bop: publications - federal prisons journal winter 1991

Winter 1991 1

ContentsVOL. 2, NO. 1 n WINTER 1991

3 The Log

Correctional notes and comments

Meeting Death in Prison

The First Offenders’ Programat FCI La Tuna

Innovations in Satellite Feeding

Wartime Precautions

Special Report 30 Working the Morning

10 Inside Soviet Prisons Watch

A report by the U.S. delegationA unique portrait of a correctionalsystem-and a nation-in transition.

John A. Mattsen“Quality sleep” is all too often an elusivegoal for both inmates and staff. Here aresome practical guidelines for achievingit-especially for shift workers.

24 Involuntary Treatment

Bill BurlingtonThe courts are increasingly involved insome of the most difficult treatmentissues prison administrators have tomake. 38 Ethics and Prison

Administrators

J. David NewellA philosopher offers a framework forethical decisionmaking in corrections.

Federal Prisons Journal

Published quarterly by the Doug GreenFederal Bureau of Prisons Editor

J. Michael QuinlanDirector

Kristen Mosbæk Design StudioDesign and Art Direction

Dan DoveChief, Office of Public Affairs

Richard PhillipsChief of Communications

Judy G. GordonAssociate Editor

Editor’s Advisory Group:

The Attorney General has determinedthat the publication of this periodical isnecessary in the transaction of the publicbusiness required by law of the Depart-ment of Justice.

Opinions expressed in this periodical arenot necessarily those of the FederalBureau of Prisons or of the U.S. Depart-ment of Justice.

Printed by Federal Prison Industries, Inc.

Federal Prisons

Joe Holt AndersonSenior Editor, National Criminal JusticeReference Service

John J. DiIulio, Jr.Associate Professor of Politics andPublic Affairs and Director, Center ofDomestic and Comparative PolicyStudies, Princeton University

Dennis LutherWarden, Federal Correctional Institution,McKean, Pennsylvania

Patricia L. PouporeDirector of Communications andPublications, American CorrectionalAssociation

Dr. Vicki VerdeyenChief, Psychology Services, Mid-Atlantic Regional Office, Federal Bureauof Prisons

Contributing artists: Michael Hill,Rebecca Leer, Mark Stutzman, SamWard, Anthony Woolridge.

Cover by Mark Stutzman.

The Federal Prisons Journal welcomesyour contributions and letters.Letters may be edited for reasons ofspace. Please contact the editor at:

Federal Bureau of PrisonsOffice of Public Affairs320 First Street NWWashingten, DC 20534

202-307-3198

From the editorWe are sorry that, due to therecent budget imbroglio onCapitol Hill, this issue will be inyour hands in 1991 rather than1990.

Despite our lateness, we arepleased to bring you this issue’sspecial report on Soviet prisons.The cover illustration depictssome images from Mozhaisk 5prison (the Cyrillic title translatesas “official visit”). The U.S.delegation, which toured fiveinstitutions, found particularlysupportive interaction betweenthe staff and female inmates, andan impressive prison industry, atthis prison. In future issues wehope to continue to provideinformation on aspects ofinternational corrections work.

As the Soviet Union has beenmuch in the news, so too hasGermany. Our next issue willfeature an interview with formerBureau of Prisons Director MyrlE. Alexander, who served ashead of the German correctionssystem in the American zone ofoccupation in the first year afterWorld War II.

Finally, additional copies of the60th anniversary issue of theJournal are now available. Pleasecontact the Office of PublicAffairs at 202-307-3 198.

Meeting Death in PrisonHenry A. Pedersen

“This is why I weep and my eyesoverflow with tears. No one is near tocomfort me, no one to restore myspirit.”—Lamentations 1:16 [NIV]

“9-3 officer to Chaplain Pedersen, 9-3officer to Chaplain Pedersen,” mysmall radio was blaring. I grimaced as Ianswered, “Chaplain Pedersen to 9-3.”“Please call 360, 360,” the radioblurted again. I knew before I evendialed the number what the person onthe other end of the phone was going tosay: “Chaplain, Mr. Tomaso wants tosee you.” I was right. This was thethird time today that Mr. Tomasowanted to see me.

Louis Tomaso* was dying. He hadalready lived 24 hours longer than themedical staff thought he would. He hadalready received the last rites of hischurch—twice, as a matter of fact.

Once again I stopped what I was doingand went over to 9-3 as fast as I could.I thought about not going, but severalthings compelled me to go—one moretime. Louis was dying alone. I was oneof the few people he had related to inthese last days—no family, no friends,dying in prison. We all need a friend.The other reason became obvious onthe faces of the medical staff as Iwalked on to the floor. Medical peopleare oriented toward healing. To facedeath is in some ways to face failure.There is a sense of relief when I arriveat times like these.

*A pseudonym.

I walk up to his bed and clasp his hand.He opens his eyes and looks at me. Iacknowledge what is obvious on hisface—he is in pain. We sit quietly for afew minutes holding each other’s hand.The medical staff leave us alone. I leanover the bed so that our faces are about6 inches apart.

“Shall we talk to God again, Louis?” Iask. Louis whispers, “Please.” I pray. Iend with the “Lord’s Prayer.” Louisprays with me, each phrase slowly anddeliberately. He says “Amen” afterpraying “forgive us our trespasses aswe forgive those who trespass againstus.” As I add my Amen, Louissqueezes my hand and requests that Ileave him now so I won’t see him die.An hour or so later, Louis dies.

For me there is something cold aboutthe thought of dying in prison. In theFederal system every effort is made torelease a dying inmate so that he or she

can at least die in a more homelikeenvironment. Those who die with us,unless it is sudden and unexpected,have committed too serious a crime tobe released, have been declared toomuch a risk to be returned to theircommunity even though terminal, orhave absolutely no resources or familyto assist them.

I feel there should be several guidelinesfor ministering effectively to theinmate who is dying in prison. The firstis to be nonjudgmental. I am not sayingthat God does not judge—I am sayingthat we ought to let God do thejudging. I don’t pretend to understandmany of these situations myself. Wecurrently have an inmate who will diewith us. I know that he is a murderer, atale bearer, a thief, and a snitch, yetsomehow all of that does not interfere

Federal Prisons Journal

with our relationship. We communicatewell, we share deep feelings, we helpeach other, we laugh together, we crytogether, we allow ourselves to behuman together.

A second guideline is to be in touchwith one’s own feelings about deathand life. That is not to say that we haveto have all the answers or even ananswer, but I do believe that we have towork out a faith relationship with ourGod that allows us to trust him to takecare of the future for us.

A third guideline is to be in touch withone’s feelings about sexual orientation.This is necessary because some ofthose who are dying have one of theseveral diseases that are the commonmanifestations of Acquired ImmuneDeficiency Syndrome. Some of themhave acquired AIDS from contact withanother male.

A fourth guideline is to be in touchwith touch. There is a commondeprivation of touch in prison. This isespecially true of the inmate whoreceives no visits. I had to workthrough the process of gowning up inprotective garments to visit some ofthese patients. My initial reaction wasnot to do it, until I realized that thepurpose of my gowning up was more toprotect the inmate patient than toprotect me. Now when I am required todo this, I do it and explain it at somepoint to the patient. As our relationshipgrows, I will ask him if he feelscomfortable with me taking off thegloves so that we can hold hands.

The rest of the guidelines are these: bethere, listen, don’t feel you need tohave all the answers, validate the

patient’s emotions, appreciate thetherapeutic worth of tears.

At the Federal Medical Center inRochester we try to find a volunteer tovisit the inmate if the inmate wishes it.We are presently working on a pro-gram of training inmates to minister toother inmates in these circumstances.We also spend time with staff, invitingthem to express their feelings.

When the time comes, we conduct amemorial service in the day room on

makes death what it can be, a deathfreely and voluntarily accepted.”—Dietrich Bonhoeffer, Letters andPapers from Prison.

Reverend Henry A. Pedersen recentlyretired as Chaplain at the FederalMedical Center, Rochester, Minnesota.A different version of this article waspublished in NM Dialogue, a newslet-ter for Baptist chaplains andcounselors.

the hospital floor for each inmate whodies. Not only does this allow anyinmates who were the deceased’s

The First Offenders’friends to work through their grief; it Program at FCI La Tunaalso allows staff members who have Rudy Francoinvested a great deal of their efforts andemotions to grieve. Furthermore, it The First Offenders’ Program at theassures each inmate who has been Federal Correctional Institution, Ladiagnosed as being terminally ill that Tuna, Texas, was born from an efforthe or she will not be forgotten. Finally, to help the community in combatingit also declares our faith and trust in drug abuse among theGod and allows us as chaplains to dealwith our own grief. meetings with the Chief

State Juvenile Probation“It is not the external circumstances,but the spirit in which we face it, that

Officer, Southern Districtof New Mexico

(the institution is located on the Texas-New Mexico border), it was decidedthat FCI La Tuna would be a “tourstop” for first-time, adjudicatedjuvenile offenders. In addition to thetour, inmates would present lectures onthe consequences of drug abuse and thenegative lifestyles associated withdrugs. The tour and lecture programwould supplement an ongoing diver-sion program, run by the JuvenileProbation Office in southern NewMexico, which certain adjudicatedjuveniles and their parents wererequired to attend.

La Tuna’s participation was initiatedwith the agreement that the institutionwould provide an educational drugabuse program conducted by inmatesand supervised by staff, with the goalof teaching juveniles the consequencesof drugs and their effects on lovedones, and the associated lifestyles asevidenced by the incarcerated status ofthe presenters. The program was to aidthe community by supplementing itsresources in combating its local drugabuse problem.

Inmates who wished to volunteer wereconsidered if they met several criteria:

n No history of violence.

n No sexual offenses.

n No recent history of incident reportswithin the institution.

n Recommendation by the unit teamthat manages the inmate’s housing unit.

n Recommendation by the institution’spsychologist after an interview andpsychological testing.

In its present form, La Tuna’s programincludes a tour conducted by theinmates, lectures of about 5 minutes byfour to six selected inmates in a largegroup setting, then smaller groupdialogues with two to three inmates pergroup. Staff continually supervise theseactivities but do not take an active partin the discussion. The emphasis is on“responsibility for actions, choices tobe made, the consequences of thesechoices, and resistance to peer pres-sure.”

A typical large group segment begins:“My name is Joe. I’m serving 15 yearsfor trafficking in cocaine because of achoice I made to involve myself indrugs.” The inmate participants aregiven some specific directions:profanity is never used, there are neverany references to sex, and the partici-pants are never threatened (this avoidsthe problems associated with “ScaredStraight”-type programs). The format isstrictly educational; the inmates meetfor an hour on the day following theprogram to discuss and improve theirpresentations.

When the program started, all sessionswere videotaped (juveniles’ faces werenot shown) to safeguard againstpotential liability. From these tapesgrew the idea of producing a videotape

for use by staff when presentingcommunity drug abuse programs.Three different tapes wereproduced: a 5-minute version aimedat elementary school children;a 10-minute version for the

junior high age group; and a 30-minuteversion titled “A Day in the Life of LaTuna,” for high school and adultgroups. These videotapes have beenextremely well received in communitypresentations by staff.

This program was so well received bythe Juvenile Probation Office that itwas offered to the Gadsden (N.M.)School District. Two of the Gadsdenjunior high schools have broughtstudents (troublemakers, suspecteddrug users, and potential dropouts) tothe institution program. The reactionfrom school administrators has beenoverwhelmingly positive. In addition,the program has been used by theTexas Youth Commission for a groupof adjudicated delinquents in a halfwayhouse, and by the El Paso Job Corpsfor a group of potential dropouts. Forthis last group, the program waschanged slightly to include motiva-tional reasons for staying in school.

To date, about 200 youths and 150parents, staff members, teachers,principals, and administrators haveattended and participated in thisprogram. An estimated 350 people inthe area have seen “A Day in the Lifeof La Tuna.”

One of the positive, unanticipatedeffects of this program has occurredamong the inmate participants. Inmatesarticulate and share more of themselves“for the kids,” and have achieved somereal psychological growth—at least as

6 Federal Prisons Journal

positive, if not more, than many staffand peer counseling programs. Inmateparticipation has become one of thetreatment activities offered at La Tunain support of the long-held notion thatpositive personal growth occursthrough helping others, Because theFirst Offenders’ Program has evolvedinto an inmate treatment program thatis as much for inmates as for thecommunity, the institution is alsobeginning an evaluation component toassess the psychosocial changes madeby the inmate participants.

Rudy Franco is Associate Warden atthe Federal Correctional Institution,La Tuna, Texas.

Innovations in SatelliteFeeding: ImprovingDelivery and Food QualityStewart Rowles and Elmer L. Knowles

The importance of maintaining a high-quality food service program withinour correctional facilities cannot beoverstated, especially as overcrowdingplaces greater demands on otheroperational areas. Ensuring that allinmates receive palatable and nutritiousmeals—both those who can go to themain serving line and those who musthave meals delivered to them—requires complex food service pro-grams. The need to provide high-quality meals to inmates not eating inthe inmate dining room has motivatedthe Bureau of Prisons to developinnovative delivery systems and useevolving food service technologies.

In the past, inmates in segregation unitsand hospital wards were fed fromportable serving carts that werewheeled from the food preparation areato these units. Individual food trayswere prepared and delivered to theinmate’s cell. Under this system, thequality and the quantity of the mealsvaried greatly compared to meals onthe main serving line.

to move around in multiflooredhousing units, and the time required toprepare and individually pre-plate andwrap each serving added to thedemands already placed on foodservice staff. Additionally, some foodsdo not reheat well; care must be takenin the reheating or the food suffers.

Within the high security operation atthe U.S. Penitentiary (USP), Marion,Illinois, more than 80 percent of theinmates are fed in their cells. Themicrowave food service system had

been an institution-wide operationat Marion since late 1983. Byfall 1986 the food service

department began exploringalternatives to the microwave-based

During the early 1970’s the Bureauadopted a microwave food servicesystem for inmates confined inMetropolitan Correctional Centers.Later the microwave-based system wasexpanded to include use in hospitalwards and segregation units. Under thissystem food is prepared, placed onplates, and moved to the housing unitsin refrigerated and heated food carts.Those foods requiring reheating priorto serving are heated to the appropriatetemperature in microwave ovens. Themicrowave system allowed the foodservice department to control portionsizes and serve all food at appropriatetemperatures, increasing the quality ofthe meal.

After visiting other correctionalinstitutions, local hospitals, and someschools, staff decided to implement apilot feeding program in the mostsecure unit in USP Marion (and in theentire Bureau of Prisons) that usedthermal trays. The thermal tray designallowed hot and cold foods to be placedin a single covered tray and deliveredto the inmate without reheating. Thiswould decrease the amount of time thatunit officers would be involved in thefeeding process, ensure consistent foodquality, decrease waste, provide goodheat retention, and improve thenutritional value of the meal (Breeden,1982).

The pilot project was intended todetermine whether appropriate foodtemperatures could be maintainedthroughout the tray preparation anddelivery and to assess the inmates’reaction to the new feeding system. It

While the microwave system greatlyimproved the quality of meals andreduced the amount of time that theunit officers were involved in thefeeding process, some problemsremained. The food carts were difficult

Winter 1991

was abandoned after about 1 month.Proper food temperatures could not bemaintained, the design of the tray didnot allow for sufficient food portions,and the inmates reacted negatively tothe new program. Staff also found thethermal trays bulky and hard to handle.

While the thermal tray project wastemporarily abandoned, the benefits ofa feeding system that eliminated theneed for food to be reheated at thefeeding location seemed obviousenough to encourage further effort.Although the original thermal tray wasabandoned, new trays, more suited tothe Marion operation, were designedby the institution’s Food ServiceAdministrator. The new tray designincluded one cold food tray and one hotfood tray for each meal; the trays weresmaller and easier to handle than theoriginal thermal tray.

were necessary to fill the trays effi-ciently. The hot food items are pre-pared and loaded into the trays accord-ing to housing units; the trays are thenplaced into a thermal bag to maintainthe proper temperature. The cold traysare then prepared and the hot and coldtrays for each housing unit are loadedinto thermal bags and placed on flatcarts for delivery to the units.

The “two-tray” feeding system wasimplemented institution-wide at USPMarion during August 1988 after atraining videotape was shown to allcorrectional staff. The tape clearlyexplained the roles of all staff involvedin the preparation, setup, and deliveryof the meal. An additional videotapewas prepared and shown to the inmate

The trays were constructed of clearLexan plastic and the lids wereinterchangeable between hot andcold trays. Constructing the traysfrom a clear plastic allowed theunit officers to inspect the trayswithout removing the lids.Thermal bags were alsodesigned and constructed toinsulate the food as it wasmoved from the foodservice area to thehousing units. The thermalbags provided insulationfor the food trays andeliminated the needfor the more expensiverefrigerated and heatedfood carts.

A conveyor system andhot and cold serving lines

population via the institution’s educa-tional closed-circuit television channel.The inmates’ tape stressed the nutri-tional benefits of the new program andattempted to explain the “two-tray”process in detail sufficient to answerany questions.

The “two-tray” system has been inoperation for more than a year at USPMarion. The response from both staffand inmates has been favorable. Unitstaff spend less time in deliveringmeals to the inmates; the inmatesreceive a meal that is more appealingand higher in nutritional content. As aside benefit, more time is available foractivities within the living unit due tothe considerable time savings offeredby the “two-tray” system.

This food delivery system, developedwithin a high security environment,could well be adapted to other settingswith populations having restrictedmobility, such as disciplinary segrega-tion units, pretrial detention facilities,or hospital areas. It is another exampleof how staff initiative can shapetechnology to provide better inmateservices—demonstrating once againthat innovative staff are the Bureau’sbest resource.

Stewart Rowles is a Research Analystand Elmer L. Knowles is Food ServiceAdministrator at the U.S. Penitentiary,Marion, Illinois.

NotesBreeden, Howard E. “Food Service for theFuture,” Corrections Today, 44:64, June 1982.

Wartime PrecautionsEditor’s note: This article is reprintedfrom Gearing Federal Prisons to theWar Effort, published in 1942. WhileGerman or Japanese air attacks mayseem outlandish from the perspective ofthe 1990’s, they were very much on theminds of defense plannersincludingthe Bureau’s, as Federal PrisonIndustries put its factories to workproducing war goods.

The Federal Prisons Journal willoccasionally reprint other articles thatreflect the history of the Bureau ofPrisons.

Large or small, remote to nationalfrontiers or close to them, all of thefederal correctional institutions havetaken steps to protect life andproperty in case of air raid.

Many of them aredirectly within“target areas.”McNeilIsland isdirectlywithin thePuget Soundmilitary area,close to defenseinstallations ofmany kinds.Alcatraz stands atthe front gate ofJapan’s hypotheti-cal “number oneobjective” in NorthAmerica, SanFrancisco harbor.The AtlantaPenitentiary issituated at the

major railhead of the Southeast, in themidst of industrial and militaryconcentrations. Danbury, Petersburg,Lewisburg, Chillicothe, Tallahassee—all of these and others are within rangeof possible enemy air invasion. TheDetention Headquarters at NewOrleans and at New York City are bothlocated in large metropolitan centerswhich are reasonably conjecturableobjectives for attack. All of theinstitutions, however, no matter whattheir location may be, have carried outintensive programs of preparation forany and every eventuality.

Measures taken fall under threeclassifications: Protection from DirectDamage, Medical and SurgicalPreparations, and Morale Stimulationand Instruction.

Protection from directdamage

Within this subdivi-sion of defense

activity falls thecreation of

equipmentand

mate-rials

for theextinguish-

ing of firebombs, the teaching

of fire-fighting tech-niques, the appointmentof crews to perform thisfunction, and theholding of practicedrills where possible.Methods and measuresfor dealing with gasbombs receive consid-eration (of a limited

nature). In the federal prisons, thoseresponsible for such protective pro-grams have foundationed their activi-ties upon the basis of thorough surveysof their local physical plants.

Medical preparations

Under this heading comes the estab-lishment and equipment of emergencyoperating rooms and first aid stations insections of institutions least likely tosuffer raid damage; also the training offirst aid and rescue squads. Consider-able attainment has been made inrespect to such activities.

Morale stimulation and instruction

Every effort has been made to informinmates of federal penal institutions ofthe exact nature, effect and extent ofjeopardy of air raid attack. Lectureshave been given, information has beenpublished (via institutional magazinesand bulletin boards) and government-issue movies have been shown. Newsbroadcasts and war bulletins have beenmade increasingly available, for suchinformation is regarded as importantlycontributive to good morale. Commit-tees have been formed to undertakemorale-stimulative activities that willbe carried out if and when attacksoccur.

In these and other ways, the FederalBureau of Prisons has met the chal-lenge of the times, has taken steps toinsure the safety of every man andwoman confined within its variousinstitutions, has fallen in line with theAmerican institutions and groups,public and private, who are not waitingfor a first attack to do the things theyshould have done long before.

Winter 1991 9

LettersJ. Michael QuinlanDirector, Federal Bureau of Prisons

Dear Mike:

I just got a chance to look at your 60thAnniversary issue of the Federal PrisonsJournal. It is really an excellent andthoughtful issue.

I particularly appreciated your articleattempting to get the public to be realisticabout what prisons can and cannot do. Ihave just one minor nit to pick. One facetof public perception that seems tocontribute to our horrendous prisoncrowding problem is their over-expecta-tion of how effectively prisons can assurepublic safety. It seems that whenever wehave a difficult and intractable societalproblem (like the drug problem today),the public—egged on by political figureswho understandably don’t have anythingbetter to propose—seems to be satisfiedwith the proposal to crank up thesanctions. Doing that seems to beaccepted as having dealt with theproblem. In that context, your statementthat “society should expect that prisonswill protect public safety” might alsofeed that expectation. I fully appreciatethe limited sense in which you meant that(keeping offenders assigned to you offthe street and thereby precluding theirpredatory behavior), but many peoplewill take it in the context of “protect[ing]public safety” much more broadly.

Incidentally, the photograph on page 36sure looks to me like Jim Vorenberg(then Executive Director of thePresident’s Commission on Law En-forcement and Administration of Justiceand my first mentor on matters ofcriminal justice), and not Ramsey Clark.

I really enjoyed the issue and your articlein it.

Yours truly,

Alfred BlumsteinDean and J. Erik Jonsson Professor ofUrban Systems and Operations ResearchSchool of Urban and Public AffairsCarnegie Mellon UniversityPittsburgh, Pennsylvania

Editor’s note: Professor Blumstein iscorrect. The photograph shows former

Bureau Director Myrl Alexander withJames Vorenberg. We should correctsome other errors in that issue. On page36, column 3, paragraph 2, the finalsentence should read: “As I worked withdelinquent kids, I learned much abouttheir frustrations and deprivations.” Onthe foldout, the “start date” for Federalcorrections should be 1789. Maxwellshould be the “oldest” rather than the“first” prison camp; a handful of campsopened a few months before Maxwell, butclosed within 2-3 years.

Conference on the

History of Federal CorrectionsMarch 28, 1991, National Archives’ Theater, Washington, D.C.

1991 marks the Centennial of the Three Prisons Act, which estab-lished the first Federal prisons in the United States. This specialconference will commemorate that event by furthering scholarshipand discussion on the historical evolution of prisons in Americansociety. Admission is free, but seating is limited. Attendees mustpre-register on a first-come/first-served basis.

For registration information call 202-307-1202.

Chairman: Norval Morris

Paul W. Keve“Early History of FederalCorrections”David A. Ward“ A l c a t r a z and Marion”Esther Heffeman“The Role of Women inFederal Corrections”

Constance Potter John J. Dilullo, Jr.“Resources for Future “Bureau of PrisonsResearch” Management”Robert B. Lev ison“Classification andProgramming”Ira. P. Robbins“Inmate Rights ”

Comment: Gustavo Fernandez,Julius Debro

Special Panel Discussion: Myrl E.Alexander, Norman A. Carlson,J. Michael Quinlan. Moderator:Hon. Helen G. Corrothers


by the U.S. Delegation

ive years ago, who wouldhave thought the SovietUnion would soon open its

prisons to scrutiny by U.S. Governmentofficials? Yet that is exactly what didhappen in March of this year, when aU.S. delegation, headed by J. MichaelQuinlan, Director of the Federal Bureauof Prisons, traveled to the Soviet Unionfor a 1-week tour of penal institutionsand to establish a working dialog withSoviet criminal justice officials. Wetoured five correctional institutions in theSoviet Union and discussed our observa-tions about the Soviet penal system andthe common issues that arise in prisonadministration with high-rankingofficials in the Soviet Ministry of InternalAffairs and in the Office of the Procura-tor General.

Ours was the first official U.S. delegationto visit Soviet prisons, although previousgroups from the United States havevisited particular prisons. The U.S.delegation had a balance of perspec-tives—administrative, legislative, andoversight, as well as prisoners’ rights. Inaddition to Mr. Quinlan, the delegationincluded Margaret Love, AssociateDeputy Attorney General for the Depart-ment of Justice; Elizabeth Fine, Counselto the House Judiciary Subcommittee onCourts, Intellectual Property, and theAdministration of Justice; Charles W.Colson, Chairman of Prison FellowshipInternational; and Jack Eckerd, a memberof the Prison Fellowship InternationalBoard of Directors.

The idea for the visit grew out of anAugust 1989 visit by Congressmen FrankWolf of Virginia and Chris Smith of NewJersey, both members of the U.S.

BHYTPEI COB~TCECEIX TIopeM

Commission on Security and Coopera-tion in Europe (Helsinki Commission), tothe Perm 35 labor camp to investigatehuman rights. At that time, CongressmanWolf suggested that Mr. Quinlan andofficials of Prison Fellowship travel tothe Soviet Union to open a dialog withSoviet correctional officials on matters ofmutual concern. Attorney General DickThornburgh expressed his support to theSoviet Minister of Internal Affairs,Vadim Bakatin, in December 1989. Mr.Quinlan subsequently wrote to Sovietofficials to officially request permissionto visit Soviet penal institutions. TheSoviet Government granted the requestand endorsed the visit as “official.”

We visited two labor camps in Penn, aregion 800 miles east of Moscow: Perm29, a “strengthened regime” labor camp,and Perm 35, the “strict regime”

We had hoped to tour the KGB-runinvestigations prison, Lefortovo, butKGB approval was not forthcoming in atimely manner.

A number of Soviet officials met us uponarrival in Moscow and accompanied usthroughout the week. They answeredendless questions about the Sovietsystem and were anxious to hear ourobservations at each stage of the visit. Inaddition, the Soviets learned what wasimportant to us simply by noting ourquestions in each of the prisons and theprograms and policies that were ofparticular interest.

The Soviets also arranged for us to meetwith officials in the Ministry of InternalAffairs, including its Minister, VadimBakatin, and with officials from the

2 Perm 29a Leningrad Perm 35

+

labor camp in the UralMountains visitedearlier by CongressmenWolf and Smith. The delegationalso visited three facilities in theMoscow region: the ButyrkaInvestigations Prison in Moscowand a women’s labor camp anda juvenile camp in Mozhaisk.

Mozhaisk Children’s Colony

Federal Prisons Journal12

tently released in the amnesty. Inaddition, as Minister Bakatin noted,changes in all aspects of life in the SovietUnion, including economic and politicalchanges, the questioning of traditionalvalues, and the resurgence of ethnicnationalism, have generated greaterwillingness on the part of Soviet citizensto challenge authority. Increasedexpectations on the part of Soviet citizensand an impatience with the pace ofeconomic reforms contribute to thegrowth in crime. Finally, just as theUnited States has a high rate of drug-related crime, the Soviets have a severeproblem with alcohol. Indeed, we weretold that 30-40 percent of crimescommitted in the Soviet Union arealcohol-related.

According to Minister Bakatin, theclimate in the labor camps and prisonshas deteriorated since the release ofnonviolent offenders because only themost dangerous prisoners remain;350,000 of the 761,000 Soviet prisonersare second- or third-time offenders.Accordingly, Soviet prisons are increas-ingly difficult to administer. Yet theMinistry at the same time is anxious toproceed with its second stage of re-forms—the humanization of the prisonsystem, with a greater emphasis onreeducation and rehabilitation.

Changes in prisonadministration

he Soviet Union has acentralized legal system,and all law is national law.

Unlike the United States, the SovietUnion has no state governments, eachwith its own laws and administrative andpolitical bodies, although reforms aremoving in the direction of greaterregional authority. Accordingly, there is

a single organizational structure for theadministration of the entire Sovietcorrections system.

The Soviet Department of Corrections iswithin the Ministry of Internal Affairs;the Director of the Department reports toa Deputy Minister. The Department isultimately responsible for the 2,100 laborcamps and the small number of prisonsoperating in the Soviet Union andoversees the 400,000 employees workingfor the Department of Correctionsthroughout the system.* However, muchof the responsibility for operating thepenal system has been transferred toregional authorities in the 15 republics ofthe U.S.S.R. Whereas in the past therewere 1,000 officials at the CentralDepartment Headquarters in Moscow,there remain only 148.

Prisoners in the Soviet Union areassigned to labor camps and prisons by a

*The Department of Corrections is also responsiblefor the nation’s mental hospitals, which have beenmuch criticized by human rights groups in the past,particularly with respect to the treatment of Sovietdissidents.

classification system markedly differentfrom our own. The labor camps aredivided into four different “regimes”:ordinary, strengthened, strict, and special.The regimes are apparently not distin-guished by security considerations, butby the inmates’ access to certain privi-leges. The number of letters, packages,and visits per year to which the prisonersare entitled varies according to regime.In addition, the prisoners’ daily caloricintake is adjusted downward as theseverity of the regime increases.

Most of the 761,000 prisoners aresentenced to labor camps. There are, inaddition, a small number of facilities,perhaps no more than six, that the Sovietslabel “prisons.” The prisons are reservedfor the most serious offenses and difficultoffenders. Prisoners there are housed incellblocks, and the regimen is harsherthan in the labor camps.

The court in the Soviet Union, instead ofthe Department of Corrections, deter-mines a prisoner’s classification, and it ispart of the sentence. The more severe theoffense, the more severe the regime.

U.S. delegation members with local officials and officials from the Ministry of Internal Affairs.Left, Jack Eckerd; third from left, Elizabeth Fine; center, J. Michael Quinlan; third from right,Margaret Love; second from right, Charles W. Colson.

Winter 1991 13

Repeat offenders are also likely to beplaced in a more stringent regime. Sovietlaw provides for a maximum sentence of15 years’ confinement for any offense,though a death sentence may also beimposed. We were told that about 30 to40 executions took place last year. Oncea prisoner is sentenced, the Departmentof Corrections identifies the specificfacility for the prisoner’s sentence fromamong those in the specified regime.Policy favors placement of prisoners infacilities close to their home and family.

The Office of the Procurator Generalserves as a general oversight authority inthe Soviet penal system, much like anInspector General’s role in the U.S.Officials from the Procuracy have theright to enter any prison and investigatecases in which prisoners’ rights may beviolated. While on the one hand, theProcuracy’s role is to contribute to thedefense of the weakest, according to theDeputy Procurator General, its officialposition is one of neutrality. In addition,the Soviet Parliament, with its expandedauthority, will begin to exercise oversightof the Ministry of Internal Affairs, andthus over the penal system.

Above: Margaret Love, J. Michael Quinlan,and Minister of Internal Affairs VadimBakatin. Right: The gate at Perm 29.

Soviet Prisons—UsuallyHumane, Sometimes GrimPerm 29

erm 29 is a 34-year-old“strengthened regime”labor camp in the Soviet

region of Perm. The Perm region has 13penal facilities: one educational colonyfor children; three women’s colonies; astrict reinforced labor camp, Perm 35;two ordinary regime labor camps; fourstrict regime camps, and the twostrengthened regime camps, includingPerm 29. Three camps have been closedas prisoners have been released in recentyears.

At the time of our visit, there were 900inmates at Perm 29, which has a capacityof 1,300. According to the prisoncommander (who led the tour of thefacility and then hosted us for discussion,cognac, chocolate, and tea), 800 of theseprisoners have been convicted of crimesagainst a person and about 380 ofmurder.

Despite the fresh paint that we couldsmell throughout the institution and thefresh gravel covering the mud in thefenced-in yard, the prison facilities

appeared run-down and the physicalsetting was rudimentary and grim.Nevertheless, there were clear indicationsthat the facility was orderly andefficiently run.

The tour took us through educationalfacilities, where all inmates study tocomplete the 10 years of schoolingrequired of all Soviet citizens, and wheretraining in various trades was offered forprisoners who had no profession. As inall Soviet penal institutions, the educa-tional staff works not for the Ministry ofInternal Affairs, but for the Sovieteducational authorities.

As a strengthened regime labor camp,prisoners were entitled to 2,800 calories aday. (This compares with a diet in a U.S.Federal prison, which is not based oncalories, but on nutritional content.) Thedining room had some tables at whichinmates would have to eat standing up.According to the commander, it costapproximately 1 ruble a day to feed eachprisoner. At an exchange rate of 6 rublesto the dollar, the per capita expenditurefor food amounted to less than 17 centsper day. In addition, prisoners werepermitted to spend 25 rubles a month inthe prison shop, which sells some foodsand items such as toothpaste.

We also toured the library, where therewas a local radio station run by aprisoner; the auditorium, used for filmsand assemblies, and in which thecommander indicated there had been avery well-attended religious service onlydays earlier; and the fenced-in courtyardand dormitory housing unit, where wehad the opportunity to talk briefly withinmates. Curiously, inmates seemedpuzzled about the existence of a libraryor the opportunity to borrow books from


it. Also, no prisoner confirmed that therehad been a religious service earlier in theweek.

Prisoners wore black uniforms and hadshaved heads, and a high degree ofdiscipline was evident. The 900 menwere divided into separate housing units.The dormitory unit housed 169 inmatesin crowded, but neat, double-bunk beds.Men in the unit’s recreation room sat inan orderly fashion watching television.A few reading materials were available,including a newspaper written for thelabor camps across the country. Therewas no evidence of any other recreationfacilities or activities, either inside oroutside the housing unit.

The Soviet officials were quite accom-modating and agreed to show us thepunishment cells, even though they werenot on the scheduled tour. Punishmentcells are referred to as “schizo’s”(pronounced sheezo) in the Soviet Union.The isolation area was easily identifiablenot only by its darkness, but by itsstench. The commander offered to openup any of the dozen cells at random.Each punishment cell was 12 squaremeters in size, and would house up tofour prisoners for 1 to 15 days, althoughofficials said the average stay is about 5days. Officials here repeatedly men-tioned that prisoners are rarely placedalone in punishment cells becauseisolation is considered too grave apunishment. Benches for sleeping arefolded up against the wall during the dayand taken down at night. Prisoners cansit only on iron benches during the day.The cells have toilet facilities, andrunning water is made available at 7 a.m.daily.

Taking into account the spartan condi-tions, the dark, harsh punishment cells,and questions about prisoners’ access tolibrary facilities and religious services,the camp’s conditions and programs weregenerally better than what we hadexpected. Although primitive relative tostandards for correctional institutions inthe U.S., conditions of confinement atPerm 29 were humane and not substan-dard relative to the surrounding commu-nity. The facility was clean and orderly,and administered in a professionalmanner.

Perm 35It takes about 6 hours todrive, over snow-coveredroads, from the city of Perm

to the infamous labor camp Perm 25,high in the Ural Mountains. A.M.Rosenthal of the New York Times and arepresentative from Helsinki Watch werethe first Americans to visit this prison, inlate 1988. Congressmen Wolf and Smithreturned there in August 1989.

Perm 35 is a “strict regime” labor campwith a capacity of 400 prisoners. (At itspeak, the prison held 250 inmates.) Atthe time of our visit, only 22 prisonerswere held there. Other prisoners had

recently been released as part of anationwide amnesty program. Perm 35attracted international attention when itopened in 1972 because of its highconcentration of prisoners who wereclassified as “prisoners of conscience” byinternational human rights groups andconcerned governments. The NationalGeographic Society and the 60 Minutesnews team reported on the severeconditions at this “gulag” in the weekspreceding our visit. Even with just a fewremaining prisoners, Penn 35 is a livingremnant of the Soviet past, and for thatreason was worth the lengthy trip.

Previous foreign visitors to Perm 35focused on the plight of specific impris-oned individuals. We did not revisit thequestion of whether the prisoners wereproperly confined, but, rather, examinedthe conditions of confinement.

Our most immediate impression of Perm35 was its desolation. Amidst thesnowdrifts, there was a small inmatepopulation of 22 prisoners and a staff of40. This contrasted markedly withanother labor camp, several kilometersdown the road, where 1,000 prisonerswere held and there were signs of abustling industry inside the barbed-wirefences. Moreover, according to the Penn35 prison commander, nine inmates were

Above: A worker in the Perm 35 factory.Right: En route to Perm 35.

Winter 1991 15

scheduled for release and an additional temperature inside the living quartersthree were being considered for early was comfortable. The residential facili-release. The commander said he would ties were roomy but rudimentary, andcertainly recommend that the camp be there was little in the way of recreationalclosed rather than remain open for the activities—just a weight room of sortsother 10 prisoners, although the decision and a room with a television set, althoughwill be left to the Minister of Internal the remote location would undoubtedlyAffairs. interfere with the reception.

We first visited the factory, where half adozen prisoners worked on heavymachinery under equally heavy supervi-sion. According to the commander,prisoners at Perm 35 work 8 hours a day,6 days a week, and have 1 hour to restbefore dinner. It was impossible to talkwith any inmate freely; correctionalofficers quickly appeared when we struckup conversations with prisoners, and atleast one prisoner who conversed with usmet with clear disapproval from theguards.

Everything about the labor camp re-flected its small population. In contrastto the crowded living quarters at Perm29, the Perm 35 residence had twospacious rooms with only nine cots to aroom. Other prisoners were confined tothe “schizo” or punishment cells, and twoprisoners were ill in the infirmary. The

Above and right: Scenes at Perm 35. Theposter reads: “Work better to increaseproductivity and quality.”

The remoteness of Perm 35 raisedquestions concerning the availability ofmedical care. The labor camp had littlein the way of modem medical equipment.An operating room and a dentist’s chairlooked like remnants of the 19th century.There was, we were told, a full-timedoctor on staff.

The commissary shop for prisoners waswell stocked, with canned goods,cookies, cigarettes, socks, toiletries, andwriting materials; prisoners could spend10 rubles a month and supplement their3,000-calorie-per-day diet. In theapartment-like family visiting area,prisoners are allowed to receive 3-dayconjugal family visits once each year.Only three members of the delegationwere permitted to see the punishmentcells—one small cell and one larger onewhere two prisoners were held. Thelarger cell had food on a table and manynewspapers. Again, at the time of ourvisit, the temperature in the cells wascomfortable.

We spoke with a number of prisoners inthe visiting area in the presence ofjournalists (including a television camerathat accompanied the delegation through-out the tour) and prison administrators.We had asked if we could conductinterviews in private, but were told that“it is the law” that the administratorslisten in.

Prisoners told us about a number ofproblems with conditions in the camp.One prisoner indicated that it is impos-sible to avoid infraction of the rules (andtherefore spending time in the punish-ment cell). He reported that sinceCongressman Wolf’s August 1989 visit,he had been placed in isolation fivetimes. Another prisoner told us that hehad been in the punishment cell continu-ously for over a year; a third indicatedthat his stay in the “schizo” now ex-ceeded 6 months. There were alsoreports that family visits are often deniedand that prisoners have not receivedincoming mail. Finally, we noted that allthe Perm 35 prisoners were very thin.

We had a number of concerns regardingthe conditions of incarceration at Perm35. First, the camp is located in a remotearea, far away from many prisoners’families. This is compounded by therestrictions on mail and family visits. Inaddition, to the extent that confinementto the “schizo” is used routinely forminor infractions, the practice would notbe acceptable in the United States. Norwould the long periods of confinement inthe punishment cells. In addition, iffacilities are not adequately heated, orpunishment cells are intentionally kept atcold temperatures (as we were told is thecase), conditions would be inhumane byU.S. standards.

On a positive note, the prison was orderlyand neat, and the prisoners were occu-pied. Yet Perm 35 has a reputation thatwill survive the camp itself. Manyprisoners believe that they are unlawfullyimprisoned, and should not have to abideby the same rules as those convicted ofproperty crimes or crimes of violence.We were encouraged by indications thatthe labor camp may be closed in the nearfuture.

Butyrka Investigations Prisone next visited the Butyrkainvestigations prison inMoscow, one of the oldest

prisons in the Soviet Union. Butyrka islocated in an ancient fortress that wasused by Peter the Great for militarypurposes. It was converted for use as aprison in 1787 and as such has housedmany well-known revolutionary figures.

Butyrka was slated for demolition in thelate 1950’s. However, the Governmentinstead built an apartment house adjacentto the prison to block any view of it fromthe street. The Butyrka prison is now ahistorical landmark and the prisoncommander repeatedly explained thedifficulty he faces in gaining approval forrenovations from the Governmentbureaus charged with protecting historicbuildings. A 10- to 15-million rublerenovation has, however, finally beenapproved.

According to the commander, the numberof prisoners at Butyrka totaled “a littlemore” than the facility’s 3,500 capacity,and included about 450 women. Thosedetained at Butyrka are awaiting trial ortransfer to another prison, and in somecases prisoners who are material wit-nesses in a trial are held at Butyrka. Theaverage stay is 4 to 6 months, although

more difficult cases may stay for up to 1 We spent more time touring the prisonyear. In addition, there is a work cadre museum than walking around the prisonof about 120 sentenced inmates. facilities.

Uniform rules govern all “investigationsprisons”; as the commander explained,these prisons serve several tasks: toprovide the authorities with all possibili-ties for investigation, to insulate societyfrom dangerous criminals, and to preventescapes.

Roughly 60 percent of the prisoners inButyrka are held in common cells, eachaccommodating 20-25 persons, while 40percent are in l-5 person cells. Men areseparated from women, repeat offendersfrom first-time offenders, those whocommitted “hard” crimes from thoseinvolved with less serious crimes, andadults from juveniles. In addition, allprisoners who are “inclined to excesses”are separated.

We were given a detailed description ofthe prison, but actually saw very little onthe tour. There were virtually noprisoners to be seen anywhere in theinstitution (with the exception of oneprisoner pressed with his face against thewall on the stairwell as we passed andone or two others who were in transit).

The prison was indeed a fortress. Everydoor was solid and one could not see intoor out of the cells or rooms. Prisonersinside the cells could call staff bypressing a bell. The delegation wasshown an empty cell on the prison’sspecial block that would accommodateone to five persons and an emptypunishment cell, located in one of thecomer towers. Regular cells areequipped with toilets, radios, mirrors, andrunning water. Prisoners leave their cellsfor showers every 7 days, and at that timethe bedding is changed. These and otherprison rules are posted on every cell wall.

Punishment cells at Butyrka holdprisoners in solitary confinement.Unsentenced prisoners can stay up to 10days and nights in the cells, and sen-tenced prisoners for 15 days. Onaverage, about seven prisoners are heldin the punishment cells at any given time.

On the way into the prison, there areholding cells—really, closets—that are

Above and right: A dormitory and bathroomat Perm 35.

Winter 1991 17

not used as punishment cells, but would were like. When the tour ended, we Mozhaisk 5certainly serve the same purpose. We commented that with more than 3,500were informed that prisoners typically prisoners, it was curious that as few as 2

ur next stop was a 40-year-

spend 1 hour or so in these “cells” while or 3 prisoners had been seen during theold colony for women at

entire tour. The commander explainedMozhaisk, a suburb of

they are sorted for assignment to an areain the prison. Nonetheless, we felt that that it is forbidden by law for anyone to

ozhaisk 5 is one of approxi-

these closet-cells had the potential for see unsentenced prisoners, but agreed tomately 80 colonies for women in the

grave abuse. bring us back into the prison, where weSoviet correctional system, 40 of which

met with one sentenced prisoner who hadare commanded by women. Mozhaisk 5

In the medical facility, prison officials been elected by his fellow prisoners asis headed by a male commander and twofemale assistants, who led the tour of the

proudly displayed their Soviet-made X- supervisor for the 120-prisoner workray machine. The tour continued through cadre. After a brief chat and a tour of the

camp and who impressed us with their

an area in which the commander told us living area for the sentenced work cadre,knowledge and professionalism, and their

that behind each of the solid, closed the commander led us out of the prisonextremely comfortable and supportive

doors, investigators were meeting with through a side door.interaction with prisoners. Most of the

prisoners and working on criminal380 military and civilian employees at

investigations. Finally, we were given a Why did the Government allow us tothe camp were women.

very detailed tour of the prison museum. visit the prison, but place such severerestrictions on what we could see, in

The 900 women prisoners at Mozhaisk 5have been convicted of more serious

In short, we saw empty cells, closed stark contrast to the openness of the two crimes than had been the case for womendoors, and relics, and had no opportunity Perm facilities? We could only speculateto see how prisoners lived in the institu- about the reasons for this secretiveness,

in the past. Typical crimes today include

tion or what conditions of confinement and surmised that they must relate tostate and property offenses, offenses

conditions inside the cell areas, theagainst the person, and murder. Half of

lengths of time prisoners are actuallyall women in Soviet prisons are serving

held before trial, and the nature of thetime for property offenses. Womenconvicted of lesser crimes now have their

charges. In addition, we were unable toconfirm with inmates any of the staff’s

sentences postponed and are essentially

assertions about access to counsel,placed on probation. Those who fail to

visitation, and other pretrial rights.obey the conditions of their probation aresent to a labor camp such as Mozhaisk 5.While prisoners can be sentenced toMozhaisk 5 for anywhere from 6 monthsto 15 years, the average sentence is 3.5 to4 years, and prisoners range from 18 to70 years of age. In fact, we weresurprised by the number of olderprisoners in the camp.

This year, the Soviet Government isconducting a bold experiment in sevenwomen’s colonies, including Mozhaisk5. In addition to a new policy ofawards—expanding the number and sizeof parcels women can receive, extendingvisiting privileges, and adding a 12-dayfurlough—it makes special provisions

for women who are mothers. Mothersare considered the heads of households,and under this experimental program,initiated in March 1990, pregnant womenare released from prison at the time ofchildbirth and allowed to stay with thefamily until the child is 3 years old. Atthat time, if the mother has behaved well,the court decides whether to cancel theoriginal sentence or lessen its severity.All women at Mozhaisk 5 are eligible toparticipate, provided they are not repeatoffenders and are not sentenced forparticularly violent or serious crimes.

tion building, samples of children’sclothes that prisoners had made weredisplayed on the classroom walls. Thedormitories were crowded, but wallswere covered with colorful posters anddrawings, and pillows, curtains, andcloths were all hand-embroidered by theprisoners, who apparently took great carewith their surroundings. Women on adinner break sat in the television room orin the outside courtyard talking in smallgroups. In the auditorium, severalwomen rehearsed for an upcomingconcert—one stood at the piano singingalong with an accompanist. The librarywas centrally located, well stocked, andapparently well used. We took particularnote of the poster-sized prison newspa-per, hand-made by prisoners and contain-ing original articles and artwork. Anartist showed us many previous editionsof the newspaper, stored in a room at thelibrary.

While we were not intimately familiarwith Soviet culture and norms, we feltthat this experimental policy couldunwittingly encourage pregnancies. Thispolicy would be very controversial in theU.S., particularly if, as in this experimen-tal program, conjugal visiting privilegeswere extended to nonfamily members. Inaddition, male prisoners in the UnitedStates would claim that women werereceiving preferential treatment inviolation of the equal protection require-ments of the Constitution.

Mozhaisk 5 was without doubt the mostimpressive facility the delegation touredin the Soviet Union. Two members ofthe delegation had toured prisonsthroughout the world and found the levelof prisoner morale and the administrationof the prison to be among the best thatthey had seen anywhere.

We talked easily with all the prisonerswe approached. One woman who spokeEnglish commented that she did notconsider this to be prison, but a placewhere she lived and worked, although itwas not her home. The administrators

While there were trees, birds, and signsof spring inside the labor camp com-pound, much was also done by bothprisoners and administrators to make thecamp a humane place. Personal toucheswere evident everywhere. In the educa-

also seemed to chat freely with theprisoners. At one point a prisonerhanded the commander a note withspecific requests; he approved two andturned down one.

The medical clinic was filled withactivity; we were told that the focus inmedical treatment was on preventivecare. At the time of the visit, there werea number of prisoners in the clinicawaiting outpatient care and 19 inpatientprisoners who were anxious to find outfrom the delegation or Soviet authoritiesif there was any news about when theywould be released. General V.N.Kremenesky, a Deputy Chief in theDepartment of Corrections who accom-panied our tour, indicated that anamnesty plan was awaiting approval atthe Ministry.

A high point of the tour was the diningroom, where we partook of the prisoners’soup, meat, kasha, and fruit tea. Womenprisoners and officials appeared to enjoyour visit; one prisoner sat with us as wesampled the cuisine.

Left: The clothing factory at Mozhaisk 5.Above: Lunch in the cafeteria at Mozhaisk 5.

Winter 1991 19

Most notable, however, was the prisonindustry. On the day of our visit, the 300or so women in the factory were makingclothes for servicemen at railwaystations. There was music playing; wewere told that prisoners decide whethermusic should be on or off and what kindof music should be played. The womenwore head coverings to comply withsafety requirements and worked for netearnings of 90 rubles a month. Inaddition, they could receive good-timecredits and increased earnings forproduction in excess of their quotas. Atleast 50 percent of each woman’searnings is kept by the administration topay for living, food, and clothes. Somefunds are deducted to repay victims ofproperty crimes.

While overall morale in the colonyseemed excellent, we found the punish-ment cells to be somewhat disturbing.Mozhaisk 5 has about 12 punishmentcells, and the prison officials noted thatthey are used only as a last resort. The

Above: Working on the prison newspaper atMozhaisk 5. Right: Courtyard at Mozhaisk 5.

administration randomly opened the doorto one of the cells; inside were fivewomen dressed in nightgowns who wereapparently as surprised to see us as wewere to see them. One prisoner wasparticularly disturbed and began cryinguncontrollably. The prison administratortried unsuccessfully to calm her. Thedelegation was told that the youngwoman was in the “schizo” for refusal towork, although insolence, fighting, orstealing from other inmates typicallylanded prisoners in the punishment cellsfor up to 15 days—sometimes forprotection from retaliation by otherprisoners.

Our stay in the “schizo” ended abruptlywhen the young woman’s crying turnedinto a hysterical episode or seizure. Wecommented that continuous confinementin the dark punishment cell for up to 15days could have very deleterious effects.The consequences could be lessened,however, if, as the administrationindicated, the women are not left in thecells all day, but get out to work andexercise in the punishment areacompound.

Notwithstanding the concerns about thepunishment cells, we found the institu-tion to be very well run, with a balance of

compassion and discipline, order andpersonal freedom, and opportunities forwomen to improve themselves, improvetheir surroundings, and keep productivelyoccupied during their sentences. Thevisit to Mozhaisk 5 convinced us of theimportance of providing prisoners withreal opportunities for productive employ-ment. Moreover, the administrationshowed concern for creating a humaneenvironment.

Mozhaisk Children’s Colonyur final visit was to thehighly disciplinedchildren’s colony in

Mozhaisk. There are 89 juvenilefacilities in the Soviet Union; a total of28,000 juveniles are in custody. Six ofthe camps are for girls and four are forserious, violent juvenile offenders. TheMozhaisk children’s colony holdsroughly 400 boys, aged 14-18, andprovides them with education andprofessional training. All of the boyswere serving time for property offenses.Sentences were 3 years on average,although most are released after complet-ing one third of their sentence.

There are two general categories ofjuvenile prisons in the Soviet Union:one, including Mozhaisk, is for first-timeoffenders, and a second is for juvenileswith previous records. Most first-timeoffenders are not sentenced to prison, butare given probation, and would only besent to a colony such as Mozhaisk forviolation of probation.

None of the Mozhaisk juvenile prisonershad been sentenced for violent crimes.Yet the atmosphere and physical sur-roundings at the colony were extremelybasic. Boys were dressed in brown andblack uniforms, some with red armbands,and most had shaved heads. About 300


of the boys were in school in the prison,completing their 10 years of education,or are in professional school learningsteelworking, mechanics, or the assemblyof radio equipment. The boys in theclassroom were shy about striking upconversations, although several hadquestions regarding U.S. facilities forjuveniles.

Prisoners were involved in production atthe prison’s six assembly plants and arerequired to work 4 hours a day if they areunder 16 years of age and 6 hours a dayif older. After the administration deductsexpenses, the boys were left with 40 to50 rubles a month. The boys workedtogether energetically and persistently inteams on assembly lines, and wererewarded for production in excess oftheir quota. In one factory, boys as-sembled light sockets; in another,loudspeakers.

In contrast with the school and industrysections of the prison, which were allcement, the residential area had trees andpicnic tables. Still, the boys live inbarrack-styled housing and there waslittle evidence of any recreation, otherthan a television room in each dormitory.

Tall fences surrounded the residentialand industry sections of the prison toprevent escapes. Escape attempts werereported to be quite common; in fact,there was a boy in the punishment cellfor an attempted escape. Unlike otherprisons, where administrators made apoint of noting that it is too difficult for aperson to be alone in a punishment cell,and where administrators intentionallyhoused prisoners in groups—even inpunishment cells—to provide them with

company, this boy was in solitaryconfinement, and was clearly disorientedafter 5 days in the cell by himself.

While not a nurturing, supportiveenvironment, the children’s colony atMozhaisk was highly structured anddisciplined. The boys there seem to havethe opportunity to learn a skill and tospend their time productively. Thecolony may instill some discipline in theyouths, most of whom seemed to havebeen sent there for stealing cars. Yet theregimen was severe for juveniles who areprimarily first-time property offenders.

General observations andlessons for the U.S.

hile we did not discuss inadvance of the visit whateach of us expected Soviet

prisons to be like, we agreed that incertain respects, conditions in theinstitutions we visited surpassed ourexpectations. More surprisingly, wewere able to compare the two nations’prison systems and develop some ideasfor the American correctional system.

w Conditions of confinement.Living conditions at many of the facili-

ties visited would be considered substan-dard in the U.S. For example, whereasFederal prisoners and most State prison-ers have virtually unlimited access toshowers, Soviet prisoners can showeronly once a week. However, the stan-dard of living in the Soviet Union issubstantially behind that in the U.S.Inmates in prison cannot live better thancitizens in the surrounding community.Based on living conditions that thedelegation observed in Moscow, Permand Mozhaisk, prison conditions ap-peared appropriate relative to communitystandards.

n Prison industries.A prominent theme that emerged in ourvisit was the importance of prisonindustries; 82 percent of Soviet prisonersare so employed. Mindful of the fact thatlabor should not be used as punishment,and of the volumes that have beenwritten on the brutal work conditionsimposed in the past on Soviet prisoners,the delegation was nonetheless favorablyimpressed with the compulsory workregimes at Perm 29, and at the women’sand children’s camps in Mozhaisk.Prisoners appeared productively em-ployed in work that did not appear either

to be exploitive or generally regarded bythe inmates as a form of punishment.

The difference between U.S. and Sovietprison systems with respect to prisonindustries is somewhat ironic. Whereasthe Soviet Union has a problem of ashrinking prison workforce, the U.S.faces the difficult challenge of creatingenough jobs for the rapidly growinginmate population.* The tales of exertionin Soviet gulags contrast greatly withcomplaints of inmate idleness in manyU.S. prisons. “Factories within fences,”a goal that American correctionalinstitutions strive to achieve, is a realityin the Soviet Union.

Currently, about one-third of qualifiedFederal prison inmates in the U.S. areemployed in industry programs, and just5-10 percent of State inmates. Thedelegation was sufficiently impressed

*In contrast to the Government funds used to runprisons in the U.S., Minister Bakatin indicated thatthe entire operating budget for Soviet prisons in1989 was raised through prison production, and thefull appropriation was returned to the Government.

Mozhaisk Children’s Colony: Left, at work inthe prison factory; above, outside security;right, a classroom.

with the positive effect that the Sovietprison industry program has on morale,discipline, and administration that itreturned with a renewed commitment toincreasing employment opportunities forAmerican inmates.

w Prison regimes.Soviet prisons and camps are divided into“regimes,” distinguished in part by thenumber of letters and visitors prisonerscan receive each year, and by the numberof calories each inmate can consumeeach day.

We had serious concerns about the use offood and family communications as aform of punishment, and raised the issueof limitations on mail and visiting rightswith Minister Bakatin, who noted thatthese are remnants of the old Sovietsystem that have yet to be revised.Supreme Soviet member Golik, anotherof the officials who met with us, indi-cated that new laws were being written,and questions such as ours would beaddressed through penal law reforms.

n Religious freedoms.For years, the beautiful cathedrals in andaround Moscow have been withoutdecorative crosses on their steeples. Thatis now changing; the churches that werefor a long time museums of Soviet

history are again being used as places ofworship. Similarly, the Ministry ofInternal Affairs has begun to implementnew religious freedoms in prisons; weapplauded these advances in our meetingwith Minister Bakatin.

Prison administrators stated that prison-ers could freely practice their religion.The members of our delegation associ-ated with Prison Fellowship were givenpermission to hand out Bibles in theprisons visited. While it is unclear towhat extent prisoners actually haveaccess to religious ceremonies inside theprisons, the opportunity is there foroutside religious groups to hold services.

w Oversight of prison administration.We noted the positive trend towardgreater oversight of the administration ofthe prison system. Currently, theProcurator General has a certain degreeof oversight and review of the Ministryof Internal Affairs. Yet there is a needfor greater openness and public scrutinyof corrections. The Soviet parliament isdeveloping its oversight role as it obtainsgreater autonomy from the executivebranch of the Government. Newfreedoms for the press and greater pressindependence are contributing to theconcept of public accountability on thepart of administrators. In fact, a televi-sion news crew and newspaper photogra-pher accompanied us into two prisons.

H Punishment cells.A number of the punishment cells thatthe delegation saw were harsh, dark, andunpleasant. While prisoners are gener-ally sent to punishment cells for no morethan 15 days (although at Perm 35, atleast one prisoner had been in thepunishment cell for over a year forrefusing to work), we felt that conditions


are unnecessarily punitive. In contrast toprocedures in Federal prisons, we learnedof no administrative process to ensurethat prisoners are not arbitrarily orinappropriately sentenced to punishmentcells.

On the one hand, the Soviet authoritiesdisplayed concern for the prisoners inpunishment cells and hold them in groupsof four or five to a cell, as loneliness andisolation are considered the greatestpunishment of all. On the other hand,prisoners are often deprived of naturallight, and the benches for sleeping arepressed against the wall during the day,leaving prisoners with only metal stoolsfor sitting.

n Levels of unrest.While we did not see evidence of unrestin the prisons visited, Soviet officialsnoted that unrest and riots are on the riseas the concentration of violent prisonersincreases. Correctional staff haveincreasingly been taken hostage and theauthorities are grappling with how toaddress this problem.

In meeting with the Deputy ProcuratorGeneral, we reviewed recent prison riotsin the U.S. and the lessons learned aboutthe use of force to counter prisonrebellion. Since the Attica State prisonuprising, the policy in Federal prisonshas been to avoid use of force because itleads to greater bloodshed. Currently,the policy in the Soviet Union is to useforce to counter prisoner rebellions.

n Discipline.While Soviet officials discussed theproblem of prison unrest, the prisons andprisoners we visited were notable for

their high degree of discipline. Prison-ers’ neat manner and appearance—forexample, prisoners’ shirts were buttonedup to the collar and their heads shaven—tidy dormitories, and regimented sched-ule evidenced a high degree of orderli-ness. Inmates watching television sat inrows. Prisoners with whom we spokewere quick to stand and respond politely.

n Family visiting.Family visits are limited to as few as oneor two a year or as many as five or six ayear, depending on the nature of theregime.* Certain visits, however, extendfor 3 days and 3 nights. During theselong family visits, the prisoners stay withtheir families in apartment-like areasinside the prisons. While U.S. Federalprisons allow more frequent family visits,there are no conjugal visits. We encour-aged the Soviet Government to allowmore frequent family visits, and cameaway with an interest in exploring anewthe issue of conjugal visitation.

n Administrative remedies.According to the Office of the Procura-tor General, prisoners have the right to

*Juvenile camps allow somewhat more frequentfamily visits. In addition, the women’s camps areexperimenting with extra visitation privileges.

write to the Procuracy to seek relief formisconduct on the part of administrators 9or others violating their rights.* Admin-istrators must forward all prisoner mail to Ithe Procurator’s office within 24 hours.Regional Procuracy offices receive about75,000 prisoner claims and letters eachyear, although the Central DepartmentHeadquarters in Moscow receives only1 l-12,000 letters, most of which areappeals of decisions by lower authorities.

We learned of no mechanisms forprisoners to seek redress directly withinthe Ministry of Internal Affairs, such asexist in U.S. prisons. Such administra-tive relief mechanisms could be veryuseful in resolving disputes internally,unless prisoners would hesitate for fearof retaliation.

w Medical care.Medical facilities generally appearedrudimentary. Moreover, according to theDeputy Procurator General, inadequate

*Although if an inmate is found to be at faultinstead of an administrator, the inmate may bepunished.

Left, A washroom at Mozhaisk Children’sColony. Above: A classroom at Perm 29.

Winter 1991 23

medical care is a chief complaint amongprisoners. The Procurator’s office,however, does not view medical care as aserious problem, as many individualsarrive in prison with “damaged health.”

While medical care was of interest to us,there was insufficient opportunity toexplore this issue in depth. It would beuseful to learn more about the medicalcare afforded to prisoners in futureexchanges, especially since the issueposes many difficult questions foradministrators in the United States.

n Prisoners of conscience.While we did not focus on the questionof prisoners of conscience, we did visitPerm 35, which has been noted for thepolitical nature of its prisoners’ offenses.Moreover, the U.S. Government andMembers of Congress, including Repre-sentative Wolf, are concerned that the

Above: The operating room at Perm 35.Right: Religious symbols have been restoredto Moscow cathedrals.

Soviet Government still does notadequately respect human rights.Accordingly, prisoners’ rights andprisoners of conscience were a compo-nent of the official American delegation’svisit. Mr. Colson raised a concern aboutthe incarceration of prisoners of con-science at Perm 35 in our meeting withthe Ministry of Internal Affairs. How-ever, Minister Bakatin was not receptiveto the discussion, and defended theSoviet Government’s imprisonment ofindividuals who have violated Sovietlaw.

n Women’s penal facilities.Soviet officials are experimenting withsome bold reforms in women’s prisons,and while certain experimental policieswould be controversial in the UnitedStates, the fact that the Government isattempting to improve conditions inwomen’s prisons through reforms andinnovations is encouraging. The same

degree of innovation and commitmentwill ideally be applied to men’s facilitiesas well.

Future steps in U.S.-Sovietcriminal justice relations

verall, we were encouragedwith the course of Sovietprison reforms and found

many positive elements in the currentadministration of the Soviet prisonsystem. Mr. Quinlan invited Sovietofficials to continue their discussionabout prison administration by visitingthe United States.

The entire visit was extraordinarilyeducational, and a very positive, friendlyrelationship was established. The Sovietand U.S. governments and their respec-tive prison systems are certain to benefitfrom the delegation’s visit and fromfuture discussions regarding mutualefforts to improve criminal justice. n

J. Michael Quinlan is Director of theFederal Bureau of Prisons. ElizabethFine is Counsel to the Subcommittee onCourts, Intellectual Property, and theAdministration of Justice, Committee onthe Judiciary, U.S. House of Representa-tives. Margaret Love is Associate DeputyAttorney General, U.S. Department ofJustice. Charles W. Colson is Chairmanof Prison Fellowship International. JackEckerd is a member of the PrisonFellowship International Board ofDirectors.


my right side of my body...you areburning me out of my life...you areburning me out of my freedom.”

In Harper, the two parties, as well asseven other interested groups, filed briefswith the Supreme Court. These groupswere hotly divided over the desirabilityof using antipsychotic medication. AsJustice Blackmun observed in hisconcurring opinion, “The difficult andcontroversial character of this case isillustrated by the simple fact that theAmerican Psychiatric Association andthe American Psychological Association,which are respected, knowledgeable, andinformed professional organizations, andwhich are here as amici curiae, pull theCourt in opposite directions.” TheAmerican Psychiatric Association hadstressed that the benefits from cautioususe of these medications outweigh thepotential side effects, while the AmericanPsychological Association had urged theopposite.

Implications of Harper—Procedural and substantiveThe narrow holding of the Harperdecision is that a dangerous inmate maybe medicated against his will when suchtreatment is found by mental healthprofessionals to be in his or her bestmedical interests. However, the decisioncontains both a procedural and a substan-tive component, and by looking at eachcomponent individually, it appears that

there may be other circumstances underwhich medication may be involuntarilyadministered to a hospitalized inmate.

n Administrative procedures.The Court rejected Mr. Harper’s conten-tion that he was entitled to a judicialhearing before the State could treat himover his objection. Finding the realdebate to be over the benefits and risks of

The real debate is overthe benefits

..- and risks ofantipsychoticmedication...

the Court foundthis should be

decided bymental healthprofessionals.

antipsychotic medication, the Courtfound this was the type of question thatshould be decided by mental healthprofessionals during an administrativehearing, rather than by a judge. TheCourt stressed that the hearing officialshould be independent, and approved theWashington State regulations, whichguaranteed that the mental healthprofessionals who presided at the hearingmust not be personally involved in thecurrent diagnosis and treatment of theinmate.

The Court in Harper was concerned thatthe inmate has an opportunity to ade-quately prepare and be heard at thehearing. The Court approved ofWashington’s procedures, whichrequired:

1. At least 24 hours prior notice of ahearing that will determine whether theinmate should be involuntarily medi-cated, during which time the inmate maynot be medicated.

2. The notice must state the tentativediagnosis, the factual basis for thediagnosis, and why the staff believesmedication is necessary.

3. At the hearing, the inmate has the rightto attend, to present evidence, includingwitnesses, and to cross-examine staffwitnesses.

4. The inmate can have the assistance ofa lay adviser who has not been involvedin his case and who understands thepsychiatric issues involved. There is noright to have an attorney present at thehearing.

5. Minutes of the hearing are kept, with acopy given to the inmate.

6. The inmate may appeal the decision tothe Superintendent within 24 hours of thedecision, and the Superintendent must acton the appeal within 24 hours of itsreceipt. If still dissatisfied, the inmatemay seek judicial review of the decision.

7. Once authorized, the involuntarymedication decision must be reviewed

Winter 1991 27

after 7 days and, if approved again,reviewed (with a report prepared) every14 days while treatment continues. Atthe end of 180 days, a new hearing isheld to consider the need for continuedtreatment.

n Conditions that must be found atthe hearing to justify involuntarymedication.The second aspect of the Harper decisionfocused on the substantive component ofthe hearing—what factors must thehearing officials find before they canauthorize medication against the patient’swill? Because the record containednumerous instances of assaultivebehavior by Mr. Harper, the WashingtonState hearing panel authorized hisinvoluntary medication due to its beliefthat he was a danger to others as a resultof his disease. Given that Mr. Harper’slawsuit challenged this decision, theholding of the Supreme Court was anarrow one—that an inmate with aserious mental illness can be involuntar-ily treated with antipsychotic medicationif the inmate is dangerous to himself orothers, and the treatment is in theinmate’s medical interest.5 However, inits opinion, the Supreme Court spokeapprovingly of regulations that author-ized medication where the followingconditions were found:

1. The person suffers from a “mentaldisorder,” defined as any organic, mental,or emotional impairment that has asubstantial adverse effect on an

individual’s cognitive volitional func-tioning, and

2. As a result of disorder, the person is“gravely disabled,” defined as either

a. being in danger of serious physicalharm resulting from a failure to providefor his or her essential human needs ofhealth or safety, or

An argument canbe made that

involuntary medi-cation may beauthorized in

certain circum-stances to helpeven a nonvio-lent inmate re-

gain competenceto stand trial.

b. manifesting severe deterioration inroutine functioning, evidenced byrepeated and escalating loss of cognitiveor volitional control over his or heractions and is not receiving such care asis essential for his or her health or safety.

Thus, the narrow holding of the Courtshould not be read as defining the entirespectrum of situations in which involun-tary treatment of a prison inmate may beallowed. In fact, shortly after the Courthanded down the Harper decision, itdenied certiorari in U.S. v Charters 863F.2d 3D2, (4th Cir. 1988) (en Banc), a

case the Court previously agreed to hear,where the Fourth Circuit Court ofAppeals approved of medicating aninmate who was not currently dangerous,so he could regain competence to standtrial. By the Supreme Court’s decliningto hear the case instead of remanding itfor further proceedings in light of theHarper decision, an argument can bemade that involuntary medication may beauthorized in certain circumstances tohelp even a nonviolent inmate regaincompetence to stand trial.

In addition, it is likely that additionallight will soon be shed on the question,as the Supreme Court has agreed to hearthis year a case involving the question ofwhether the State of Louisiana caninvoluntarily medicate an inmate to helphim regain his competence, after whichthe inmate will be executed.6

Competence to consent toadmission or medicationZinermon v Burch7—On December 7,1981, Darrell Burch was found wander-ing along a Florida highway, appearingdisoriented and injured. He was taken toa private mental health facility, and after3 days was transferred to a publichospital operated by the State of Florida,as he was felt to need long-term treat-ment.

Dr. Zinermon, the attending physician,wrote upon admission that Mr. Burchwas “disoriented, semi-mute, confusedand bizarre in appearance andthought...not cooperative to the initialinterview,” and “extremely psychotic,appeared to be paranoid and hallucinat-ing.” A day after his admission, a nursenoted that Mr. Burch was confused andunable to state the reason for his hospi-


talization and believed “this is heaven.”At the time of his admission, Mr. Burchsigned forms for voluntary admission andtreatment. Mr. Burch remained aninpatient for 5 months, during which timehe received antipsychotic medication.

Upon his release, Mr. Burch initiated aFederal lawsuit seeking to hold person-ally liable 11 staff members at thehospital. Mr. Burch claimed staff knew,or should have known, that he was“incapable of voluntary, knowing,understanding and informed consent toadmission and treatment...,” and thatsuch conduct deprived him of his libertywithout adequate procedural due process.Before the Supreme Court, the narrowquestion presented was whether theseallegations stated a valid claim ofviolation of Mr. Burch’s constitutionalrights.

The Supreme Court held if Mr. Burchcould prove the above facts at trial, hewould prove that Florida hospital staffhad violated his constitutional libertyinterest by improperly admitting him tothe hospital, and by subsequently treatinghim without a valid informed consent.While the State of Florida had regula-tions that required that a valid voluntaryconsent to admission and informedconsent to treatment be obtained, theyhad failed to develop procedures thatwould ensure that the patient wascompetent to make such decisions. In soholding, the Court left open the possibil-ity that staff at the hospital could bepersonally liable for failing to ensure thatMr. Burch was competent when he

admitted himself, and when he agreed totreatment. The case was remanded to theDistrict Court for a trial on the merits ofMr. Burch’s allegations.

Implications ofBurch v Zinermon

Staff who work in psychiatric hospitalshave long been troubled by the fact that

Thus, a patientwho voices a

desire foradmission and

treatment, yet isfound incompe-tent to consent

to suchtreatment, maynot be treated.

their patient’s mental condition maypreclude obtaining a valid informedconsent. A need for informed consentarises in a variety of situations withpsychiatric patients, aside from decisionsregarding admission to the hospital ortreatment. Virtually all States requiremental capacity to make a will, to getmarried, to transfer property, and tomanage one’s affairs. In Burch, the Courtrequired staff specifically to assesswhether Mr. Burch was competent toconsent either to admission or treatment.If they determined he was not competent,involuntary admission or treatmentprocedures should have been imple-mented. After Burch, it appears thatmental health staff will run the risk of

personal liability if they fail to considerwhether the patient is competent to makecertain decisions.

While both the Harper and Burchdecisions seem fairly straightforwardwhen read together and when seen in thecontext of the Federal statutes governingthe treatment of Federal prison inmates(Title 18, United States Code, Section4241-4247), these cases raise thepotential of temporarily placing a legalstraitjacket upon treatment staff, and ofrelegating certain categories of patientswho may desire help to little or notreatment.

After Burch, the effect of finding aperson incompetent to consent tovoluntary admission to a psychiatrichospital is that staff will be forced toinitiate the State involuntary commitmentprocedures. In most States, such proce-dures can be accomplished in a matter ofweeks, if not days. However, involuntarycommitments under the Federal statute,18 United States Code, Section 4245,have taken on average several months,and in one case as long as 10 months.8

Thus, a patient who voices a desire foradmission and treatment, yet is foundincompetent to consent to such treatment,may not be treated for several months.This possible scenario is extremelyupsetting to Federal mental health staff,who feel an obligation to provide neededtreatment.

An even more upsetting dilemma forsome is seen in the case of the patientwho expresses a desire for treatment, isnot competent to consent either toadmission to the hospital or to treatment,yet is not dangerous or gravely disabled.

Winter 1991 29

After Burch, it is clear that this patientmust be involuntarily committed.However, it is conceivable that afterHarper, even though the patient could beinvoluntarily committed under Federallaw, where dangerousness or a findingthat the patient is gravely disabled is notnecessary for commitment, staff couldnot legally treat this person. While thepatient is too sick to give valid consent toadmission or treatment, he or she maynot be sick or dangerous enough to treatinvoluntarily.

The above scenarios will be frustratingfor mental health staff and others whobelieve in the patient’s need for treat-ment, and that antipsychotic medicationoffers the only form of meaningfultreatment for some mental illnesses. Inthe case of delays in the commitmentprocess, there is a clear need to explore—with the judiciary and the inmate’scounsel—means to streamline thecommitment process. The Burch decisionexacerbates the problem, as there couldnow be substantial delays in the treat-ment of a person who is not openlyopposing treatment.

Mental health staff may find it difficult tolegally treat, under the Harper and Burchdecisions, a person who is incompetent togive an informed consent, yet is not illenough to treat involuntarily. Anargument can be made that the Court inBurch recognized this dilemma whenthey noted that some persons who are notcompetent to consent to admission wouldnot necessarily be involuntarily com-mitable, as most States require a findingof “dangerous to self or others” beforesuch commitment can take place.

However, in making this statement, theCourt was stressing that a person whowas not dangerous to others, and who

posed no danger to him- or herself, has aconstitutional right to live free in society.This rationale does not seem to apply tothe prison context, where the inmate’sliberty has already been substantiallycurtailed, where the Federal commitmentstatute does not require a finding of“dangerous to self or others,” and wherebizarre behavior by a mentally ill

Mental healthstaff will run therisk of personalliability if theyfail to consider

whetherthe patient iscompetent tomake certain

decisions.

Notes1.494 U.S._, 110 S.Ct.1028, 108 L.Ed.2d 178(1990).

2. Mr. Harper filed suit under Title 42 U.S.C.Section 1983, claiming violation of the EqualProtection, Due Process, and Free Speech clausesof the Federal and State constitutions; he alsoclaimed that State tort law had been violated.

3. See Hills v Rodgers, 457 U.S. 291,299 (1982);and Rennie v Klein, 720 F.2d 266 (3rd Cir. 1983),vacated and remanded at 458 U.S. 1119 (1982).

4. See Bee v Greaves, 744 F.2d 1387 (10th Cir.1984) and Walters v Western State Hosp., 864 F.2d695 (10th Cir. 1988), adopting a very restrictiveapproach to involuntary treatment, versusDautremont v Broadlawns Hospital, 827 F.2d 291(8th Cir. 1987); Johnson v Silvers, 742 F.2d 823(4th Cir. 1984); Project Release v Prevost, 722 F.2d960 (2nd Cir. 1983); and United States v Charters,863 F.2d 302 (4th Cir. 1988) (en Bane), whichadopt the more liberal “professional judgment”standard for involuntary treatment.

5. In defining what amounts to a danger to self orothers, the Washington regulations included theconcept of harm to the property of another, stating,“Likelihood of serious harm means either,

a. a substantial risk that physical harm will beinflicted by an individual upon his own person, asevidenced by threats of attempts to commit suicideor inflict physical harm on one’s self,

prisoner places that individual at risk ofbeing victimized. To simply warehousementally ill inmates may subject them todanger at the hands of other inmates, whomay not tolerate what they see as “crazy”behavior.

This author believes that this conse-quence was not anticipated or intendedby the Court; unfortunately, however, itsresolution will come only through thelong and often uncertain course of futurelitigation. n

Bill Burlington is Deputy GeneralCounsel for the Federal Bureau ofPrisons.

b. a substantial risk that physical harm will beinflicted by an individual upon another, asevidenced by behavior which has caused such harmor which places another person or persons inreasonable fear of sustaining such harm, or

c. a substantial risk that physical harm will beinflicted by an individual upon the property ofothers, as evidenced by behavior which has causedsubstantial loss or damage to the property ofothers.”

6. Perry v State of Louisiana, 502 Sc.2d 543( 1986), cert. granted March 5, 1990, No. 89-5 120.

7.494 U.S._, 110 S.Ct.975, 108 L.Ed.2d 100(1990).

8. At one Bureau psychiatric hospital, the averagetime from the filing of the commitment petitionuntil the final judicial decision was: 1988—3months, 24 days; 1989—4 months, 10 days; 1990—2 months, 22 days.

Winter 1991 31

Working the Morning Watch

John A. Mattsen

The other day my wife tried to convinceme that there are people who prefer towork on the morning watch (12-8 a.m.)and do so without the mental, physical,and emotional stresses so common tomost of us. To prove her point shementioned the husband of a 58-year-oldfemale associate who had worked in apowerhouse for more than 30 years, allon the morning watch and supposedlyloving every minute of it. She went on toexplain that he was now retired, and Icouldn’t help but wonder if he was stillliving on the morning watch.

Morning watch isn’t something you justdo, it’s something you learn to do, and tosome extent it involves trial and error. Ifthis is so, then how do we teach newemployees how to adapt to morningwatch hours? All too often it is learnedinformally from other officers whopropose such strategies as “drink a lot ofcoffee to stay awake” and “turn on a fanin your bedroom to go to sleep.” In fact,these ideas may be poor advice.

Beyond the need to stay awake and alertto perform well on the job, knowledgeabout sleep patterns (later I will discusssomething called the “circadian rhythm”)is essential for optimum morning watchsupervision of inmates. Many officersseem to believe that because mostinmates are asleep, their job entails littlemore than being available in the eventthat something goes wrong. This is adangerous misconception.

Sleep cycles

Figure 1 represents an average normalsleep cycle for a young adult. You’llnotice that about 45 minutes into the

sleep (A,B) is the peak period of sleep,which the person is dreaming. Notice howthe REM peaks are to the awake stage.

1pm 12 1am 2 3 4 5 6 7

pattern, the person experiences his/herdeepest sleep. When officers become“sleep stressed” (haven’t had good sleepfor days), they can achieve deep sleep ina matter of minutes (the line to the firstdeep sleep cycle would become nearlyvertical).

Note the peaks of the graph—the periodsduring which the sleeping person isnearest to an awake state—(A) 12:45a.m., (B) 2:15 a.m., and so on. Sleepingassociated with these peak periods iscalled “REM (Rapid Eye Movement)sleep,” during which the person is

dreaming. It is difficult to measure theeffects of losing REM sleep because onetype of sleep may partially take over thefunctions of another. In some experi-ments, however, subjects who weredeprived of their REM sleep showedincreased aggressiveness and irritability,and seemed to have difficulty keepingtheir impulses under control. In contrast,subjects who failed to obtain sufficientdeep sleep for even one night sufferedfrom feelings of lethargy (low energy).

Notice how close the REM sleep cyclesare to the threshold line (awake/asleep).While it may be very difficult to wake aninmate from a deep sleep cycle, it isrelatively easy to wake the person duringREM sleep. If the officer fails to properlycontrol the sleep environment—light,noise, movement, and temperature—inmates will not get enough REM sleep.In other words, the morning watchofficer is not just a night watchman in awarehouse.

Within the context of a low securityinstitution, let’s take a look at how thisapplies to the operation of a unit on themorning watch and the consequences offailing to control the sleep environment.Refer to the floor plan diagram on page32 as needed.

In this scenario the officer leaves thelights on in the TV rooms, hallways,toilet area, and washroom. Already, wehave light shining into the first cubicles.

There are two kinds of inmates in the TVrooms: watchers and talkers. When thetalkers yell back and forth the watchersturn up the volume, causing the talkers totalk louder, and so on. With the doors tothe living area (by the shower) closed, wenow have considerable light and somenoise in the first cubicles.


Inmates Smith and Jones leave the TVroom talking loudly, treating the hall-ways as if they were an extension of theTV room. When they reach the wash-room, they exchange loud greetings withinmate Williams, who is brushing histeeth. Smith and Jones proceed down theaisles of the cubicle area, talking loudlyuntil they reach their respective cubicles.

Some of this behavior is clearly intimida-tion of the inmates who are asleep—away for Smith and Jones to assertdominance. Every time they engage inthis type of behavior they gain power,and every time the night watcher fails totake action he/she loses power andrespect. Failure to take action in thisscenario will result in the loss of sleep formany inmates in the unit.

The inmates react in a variety of ways.Some return to normal sleep as if nothinghad happened. Some will lay awake,anxious and hostile, for 30-60 minutesbefore assuming an irregular sleeppattern. Some will give up and gowatch TV.

This cycle of light, noise, and movementresults in a number of inmates achievingsleep cycles similar to the patterns inFigure 2. The solid line represents aninmate who is successful (A) in achiev-ing the first deep sleep cycle, but isawakened by noise (B) as he approachesthe first REM sleep. He views thisinterruption only as an irritation, and issuccessful in again achieving deep sleep(C), though not as deep as if he hadn’tbeen interrupted.

On the way to the second REM sleep (D)he is awakened by Smith and Jones,triggering anxiety and hostility thataffects sleep patterns for the rest of thenight. At 7 a.m. he is awakened (E) from

Living Area (Cubicles)

Floor plan

deep sleep by a fellow inmate who isconcerned that he’ll be late for work.(One can only speculate how this affectsthe number of sick calls and chronicmedical complaints.)

The broken line in Figure 2 represents aninmate we’re all familiar with. He goes tobed for about an hour, gets up complain-ing that he can’t get to sleep, and returnsto bed (F) about 6 a.m., when the lightsare turned on. He then drops into a deepsleep cycle (G) until he is awakened at7:30 a.m., late for work.

There are a number of reasons for a sleeppattern such as this, including prescribedmedication, drugs, a previous lifestyle, orfear. The relevant point here is theofficer’s failure to control the sleepenvironment.

Whatever the reason, we should askourselves: What happens to someonewho experiences these irregular patternsnight after night? No surprise—jobperformance will drop off, he’ll feelirritable all the time, and eventually he’sgoing to ventilate. He may well wind upin Segregation, where he’ll have plentyof time to catch up on his sleep beforethe cycle starts all over again.

Controlling the sleepenvironmentMorning watch officers can employvarious measures to ensure a proper sleepenvironment. The behavior of inmatesSmith and Jones must be realisticallyviewed as a serious problem, hamperingthe secure and orderly running of theinstitution. (The hypothetical situationdiscussed here does not, of course,invalidate security procedures in place atany given institution; nor should thereader infer that these observationsinvalidate particular current policies.)

n Light and sound.It is essential that the officer control thelighting, not only because excess lighthas the potential to wake the inmatesfrom REM sleep, but because lightbreeds noise. Light encouraged thepresence of inmate Williams in thewashroom, as well as the exchangeamong Williams, Smith, and Jones. Thelighting patterns failed to provide apsychological barrier that defined noiseas being unacceptable. Darkness mustimply silence to inmates; once this isestablished, darkness will come to equal

Winter 1991 33

something else—privacy. More inmateswill spend less time in the TV rooms andwill instead engage in quiet activities intheir cubicles (such as reading or letterwriting). From here, they are just onestep away from a good night’s sleep.

Controlling light is not just a matter ofensuring that sleep areas are dark. Thesecurity concerns of a correctionalenvironment require a more sophisticatedapproach. Return to the diagram, andlet’s turn out all the lights in the unitexcept in the TV rooms and the hallwayjust outside the offices. This wouldappear to be a perfect solution—darknessin the sleep areas with a closed door (bythe shower) to act as a physical andpsychological barrier beyond which noiseis unacceptable. However, this solutionhas problems.

At 4 a.m., when all the inmates havegone to bed and the officer is standing inthe hall across from the TV rooms, theonly person he is supervising is himself.Light from the hall against the glass inthe doors by the shower creates animpenetrable mirror so effective that theofficer is unable to detect the movementof an inmate into the shower. Further-more, the officer is essentially standingunder a spotlight that eliminates the needfor the inmates to establish a “jigger.”

If a serious incident should occur in thecubicle area, the officer’s eyes may nothave had time to adjust to the darknesswhen he arrives at the scene. Of course,the inmates’ eyes will be well adjusted.

When Smith and Jones leave the televi-sion room, they pass through the halldoors by the shower as if they were anextension of the lighted hallway andwon’t quiet down until they reach thewashroom. That’s too late; the inmates in

L - l iI

. . . .IIIIIIIIIII~IIIIII

p I$4$

II

llpm 12 lam 2 3 4 5 6 7 8

the first cubicles need a good night’ssleep as much as anyone else.

The officer might achieve better resultsby turning the lights on in the TV rooms,toilet areas, and maybe the shower. Lightfrom the TV rooms is adequate for thehallway. Light in the toilet area spotlightsa potential problem area, adequatelylights the hall and washroom areas, andprovides enough light on the back side ofthe glass in the doors by the shower toenable the officer to clearly see throughto the back wall of the living area. Thecubicle area is lit indirectly from outsidesecurity lights.

When Smith and Jones leave the TVroom talking at high volume, the mes-sage of darkness and silence begins at theTV room door. The officer’s eyes areadjusted to dim light; if more light isneeded the officer has a flashlight.Contrary to some correctional thinking,under some conditions more light doesnot necessarily equal more security.

n Temperature control.Body temperature drops a couple ofdegrees during sleep (or tries to). A trickof the officer’s trade is to turn up the heatso the inmates will uncover, therebymaking it easier to see flesh for thecount. In the long run it turns out not tobe so clever. Physical discomfort (stress)during REM sleep will induce tossingand turning, which in many cases willcause the inmate to wake up, and inothers will cause a reduction inREM sleep.

n Snoring.Snoring can be a major problem not onlyfor the snorer but for anyone in thevicinity. The solution is to stop thesnoring—easier said than done, but insome severe cases there is a way to do it.

More severe cases of loud snoring maywell be symptoms of a potentially fatalsleep disorder called “sleep apnea.” It ismost common in males over 50, who areoverweight and have a short neck. Asthey fall asleep the muscles in the throatcollapse and block the airway, causingthe person to stop breathing for severalseconds to a minute or more. Then theysuddenly gasp for air, but because thethroat is relaxed and collapsed the airpasses through the nostrils—loudly. Thiscauses the person to awake and is oftenaccompanied by thrashing. In severecases this can happen hundreds of times a


night and can produce a dangerous heartarrhythmia.*

n Making frequent rounds.Inmates who suffer from anxiety tend tohave difficulty achieving deep sleep andtend to wake more often than theyshould. Frequent rounds instill a sense ofsecurity, and allow the inmate sufferingfrom anxiety to believe that the environ-ment is safe enough for sleep.

Once you’ve established a good environ-ment, go after the details. Deal withnoisy staff who enter your territory anddisturb the environment you’ve created.Adjust the door closers so that doorsdon’t make noise. Have maintenancestaff take the squeaks and groans out ofair handler systems.

Achieving deep sleep cycles is nevermore important than basic securityconsiderations. The inmate who doesn’twant his sleep disturbed always has thechoice of leaving some skin exposed forthe count.

The circadian rhythmStaff who work the morning watch mayexperience problems with sleep that areconsiderably more challenging than thosetypically faced by inmates. Controllingthe sleep environment during the daywhen the rest of the world is awake,active, and noisy is difficult. It requirescontrolling disturbances that include

*A simple machine is available that (when usedunder proper security procedures) can eliminate themajor problems associated with sleep apnea—asmall, very low pressure pump connected to theuser by a hose and a nose mask that providespositive air pressure through the nostrils. Furtherinformation on these machines is available fromyour local sleep disorders clinic or from theAmerican Sleep Disorders Association, Rochester,Minnesota.

jackhammers, chainsaws, telephones,sirens, barking dogs, lawn mowers, smallchildren who don’t seem to comprehendBureau policy no matter how often youexplain it to them, and teenagers whodisregard it as a matter of convenience.

None of these obstacles are as evasive,unknown, and (for some) powerful as thegreat circadian rhythm. The circadianrhythm is a “biological clock” that is setat birth and is based upon a 24-hour cycle(or circle) of voluntary and involuntaryphysiological functions and events. Inother words, your body is programmed todo the same things at the same time andin the same order every 24-hour day.This includes voluntary actions likeeating and sleeping and involuntaryactions like the organic secretion ofhormones. By age 25, the body hasbeen trained in the basic pattern almost10,000 times.

At about 50 years of age, the circadianrhythm changes. As people grow olderthey tend to nap more frequently andwake up more often during the night.Thus a 50-year-old officer who has spentyears as a morning watch worker and hasadjusted fahly well suddenly findshimself having difficulty, despite a bettersleep environment and no children athome.

Figure 3 represents a typical circadianrhythm for a “night person” (owl) andFigure 4 is a typical rhythm for a“morning person” (lark). Eighty percentof the population are neither extremelarks nor extreme owls, but viewing sleepproblems from the extreme perspectivesallows us to better understand our ownrhythm and its effect on our ability toachieve proper sleep for the morningwatch.

Through trial and error, staff who workthe morning watch develop copingstrategies that allow considerableflexibility in their sleep patterns, but areextremely specific to each individual.What they have done without knowing itis to become acutely aware of their owncircadian rhythms.

Most coping strategies appear to includeone principle and two patterns. Theprinciple is that it’s important to sleep inthe evening just before you go to work sothat you at least start out wide awake andalert.

If a little sleep is good, is a lot of sleepautomatically better? One pattern is toforce yourself to stay awake until 2 or 3

Winter 1991 35

in the afternoon, then sleep 7 or 8 hoursjust before going to work. Let’s take alook at how this fits with the circadianrhythms in Figures 3 and 4.

Assuming no extraneous factors such ascaffeine consumption, by 2 or 3 p.m.you’ll be so tired that falling asleep willbe no problem. But if you’re an owl(Figure 3), where is your circadianrhythm? It’s high, and so in 3-4 hours thepower of the rhythm coupled with anydisturbance causes you to wake up.Where is your rhythm at 6 p.m.? It’s highand headed for the highest peak of theday. So you toss and turn until it’s timeto go to work, and on your arrival you’vehad only 4 hours of sleep in the previous24 (and by morning, when it’s time todrive home, you’ll have had only 4 in32—the psychological equivalent ofdriving drunk).

Forcing yourself to stay awake all daypresents additional hazards. What are yougoing to do in this stupefied condition?Operate a chain saw? Make financialdecisions?

The second pattern is to sleep when youget home from work in the morning for3-4 hours, get up, and then sleep another3-4 hours just before going to workagain. Let’s see how this pattern fits thecircadian rhythm of a lark (Figure 4). At9 a.m., your rhythm is high and on theway to the highest peak of the day.You’re so sleep-stressed that fallingasleep will be no problem, but sleepingmore than 3-4 hours will be difficult dueto the circadian rhythm.

So you get up and wander around feelinglethargic until 6 p.m. Trying to sleep at 6is easier for a lark than an owl, but ifextraneous factors—anxiety, caffeine,domestic problems—interfere with sleep

at 6, you will arrive at work with only 3hours of sleep, and those 3 hours were 12hours before going to work.

Obviously no one pattern works foreveryone. The human body is like anorchestra and the circadian rhythm is theconductor. Working the morning watch islike adding a second conductor whoattempts to make the orchestra play adifferent tune—but only for 5 days of theweek. The resulting confusion and noiseare all too often forgotten by those whohave returned to the rhythm of the daywatch.

ExerciseEmployees who engage in a regularexercise program for aerobic fitness willfind that the morning watch may presentsome discouraging obstacles, particularlyif part of their healthier lifestyle alsoincludes the elimination of caffeine fromtheir diet. People who achieve a reason-able level of aerobic fitness have bodiesthat require exercise. People who workthe morning watch usually end up withbodies that need rest.

Aerobic exercise raises adrenaline, andwhen the body comes to rest the adrena-line continues at an elevated level untilthe body eventually produces enoughendorphins to bring it back down. The

endorphins affect the opiate receptors inthe brain and are a more powerfulanesthetic than opium. When your bodyis running high on adrenaline, achievingdeep sleep is very difficult; after intenseaerobic exercise it can take hours for theendorphins to overcome the effects ofhigh adrenaline.

If improperly timed with the circadianrhythm, the combination of adrenalinefollowed by endorphin can develop aone-two punch that is capable of knock-ing you out. If, for example, a personengages in strenuous exercise for 2 hoursprior to going to bed at 10 p.m., thecombination of a night person’s rhythmand adrenaline will certainly preventdeep sleep and possibly prevent any sleepat all. By midnight, when this personstarts work, he or she is sleep-stressed,physically stressed, has a circadianrhythm that says “sleep,” and a high levelof endorphins. I’ve been here before, andby 3 a.m. was so fatigued that I’vefallen to the floor because I fell asleepwhile walking. It was ignorance, notirresponsibility!

This raises interesting questions aboutsome BOP operations. When a supervisordiscovers an employee sound asleep on

the job, does the act represent derelictionof duty or a lack of understanding ofsleep cycles? Is this an example of a lackof proper training? What if that employeehad recently experienced the loss of aloved one—a stressful situation thattypically disrupts sleeping patterns?What about a new employee, alreadystrained by his/her need to demonstratecompetence in a stressful environment?Chances are these individuals will not beable to sleep when they should and willwhen they shouldn’t.

I certainly don’t mean to suggest thatsleeping on the job is ever acceptable, but

only half the problem; staying alertnecessitates the use of caffeine.

consume caffeine 2 hours in advance. Ifit occurs at 3 a.m., drink coffee at 1a.m.—8 hours in advance of sleep.

Most sleep experts suggest that if youmust consume caffeine and are experi-encing difficulty with sleep, you shouldavoid it for 6-8 hours prior to retiring.

Caffeine

Putting it all togetherThe old adage “ignorance is bliss”obviously originated with someone whonever worked the morning watch. Miseryis the consequence of ignorance about thesubject of sleep. To demonstrate theactual application of the information

doesn’t start working fully presented in this article, let’s take a look

until 1-3 hours after at a worst-case scenario and then at ascenario that uses the information I’ve

it is consumed... presented.

there may be more involved than a but continues to affect Worst case. After drinking several cupsdisciplinary problem.

CaffeineCaffeine is chemically related to am-

mental functioning for as of coffee on the morning watch, theofficer arrives home at 8:30 a.m. and eats

long as 20 hours after breakfast, which includes a cup of coffee.He fills a Thermos with coffee and heads

phetamines. Caffeine’s ability to increasemental alertness and reaction time forsleep-stressed individuals is both well

it is ingested. out to cut firewood. (Note: excess

arrhythmia.) The officer plans to sleep

caffeine in conjunction with elevated

from 4-10 p.m., so he stops drinkingcoffee at noon. He arrives home fatigued

heart rates can cause a dangerous

and is in bed by 4, confident that sleepwill be no problem.

known and well documented, as are theundesirable side effects of the drug. Lesswell known are some facts about caffeinethat have a profound effect on one’sability to stay alert on the morning watchand to sleep during the day when thecircadian rhythm is at its highest levels.

Caffeine continues to affect mentalfunctioning for as long as 20 hours afterit is ingested. Research confirms thatcaffeine interferes with sleep. Countlesscases of insomnia have been cured bysimply (or not so simply) eliminatingcaffeine from the diet. Most employeeswho work the morning watch will notview this as realistic. They point out that“getting good sleep” during the day is

Experienced employees will not acceptthe idea that they should not drink coffeeafter 1 a.m., because they know all toowell that sometime during the night,usually between 3 and 4 a.m., theyexperience a period of fatigue where it isextremely difficult to stay alert.

However, caffeine doesn’t start workingfully until l-3 hours after it is consumed.Typically, officers wait until they arereally fatigued at 3:30 a.m. to drink a cupof coffee. By 4, they discover that thefirst cup didn’t do the trick and have asecond or third. By 5 they start feelingpretty good, but 5 is only 4 hours awayfrom when they’ll try to go to sleep.Caffeine is also a diuretic, and soincreases the odds that the user willexperience physical discomfort duringREM sleep.

With the circadian rhythm, adrenaline,and caffeine levels high, he fails to get tosleep until 10 p.m., when his circadianrhythm is coming down, endorphins arehigh, adrenaline is down, and the coffeeis wearing off. So at 10 p.m. he crashesinto deep sleep, and at 10:15 his wifewakes him up for work. He feels farworse than if he had never slept at all.He’d call in sick but it’s too late. Itdoesn’t get any worse than this.

Best case. After a morning watch withoutcaffeine, the officer arrives home at 8:30a.m. and has a light breakfast. She’s a

A much wiser use of caffeine might be toanticipate this period of fatigue and then

Winter 1991

morning person, and her circadianrhythm is rising to its highest peak. Sheexercises from 9 a.m. to 10:30, whichincreases adrenaline.

By 3 p.m. the adrenaline is down, theendorphins are up, she’s sleep-stressed(and therefore primed for a plunge into adeep sleep cycle), physically stressed,and the circadian rhythm is on the waydown. Her sleep environment is properlycontrolled and she turns on the sleepmachine (see sidebar). It doesn’t get anybetter than this, at least not if you’reworking morning watch. After 7 hours ofdeep and restful sleep she reports to workin prime condition. At 1 a.m. she drinkstwo cups of coffee to get through theanticipated 3 a.m. slump.

ConclusionIn Europe, many companies are switch-ing to “rapid rotating” work schedules,commonly referred to as the “ContinentalRotation” (2 days, 2 evenings, 2 morn-ings, and then 2 days off.) This rotationallows the circadian rhythm to maintainits daytime orientation.

While this sort of scheduling is not onthe immediate horizon for the Bureau ofPrisons, we can begin to train staff aboutthe circadian rhythm, sleep patterns, andcoping strategies for shift work. Thesesubjects have an important bearing oninmate management, stress management,disciplinary actions, and the interper-sonal relations of staff. Correctionalworkers have everything to gain by suchtraining and much to lose by leaving thissubject in the dark. n

John A. Mattsen is a Senior OfficerSpecialist at the Federal CorrectionalInstitution, Sandstone, Minnesota.

ReferencesTorbjorn Akerstedt, “Sleepiness as a Consequenceof Shift Work,” in Sleep, V 11, N 1, 1988.

Timothy H. Monk, “Circadian Rhythms inSubjective Activation, Mood, and PerformanceEfficiency,” in Meir H. Kryger, Thomas Roth, andWilliam C. Dement (eds.), Principles and Practiceof Sleep Medicine. Philadelphia: W.B. Saunders,1989, pp. 163-172.

Timothy H. Monk, “Shift Work,” in Meir H.Kryger, Thomas Roth, and William C. Dement(eds.), Principles and Practice of Sleep Medicine.Philadelphia: W.B. Saunders, 1989, pp. 332-337.

Colin E. Sullivan and Ronald R. Grunstein,“Continuous Positive Airways Pressure in Sleep-Disordered Breathing.” in Meir H. Kryger, ThomasRoth, and William C. Dement (eds.), Principlesand Practice of Sleep Medicine. Philadelphia: W.B.

Saunders, 1989, pp. 559-570.

Winter 1991 39

Ethics and Prison AdministratorsLearning to articulate the reasons for your decisions

J. David Newell

Like other Chief Executive Officers(CEO’s), the Federal warden is respon-sible for making daily decisions andjudgments about policies, programs,procedures, and particular problemsconcerning a wide variety of issues. In anethically sensitive age such as ours, it isessential that such decisions have a solidethical grounding—but it is just asimportant that the CEO be able toarticulate these grounds when necessary.

One does not become a warden withouthaving passed muster as a man or womanof character and good moral standing.Most of the decisions wardens make areno doubt good ones, even if a particularwarden on a particular occasion may beat a loss for words when it comes toarticulating the reasons for a decision,when required to do so by an inquiringsuperior or a concerned public.

In this essay, we will address two issues:How can we assure ourselves that ourdecisions are ethically valid? How canwe best articulate the reasons for ourdecisions to others? These questions areclosely related. By establishing aprocedure for justifying our decisionsand judgments, thereby assuring our-selves that we have made the rightdecision, we will also have developed aframework that allows us to account forour thinking about moral issues.

Moral decisions and judgments in prisonadministration are justified in essentiallythe same way they are in other areas ofapplied ethics. In the first section of thisarticle we will consider a model of moralreasoning that can be used in justifyingethical decisions. While this model issomewhat similar to the way reasoning isperformed in business, medicine,engineering, and so on, two features of

Stage 1:

Stage 2 :

Stage 3:

Stage 4:

Stage 5:

Stage 6:

Concept of asubordinate.Theory of punishment.Universal ethicalprinciples.Code of the profession.Particular case.Moral judgment.

Stage 5: Particular case.The facts of the case drive the problem-solving process; inadequate or mistakenfactual information subverts the whole

enterprise.

Stage 6: Moral judgment.Once the facts of the case are presented,our immediate response is frequently ajudgment about what should or should notbe done—that is, we make a moral judgmentor decision.

Since intuitions sometimes differ amongindividuals, it is important to be able toprovide good reasons for them...Suchreasons are found in stages 1-4.

our model are specific to prison ethics: a is important to be able to articulate why

theory of punishment and what I will call we believe what we believe, in profes-

a “concept of the subordinate”—that is, sional work as in any other area of our

how you think about those who are lives. In this sense, this model should

subordinate to your decisions (primarily serve as a self-monitoring tool for

inmates in this context, but also staff). corrections professionals.

In the second section, we will examinethree theories of punishment and suggesthow each affects the day-to-day deci-sions wardens and administrators make.In section three we will consider four“concepts of a subordinate” and suggesthow the view of punishment oneadopts depends on which concept of asubordinate one holds.

The model presented here attempts totake into account a wide variety ofpossible influences upon decision-making. Breaking down what are alwayscomplicated (often instantaneous)decisions, with serious consequences,into such a “checklist” may seemunrealistic or even beside the point. Inaddition, as we follow the stages of themodel back toward Stage 1, you may findparticular elements with which youdisagree.

A model of moral reasoningBy understanding the model of moralreasoning presented here and the rela-tionship between theories of punishmentand “concepts of a subordinate” weshould enhance our ability to thinkthrough the ethical aspects of decisionsand judgments. Such an understandingshould also provide us with a rationalefor our decisions and judgments when-ever a legitimate request for a justifica-tion is made. In bare outline the modellooks something like the six stages at thetop of the page.

Typically, when an ethical dilemmaoccurs, a problem presents itself and thefacts of the case are given—that is,chronologically, Stage 5 comes first. It iscritical that the very best factual informa-tion be obtained before attempting toreflect on what should be done. The facts

While it’s not the purpose of this articleto prescribe a particular ethical system, it


of the case drive the problem-solvingprocess; inadequate or mistakenfactual information subverts the wholeenterprise.

Once the facts of a case involving anethical issue are presented, our immedi-ate response is frequently a judgmentabout what should or should not bedone—that is, we make a moral judg-ment or decision. Thus, Stage 6 is oftenthe second step chronologically. Thisinitial judgment may be correct; if it goesunchallenged, the matter may end there.The initial judgment may be the result ofour intuition or general good sense orjudgment, but since intuitions sometimesdiffer among individuals, it is importantto be able to provide good reasons forthem. Such reasons are found in the firstfour stages of our model. Because eachstage to some degree depends on thestages before it, we will discuss them inreverse order, from Stage 4 to Stage 1.

Stage 4:Code of the professionThe first court of appeal, so to speak,should be the “code of the profession”—Stage 4. Whether the code is developedby a recognized association of profes-sionals, or handed down by parties whohave legitimate authority, the generalduty to follow the code of the professionstems from a voluntary agreement (statedor unstated). It is the idea that certainduties come with certain stations in lifeand by agreeing to accept a certainstation the individual agrees to abide byits code of conduct to the best of his orher abilities.

Virtually every profession has a code ofconduct that is presented to new employ-ees. Psychologists, architects, nurses,doctors, insurance brokers, engineers,social workers...all have professional

Standards of Employee

Conduct and Responsibility

claims that “loyaltyto the highest ethical

principles and the country”is to be placed “above

loyalty to parties orgovermental departments.”

codes of ethics. Where a code does notexit, a company or institution oftencreates one specific to that particularworkplace. It is a condition of employ-ment that the worker subscribe to thecode or be denied employment.

In the case of Federal prison workers, thecode is the “Standards of EmployeeConduct and Responsibility” (BasicFederal Personnel Manual, Chapter 735,and Department of Justice Order No.350-65 (28CFR45), Document #3000.1).If a particular moral problem in Federalprison administration can be straightfor-wardly settled by a direct appeal to thiscode, the matter would end there. Thiswill happen at times. But there are certainlimits to every code of conduct, andthe Federal prison standards are noexception.

Although “Standards...” is a prettycommendable document, it is notsufficient to ensure ethical conduct ineven the most conscientious employees,for three reasons:

n Compliance. It is much better whenpeople willingly obey a set of rules thanwhen they comply with them out of fear

of reprisals for noncompliance. Peopleare much more likely to engage involuntary compliance with rules if theyunderstand them. Programs in whichemployees are educated about thereasons behind the code are likely tohave the highest degree of compliance.Moreover, periodic evaluations of thecode require that there be some highercourt of appeal against which its preceptscan be tested.

n Completeness. The “Standards ofConduct” can’t cover all the territory. Ittells us about conflicts of interest,cheating, lying, stealing, fraud, bearingfalse witness, bribery, favoritism,confidentiality, privacy, loyalty, and soon. It even makes the claim that “loyaltyto the highest ethical principles and thecountry” is to be placed “above loyalty toparties or governmental departments.”But it does not tell the employee whatlarger ethical principles are behind thecode. Moreover, while it specifies arange of penalties for particular offenses,it leaves open to administrative discretionwhether, for instance, to issue a repri-mand or a 3-day suspension. How arewardens to decide such matters fairly?

n Conflict. Finally, some particular rulesof a code may have to be set aside in theinterest of doing the right thing. Forexample, in Herman Melville’s novelette,Billy Budd, about life at sea in the 19thcentury, Captain Vere must decide thefate of the sailor Billy Budd. Before thecaptain’s eyes, Billy kills the master-at-arms, John Claggart—who has falselyaccused Budd of mutinous activities.Budd is an inarticulate innocent—he is sooverwrought by Claggart’s lies that hecannot speak. His only resort is toswing—without intending to killClaggart. But Claggart strikes his head ashe falls and dies.

Winter 1991 41

How is Captain Vere to decide this case?The strict rules of the code push him inone direction, but his own moral sensepulls him in another. He must decide; hehas Billy hanged, but Melville leads us toquestion whether he did the right thing.

Codes in the various professions oftenpresent fixed rules that are too rigid to befollowed to the letter without violatinghigher ethical principles and sensibilities.Hence, the codes of the profession needto be supplemented by higher ethicalprinciples—and we move to Stage 3.

Stage 3:Universal ethical principlesAt this point we must turn to ethicaltheory proper for some basic universalprinciples. Without suggesting that theyare the only (or even the most) importantprinciples, we will focus on four prin-ciples that seem relevant to contemporarymoral problems: autonomy, beneficence,nonmaleficence, and justice.

n Autonomy states that every humanbeing is a self-determining agent withintrinsic value. This means that we musttreat human beings as ends in them-selves, never merely as a way to achieveother ends. It means that we must respectthe inherent freedom and dignity of theindividual. Human persons are notobjects, but subjects. They are not toolsor instruments to used. (In hanging BillyBudd, Captain Vere used him as a meansof averting a mutiny, violating theprinciple of autonomy.)

n Beneficence states that we must dowhat we can to maximize good or benefitfor all who are affected by our actions.Specifically, beneficence requires us to(a) do positive good, (b) remove harm,and (c) prevent harm. If Captain Vere’sdecision to hang Budd was designed to

Stage 4:Code of the profession.In the case of Federal prison workers, thecode is the “Standards of EmployeeConduct and Responsibility.”

Although “Standards...” is a commendabledocument, it is not sufficient to ensureethical conduct in even the most conscien-tious employees, for three reasons:

n Compliance.n Completeness.n Conflict.The codes of the profession need to besupplemented by higher ethical principles—see Stage 3.

Stage 3 :Universal ethical principles.Four principles seem relevant to contempo-rary moral problems (these are not the onlyimportant principles):

n Autonomy.n Beneficence.

Do positive good.Remove harm.Prevent harm.

C Nonmaleficience.n Justice.

Equal treatment.Impartial treatment.Desert.

prevent mutiny, and Vere perceives theprevention of mutiny as doing positivegood or preventing harm, then hisdecision may have been justified. Buthanging the popular Budd could have infact caused mutiny. Nor was removingBudd removing something harmful, sinceup to that point Budd had had a goodeffect on the crew.

n Nonmaleficience is usually seen as theflip side of beneficence. This principlerequires that we do not do deliberate,unnecessary harm to others—for in-stance, torture others for the pleasureof it.

n Justice requires us to be fair in ourdealings with others. We can identifythree common applications of the notionof justice that are relevant to prison work.

(1) A central feature of virtually everytheory of justice from Aristotle to thepresent is the notion of equal treatment.Justice is not done unless we treat equalsequally and unequals unequally. By itselfthis does not tell us either how todetermine when two or more people areequal. Still, given that persons are viewedas equal, justice commands us to treatthem the same way.

(2) Justice also requires us to engage inimpartial treatment of others. Impartialtreatment means an absence of prejudiceand favoritism in the way we treat others.Most of the “Standards of EmployeeConduct” hang on this principle.

(3) Finally, there is the notion ofdesert—that everyone should get whatthey deserve, neither more nor less. Theconcept of desert requires us to giveeveryone his/her due. This rules outexcessive as well as inadequate punish-ments, excessive as well as inadequaterewards. It is compatible with what wewill later see as the “retributive theory”of punishment (see below). In the case ofBilly Budd, if he did not intend the deathof Claggart, his punishment of death byhanging seems cruel and unnecessary—disproportional, undeserved. Of course, ifBudd were a favorite of Vere’s, it wouldbe wrong to lessen the punishment thatanother sailor would have received...thatwould be partiality.

These four principles, then, can be usedto justify much of the conduct called forby the professional code of the FederalBureau of Prisons, and to supplement the


code in areas beyond its scope. It is from doing likewise. As with the reformtempting to end the story here, but thepotential for competition between andamong these four principles remains aproblem. If conflict occurs, how do we

view, deterrence is aimed at makingLike moral retributivism, society a safer and better place, but it

legalistic retributivismdoes not focus on the betterment of theindividual offender. If the punishment of

decide which of these ethical principlesoutweighs the others?

I maintain that the way we prioritizeuniversal principles (Stage 3) is deter-

says that thesole justification ofpunishing someone

an offender can serve as an example tofuture offenders, then the punishment isjustified. Unlike the reform view,deterrence seems to account for the deathpenalty.

mined in large measure by the views we is the fact that he or shehold about punishing offenders. We arebrought to that stage of the model inwhich “theories of punishment” arebrought into play—Stage 2.

Stage 2:Theories of punishment

has actuallycommitted a crime.

Punishment, whatever its form, involvesthe deliberate infliction of “pain andsuffering,” or deprivation, on humanbeings. In putting offenders behind bars,limiting their freedom, or curtailing theirrights, we are inflicting some sort ofsuffering or deprivation on them,whatever else we may want to call it.Since suffering and deprivation aregenerally viewed as negative, how wecan we justify their infliction?

If the aim is reform, we can punishlawbreakers to change them—improvetheir character—so that they will notrepeat the deed, perhaps not even want todo it again. By reforming the individualwe ultimately make society a betterplace—contributing to the greatesthappiness of the greatest number.Decisions about programs and policiesaimed at rehabilitation are justifiableusing this principle.

However, critics of this view argue that if3 years in jail is the prescribed punish-ment for an offense, it is additionalpunishment to also give the incident threecolumns in the local newspaper. It is alsodifficult to know how successful punish-ment is in deterring others, since anysuccesses will go virtually unrecognized.Moreover, this theory could hypotheti-cally be used to justify the punishment ofan innocent person, if such punishmentcould be shown to have a significantdeterrent effect.

Theories of punishment are designed toprovide answers to this question. Thereare three main theories: utilitarian,retributive, and vengeance-based.

w Utilitarian theories. Utilitariansbelieve that ethical conduct shouldincrease the total amount of happiness orpleasure in society. They see the inflic-tion of pain on offenders as a necessaryevil aimed at producing the maximumbenefit for society as a whole. Theutilitarian, then, argues that our justifica-tion for inflicting pain on others is eitherreform or deterrence.

Whether or not rehabilitation works isanother question entirely. But even if itdoes work, opponents of the utilitarianview say that mandatory vocationaltraining, mandatory counseling, manda-tory trips to chapel, and so on, constituteadditional punishment for those who donot want such experiences. Critics alsoargue that we could, using utilitarianprinciples, justify punishing someonewho has a bad character, even if thatperson has not actually been convicted ofanything. Some people think that it is aweakness of this view of punishment that

n Retributive theories. In general,retributivists insist that the punishment ofa criminal must be only in response to thedeeds he or she has done. No amount ofpunishment of an innocent man, nomatter how much good results for societyas a whole, can be justified on retributivegrounds. Retributive theories usually fallinto either the moralistic or the legalisticcategory.

The moralistic retributive view says thatwe must set the punishment to match themoral gravity of the offense. This theoryargues that the penalty should beappropriate to the degree of wickednessof the criminal’s intentions. (Billy Budddid not intend to commit murder.)

it cannot justify capital punishment. The difficulty with this view is that it

According to the utilitarian view, we canrequires us to be able to reliably deter-

also justify inflicting pain on offenders ifwe see it as a way of deterring others

Winter 1991

mine the exact intentions of the offender.It also requires us to decide preciselywhat degree of punishment correspondsexactly to the offense. Intangibles such as“intentions” and “moral gravity” areslippery items.

Like moral retributivism, legalisticretributivism says that the sole justifica-tion of punishing someone is the fact thathe or she has actually committed a crime.This avoids some of the problems of themoralistic view by insisting that thepunishment be prescribed by law and thatintentions and moral gravity are notrelevant to the issue of whether or howmuch to punish. (It is worth noting thatthe “Standards of Employee Conduct andResponsibility” is largely based on thispoint of view.)

One traditional problem with this view isthat it is unclear how we decide what andhow much punishment to establish bylaw for various offenses. Anotherproblem is rigidity: presumably, therewill be times when we will want, withgood reason, to make exceptions. (Ofcourse, in the Federal system,Sentencing Guidelines address both ofthese concerns.)

n Vengeance theories. Aimed at satisfy-ing our desire for vengeance, especiallyfor heinous offenses such as child abuse,rape, and cold-blooded murder, thistheory says we are justified in punishinga criminal as an outlet for aggressivefeelings that would otherwise demandsatisfaction in socially disruptive ways. Itmay also give pleasure to those who wishto see the offender suffer for his/hercrime. Some vengeance theories seepunishment as an expression of the hateand anger we often feel toward theoffender.

Stage 2:Theories of punishment.Punishment, whatever its form, involves thedeliberate infliction of pain and suffering onhuman beigns.

Three main theories are used to justify theinfliction of pain and suffering:

n Utilitarian.Reform.Deterrence.

n Retributive.Moralistic.Legalistic.

n Vengeance-based.

Stage 1:Concepts of the subordinate.A subordinate is someone who is subject toor under the authority of a superior.

There are at least four ways in which asupervisor or other person in charge mayview subordinates:

n Subordinate as “object.”n Subordinate as “animal.”n Subordinate as “devil.”n Subordinate as person.In this last view,the subordinate is seen asa human being—a person with dignity—whothinks, makes choices, has goals, canimprove.

The trouble with vengeance is that, sinceit is emotionally based, there is a dangerof getting carried away by unreasonedpassion.

It may be that no one of these theories isadequate by itself to decide whatpunishment is appropriate, but that somecombination of them could be. And yet,in cases of conflict, it remains importantto be able to decide which takesprecedence.

As suggested earlier, the view we take ofpunishment is largely bound up with theconcept we have of the inmate (subordi-nate)—the first stage of the model.

Stage 1:Concepts of the subordinateA subordinate is someone who is subjectto or under the authority of a superior.Staff workers in a prison are subordinateto the warden and inmates are presum-ably subordinate to the correctionalworkers and others in jurisdiction overthem. The concept one has of those whoare in his/her charge can dramaticallyaffect the way one treats them. There areat least four ways in which a supervisor

or other person in charge may viewsubordinates:

w The subordinate as object. Thesubordinate is seen as a means to an end,as an instrument of one’s own or theprison’s ends. A person with this viewuses people to advance his/her ownprogram or career, regardless of theeffect it has on the subordinate. Thesubordinate is not given an opportunity toparticipate in decisions, make choices, orcontribute ideas. The subordinate is a“thing”—incapable of improvement,deserving of virtually nothing. Thisperspective sees the prison as warehous-ing human objects, and staff as mindlessrobots-equivalent to the bars on thewindows or the gates on the entrance.

n The subordinate as animal. In thisview, the staff person or the inmate isseen as a living thing with basic biologi-cal needs (food, shelter, clothing, sex),but not as a human animal. The subordi-nate is more than an inanimate object, butless than a person who has higher needs.


From this perspective, the prison isviewed as a kind of kennel and staff asanimal keepers. Needs of staff or inmatesthat go beyond the basics are ignored.

w The subordinate as devil. A superiormay see the subordinate as somethingevil—clever and intelligent, perhaps, butbent on lying, stealing, or murder.Holders of this view tend to establishpolicies and procedures designed to makelife miserable for the subordinate. Thepenalties they devise are designed topunish for the sake of punishment alone.Their decisions will perhaps be designedto retaliate for evil, to strike back, or toget even, regardless of whether reform ordeterrence occurs. Hostile emotions arevented through punishment of theoffender. People with this view tend tosee punishment as vengeance.

n The subordinate as person. In thisview, the subordinate is seen as a humanbeing—a person with dignity-withfeelings, thoughts, needs, desires, hopes;who thinks, makes choices, has goals,can improve. A person has a family,makes friends, wants to be happy. Aperson can change or be changed. Aperson is worth saving. A person hasinherent worth or dignity.

Someone who sees the subordinate as anobject or a brute animal is likely to bedrawn to the utilitarian perspective, inwhich the subordinate is seen as a meansto an end. If reform measures areintroduced, the outlook shifts to abehavioristic (Skinnerian) view, arguingthat staff should retrain or modify thebehavior of the offender. From thisperspective, anything we do to objectsand animals for the good of society isacceptable-including using them todeter other offenders. The principle ofmaximizing benefits for the greater good

The subordinate as person,

in this view,is seen as a human being—

a person with dignity—with feelings, thoughts,

needs, desires,hopes; who thinks,

makes choices, has goals,can improve.

will always override considerations ofautonomy and justice.

One who views the subordinate as evil oran agent of evil will be inclined towardvengeance theory, in which punishmentis seen as a way of striking back at evil—or as good triumphing over evil. Thisperson will use (or abuse) justiceprinciples by treating all subordinates asequal to each other but unequal to “us.”

Finally, those who view subordinates aspersons will most likely embrace the“moralistic retributive” theory ofpunishment and gravitate toward theprinciple of autonomy as the superiorethical principle. This view has severaladvantages: allowing reform measures asan option to the offender (respecting his/her right to choose); making deterrenceincidental; ruling out vengeance asabusive to the fundamental dignity andworth of human beings; avoiding rigidrules that cannot account for wrongthings done with good intentions.

Such a view puts autonomy, or respectfor persons, above utility, or maximizinghappiness. Captain Vere would not havesacrificed Billy Budd to the interests of

the greater good if he held this view. Inthis view, the only policies, procedures,and programs that are justifiable arethose that respect the inherent worth ofthe individual.

Prisons are first and foremost placeswhere people live and work. Where thereare rules and regulations on the books,they should be laid down with respect forpersons in mind. Once they are estab-lished, compliance should be based onrespecting people as individuals. “Stan-dards of conduct” at Stage 4, that aredrafted with respect for persons in mind,deserve to be followed because they areso based. They should be followed,unless their abandonment can be justifiedby appeal to a higher principle such asthose at Stage 3. Principles at this stageare to be prioritized by appeal to ourbasic philosophy of punishment (Stage 2)and our view of subordinates as humanbeings (Stage 1).

While the viewpoints in this article mayappear clear-cut and easily defined, lifeexperiences are more dynamic and tendnot to fall so neatly into recognizablecategories. Thus, this article is intended,as mentioned at the start, to enablecorrectional workers to examine the linesof reasoning they employ to reach thedecisions they make. In this way, theycan either reaffirm or reexamine theirdecisions—and they will be able toarticulate the underlying reasons forthese decisions, adding consistency tocorrectional decisionmaking all along theline. n

J. David Newell is Visiting Professor ofPhilosophy at the United States MilitaryAcademy, West Point, New York. Aversion of this article was presented tothe Northeast Conference of FederalPrison Wardens in 1989.

bop: publications - federal prisons journal winter 1991

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