1 GEORGE BERNARD SHAW, THE CRIME OF IMPRISONMENT 14 (1946). This passage has special meaning for those who are troubled by judicial abdication in the prison environment. See, e.g., Michael Knight, Comment, Censorship of Inmate Mail and the First Amendment: The Way of the Circuits, 19 TEX. TECH L. REV. 1057 (1988); Note, Beyond the Ken of the Courts: A Critique of Judicial Refusal to Review the Complaints of Convicts, 72 YALE L.J. 506 (1963).

2 Security Housing Units (sometimes referred to as Disciplinary Control Units, Special Management Units, or other similar names) are a common feature in American prisons. Their unifying characteristic is that they segregate inmates from "general population" prisoners and subject them to greater restrictions and fewer privileges. The degree of restriction may vary, depending on a number of factors, including the institution's penal philosophy and the underlying reason for the inmate's segregation. See Russ Immarigeon, The Marionization of American Prisions, NAT'L PRISON PROJECT J., Fall 1992, at 1.

3 Former Inmate at Pelican Bay Wins Judgment Against State, S.F. CHRON., Mar. 1, 1994, at A18 [hereinafter Former Inmate] (quoting James Chanin, attorney for Vaughn Dortch).

4 Bill Wallace & Susan Sward, Suicidal Inmates Often Ignored—Until Too Late, S.F. CHRON., Oct. 4, 1994, at A1.

5 Madrid v. Gomez, 889 F. Supp. 1146, 1167 (N.D. Cal. 1995) (quoting trial transcript at Tr. 1-144). Madrid is the class action suit filed by Pelican Bay inmates alleging that various conditions of confinement and prison practices violated their constitutional rights. The case is discussed at length in Part IV, infra.

6 Id.

7 John Hurst & Dan Morain, A System Strains at Its Bars, L.A. TIMES, Oct. 17, 1994, at A1.

8 Madrid, 889 F. Supp. at 1166-67; Former Inmate, supra note 3, at A18.

9 Former Inmate, supra note 3, at A18. After Vaughn was injured, an unnamed nurse returned to the bathtub to test the temperature of the water. The tub had already been drained, but she tested the water at the highest setting, which she found to be 140 degrees. Prison administrators have since installed a device to prevent the water from reaching such a high temperature. Madrid, 889 F. Supp. at 1167 n.27.

10 Former Inmate, supra note 3, at A18.

11 Madrid, 889 F. Supp. at 1167 (summarizing nurse's testimony). Because Vaughn's outer layers of skin peeled off as a result of the scalding, his legs "had turned white with some redness." Id. (same).

12 Id. (citing trial transcript at Tr. 1-154). Vaughn sued and won a settlement of $997,000 in 1993. Former Inmate, supra note 3, at A18. The state also paid $180,000 in medical bills to treat the burns that left him scarred for the rest of his life. Wallace & Sward, supra note 4, at A1. Pelican Bay administrators eventually fired the inexperienced medical technician, Irven McMillan, who had wanted "some of the brush end" of Vaughn Dortch's bath. Hurst & Morain, supra note 7, at A1. Subsequently, McMillan filed suit against these administrators for wrongful termination and sought reinstatement to his position at the prison. Id. According to Hurst and Morain, McMillan "is convinced the temperature of the bath water had nothing to do with Vaughn's injuries." Id. McMillan attributes the fact that Vaughn's skin "peeled off in sheets" to a rash that he had or to the disinfectant that was used by the prison staff to clean his cell. Id.

13 Jim Doyle, Pelican Bay Inmates' Case Opens, S.F. CHRON., Sept. 18, 1993, at B3 (reporting on the opening argument in Madrid by Susan Creighton, attorney for Pelican Bay inmates).

14 Madrid, 889 F. Supp. at 1167; Sixty Minutes: Pelican Bay (CBS television broadcast, Jan. 15, 1995).

15 Hurst & Morain, supra note 7, at A1. Warden Marshall has since been succeeded by interim Warden J.S. Strainer. Madrid, 889 F. Supp. at 1156 n.2.

16 Keith Epstein, Akin to a Dungeon: More and More Prisons Are Favoring Concrete Quarters, Machine-Monitored Security, CLEV. PLAIN DEALER, Apr. 25, 1993, at 10C.

17 It is difficult to articulate a precise definition of a "supermax" facility. The terminology of corrections is often imprecise and uses a number of terms to describe this type of unit: maxi-maxi prisons, high-security prisons, supermaxes, last resort penitentiaries, control unit prisons, special housing unit prisons, and so on. Generally, the terms refer to separate, free-standing, high-security facilities where prisoners are locked in their cells for approximately 23 hours per day. Within their cells, prisoners are afforded minimal amenities. See Immarigeon, supra note 2, at 1-3.

18 Jan Elvin, Isolation, Excessive Force Under Attack at California's Supermax, NAT'L PRISON PROJECT J., Fall 1992, at 21 ("There are no training programs for prisoners, no correspondence courses, and no vocational training."). See also infra notes 50-51 and accompanying text.

Supermaximum facilities now can be found in many states. In Florence, Arizona, a 960-bed Special Management Unit (SMU), which served as a model for Pelican Bay, opened in 1988 with 8-cell pod units. In Southport, New York, the Department of Correctional Services converted a maximum security prison into a large-scale SHU housing over 600 prisoners. Smaller maximum security prisons are operating in Indiana, Maryland, and Missouri. Immarigeon, supra note 2, at 2. The National Bureau of Prisons, which is responsible for the notorious Marion supermax facility in Illinois, has recently opened a "supercontrol facility" in Colorado to replace it. Nat Hentoff, Buried Alive in American Prisons: Charles Dickens's Report to Zoe Baird, WASH. POST, Jan. 9, 1993, at A21.

19 The Eighth Amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. CONST. amend. VIII. Prison conditions that deprive inmates of "basic human needs" violate the Eighth Amendment. See, e.g., Helling v. McKinney, 113 S. Ct. 2475, 2480-81 (1993). Although courts often have focused on the bare subsistence needs of prisoners, meaning those needs which must be met by prison administrators to sustain an inmate's life—such as shelter, food, and medical care—they have recognized that conditions which inflict serious mental pain or injury also implicate the Eighth Amendment. As the Third Circuit observed, "The touchstone is the health of the inmate. While the prison administration may punish, it may not do so in a manner that threatens the physical and mental health of prisoners." Young v. Quinlan, 960 F.2d 351, 364 (3d Cir. 1992) (emphasis added). See also Hudson v. McMillian, 112 S. Ct. 995, 1004 (1992) (Blackmun, J., concurring) (observing that the Supreme Court has not limited injury cognizable under the Eighth Amendment to physical injury and noting that "[i]t is not hard to imagine inflictions of psychological harm—without corresponding physical harm—that might prove to be cruel and unusual punishment"); Jordan v. Gardner, 986 F.2d 1521, 1531 (9th Cir. 1993) (en banc) (cross-gender body searches, which caused psychological suffering and were unnecessary and wanton, violated the Eighth Amendment); Hoptowit v. Ray, 682 F.2d 1237, 1253 (9th Cir. 1982) (prison must provide adequate physical and mental health care). But see Newman v. Alabama, 559 F.2d 283, 291 (5th Cir. 1977) ("If the State furnishes its prisoners with reasonable, adequate food, clothing, shelter, sanitation, medical care, and personal safety, so as to avoid the imposition of cruel and unusual punishment, that ends its obligations under Amendment Eight.").

20 Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995).

21 "Psychosis" is defined and described as:

a state in which a person's mental capacity to recognize reality, communicate, and relate to others is impaired, thus interfering with the capacity to deal with life demands. . . . Mental disorders in which psychotic symptoms may be present include mood disorders, schizophrenia, organic mental disorders, brief reactive psychosis, delusional disorders, schizophreniform disorder, schizoaffective disorder, induced psychotic disorder, and pervasive developmental disorders.


22 "Suicidal ideation" means that a person either forms or entertains ideas or images of committing suicide. See id. at 743, 1433-34.

23 A "delusion" is "a false belief that is firmly maintained in spite of incontrovertible and obvious proof to the contrary and in spite of the fact that other members of the culture do not share the belief." Id. at 396.


25 American Quakers were an important influence in the prison reform movement from its inception. See BLAKE MCKELVEY, AMERICAN PRISONS: A HISTORY OF GOOD INTENTIONS 3 (1977). Very early on, Quakers such as William Penn argued for a more modest and charitable treatment of offenders. Id.

In 1776, the Quakers and like-minded reformers formed the Society for Assisting Distressed Prisoners. Their efforts led to a resolution in the Pennsylvania state constitution of 1776 which established carceral punishment, but the British soon occupied Philadelphia and the society dissolved. ADAM J. HIRSCH, THE RISE OF THE PENITENTIARY: PRISONS AND PUNISHMENT IN EARLY AMERICA 56 (1992). In 1787, a group of Quakers from Philadelphia organized the Philadelphia Society for Alleviating the Miseries of Public Prisons. MCKELVEY, supra, at 7. The Society successfully urged the Pennsylvania General Assembly to pass legislation transforming part of Philadelphia's Walnut Street Jail into a penitentiary, complete with solitary confinement and hard labor. Melvin Gutterman, Prison Objectives and Human Dignity: Reaching a Mutual Accommodation, 1992 B.Y.U. L. REV. 857, 862.

26 RONALD L. GOLDFARB & LINDA R. SINGER, AFTER CONVICTION 23 (1973). The authors make the following observation about the religious underpinnings of solitary confinement:

The use of solitary cells as a means of repentance was . . . previewed in the religious writings of . . . Benedictine monk Jean Mabillon, who had suggested, almost in complete anticipation of the Pennsylvania system:

Penitents might be secluded in cells . . . and there employed in various sorts of labor. To each cell might be joined a little garden, where at appointed hours they might take an airing and cultivate the garden. They might, while assisting in public worship, be placed in separate stalls.

Id. (citation omitted).

27 Each inmate was to be the "instrument of his own punishment; his conscience will be . . . the avenger of society." DAVID J. ROTHMAN, THE DISCOVERY OF THE ASYLUM: SOCIAL ORDER AND DISORDER IN THE NEW REPUBLIC 85 (1971) (quoting "Pennsylvania's supporters"). In total solitude and separation from "evil society . . . the progress of corruption is arrested; no additional contamination can be received or communicated." Id. (same). The convict "will be compelled to reflect on the error of his ways, to listen to the reproaches of conscience, to the expostulations of religion." Id. (quoting GEORGE W. SMITH, A DEFENSE OF THE SYSTEM OF SOLITARY CONFINEMENT OF PRISONERS 71, 75 (1833)). The Pennsylvania system called for the uninterrupted isolation of inmates when they first entered prison. Id. at 86. During this period, a new inmate could not have visitors, could not communicate in any fashion with other inmates, nor could he have any tools to work with or books to read in his cell. Id. After this confinement in such marked isolation, an inmate was allowed to work, but only in his cell. Id. The system called for the inmate to labor in his cell every day and envisioned that the inmate would adopt discipline and consistency by the time his sentence was served. Id. Then, "[h]e would return to the community cured of vice and idleness, to take his place as a responsible citizen." Id. (citation omitted).

28 Gutterman, supra note 25, at 862.

29 GOLDFARB & SINGER, supra note 26, at 24-25.

30 Id. at 25.

31 The male pronoun is used throughout this Comment because historically, the majority of prison inmates have been male. All prisoners housed in the Special Housing Unit and Violence Control Unit at Pelican Bay are male.

32 ROTHMAN, supra note 27, at 82.

33 Id. at 85 (citation omitted).

34 HARRY E. BARNES, THE REPRESSION OF CRIME: STUDIES IN HISTORICAL PENOLOGY 104 (1926) (quoting Report of the Inspectors of the Western Penitentiary, Legislative Documents 271 (1854)). Barnes describes the inspectors' report as the "classical eulogy." Id. at 103.

35 GOLDFARB & SINGER, supra note 26, at 26 (quoting CHARLES DICKENS, AMERICAN NOTES 121, 122 (Fawcett Publication 1961) (1845)).

36 See, e.g., Craig Haney, "Infamous Punishment": The Psychological Consequences of Isolation, NAT'L PRISON PROJECT J., Spr. 1994, at 3:

[T]he barrenness of the prison's interior is what is most startling. On each visit to this prison I have been struck by the harsh, visual sameness and monotony of the physical design and the layout of these units. Architects and corrections officials have created living environments that are devoid of social stimulation. The atmosphere is antiseptic and sterile; you search in vain for humanizing touches or physical traces that human activity takes place here.

Dr. Craig Haney served as one of the plaintiffs' expert witnesses in the trial of their class action suit. Dr. Haney is a Professor of Psychology and Director of the Program in Legal Studies at the University of Santa Cruz, where he has been teaching for the past 16 years. Dr. Haney earned a Ph.D. in Social Psychology and a J.D. from Stanford University. He has studied and written extensively on the psychological effects of living and working in maximum security prisons and on the backgrounds and social histories of persons accused of violent crimes. Dr. Haney has testified as an expert witness in prison litigation in state and federal courts in California, Washington, and Illinois. To prepare for his testimony concerning Pelican Bay, Dr. Haney interviewed approximately 100 inmates. Madrid v. Gomez, 889 F. Supp. 1146, 1234 (N.D. Cal. 1995).

37 GOLDFARB & SINGER, supra note 26, at 27-28.

38 ROTHMAN, supra note 27, at 80-81.

39 Gutterman, supra note 25, at 864.

40 ROTHMAN, supra note 27, at 82.

41 Id.

42 Rothman makes the following observation about the competition between the Pennsylvania and Auburn systems:

The content of the debate between the Auburn and the Pennsylvania camps points to the significance of the ideas on the causes of crime to the creation of the penitentiary, and the zeal reflects the expectations held about the innovation. To understand why men became so passionate about internal questions of design is to begin to comprehend the origins and popularity of institutionalization in this era.


43 Id. at 87. This is identical to the argument advanced by the Pelican Bay SHU and VCU inmates in Madrid. See infra Part IV.

44 GOLDFARB & SINGER, supra note 26, at 29.

45 Id. at 37.

46 See supra note 17 and accompanying text.

47 DICKENS, supra note 35, at 120.

48 Id. at 121.

49 See supra notes 26 and 34 and accompanying text.

50 See, e.g., Larry Reibstein et al., Back to the Chain Gang?, NEWSWEEK, Oct. 17, 1994, at 87-90.

51 Id. at 87:

From Albany to Sacramento, lawmakers have discovered that bashing inmates is this season's easiest and most disingenuous way to exploit voters' anti-crime sentiment. Ohio, Wisconsin and North Carolina, among others, have enacted or proposed bans on telephones, televisions, basketball, boxing, wrestling and martial arts. California . . . is charging inmates $3 to initiate court actions and has banned R-rated movies. South Carolina has banned conjugal visits for minimum-security inmates, ending a 50-year tradition. New Jersey is considering a "people's prison" where inmates would do 10 hours a day of hard labor, with no educational programs, no gyms, no TVs. Congress has also struck a blow against crime, eliminating educational grants for federal prisoners. Says Jonathan Turley, director of the Prison Law Project: "It's difficult to imagine a measure draconian enough to satisfy the public desire for retribution."

52 Built at a cost of $218.5 million, Pelican Bay opened hastily in 1989. Elvin, supra note 18, at 5. The prison then went through a series of policy changes, largely by a process of trial and error. Reynolds Holding, Final Arguments in Pelican Bay Trial, S.F. CHRON., Dec. 16, 1993, at A23 (reporting on final argument of California Deputy Attorney General Peter Siggins in Madrid). Dr. Stuart Grassian, the Harvard psychiatrist who testified as an expert witness for the inmates in Madrid, referred to Pelican Bay as a "quarter-billion dollar disaster." Maitland Zane, Psychiatrist Criticizes Pelican Bay Prison, S.F. CHRON., Oct. 13, 1993, at A17.

53 Madrid v. Gomez, 889 F. Supp. 1146, 1155 (N.D. Cal. 1995) (quoting a phrase coined by prison officials).

54 Kevin Leary, Pelican Bay as the Prison of the Future, S.F. CHRON., Apr. 18, 1994, at A7.

55 Madrid, 889 F. Supp. at 1178-79. In 1994, the prison had been open for only five years, but four inmates had already been shot to death by guards. Dan Morain & Daniel M. Weintraub, FBI Investigating Deaths at Prison, L.A. TIMES, Oct. 27, 1994, at A3. One hundred seventy-seven shots were fired at Pelican Bay from the date it opened until September 9, 1993. Of these shots, 152 were intended to be warning shots, but 13 of these actually caused or were alleged to have caused inmate injuries from ricochets or bullet fragments. Madrid, 889 F. Supp. at 1178 n.52. In the year immediately preceding the trial of the class action suit, eight inmates were struck by bullets. Plaintiffs' Closing Argument, reprinted in 2 PELICAN BAY PRISON EXPRESS, No. 5, Oct. 1994, at 30, 38 [hereinafter Plaintiffs' Closing Argument] (summarizing sworn trial testimony).

The California Department of Corrections' practice of using firearms to maintain security, both inside and outside the housing units, appears to be an attempt to compensate for the fact that California is ranked 47th in the nation in the number of correctional officers per inmate. Madrid, 889 F. Supp. at 1179 n.51. Overall, in the last ten years, California Department of Corrections officers have shot and killed thirty-six inmates in California state prisons. Morain & Weintraub, supra, at A3 (emphasis added). That is more than three times the number killed by guards in all other major U.S. prison systems combined during the same ten years. Id. In Madrid, Judge Henderson held that Pelican Bay officials "permitted and condoned a pattern of using excessive force" since the facility opened. 889 F. Supp. at 1279.

56 The 1994 CDC inmate population, approximately 130,000 inmates, should nearly double by the year 2000 to 250,000. Leary, supra note 54, at A7; Dan Morain, California's Prison Budget: Why Is It So Voracious?, L.A. TIMES, Oct. 19, 1994, at A1.

57 Morain, supra note 56, at A1. Dr. Terry Kupers, a psychiatry professor and consultant for the U.S. Justice Department, estimates the number of California inmates with "chronic mental disorders" at 16-20% of the prison population—"a staggering 20,000 to 25,000 men and women." Wallace & Sward, supra note 4, at A1. In a year-long investigation, Wallace and Sward found that "California prisoners with severe psychotic conditions are often confined with little or no treatment and left to deteriorate until they are disabled, suicidal or primed for explosive violence." Wallace & Sward, supra note 4, at A1.

58 Morain, supra note 56, at A1.

59 Leary, supra note 54, at A7 (quoting California Deputy Attorney General Susan Duncan Lee, a member of the team of lawyers representing CDC in Madrid).

60 Morain, supra note 56, at A1. See also Madrid, 889 F. Supp. at 1217 ("[T]here was no resident psychiatrist at Pelican Bay with the exception of a psychiatrist who submitted his resignation after working for one month."). In his letter of resignation, the resident psychiatrist stated, "I am leaving because in this new position I will not be able to provide safe and adequate services, given the limited resources, and where there exist too many situations in which my license could be place [sic] in jeopardy." Madrid, 889 F. Supp. at 1217 n.149. See also Haney, supra note 36, at 21 n.8:

In the first several years of its operation, Pelican Bay had one fulltime mental health staff member, and not a single Ph.D. psychologist or psychiatrist, to administer to the needs of the entire prison population, which included over 1,000 SHU prisoners, as well as over 2,000 prisoners in the general population of the prison.

61 Leary, supra note 54, at A7.

62 The SHU inmates are considered by CDC to be the most disruptive or potentially dangerous inmates in the California prison system. Approximately 50% of inmates confined to the SHU have been disciplined for prior violations of prison regulations. Typical charges are possession of a weapon or assault. If an inmate's violations are serious or repetitive, the inmate may be transferred to the SHU for a set period of punishment. Madrid, 889 F. Supp. at 1227.

The next largest group (numbering around 600) consists of inmates whom the CDC has labeled as prison gang members. CDC officials assert that inmates confined to the SHU include leaders of prison gangs such as the Mexican Mafia, the Aryan Brotherhood, and the Black Guerrilla Family. Hurst and Morain, supra note 7, at A1. Notably, 87% of SHU inmates are persons of color. From the Record: The Trial Testimony, 2 PELICAN BAY PRISON EXPRESS, No. 5, Oct. 1994, at 1 [hereinafter From the Record]. Alleged gang members are assigned to the SHU for indeterminate terms—that is, they will remain in the SHU indefinitely up to the maximum length of their sentence, which, for some prisoners, may mean 10-15 years or the rest of their life. Madrid, 889 F. Supp. at 1227-28.

Another sizeable group consists of inmates who are neither gang-affiliated nor serving a term for violation of a disciplinary rule; they are persons who administrators believe should nonetheless be segregated because of general concerns regarding assaultive or disruptive behavior. These inmates may also remain in the SHU indefinitely. Finally, there are some inmates who are at risk of assault from other inmates and so are housed in the SHU for their safety. These inmates remain in the SHU for an indefinite term. Id. at 1228.

63 Amended Complaint at 32, Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) (No. C90-3094-TEH). See also Madrid, 889 F. Supp. at 1228 n.163 ("Earlier release from the SHU may be secured only if the inmate successfully completes what is referred to as a `debriefing process.' This process requires the inmate to furnish detailed information regarding other prison gang members or gang activity.").

64 A basic tenet of any unit like the SHU, premised on domination and punitive control, is that there always must be an even worse, more punitive and degrading place to punish those inmates who continue to break the rules. Haney, supra note 36, at 21 n.7. At Pelican Bay, that place is the "Violence Control Unit," referred to as "Bedrock" by the prisoners. Id. Like the SHU cells, VCU cells are monitored by video cameras. Cell doors are opened by remote control; prisoners receive directions via loudspeaker from a guard in a control booth. Face-to-face contact with other human beings is at a minimum. Haney describes the conditions at Pelican Bay as follows:

[VCU inmates] are not permitted televisions or radios, and they are the only ones chained and escorted to the door of the outside exercise cage (despite the fact that no prisoner is more than four cells away from this door). In addition, there are plexiglas coverings on the entire outside facing of the VCU cells, which results in a significant distortion of vision into and out of the cell itself. . . . [T]he [inmate's] perception of confinement is intensified because of this added barrier placed on the front of each cell.


Based on his interviews and observations of inmates, Dr. Haney concluded that some of the "most psychiatrically disturbed prisoners" are housed in the VCU. Id. In this Comment, the term "SHU" includes the "VCU." The sensory deprivation argument applies to the Violence Control Unit with equal if not greater force.

65 Madrid, 889 F. Supp. at 1160.

66 Id.

67 Id. at 1229.

68 Id. at 1160.

69 Id. at 1155. Each SHU cell cost California an astounding $74,000. Immarigeon, supra note 2, at 2.

70 Amended Complaint at 34, Madrid, 889 F. Supp. (No. C90-3094-TEH). See also Madrid, 889 F. Supp. at 1179 n.52.

71 Amended Complaint at 34, Madrid, 889 F. Supp. (No. C90-3094-TEH).

72 Elvin, supra note 18, at 21 (emphasis added).

73 Madrid, 889 F. Supp. at 1228.

74 Id.

75 Haney, supra note 36, at 4.

76 Id.

77 Id.

78 Id.

79 Id.

80 Id.

81 Elvin, supra note 18, at 21.

82 Leary, supra note 54, at A7.

83 Hurst & Morain, supra note 7, at A1.

84 Leary, supra note 54, at A7.

85 Haney, supra note 36, at 4. Some inmates find this public display of nudity so embarrassing and degrading that they forego the privilege of "taking yard" because of the "humiliating procedures to which they must submit and the draconian conditions under which they are required to exercise." Id.

86 Elvin, supra note 18, at 21.

87 Madrid v. Gomez, 889 F. Supp. at 1146, 1229 (N.D. Cal. 1995). Weights, handballs, or other athletic equipment are not permitted, although Pelican Bay receives funds for prisoner recreation. Prison officials also routinely reject offers by inmates to purchase equipment with their own money, or even to make their own exercise balls. Amended Complaint at 34, Madrid, 889 F. Supp. (No. C90-3094-TEH).

88 Haney, supra note 36, at 3.

89 Madrid, 889 F. Supp. at 1229.

90 Id.

91 Roughly two-thirds of the inmates are double-celled. However, the Madrid court concluded that this "does not compensate for the otherwise severe level of social isolation in the SHU." Id. at 1229-30. The court reasoned that:

The combination of being in extremely close proximity with one other person, while other avenues for normal social interaction are virtually precluded, often makes any long-term, normal relationship with the cellmate impossible. Instead, two persons housed together in this type of forced, constant intimacy have an "enormously high risk of becoming paranoid, hostile, and potentially violent towards each other." The existence of a cellmate is thus unlikely to provide an opportunity for sustained positive or normal social contact.

In sum, those incarcerated in the SHU for any length of time are severely deprived of normal human contact regardless of whether they are single- or double-celled.

Id. at 1230 (citations to transcript omitted).

92 Haney, supra note 36, at 4. A classification hearing is an internal administrative process in which inmates' housing assignments are determined.

93 Elvin, supra note 18, at 5, 21.

94 Id.

95 Id.

96 The case is styled Madrid v. Gomez and the resulting opinion may be found at 889 F. Supp. 1146 (N.D. Cal. 1995).

97 Amended Complaint at 2, Madrid, 889 F. Supp. (No. C90-3094-TEH).

98 See Sean P. Murphy, Walpole Inmates Challenge Isolation: Lawsuits Claim Facility Inhumane, BOSTON GLOBE, Sept. 5, 1994, at 1. The unique nature of the Pelican Bay environment has also generated a great deal of media attention. See, e.g., Hentoff, supra note 18, at A21.

99 See Epstein, supra note 16, at B3.

100 The case was tried before the court between September 14 and December 1, 1993. Madrid, 889 F. Supp. at 1156. Judge Henderson deserves commendation for his sensitive management of this incredibly complex litigation. Immediately prior to trial, he spent two days touring Pelican Bay, accompanied by counsel for both parties and prison officials. During the course of the trial, he heard testimony from 57 lay witnesses, including class members, defendants, and correctional employees at all levels. He also received into evidence more than 6,000 exhibits, including documents, tape recordings, and photographs, as well as thousands of pages of deposition excerpts. Id.

101 Id. at 1279-80.

102 Id. at 1265 ("For these inmates, placing them in the SHU is the mental equivalent of putting an asthmatic in a place with little air to breathe."). Judge Henderson also found that these inmates satisfied the subjective component of their Eighth Amendment claim because prison officials were deliberately indifferent to the serious risks posed by subjecting these inmates to the SHU over extended periods of time. Id. at 1261. For a discussion of the constitutional standards applicable to an Eighth Amendment claim, see infra Part VI.A.

103 Id. at 1266.

104 Id. at 1265 (emphasis added).

105 Id.

106 Id.

107 Id. at 1265-66 (citing Helling v. McKinney, 113 S. Ct. 2475, 2480-81 (1993)).

108 Id. at 1266 n.211.

109 In establishing the objective component of an Eighth Amendment claim, inmates do not have to show that they are currently suffering from a serious mental health problem caused by the conditions in the SHU; it is sufficient in certain circumstances that the conditions present a substantial risk of future potential harm. Helling, 113 S. Ct. 2480-81 (emphasis added) (holding that inmate's claim of an unreasonable risk of future injury due to exposure to second-hand smoke was cognizable under the Eighth Amendment).

Although Helling involved a risk to an inmate's physical health, the principles enunciated apply in the context of mental health as well. Madrid, 889 F. Supp. at 1265 n.210. Courts have continually borrowed standards used to analyze physical health care when evaluating the adequacy of mental health care. See, e.g., Doty v. County of Lassen, 37 F.3d 540, 546 (9th Cir. 1994) (holding that requirements for mental health care are the same as those for physical health care); Cody v. Hillard, 599 F. Supp. 1025, 1058 (D. S.D. 1984) (adequacy of mental health care system "is governed by the same constitutional standard which applies when determining the adequacy of a prisoner's medical . . . system"), aff'd in part and rev'd in part en banc, 830 F.2d 912 (8th Cir. 1987).

110 Stuart Grassian & Nancy Friedman, Effects of Sensory Deprivation in Psychiatric Seclusion and Solitary Confinement, 8 INT'L J. OF LAW AND PSYCHIATRY 49, 57 (1986) (disputing researchers' extrapolations concerning disturbed psychiatric patients).

111 Generally, expert opinions are not entitled to much weight in determining whether a condition is cruel and unusual punishment under the Eighth Amendment. Toussaint v. McCarthy, 801 F.2d 1080, 1107 n.28 (9th Cir. 1986). Thus, a court cannot rely solely on expert opinion in making its legal determination. Madrid, 889 F. Supp. at 1159. It is appropriate, however, for a court to consider expert opinion in assessing subsidiary issues that inform the court's final determination. For example, expert opinion may be properly considered in assessing the effects of challenged conditions or practices. Helling, 113 S. Ct. at 2482 (referring to the "scientific and statistical inquir[ies]" that will be used to determine the seriousness of the harm caused by second-hand smoke); Jordan v. Gardner, 986 F.2d 1521, 1526 (9th Cir. 1993) (en banc) (relying on expert testimony to establish psychological impact of challenged measure on inmates).

Therefore, the conclusions of Drs. Haney and Grassian were properly considered by Judge Henderson in his assessment of the effects of sensory deprivation on SHU inmates. See Madrid, 889 F. Supp. at 1159 & passim (indicating Judge Henderson's reliance on the opinions of Dr. Haney and Dr. Grassian in analyzing the effects of sensory deprivation on SHU inmates).

112 Solitary confinement is defined as:

In a general sense, the separate confinement of a prisoner, with only occasional access of any other person, and that only at the discretion of the jailer. In a stricter sense, the complete isolation of a prisoner from all human society, and his confinement in a cell so arranged that he has no direct intercourse with or sight of any human being, and no employment or instruction.

BLACK'S LAW DICTIONARY 1249 (5th ed. 1979) (emphasis added).

Solitary confinement, as a disciplinary tool, has traditionally been permitted by the courts. See, e.g., Sostre v. McGinnis, 442 F.2d 178, 192 (2d Cir. 1971) (describing solitary confinement as one of "the main traditional disciplinary tools of our prison systems"). However, the conditions of solitary confinement are always subject to constitutional scrutiny. Hutto v. Finney, 437 U.S. 678, 685 (1978). In Hutto, the Court stated that confinement in an isolation cell is a type of punishment, which means that Eighth Amendment standards are applicable. Id.

113 Hentoff, supra note 18, at A21 (quoting a remark made to Charles Dickens in 1842 by a new inmate at the Eastern Penitentiary in Pennsylvania).

114 Haney, supra note 36, at 7. See also GUSTAVE A. BEAUMONT & ALEXIS DE TOCQUEVILLE, ON THE PENITENTIARY SYSTEM IN THE UNITED STATES AND ITS APPLICATION IN FRANCE (Augustus M. Kelley ed. & Francis Lieber, trans., 1970) (1883).

115 In re Medley, 134 U.S. 160, 168 (1890) (describing the Walnut Street Jail).


Many unusual human experiences share the features of sensory deprivation. Major psychological reactions have been described by "high altitude jet pilots, solo explorers, survivors of prolonged solitary confinement in war, in certain medical situations, and among patients suffering various impairments of their sensory apparatus." Id.

117 The studies described in this part were conducted by Drs. Brownfield and Solomon on "Hebb's group." Grassian & Friedman, supra note 110, at 51. Detailed reports of those studies are found respectively in BROWNFIELD, supra note 116, and SOLOMON ET AL., supra note 116.

118 "Derealization" is "a feeling of altered reality that occurs often in schizophrenia and in some drug reactions." WEBSTER'S NEW COLLEGIATE DICTIONARY 342 (9th ed. 1983).

119 Grassian & Friedman, supra note 110, at 51. "Hyper-responsitivity" is an exaggerated response to stimuli. Maria A. Luise, Solitary Confinement: Legal and Psychological Considerations, 15 NEW ENG. J. ON CRIM. & CIV. CONFINEMENT 301, 318 n.158 (1989).

120 Grassian & Friedman, supra note 110, at 51.

121 Id. "Mutism" is the refusal or inability to speak. DORLAND'S MEDICAL DICTIONARY 798 (23d ed. 1982).

122 Grassian & Friedman, supra note 110, at 51.

123 Id.

124 Madrid, 889 F. Supp. at 1231 (citing trial testimony of Dr. Grassian).

125 For a detailed description of the conditions under which inmate interviews were conducted at Walpole, see Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 AM. J. PSYCHIATRY 1450, 1451 (1983).

126 The intentional imposition of sensory deprivation is most often criticized in two settings: seclusion rooms in inpatient psychiatric settings and in maximum security prisons like Walpole and Pelican Bay. Grassian & Friedman, supra note 110, at 49.

Sensory deprivation in prison confinement raises concerns that are not present in the psychiatric setting. In addition to the increased duration and profundity of sensory deprivation that accompanies solitary confinement in prison, there are two additional factors that may explain why sensory deprivation in solitary confinement is so malignant. These factors are the influence of a subject's expectation and the different responses given by individuals. In 1964, Drs. Orne and Scheibe observed that a subject's reaction to a sensory deprivation experiment could be profoundly manipulated by external cues imposed by the experimenter. The doctors introduced an "Emergency Medical Tray" and instructions about a "Panic Button" to an experimental group. As expected, the experimental group became much more symptomatic in measures of cognitive impairment and restlessness and also more symptomatic in every other measure, including perceptual aberrations, anxiety, and spatial disorientation. Id. at 55-56 (referring to findings reported in M. Orne & K. Scheibe, The Contributions of Nondeprivation Factors in the Production of Sensory Deprivation Effects: The Psychology of the "Panic Button," 68 J. ABNORMAL & SOC. PSYCHOL. 3-12 (1964)). In a similar manner, at Walpole the inmates "universally [perceived] that solitary confinement in general, and the solid steel doors in particular, were punitive attempts to make them `crack up,' `break my spirit,' `drive me crazy and send me to [the state's facility for the criminally insane].'" Grassian & Friedman, supra note 110, at 56.

127 See Grassian, supra note 125, at 1450-51 (citing, inter alia, J. Ganser, Uber Einen Eigenartigen Hysterischen Dammerzustand, 30 ARCH. PSYCHIATR. NERVENKR. 633 (1898)). Dr. Grassian reported:

In Germany, whose penal system had emulated the American model, major clinical concerns developed about the incidence of psychotic disturbances among prisoners. Between 1854 and 1909, 37 articles on this subject appeared in German journals, collectively describing hundreds of cases of psychoses that were deemed to be reactions to the conditions of imprisonment.

This literature described a hallucinatory, paranoid, confusional psychosis in which characteristic symptoms included: 1) extremely vivid hallucinations in multiple sensory modalities, including the auditory, tactile, and olfactory nature; 2) dissociative features . . . with subsequent amnesia for the events of the psychosis; 3) agitation and "motor excitement" with aimless violence; and 4) delusions, usually described as persecutory.


128 Id. at 1450.

129 Grassian & Friedman, supra note 110, at 53.

130 See, e.g., Grassian, supra note 125; Grassian & Friedman, supra note 110; Luise, supra note 119 (citing, inter alia, Benjamin & Lux, Solitary Confinement as Psychological Punishment, 13 CAL. W. L. REV. 265 (1977); Benjamin & Lux, Constitutional and Psychological Implications of the Use of Solitary Confinement: Experience at the Maine State Prison, 2 NEW ENG. J. PRISON L. 27 (1975); Brodsky & Scoggin, Inmates in Protective Custody: First Data on Emotional Effect, 1 FORENSIC REP. 267 (1988)).

The only study that did not find damaging effects from solitary confinement was a unique study employing self-selected inmates who volunteered for, at most, four days of solitary confinement. Grassian & Friedman, supra note 110, at 53 (referring to R. Walters, Effect of Solitary Confinement on Prisoners, 119 AM. J. PSYCHIATRY 771 (1963)). Walters' study did not attempt to determine the psychological variables that predisposed the inmates to volunteer, nor to describe the "presumably unique response of prisoners and prison guards to a situation known by them to be clinical and experimental, rather than punitive." Grassian & Friedman, supra note 110, at 53-54 (emphasis added).

See also Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir. 1988) ("[T]here is plenty of medical and psychological literature concerning the ill effects of solitary confinement (of which segregation is a variant).").

131 Dr. Grassian has been a faculty member at Harvard Medical School since 1974 and a board-certified psychiatrist since 1979. He obtained his M.D. in 1973 from New York University Medical School. In addition to his teaching, Dr. Grassian maintains a private practice and serves as the Psychiatric Director at the Melrose Wakefield Hospital Day Treatment Program for Addictions and as a supervising psychiatrist in the Outpatient Department at the New England Memorial Hospital in Stoneham, Massachusetts. From 1977 to 1980, he was also Director of Inpatient Services at a community mental health center, where he was responsible for implementing policies regarding staffing, quality assurance, and supervision of psychiatric residents and other mental health professionals. He had similar responsibilities when he served as Chief of Staff (1991-92) and Director of Adult Inpatient Services (1980-84) at the New England Memorial Hospital. He has also testified as an expert witness in prison litigation, including Madrid v. Gomez. See Madrid v. Gomez, 889 F. Supp. 1146, 1158 (N.D. Cal. 1995).

132 Walpole is a maximum security state prison for the Commonwealth of Massachusetts. Dr. Grassian describes the cell block reserved for solitary confinement as being

divided into four tiers, each housing 15 cells approximately 1.8 m x 2.7 m in size, each cell containing an open toilet and sink, a steel bed, and a small, fixed steel table and stool. The cells in the lower tiers have double doors. The inner door is barred; the outer door is solid steel except for a small Plexiglas window. There are no other windows in the cells; each cell has one 60-watt light bulb to provide light.

. . . Until August 20, 1979, the outer steel doors were left open, permitting natural light and air to enter the cell and permitting inmates to speak with other inmates in adjoining cells; on August 20 the steel doors were closed on the cells of all inmates in isolation. At the same time, correctional officers removed personal belongings from these cells, including radios, television sets, and all reading materials except a Bible.

Grassian, supra note 125, at 1451.

Suit was filed to protest conditions in the lower tiers. A district court order mandated the psychiatric evaluation of 15 inmates who were plaintiffs in that suit. Dr. Grassian evaluated 14 inmates; one plaintiff was no longer in the cellblock when the interviews were held. All plaintiffs were male and the average age was 28. The median time that the inmates spent in isolation was about two months. Id.

133 Hyper-responsitivity is defined at note 119, supra.

134 Grassian, supra note 125, at 1452-53. Some specific findings are as follows: Seven prisoners experienced perceptual distortions, hallucinations, and derealization experiences. Id. Five inmates heard voices, "often in whispers, often saying frightening things to them—but usually the prisoners had no means by which to corroborate what they thought they heard." Id. at 1452. One inmate said, "I hear sounds—guards saying, `They're going to cut it [his nerve-damaged leg] off.' I'm not sure. Did they say it, or is it my imagination?" Id. If the guards did make the remark that the prisoner heard, "the prisoner is suffering from derealization; if they said something else, or something not directed at him, he is suffering a (paranoid) perceptual distortion; if they said nothing, he is having a hallucination." Id. Dr. Grassian also reports that "[a]nother inmate described his dilemma poignantly: `I overhear the guards talking. Did they say that? Yes? No? It gets confusing. I tried to check it out with [the prisoner in the adjoining cell]; sometimes he hears something and I don't. I know one of us is crazy, but which one? Am I losing my mind?'" Id.

For some inmates, noises took on "increasing meaning and frightening significance." Id. One inmate told Dr. Grassian, "I hear noises, can't identify them—starts to sound like sticks beating men. But I'm pretty sure no one is being beaten. . . . I'm not sure." Id. "Perceptual illusions" included reports that the cell walls were "wavering," that everything was "melting," that everything in the cell "starts moving" and starts "getting darker." Id. One prisoner "described overt, frightening visual hallucinations: `There's a guard in my cell; he's holding a noose.'" Id. Ten prisoners told Dr. Grassian that they experienced massive free-floating anxiety during solitary confinement. Id.

Eight inmates reported difficulties with thinking, concentration, and memory. Id. at 1453. One inmate slashed his wrists during an acute confusional state. Id. at 1452. Five inmates reported episodes of lack of impulse control with random violence. Id. at 1453. Three of these reported impulsive self-mutilation. Six inmates reported persecutory fears. Id. at 1453.

135 Id. at 1450. See also Haney, supra note 36, at 6-7. This syndrome is characterized by the following symptoms:

1. Massive free-floating anxiety;
2. Hyper-responsitivity to external stimuli;
3. Perceptual distortions and hallucinations in multiple spheres (auditory, visual, olfactory);
4. Derealization experiences;
5. Difficulty with concentration and memory;
6. Acute confusional states, at times associated with dissociative features, mutism, and subsequent partial amnesia for these events;
7. Emergence of primitive, ego-dystonic aggressive fantasies;
8. Ideas of reference and persecutory ideation, at times of delusional proportions;
9. Motor excitement, often associated with sudden, violent destructive or self-mutilatory
10. Rapid subsidence of symptoms upon termination of isolation.

Grassian, supra note 125, at 1453-54.

136 Grassian, supra note 125, at 1452.

137 Id. Typical inmate comments included, "You get sensitive to noise—the plumbing system. Someone in the tier above me pushes the button on the faucet, the water rushes through the pipes—it's too loud, gets on your nerves. I can't stand it—I start to holler. Are they doing it on purpose?" "Everything gets exaggerated. After a while, you can't stand it. Meals—I used to eat everything. . . . Now I can't stand the smells—the meat—the only thing I can stand to eat is the bread." "What really freaks me out is when a bee gets into the cell—such a small thing." "Difficult to breathe, stale, awful smell from the toilets—the stench starts to feel unbearable." Id.

138 Id. at 1453.

139 Id. One inmate described how he struggled with the disturbing images: "I try to . . . block out my thoughts . . . think of torturing and killing the guards . . . I can't stop it. Have to keep control. . . . I get panicky—thoughts come back—picture throwing a guard in lime—eats away at his skin, his flesh—torture him. Try to block it out, but I can't." Id.

140 See Grassian & Friedman, supra note 110, at 55.

141 See id.

142 Id.

143 For full reports of these studies, see id. at 56-59.

144 Id. at 60.

145 Id. at 61.

146 Id. Certain types of prisoners are particularly vulnerable to the SHU. These include "prisoners who've been abused as a child; prisoners with chronic long-term mental illnesses; prisoners who have had trouble with the SHU in the past." Plaintiffs' Closing Argument, supra note 55, at 30, 32.

147 Grassian, supra note 125, at 1453.

148 The only symptoms not documented by Dr. Grassian in his Walpole study, but observed by the German clinicians, were Vorbereiden, the symptom of "approximate answers," and hysterical conversion. Id.

149 Id.

150 Id.

151 Id. at 1454.

152 Rhodes v. Chapman, 452 U.S. 337, 345 (1981) (holding that double-celling of inmates is not per se unconstitutional).

153 Farmer v. Brennan, 114 S. Ct. 1970, 1977 (1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)). The question whether the objective component of an Eighth Amendment claim has been satisfied presents an issue of law for the court to decide. Hickey v. Reeder, 12 F.3d 754, 756 (8th Cir. 1993).

154 Rhodes, 452 U.S. at 347.

155 Farmer, 114 S. Ct. at 1977.

156 Helling v. McKinney, 113 S. Ct. 2475, 2482 (1993).

157 Bell v. Wolfish, 441 U.S. 520, 547 (1979). The reasons offered in support of this position, known as the deference doctrine, are that "[s]uch considerations are peculiarly within the province and professional expertise of corrections officials" and "the operation of . . . correctional facilities is peculiarly the province of the Legislative and Executive Branches of our Government, not the Judicial." Id. at 547, 548. There is a compelling argument for the rejection of this policy. Many jurists and commentators properly regard adherence to the deference doctrine as judicial abdication because "the Constitution contemplates that in the end [a court's] own judgment will be brought to bear on the question of the acceptability of [a given punishment]." Coker v. Georgia, 433 U.S. 584, 597 (1977) (plurality opinion). This argument, however, must be reserved for another day.

158 Farmer, 114 S. Ct. at 1977 (quoting Wilson, 501 U.S. at 297).

159 Id. In contrast to the objective component, which presents an issue of law, the state of mind inquiry presents a question of fact and is "subject to demonstration in the usual ways, including inference from circumstantial evidence." Id. at 1981.

160 Wilson, 501 U.S. at 302-03.

161 114 S. Ct. 1970 (1994).

162 Id. at 1979.

163 "The civil law generally calls a person reckless who acts or (if the person has a duty to act) fails to act in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known." Id. at 1978 (citing, inter alia, RESTATEMENT (SECOND) OF TORTS § 500 (1965)).

164 Id. at 1980 ("[T]o act recklessly . . . a person must `consciously disregar[d]' a substantial risk of serious harm.") (quoting MODEL PENAL CODE § 2.02(2)(c) (1985)).

165 114 S. Ct. at 1980.

166 Rhodes v. Chapman, 452 U.S. 337, 362 (1981) (Brennan, J., concurring). Part III, supra, describes the exceedingly austere conditions of confinement within Pelican Bay's SHU.

167 See supra Part V.B.1 and accompanying notes.

168 Haney, supra note 36, at 3-4 (emphasis added) ("Put simply, prisoners here have virtually nothing to do."). Although prisoners who can afford them are permitted to have radios and small, regulation-size TVs in their cells, the critical point is that radios and televisions do not involve direct human interaction. Furthermore, not all inmates own a television or radio. While it is true that inmates may read books, and send or receive mail, not all inmates are literate. See Madrid v. Gomez, 889 F. Supp. 1146, 1230 (N.D. Cal. 1995). The following list sets out all privileges that a SHU inmate who is not on restriction may enjoy:

1. Inmates with funds may purchase radios and televisions;
2. Literate inmates may send and receive mail (no phone calls are permitted), read books, and participate in a Bible correspondence class;
3. Inmates may keep certain personal property in their cells and those with funds may make purchases through the prison canteen;
4. Inmates may shower three times per week;
5. Inmates are permitted noncontact visits and may participate in the chaplain's religious
visitor program; and
6. Inmates may exercise five times per week.


169 Madrid, 889 F. Supp. at 1263; see also Jackson v. Meachum, 699 F.2d 578, 581 (1st Cir. 1983).

170 Id. at 1263-64.

171 To prepare for his testimony as an expert witness for the Pelican Bay inmates in Madrid, Dr. Grassian interviewed 50 randomly selected inmates at Pelican Bay. Zane, supra note 52, at A17. At trial, Dr. Grassian testified that he reviewed "18 U-Haul boxes [of documents] at last count." Madrid, 889 F. Supp. at 1214. For Dr. Haney's credentials and experience, see supra note 36.

172 Madrid, 889 F. Supp. at 1234.

Initially, Dr. Haney interviewed 65 inmates for approximately one hour each; 40 of these were randomly selected while 25 were preselected. Because a high number of prisoners spontaneously complained about various negative psychological and psychiatric symptoms in the SHU, which correlated with published literature that discussed extreme forms of social deprivation and psychological trauma, Dr. Haney independently decided to conduct a more systematic random study.

Id. at 1234 n.172.

173 See supra text accompanying note 124.

174 Madrid, 889 F. Supp. at 1234.

175 Id. The 100 SHU inmates exhibited the following symptoms: talking to themselves (63%); hallucinations (41%); ruminations (88%); violent fantasies (61%); oversensitivity to stimuli (86%); perceptual distortions (44%); irrational anger (88%); confused thought process (84%); emotional flatness (73%); mood/emotional swings (71%); chronic depression (77%); suicidal thoughts (27%); overall deterioration (67%); and social withdrawal (83%). Id. at 1234 n.173.

176 Id. at 1216 (quoting Ruggles Tr. 17-2914).

177 Haney, supra note 36, at 4.

178 Id. Inmate visitation is radically impeded by the remote location of the prison: "Because of the prison's remote location near the Oregon border, only a few inmates have visitors, and those who do are not allowed to embrace or touch their children or loved ones. Such `contact' visits are allowed for even the most notorious killers on death row at San Quentin." Jim Doyle, Criticism of Pelican Bay in Court: Psychologist Testifies on Symptoms of Trauma at Top-Security Jail, S.F. CHRON., Sept. 30, 1993 (quoting Dr. Haney's testimony at trial). One inmate told Dr. Haney, "Family and friends, after the years, they just start dropping off." Haney, supra note 36, at 4.

179 Letter from inmate Daniel Sheets, reprinted in 2 PELICAN BAY PRISON EXPRESS, No. 4, May 1994, at 20.

180 Haney, supra note 36, at 4.

181 See Madrid, 889 F. Supp. at 1159-1200, 1229.

182 Id. at 1229.

183 Id.

184 Id. (quoting Dvoskin Tr. 27-4391). Dr. Dvoskin is a clinical psychologist. Since 1984, he has directed the Bureau of Forensic Services for the New York State Office of Mental Health. He has acted as a consultant to approximately 18 jurisdictions regarding the provision of mental health care to incarcerated persons. He has also worked in prisons and prison hospitals in Massachusetts. Id. at 1159 n.15.

185 See, e.g., Haney, supra note 36, at 7 n.3 (citing N. Schafer, Prison Visiting: Is It Time to Review the Rules?, FED. PROBATION 25-30 (1989)).

186 Id. at 4. Dr. Haney explained the significance of long-term social deprivation:

The destructive consequences [of confinement within the SHU] can only be understood in terms of the profound importance of social contact and social context in providing an interpretive framework for all human experience, no matter how personal and seemingly private. Human identity formation occurs by virtue of social contact with others.


187 Id. at 5. As one inmate told Dr. Haney, "You're going to be what the place wants you to be or you're going to be nothing." Id.

188 Id. A study done by the staff of Pelican Bay's chief medical officer in August 1990 documented that, at that time, there were at least 208 inmates at Pelican Bay who were either psychotic or psychotic in partial remission. Madrid, 889 F. Supp. at 1215. The study was conducted by Dr. Nadim Khoury, who was Chief of Medical Services at that time, with the responsibility for overseeing health care operations for CDC. Id. at 1215 n.143. These numbers are not at all surprising. Warden Marshall stated in a 1991 budget request that the high incidence of mentally ill inmates at Pelican Bay is predictable because those inmates frequently exhibit behavioral problems, and inmates with a history of misconduct are often transferred to Pelican Bay. Id. at 1215.

Amazingly enough, Dr. Khoury testified at trial that he did not believe that there were ever any inmates in the SHU who suffered from a serious mental disorder. Id. at 1216 n.147 (citing Khoury Tr. 10-1579). The court understandably characterized this testimony as "not credible." Id.

189 Haney, supra note 36, at 5.

190 Id.

191 Id. (emphasis added).

192 Id. (emphasis added). The inmates reported being "uncomfortable with even small amounts of freedom because they have lost the sense of how to behave without the constantly enforced restrictions, tight external structure, and totality of behavioral restraints." Id. This outcome is particularly frightening because these inmates are released from the SHU directly into our communities with no intervening re-entry program. See infra note 293.

Many of the prisoners worry about the slightest variance in their daily routine: how the food is placed on the food trays, what time the mail is delivered, "why a cell door on the tier below just opened." The Same, Only Worse . . . , 2 PELICAN BAY PRISON EXPRESS, No. 4, May 1994, at 1, 2 [hereinafter The Same, Only Worse]. Remarks to this effect were made to interviewers from the Pelican Bay Information Project's legal team during a two-day investigative trip to the prison in the spring of 1994. Forty-seven men were interviewed. Id. at 1.

193 Haney, supra note 36, at 5. This adaptation manifests itself in "apathy and lethargy." Id. Inmates report being constantly tired, despite the fact that they have been permitted to do absolutely nothing. "They find it difficult to focus their attention, their minds wander, they cannot concentrate or organize thoughts or actions in a coherent way." Id. Inmates describe themselves as "feel[ing] isolated and frozen in time" and "depressed and overwhelmed by malaise and indifference." The Same, Only Worse, supra note 192, at 1.

194 Haney, supra note 36, at 5. See also The Same, Only Worse, supra note 192, at 1-4.

195 Haney, supra note 36, at 5.

196 Id. These inmates take steps to avoid the minimal social contact they are permitted: they refuse to go to the "yard," refrain from interaction with staff, discourage visits, if they are fortunate enough to have family or friends, and cut off correspondence with the outside world. Id. Dr. Haney interviewed inmates who had "move[d] from being starved for social contact to being frightened by it." Id.

197 Id.

198 See The Same, Only Worse, supra note 192, at 1. Inmates told interviewers that they were losing "their hold on reality," and that "Pelican Bay is an above-ground tomb where the prisoners feel their lives slipping away." Id.

199 Haney, supra note 36, at 5.

200 Id.

201 Id.

202 Id. Many inmates report irritability, anger, and "frequent" episodes of yelling or cursing, even over trivial matters. Emotions change very quickly; "happiness, anger, or anxiety quickly crowd upon each other." The Same, Only Worse, supra note 192, at 1-2.

203 Haney, supra note 36, at 5.

204 Id.

205 Id.

206 Id.

207 Murphy, supra note 98, at 1.

208 Haney, supra note 36, at 5.

209 California is the only state in the nation where the guards are armed inside the prison's perimeter. Trial testimony of Defendant Gomez, Director of California Department of Corrections, reprinted in 2 PELICAN BAY PRISON EXPRESS, No. 5, Oct. 1994, at 2.

210 Haney, supra note 36, at 5.

211 The cell extraction practices at Pelican Bay were an issue in the inmates' class action suit and were found by the court to be part of a pattern of excessive force used by the correctional officers. Madrid v. Gomez, 889 F. Supp. 1146, 1159-81 (N.D. Cal. 1995). This finding is unequivocally correct. Before injunctive relief was granted in Madrid, when an inmate was alleged to have refused to obey a direct order, Pelican Bay guards summoned a cell extraction team.

When the team was summoned, a sergeant or lieutenant usually fired one or all of the following weapons at a prisoner in his cell: tasers, gas guns, and mace. Then a team of four to five guards, dressed in riot gear with face visors, "rushed" the prisoner, entering his cell with riot shields and mini-batons. Because of the riot gear, the faces and name tags of the guards could not be seen by the inmate. The guards attacked the inmate with their weapons and often kicked and punched him as well. When the prisoner was subdued, guards frequently "hog-tied" him. The assault upon the inmate almost always continued after he was subdued and hog-tied. One guard wore a visor with the slogan, "Make my day" printed on the front. Amended Complaint at 18, Madrid, 889 F. Supp. (No. C90-3094-TEH).

This description of the cell extraction procedure is corroborated not only by many prisoner accounts, but also by explicit Department of Corrections procedures. This is how the teams were supposed to proceed: The first member entered the cell carrying a large shield, which was used to push the inmate back into a corner of the cell. The second member followed closely, wielding a special cell extraction baton, which was used to strike the inmate on the upper part of the body so that he would raise his hands in self-defense. Thus unsteadied, the inmate was pulled off balance by another member of the team whose job was to place leg-irons on the inmate's ankles. Once downed, another member of the team placed him in handcuffs; the fifth member stood ready to fire a taser or rifle that shot wooden or rubber bullets. Haney, supra note 36, at 21 n.6.

Testimony at trial revealed that this brutality has been directed at inmates for the most trivial of offenses and with what was described as an almost gleeful, sadistic energy on the part of the guards. For example, inmate Lathan was extracted because "he didn't want to give up the shoes he had been wearing for years"; Inmate Nolkemper was extracted for failing to return a jumpsuit 12 minutes after the request was made; Inmate Leonard was extracted for refusing to turn over a cloth skull cap 10 minutes after the request was made; Inmate Castillo almost lost his life because he had not returned a meal tray—his head is now horribly injured because a sergeant clubbed him with a gas gun; Inmate Dunn was extracted twice within an hour and knocked unconscious during the second extraction—he was shot with a gas gun at point-blank range; Inmate Molano was dropped face first, hands cuffed behind his back, onto the stairs—Sergeant Avila bounced the gas gun rubber baton off the ceiling into Inmate Moreno's face. Plaintiffs' Closing Argument, supra note 55, at 30-37.

Prison expert Charles Fenton, former warden at the federal penitentiary in Marion, Illinois, testified that he could see only two possible explanations for the brutality of the cell extractions: "Either they absolutely don't know what they're doing, or they're deliberately inflicting pain." From The Record, supra note 62, at 2.

212 Haney, supra note 36, at 6.

213 Id.

214 Id. (emphasis added).

215 Id.

216 Id.; Grassian, supra note 125, at 1454 ("[T]he use of solitary confinement carries major psychiatric risks.").

217 See supra Part V.B.1 for a discussion of the Walpole study conducted by Dr. Grassian.

218 Haney, supra note 36, at 6.

219 Madrid v. Gomez, 889 F. Supp. 1146, 1233 (N.D. Cal. 1995).

220 Id. This inmate had been cell-extracted during an acute psychotic episode. Id.

221 See Plaintiffs' Closing Argument, reprinted in 2 PELICAN BAY PRISON EXPRESS, No. 5, Oct. 1994, at 30, 33 (summarizing trial testimony).

222 Haney, supra note 36, at 6.

223 Id.

224 Grassian & Friedman, supra note 110, at 60.

225 Haney, supra note 36, at 6.

226 Id.

227 Wallace & Sward, supra note 4, at A1 (quoting Dr. Armond Start, testifying on behalf of the inmates in Madrid v. Gomez). Over the course of his career, Dr. Start has studied over 100 jails and prisons. In addition, he has served as a correctional medical consultant or expert witness on many occasions. Madrid, 889 F. Supp. 1146, 1158 n.11 (N.D. Cal. 1995).

228 Wallace & Sward, supra note 4, at A1.

229 Haney, supra note 36, at 6. This practice is known as "showing skin"—a procedure used so that staff can verify that an inmate is in his cell.

230 Id.

231 Id. Inmate Vaughn Dortch, whose scalding by prison guards resulted in a $997,000 personal injury verdict, told guards before his "bath" that he was a "killer bee." Hurst & Morain, supra note 7, at A1.

232 Haney, supra note 36, at 6.

233 Id.

234 Id.

235 Id.

236 Zane, supra note 52, at A17. The trial record indicated that inmates who openly suffered from this syndrome were given massive doses of potentially harmful psychotropic medications. They were doped into a stupor so they would not cause problems for the custodial staff. Madrid, 889 F. Supp. 1146, 1218 n.151 (N.D. Cal. 1995) ("Treatment for seriously ill inmates is primarily limited to medication management through use of antipsychotic or psychotropic drugs."). Id.

As Judge Henderson noted, the therapeutic benefits of psychotropic and antipsychotic drugs is "well documented." Id. (citing Washington v. Harper, 494 U.S. 210, 229 (1990)). However, Judge Henderson also noted:

There are, however, potentially serious or dangerous side effects including acute dystonia, a severe involuntary spasm of the upper body, tongue, throat or eyes (which is reversible); akathesia, which is characterized by restlessness and inability to sit still; neuroleptic malignant syndrome, a relatively rare condition which causes cardiac dysfunction and possibly death; and tardive dyskinesia, a potentially irreversible neurological disorder which results in involuntary, uncontrollable movements of various muscles, especially around the face.

Id. The use of such drugs may reduce symptoms of mental illness, but "this is not an adequate treatment or long term solution if . . . the underlying source of the illness is continued exposure to conditions in the SHU." Id. at 1221 n.156.

237 Plaintiffs' Closing Argument, supra note 55, at 30, 33.

238 Madrid, 889 F. Supp. at 1235 (citing Grassian Tr. 12-1869).

239 See Grassian & Friedman, supra note 110, at 57.

240 Id.

241 Id. (quoting Grunebaum et al., Sensory Deprivation and Personality, 116 AM. J. PSYCHIATRY 878, 879-80 (1960)).

242 Id. at 59 (quoting Smith et al., Perceptual Isolation and Schizophrenia, 107 J. MENTAL SCI. 839, 844 (1961)).

243 Id.

244 See supra Parts VI.B.1-2.

245 Grassian & Friedman, supra note 110, at 59-60. It should be noted that this characteristic response may not be produced in schizoid personalities. Id. at 60.

246 Id.

247 Id. (emphasis added).

248 Madrid v. Gomez, 889 F. Supp. 1146, 1235 (N.D. Cal. 1995).

249 See id.

250 Grassian, supra note 125, at 1452 (describing "less severe" forms of solitary confinement syndrome observed in Walpole inmates).

251 Id.

252 Id.

253 Madrid, 889 F. Supp. at 1233 (citing example of inmate diagnosed by staff psychologist as being in "no apparent distress with normal behavior").

254 Farmer v. Brennan, 114 S. Ct. 1970, 1977 (1994). See also Melvin Gutterman, The Contours of Eighth Amendment Prison Jurisprudence: Conditions of Confinement, 48 S.M.U. L. REV. 373, 393-95 (1995).

255 Farmer, 114 S. Ct. at 1979 ("The official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.").

256 See Toussaint v. Rushen, 553 F. Supp. 1365 (N.D. Cal. 1983), aff'd in part sub nom. Toussaint v. Yockey, 722 F.2d 1490 (9th Cir. 1984); Wright v. Enomoto, 462 F. Supp. 397 (N.D. Cal. 1976). Toussaint involved the second phase of Wright. The litigation concerned CDC's Deuel Vocational Institution and the Folsom, San Quentin, and Soledad prisons.

257 Haney, supra note 36, at 7 n.2.

258 Id.; see also Toussaint, 553 F. Supp. at 1369.

259 See Madrid, 889 F. Supp. 1146, 1226-27 (N.D. Cal. 1995) (stating that although Pelican Bay officials were prodded by the instant case and Coleman to improve staffing levels for mental health care, their response was "tepid"). The Madrid court was referring to Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995), a companion case to Madrid which challenged CDC's mental health care system.

260 Haney, supra note 36, at 7 n.2.

261 Madrid, 889 F. Supp. at 1236 (quoting testimony of then-Warden Marshall, Tr. 22-3821).

262 Id.

263 Id.

264 Id.

265 See Plaintiff's Closing Argument, supra note 55, at 30, 32.

266 One of those consequences was described at trial by Dr. Cooper, a Pelican Bay physician, who saw inmate Zohelin Diaz. See id. Diaz was considering suicide. Dr. Cooper saw Diaz, but was unable to refer him to a psychiatrist, because "there was not one at the prison"; two weeks later, Diaz hanged himself. See id. Unfortunately, this was not an isolated incident. See id. at 32.

267 See supra Parts I and V. Testimony was also taken at trial from inmate Louis Lopez, who testified that a prisoner who arrived at Pelican Bay on the same bus as Lopez talked to himself, acted "bizarrely," and smeared himself with feces for 20 months before being transferred to the state mental facility. Plaintiffs' Closing Argument, supra note 55, at 30, 32. (emphasis added).

268 Madrid, 889 F. Supp. 1146, 1236 (N.D. Cal. 1995).

269 Id. at 1236-37.

270 Id. at 1237. See also supra note 236.

271 See Plaintiffs' Closing Argument, supra note 55, at 30, 32.

272 Madrid, 889 F. Supp. at 1266 n.211.

273 Id. at 1214.

274 See, e.g., id. at 1224 (describing catatonic inmate in "fixed," "bug-eyed" state who was suspected of malingering).

275 Id. at 1225 (quoting testimony of Dr. Grassian, Tr. 12-1979-80). The act of malingering may itself be a symptom of mental illness. An inmate "faking" a symptom may well be so ill in another sense that he seeks help in any way possible. Also, a patient may be both manipulative and very ill. Id. at 1226 n.158. The medical records produced at trial did not indicate that these possibilities were considered when an inmate was characterized as a "malingerer." Id.

276 Id. at 1217 (quoting testimony of staff psychologist) (citation to transcript omitted).

277 Id. at 1218.

278 Haney, supra note 36, at 5. Dr. Haney's observations are also borne out by the author's personal observations in the Texas Department of Corrections female units at Huntsville and Gatesville.

279 Id.

280 See, e.g., Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995) (concerning the adequacy of mental health services at all California prisons except San Quentin and Vacaville). In Madrid, Judge Henderson ruled that the medical and mental health care systems at Pelican Bay had systemic deficiencies and fell "dramatically short of minimum constitutional standards." 889 F. Supp. at 1214.

281 Postscript: Very little has changed at Pelican Bay since Judge Henderson's decision in Madrid. Inmates report that beatings and race-based assaults continue to be commonplace occurrences in the SHU. California's Security Housing Units, CALIFORNIA PRISON FOCUS (n.d., n.p.). Prisoners are now randomly punished by confinement in plastic-covered (Lexan) cells. Id. After some delay, the California Department of Corrections opened the court-ordered psychiatric treatment center—a maximum security wing "in which prisoners are housed in SHU-like conditions." Id. Despite Judge Henderson's good intentions, prisoners with psychiatric problems are still being disciplined and sentenced to terms in the SHU for behavior resulting from those very problems. Id.

282 217 U.S. 349 (1910) (holding that the Eighth Amendment is not limited to those punishments that are physically cruel and torturous).

283 356 U.S. 86, 101 (1958) (finding that the Eighth Amendment draws its meaning from "evolving standards of decency that mark the progress of a maturing society").

284 428 U.S. 153 (1976) (finding that determination of an Eighth Amendment claim must include a consideration of whether the punishment comports with the basic concept of human dignity).

285 501 U.S. 294 (1991); see supra notes 153-63 and accompanying text.

286 114 S. Ct. 1970 (1994); see supra notes 153-63 and accompanying text.

287 See Defendants' Closing Argument, reprinted in 2 PELICAN BAY PRISON EXPRESS, No. 5, Oct. 1994, at 30, 39 (summarizing sworn trial testimony). See also, Madrid v. Gomez, 889 F. Supp. 1146, 1156 (N.D. Cal. 1995):

[Defendants] deny that any of plaintiffs' allegations have merit, and assert that Pelican Bay operates well within constitutional limits in [the complained of] areas . . . . Moreover, they argue, Pelican Bay, and the SHU in particular, does exactly what it was designed to do: it isolates the most brutal and disruptive elements of the inmate population while reducing violence in California state prisons overall.


See also Leary, supra note 54, at A7. Daniel McCarthy, a former director of the California Department of Corrections, was personally involved in the building and planning of Pelican Bay. Mr. McCarthy, who testified for the defense at trial, is apparently of the belief that the conditions at Pelican Bay can be justified by an overall benefit to the system. Plaintiffs' Closing Argument, supra note 55, at 30, 35.

288 Plaintiffs' Closing Argument, supra note 55, at 30, 35.

289 Once an inmate-plaintiff establishes that the conditions of confinement at issue are objectively sufficiently serious, meritorious defenses to that claim are:

1) Ignorance. An official may prove that she was unaware of an obvious risk to inmate health or safety. Farmer, 114 S. Ct. at 1982.
2) Reasonable reaction. Officials may be free from liability if they have responded reasonably to a risk, even if a particular harm was not averted. Id. at 1983.
3) Cost defense. After the holding in Wilson, 501 U.S. at 301-02, one could reasonably assume, as did the dissent in that case, that prison officials may be able to defeat a § 1983 claim by showing that the conditions at issue are caused by insufficient funding from the state legislature rather than by any deliberate indifference on the part of prison officials. Id. at 311 (White, J. concurring).
4) Rizzo defense. Rizzo v. Goode, 423 U.S. 362 (1976), prevents the use of comprehensive federal court injunctions "for the purpose of preventing speculative and probably only sporadic future misconduct by local officials toward an imprecise class of potential victims, especially when that misconduct is not part of a pattern of persistent and deliberate official policy." Campbell v. McGruder, 580 F.2d 521, 526 (D.C. Cir. 1978).

Pelican Bay officials did not establish any of these defenses. Testimony at trial indicated that CDC officials had actual knowledge of the excessive risks to inmate mental health prior to the construction of Pelican Bay, they did not respond to the risk posed by SHU syndrome, and they presented no cost defense. The Rizzo defense is inapplicable to Madrid.

290 Toussaint v. McCarthy, 801 F.2d 1080, 1108 (9th Cir. 1986).

291 Madrid, 889 F. Supp. at 1262.

292 Id. at 1262-63.

293 Id. at 1263.

294 The Director of CDC estimates that 80,000 prisoners enter the California prison system each year and approximately 70,000 prisoners are released. Madrid, 889 F. Supp. at 1244 n.195. See also Wallace & Sward, supra note 4, at A1 ("Like Dortch, thousands of inmates with psychiatric problems will eventually return to society—in many cases with mental illnesses that have been exacerbated by the lack of care in prison."); Zane, supra note 52, at A17 (quoting testimony of Dr. Grassian that the SHU inmates "are paroled straight onto the streets of California").

295 Finney v. Arkansas Board of Correction, 505 F.2d 194 (8th Cir. 1974); Jackson v. Godwin, 400 F.2d 529, 532 (5th Cir. 1968).

296 Battle v. Anderson, 447 F. Supp. 516 (E.D. Okla. 1977).

297 Oscar Wilde, Ballad of Reading Gaol, reprinted in THE WORKS OF OSCAR WILDE (Sunflower ed. 1980) (1909).

* The author is indebted to Professor Melvin Gutterman for the inspiration for this Comment. The author would also like to thank Professor Deborah Young for her invaluable assistance in the preparation of this Comment. The author's deepest gratitude, however, is reserved for Dean Howard Hunter for his unwavering interest and support.