prisons," but that "trusties no longer be given duties, responsibilities or authority that should be given only to civilian employees who can be held legally responsible."

As the Court's description of the trusty system in Arkansas proceeds, it will be seen, to the extent that it has not become apparent already, that just about every abuse which the system is capable of producing has been produced and is being practiced in this State.

An inmate gets to be a trusty in Arkansas by promotion [**35] from the ranks or from "do pop" status. While promotions and demotions are formally made by committees of free world personnel, as a practical matter such actions are usually based uncritically on initial recommendations of trusties. In the case of a field worker, the recommendation is usually made by a long line rider.

Actually, few, if any, objective criteria are used in selecting trusties; that a man is a bad man, or a dangerous man, or that he has a bad criminal record is by no means a disqualification; on the contrary, it may be a recommendation. In the case of a trusty guard probably the principal criterion of promotion is his willingness to prevent escapes and support the free world people visa a
vis the general inmate population, shooting to kill if necessary to achieve those objectives. A trusty is not expected to take any steps to protect an inmate from violence at the hands of another inmate, and the trusties do not do so.

In a very real sense trusty guards have the power of life and death over other inmates. Some guards are doubtless men of some judgment and humanity; others are not. It is within the power of a trusty guard to murder another inmate with practical [**36] impunity, and the danger that such will be done is always clear and present. Very recently a gate guard killed another inmate "carelessly." One wonders. And there is evidence that recently a guard on night duty fired a shotgun into a crowded barracks because the inmates would not turn off their television set. In any [*375] event, the rankers live in deadly fear of the guards and entertain deadly hatred for them, and their feelings are reciprocated fully.

The Study Commission recommended that the guard system be phased out as soon as possible, starting with the trustys guarding field workers. The Court thinks that that is a good recommendation, but the trusty guard system itself, bad as it is, does not give the Court as much trouble as do other facets of the overall trusty system.

By virtue of their positions of authority and the functions they perform trusties can make or break rankers and "do pops." They can make prison life tolerable or they can make it unbearably hard. They can and do sell favors, easy jobs, and coveted positions; they can and do extort money from inmates on any and all pretexts. They operate rackets within the prison, involving among other things [**37] the forcing of inmates to buy from them things like coffee at exorbitant prices. They lend money to rankers and then use force or threats of force to collect the debts.

Controlling the slaughter house, the kitchen, and the prison stores, trusties steal food and other commodities from the institution and then sell them to other inmates. An inmate can eat well at the Penitentiary if he can pay for what he gets; if he cannot pay, he eats as regular issue what the trusties have seen fit to leave.

Trusties have rather broad privileges about leaving the farms. Coming back they bring with them weapons, liquor, and drugs which they sell to less privileged inmates. As might be expected liquor is much in demand, and its price is high. A pint of taxpaid whiskey sells for $10, much more than twice its free world price.

When a new inmate arrives at the Penitentiary, about the first person to interview him is a trusty who frequently starts out to relieve him by threats or promises of what money and property he may possess.

An enterprising trusty who makes the most of his opportunities can do quite well for himself. Some do so well that they do not want to leave the institution. While [**38] it can hardly be said that the trusty system in Arkansas is a "free" enterprise system, it is certainly a capitalistic system with some of the worst features commonly attributed to "Mafia" techniques in organized crime.

One of the worst features of the system is that the trusties form a living barrier between ordinary inmates and institutional facilities and services that are available and to which an inmate ought to be able to have access as a matter of course. If a ranker can pay or is on good terms with the trusties, he can get what he needs when he needs it; he can get to the infirmary when the doctor is there; he can get prescribed medications. If he cannot pay or does not get along with the trusties, the case is far otherwise.

Additionally, inmate access to free world personnel too often depends on trusty good will, whim, or caprice. This Court has long been convinced that many of the complaints that it receives from inmates stem from a simple lack of communication between the complainants and civilian personnel, the lack being due to trusty interference or indifference.

Not only can the trusties prevent a ranker from getting into contact with a civilian employee; they [**39] can and frequently do bring unmerited discipline down on the head of a ranker by "writing him up" for unsatisfactory work or for refusal to work; their reports are frequently, if not usually, taken at face value by the employees to
whom they are made.

In fairness to the trusties it should perhaps be said that their roses are not without thorns. Just as a trusty can make or break a ranker, so can he be broken or demoted by a superior trusty or by free world personnel. And if he is demoted to the ranks, he is at the tender mercy of those whom he may have persecuted [*376] or exploited, and it may become necessary to put him in isolation for his own protection.

Before leaving its description of the trusty system, the Court will say that it has not overlooked the fact that many of the abuses practiced by trusties could also be practiced by free world personnel, but the Court thinks that free world people, carefully selected and properly paid, would be far less likely to commit such abuses that
are the felons now holding positions of authority.

Life In The Barracks.

The report of the Study Commission reflects that there are eight barracks at Cummins and three at Tucker. [**40] Only five of the barracks at Cummins appear to be in use at the present time perhaps due to the fact that the population of Cummins is lower now than it has been in years past. White trusties occupy one barracks; Negro
trusties occupy another barracks; white rankers have a barracks of their own; and Negro rankers have a barracks of their own. At the present time "do-pops" at Cummins have their own barracks; the record does not disclose whether there are any Negro "do pops." The Commission's report indicates that when "do pops" are not sleeping in their own barracks, they are housed with rankers.

A barracks is nothing more than a large dormitory surrounded by bars; the barracks are separated from each other by wide hallways, and the complex of hallways is referred to as the "yard." At the present time the barracks house more than 100 men each assigned without regard to anything but rank and race. The inhabitants of a given barracks have free access to each other at all times. Only two free world people are on duty in the yard at night. Inmate "floor walkers" are stationed inside inside the brracks proper for the purpose of keeping order and reporting disturbances. In theirbarracks [**41] the trusties are not armed except with their own knives which they continually keep at hand; however, there are probably one or more armed trusties in picket posts within the barracks building.

In Holt I the Court discussed life in the Cummins barracks in some detail; it was said (pp. 830-831 of 300 F. Supp.):

"Prisoners who are not confined in the isolation unit sleep in open barracks. There are two barracks for trusties
and two for 'dopops' and rankers. Those barracks amount to enclosed dormitories in which the inmates sleep on cots arranged in rows. At night there are one or more free world guards on duty outside the barracks proper, but
they are not actually inside the sleeping area. Those areas are supposedly patrolled by inmate 'floor walkers' whose duty it is to report disturbances to the guards.

"Since the inmates sleep together in the barracks, an inmate has ready access to any other inmate sleeping in the same barracks. Many of the inmates have weapons of one sort or another, and the evidence indicates that in spite of efforts to do so it is impossible from a practical standpoint to prevent inmates from having small weapons suchas knives or scissors in their [**42] possession.

"At times deadly feuds arise between particular inmates, and if one of them can catch his enemy asleep it is easy to crawl over and stab him. Inmates who commit such assaults are known as 'crawlers' and 'creepers,' and other inmates live in fear of them. The Court finds that the 'floorwalkers' are ineffective in preventing such assaults; they are either afraid to call the guards or, in instances, may be in league with the assailants.

"The undisputed evidence is to the effect that within the last 18 months there have been 17 stabbings at Cummins, all but one of them taking place in the barracks, and four of them producing fatal results. At least two of the petitioners now in isolation have been assailants in stabbing incidents [*377] and others have been the victims of such incidents.

"Respondent and his subordinates deplore the situation just described but insist that until the maximum security unit can be put into use there is nothing that they can do about it. Respondent testified that when he was the head of a penitentiary in another State convicts there slept in individual cells and there were 170 paid guards; he also testified that the incidence of stabbings [**43] at Cummins was no higher than that at the other institution he had headed. He conceded, however, that more free world guards at Cummins might ameliorate the situation somewhat.

"The Court recognizes, of course, that assaults, fights, stabbings, and killings may and do occur in penal institutions that are unquestionably well equipped, well staffed, and well managed. It occurs to the Court, however, that such incidents in such institutions take place in spite of all reasonable precautions taken by prison authorities. At Cummins there are no precautions worthy of the name, and the 'creepers' and 'crawlers' take deadly advantage of that fact.

"The Court is of the view that if the State of Arkansas chooses to confine penitentiary inmates in barracks with other inmates, they ought at least to be able to fall asleep at night without fear of having their throats cut before morning, and that the State has failed to discharge a constitutional duty in failing to take steps to enable them to do so."

Conditions in those barracks have not changed significantly since Holt I was decided, except that there has been a decline in the rate of stabbings. There is, however, something more [**44] to be said about the barracks in the light of the evidence produced in this case.

The Court heard much testimony about homosexuality in the barracks and elsewhere at Cummins. Homosexuality probably is practiced in all prisons in the United States, and there is a great deal of it practiced at Cummins, some consensual, a great deal nonconsensual. An inmate who is physically attractive to other men may be, and frequently is, raped in the barracks by other inmates. No one comes to his assistance; the floor walkers do not interfere; the trusties look on with indifference or satisfaction; the two free world people on duty appear to be helpless.

Inmates who are passively homosexual are called "punks." There are varieties of "punks," including the "pressure punks" who will engage in homosexual acts if more or less pressure is put upon them to induce or compel them to do so.

In an effort to protect young men from sexual assaults, they are generally assigned to the two rows of cots nearest the front bars of the barracks, which portion of the barracks is called "punk row." It appears, however, that if would-be assailants really want a young man, his being assigned to the "row" is no real [**45] protection to him.

To the extent that consensual homosexual acts take place in the barracks, they are not carried out in any kind of privacy but in the full sight and hearing of all of the other inmates.

Sexual assaults, fights, and stabbings in the barracks put some inmates in such fear that it is not unusual for them to come to the front of the barracks and cling to the bars all night. That practice, which is of doubtful value is called "coming to the bars" or "grabbing the bars." Clearly, a man who has clung to the bars all night is in poor condition to work the next day.

Conditions in the barracks are worsened by the prevalent consumption of liquor and beer and by the use of drugs. It is not uncommon for many, if not all, of the inmates of a particular barracks to become intoxicated by drugs and alcohol all at the same time. The resulting commotion, violence, and confusion are quite imaginable. The free world people cannot control the situation; the trusties will not and are not supposed to; [*378] and the floor
walkers frequently participate in the orgies.

All of this is not to say that a barracks system of confinement properly regulated and limited may not have a [**46] place in a well run penal institution. If barracks assignments are confined to small groups of men, properly classified and selected and subject to adequate control, the barracks system is not objectionable and in certain respects may be preferable to confinement in individual cells. It is obvious, however, that the Cummins barracks do not satisfy those conditions.

The Isolation Cells.

The isolation cells at Cummins, located in a a building set apart to itself and surrounded by a fence, were considered by the Court in Holt I. They were found to be overcrowded, filthy, and unsanitary. Pursuant to the Court's order in that case, the overcrowding seems to have been ameliorated; the other conditions still exist.

The Study Commission's report refers to the existence of 12 isolation cells and the construction of 28 more. After the Commission's report was filed, the Legislature authorized the construction of a maximum security unit at Cummins which will be in operation, hopefully, in 1971. After that authorization was given, construction of the additional isolation cells was halted. While there are 12 cells in the isolation unit, one of them has been fitted up as a shower [**47] room so that actually there are only 11 cells for the confinement of prisoners.

The isolation unit is guarded by trusties, and free world people seldom come around it. That situation is a source of constant trouble. The trusties threaten and harass the prisoners, and the prisoners probably reciprocate in kind. The isolation diet is carelessly served to the inmates of the cells and at times is permitted to become cold and wet.

The cells are occupied by prisoners who have been confined there for disciplinary reasons or for "protective custody." The isolation inmates who are in "protective custody" are some of the most incorrigible and dangerous prisoners in the Penitentiary. They are sociopathics with no constructive motivation whatever. They damage and destroy fixtures in the cells to the extent of their ability to do so; they set fire to their bedding and to their clothing.
They take no interest in the conditions of the cells except to complain about them. They refuse to obey at times the lawful orders of free world people, and obediance has to be compelled by force exerted by free world people and trusty guards; the inmates resist violently and then complain about their "ill [**48] treatment."

As the Court understands it, the isolation cells at Tucker are located in the main building of the institution. Some of them are, or at least have been from time to time, occupied by Cummins inmates sent to Tucker for protective custody. The condition of the Tucker isolation cells is about the same as that of the Cummins cells, except that the Tucker cells are inexcusably infested by rats, a problem that does not seem to be particularly troublesome at Cummins.

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