HOLT V. SARVER 1969 - THE SUPREME COURT ADDRESSES THE DARK & EVIL WORLD - Law - http://maxpages.com/arklaw/Holt_v_Sarver_Part

Document 5 of 16.

Lawrence HOLT et al., Petitioners, v. Robert SARVER, Commissioner of Corrections, Respondent.
Travis Eugene FIELDS et al., Petitioners, v. Robert SARVER, Commissioner of Corrections, Respondent.
George W. OVERTON et al., Petitioners, v. Robert SARVER, Commissioner of Corrections, Respondent

Nos. PB-69-C-24, 69-C-25, 69-C-29

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS, PINE BLUFF DIVISION

300 F. Supp. 825; 1969 U.S. Dist. LEXIS 8461

June 20, 1969

COUNSEL:

Steele Hays and Jerry D. Jackson, Little Rock, Arkansas, for petitioners.

Don Langston, Deputy Atty. Gen., and Mike Wilson, Asst. Atty. Gen., State of Arkansas, Little Rock, Arkansas, for
respondent.

JUDGES: Henley, Chief Judge.

OPINIONBY: HENLEY

OPINION: [*826] Memorandum Opinion

HENLEY, Chief Judge.

The several petitioners in subject cases are inmates of the Cummins Farm Unit of the Arkansas State Penitentiary located in Lincoln County, Arkansas, some miles south of the City of Pine Bluff and near the towns of Grady, Gould, and Dumas.

Petitioners complain that those in charge of the Farm are depriving them of rights protected by the Fourteenth Amendment to the Constitution of the United States. Federal jurisdiction under 28 U.S.C.A. §1343(3) and 42 U.S.C.A. § 1983, is not questioned and is established. Under those sections the Court is authorized to grant both declaratory and injunctive relief to the extent that petitioners may have shown that they are entitled to relief.

The principal complaints of petitioners are that confinement in cells in the isolation unit of the Farm amounts to cruel and unusual punishment prohibited by the Eighth Amendment as carried forward into the [**2] Fourteenth, Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417; Jackson v. Bishop, 8 Cir., 404 F.2d 571, reversing Jackson v. Bishop, E.D.Ark., 268 F. Supp. 804; Talley v. Stephens, E.D.Ark., 247 F. Supp. 683; that they are denied adequate medical attention, Talley v. Stephens, supra; and that the Penitentiary authorities have
failed to take adequate steps to protect inmates from assaults by other inmates, Cf. Johnson v. United States Government, E.D.Va., 258 F. Supp. 372, and Cohen v. United States, N.D.Ga., 252 F. Supp. 679.

Respondent, Robert Sarver, is the Commissioner of Corrections of the State of Arkansas, having been named to that position in November 1968. Mr. Sarver is the administrative head of the Cummins Farm Unit and also of the much smaller Tucker Farm Unit located some miles from Cummins; the Tucker Farm is in Jefferson County and is located near the town of England. Mr. Sarver serves under the Arkansas State Board of Corrections, an agency in the
Executive Branch of the State government which was created by the Legislature in 1967. Respondent, who is represented by the Attorney General of Arkansas, [*827]denies that the petitions have merit [**3] and asks that they be dismissed.

The petitions were submitted by the inmates pro se. The Court permitted them to be filed and prosecuted as class actions in forma pauperis and consolidated them for hearing. The Court appointed Mr. Steele Hays of Little Rock, an experienced and capable trial attorney, to represent petitioners without charge.

Mr. Hays accepted the appointment. He and one of his associates, Mr. Jerry Jackson, without expectation of compensation or reimbursement, proceeded to the Farm where they interviewed petitioners and others and took photographs of the facilities. Both Mr. Hays and Mr. Jackson vigorously represented petitioners at the rather
extended hearing which consumed two full trial days and part of one night. The Court is most grateful to Messrs. Hays and Jackson for their services.

The three cases, hereinafter referred to collectively as though they were a single case, have been submitted on oral testimony, photographs, documentary evidence, and memorandum briefs. This opinion incorporates the Court's findings of fact and conclusions of law.

I.

At this juncture it may be noted that the Court's inquiry here is limited to whether Arkansas convicts [**4] as a class, or individual convicts, have been and are being deprived of federal constitutional rights. The Court is not concerned in general with prison policies, administration, or discipline. However, if the State, acting through its penal authorities, is depriving convicts of rights which the Constitution protects, including the right to be free from cruel and unusual punishment, the Court may and should intervene to protect those rights and to put an end to unconstitutional practices. Courtney v. Bishop, 8 Cir., 409 F.2d 1185; Jackson v. Bishop, supra; Talley v. Stephens, supra.

The opinion of the Court of Appeals in Jackson v. Bishop, supra, makes clear that the concept of "cruel and unusual
punishment" is a flexible and expanding one, and that a punishment or system of punishment is unconstitutional if it offends concepts of decency and human dignity and precepts of civilization which Americans profess to possess, or if it is disproportionate to the offense, or if it violates fundamental standards of good conscience and fairness. 404 F.2d at 577-579.

Solitary confinement or close confinement in an isolation unit of a prison is not unconstitutional per se, but depending on [**5] the circumstances it may be. Courtney v. Bishop, supra; Graham v. Willingham, 10 Cir., 384 F.2d 367; Kostal v. Tinsley, 10 Cir., 337 F.2d 845; Jordan v. Fitzharris, N.D.Cal., 257 F. Supp. 674.

In Jordan the Court held that solitary confinement in "slit cells" in a California correctional institution was in the circumstances shown by the evidence unconstitutional. It was said, 257 F. Supp. at 680, that the prison authorities had "abandoned elemental concepts of decency by permitting conditions to prevail of a shocking and debased nature" to the extent that the Court was required promptly to intervene "to restore the primal rules of a civilized community in accord with the mandate of the Constitution of the United States."

It is plain, then, that the State must refrain from imposing cruel and unusual punishments on its convicts. And the Court is convinced that the State owes to those whom it has deprived of their liberty an even more fundamental constitutional duty to use ordinary care to protect their lives and safety while in prison. The Government owes that duty to federal prisoners, Johnson v. United States Government and Cohen v. United States, both supra; and the Court [**6] thinks that a State prisoner is entitled to the same measure of care from the State, although the State, of course, is not an insurer of the safety of its convicts.

[*828] Where an unconstitutional situation is found to exist in a given prison, the prison authorities cannot escape responsibility for it by merely pointing to the existence of the same situation in other prisons, or by establishing that conditions in their prison are "better" or "no worse than" conditions prevailing elsewhere.

The record in this case is voluminous and covers a number of areas of prison life. The burden is upon the petitioners to show by a preponderance of the evidence that their constitutional rights and those of other inmates similarly situated have been violated, and that they are entitled to equitable relief with respect to the alleged violations.

The Court has considered the entire record in the light of the principles heretofore mentioned. The Court thinks it desirable to state at this point its ultimate findings and conclusions and to discuss some of them in detail at later points in the opinion.

Plaintiffs have failed to sustain their burden of proof with respect to the medical and dental [**7] facilities. While those facilities leave a good deal to be desired, the Court does not consider that the deficiencies are such as to raise a constitutional problem.

Plaintiffs have also failed to sustain their complaint about food served to prisoners while in isolation. As will be seen, the food is not appetizing; it is not intended to be, and the Constitution does not require that prisoners in isolation be served tasty or attractive dishes.

The Court heard some evidence as to alleged assaults on certain prisoners by prison employees and trusty guards. The Court does not think that evidence sufficient to justify relief in this case. Respondent and his subordinates are already forbidden by the injunction issued in the Jackson case from inflicting corporal punishment on
convicts, and the Court is not persuaded that that injunction has been violated.

The Court does find from a preponderance of the evidence that the State has failed and is failing to discharge its constitutional duty with respect to the safety of certain convicts, and that the conditions existing in the isolation cells, including overcrowding, render confinement in those cells under those conditions unconstitutional. [**8]

With respect to the areas in which unconstitutionalities are found to exist, there is persuasive evidence that when a new maximum security unit is completed and put into operation in the next year or so the Farm's problems of inmate safety and confinement in isolation will be much ameliorated if not eliminated entirely. However, the Court is persuaded that present inmates are entitled to some injunctive relief in those areas at this time.

II.

The history of Cummins Farm, which consists of more than 15,000 acres, and which has a present inmate population of something less than 1,000, has two phases.

The first phase lasted for years and did not come to an end until January 1968. During that long period of time there were extremely few paid "free world" employees at the Farm. Prisoners were guarded by armed trusties, and those trusties and other inmates referred to for some reason as "dopops" exercised a great deal of authority and control over other inmates. In fact, it may be said accurately that the institution was being run in large measure by inmates.

Using free convict labor, both Cummins Farm and Tucker Farm produced field crops and other agricultural commodities which [**9] were sold on the market, and the income from those sales was generally sufficient, or was supposed to be sufficient to cover the limited operating costs of the Farms, and it was frequently, though inaccurately, said that the State was operating the Farms at a profit, a fact to which successive State administrations pointed with pride.

[*829] Prior to the appointment of Thomas O. Murton as Superintendent of the Penitentiary in 1967 inmates of the
Penitentiary were disciplined by the use of a large leather strap, and were not generally punished in any other way except by forfeitures of good time in the event of escapes. Prisoners were whipped for rule violations, refusal to work, escapes, and failure to perform sufficient or satisfactory work. A prisoner who escaped and was recaptured was whipped and had his head shaved; additionally, he lost his statutory good time and might be faced with a new criminal charge based on the escape.

In 1965 and again in 1967 the United States District Court for the Eastern District of Arkansas issued limited injunctions against the unregulated or insufficiently regulated use of corporal punishment at the Penitentiary. Talley v. Stephens, supra; [**10] Jackson v. Bishop, supra, 268 F. Supp. 804. However, neither this writer nor
Judges Gordon E. Young and Oren Harris were willing to hold corporal punishment unconstitutional per se.

When the District Court in Jackson v. Bishop refused to enjoin outright the use of the strap, the petitioners in that case appealed. While the appeal was pending, Mr. Murton was made Superintendent of the Penitentiary, and he discontinued the practice administratively. The Court of Appeals, however, declined to consider the question moot, and held that corporal punishment is unconstitutional, regardless of its severity and regardless of the conditions under which it is imposed or of the safeguards with which it is surrounded. Jackson v. Bishop, supra, 404 F.2d 571.

The second phase of the history of the Farm has been characterized not only by a cessation of whipping, which has been superseded by confinement in isolation, but also by the employment of an increasing number of free world employees. There have been marked improvements at the Farm and additional improvements, including the new maximum security unit, are to be expected.

However, it appears to the Court that the Farm is still in a transitional [**11] period, and much of the old regime is still visible. Convicts still work long hours in the fields and in institutional facilities; they are paid nothing, either actually or constructively, for their labor; they have few privileges and few incentives to be cooperative, rules-observing members of the prison community. They are still guarded principally by armed trusties, and the ordinary convicts, known as "rankers," are still subject in some degree to the authority of trusties and "dopops." The only legitimate way in which a convict at Cummins can earn money is to sell blood to the prison blood bank. However, there are many illicit ways of earning money, and the convicts take fulladvantage of them. Trusties smuggle in contraband, including liquor and knives. A kind of home made beer is produced frequently on the Farm premises and is sold to and consumed by inmates of all grades.

Convicts are not permitted to have United States currency and coins in their physical possession since an inmate with money in his pocket is more likely to attempt to escape and more likely to escape successfully than an inmate who is penniless. In order to have a medium of exchange for such legitimate [**12] business transactions as take place within the institution prisoners with money to their credit on the prison books are issued small metal coins in denominations of five and ten cents, which "money" is known as "brozine." If a convict is found with "free world money" on his person, that money is confiscated and put into an inmate welfare fund.

Apparently, the educational level attained by Farm inmates is quite low. Many of the inmates are psychopathic and sociopathic; some of them are aggressive homosexuals. Many of the inmates are hardened criminals and some of them are extremely dangerous to society in general, to their keepers, and to fellow inmates. Many of them are malingerers and will go to any lengths to [*830] avoid work. Many are prone to destroy State property, even items
designed for their welfare and comfort.

In view of what has been said it is obvious that Respondent and his subordinates at Cummins are faced with grave problems of security and discipline. In grappling with those problems, and with others, Respondent is severely hampered by lack of money.

That lack is due in part to the historical concept of the Farm as a self-sustaining or profit-making institution [**13] which should not require appropriations of large sums of State money. It is also due in part to an understandable reluctance on the part of those in charge of the revenues and disbursements of the State to spend large sums on prisons while other agencies and institutions providing services for law abiding people are under-funded.

In the circumstances Respondent must perforce still rely rather heavily on inmates to perform functions which in most prisons are performed by free world people. And continued reliance on inmates assumes that if the trusty guard system as it exists at the Farm is attacked in the courts, it will survive the attack.

This case does not involve such an attack, although, as stated, there was some evidence about alleged trusty brutality. No one questions the propriety of granting trusty status to dependable convicts and permitting them to perform certain services. The services may be valuable in themselves, and they can certainly be of value in improving inmate morale and aiding rehabilitation. A serious question can be raised, however, as to the constitution-ality of the system at Cummins where inadequately supervised
trusties, many of whom are hardened criminals, [**14] are permitted to guard and exercise authority over other inmates some of whom are less evil and dangerous than the trusties themselves.

If the system is attacked and does not survive, the services now performed by trusty guards will have to be performed by outside people who will have to be paid for their services.

III.

With the foregoing by way of background, the Court turns to the question of inmate safety.

The Superintendent at Cummins is Ralph Roberts, and the Associate Superintendent is J. R. Price, both of whom appear to be competent men. The Chief Security Officer is Ed Walker, and he has 17 free world armed guards working under him. In addition, a member of the Arkansas State Police is regularly stationed at Cummins. The total number of paid employees at the Farm is 56.

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 barracksproper, but they are not actually inside the sleeping area. Those areas are [**15] supposedly patrolled by inmate "floorwalkers" 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 such as knives or scissors in their 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 "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.

[*831] 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 [**16] been assailants in stabbing incidents 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 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.

CLICK TO CONTINUE

Sign Guestbook

View Guestbook

lcmiller@tx3.net

Visitors: 02993

Page Updated Sun Dec 5, 1999 6:30am EST