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Pushing for Prison Reforms at Mississippi State Penitentiary Litigation Magazine 2008

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Parchman Farm Blues:
Pushing for Prison Reforms at
Mississippi state Penitentiary
by Margaret Winter and Stephen F. Hanlon

shooting, administering milk of magnesia, or stripping inmates
of their clothes, turning fans on inmates while they are naked
and wet, depriving inmates of mattresses, hygienic materials andlor adequate food, handcuffing or otherwise binding
inmates to fences, bars, or other fixtures, using a cattle prod to
keep inmates standing or moving, or forcing inmates to stand,
sit or lie on crates, stumps or otherwise maintain awkward
positions for prolonged periods."
Big changes resulted from the decree in Gates v. Collier
and from subsequent enforcement activities over the years.
But by the 1990s, we were to learn, horrific conditions again
prevailed in many parts of the prison.
The HIV-positive prisoners who wrote to us in the summer of 1998 claimed they were living in squalor, categorically segregated from the rest of the prison population, and
barred from all prison educational and vocational programs
and jobs. They told us that they were dying like flies because
prison doctors refused to give them the "cocktail" (the
triple-drug combination therapy that since 1997 had begun
to change HIV from an inevitably fatal disease to a treatable chronic illness).
So that fall, we traveled to Mississippi State Penitentiary
at Parchman, a sprawling prison that rises out of vast cotton
fields. We interviewed dozens of the prisoners in their segregated unit. At least 80 percent of the 120 men in the unit were
African-American. Most were young. Most were in prison for
nonviolent and relatively trivial offenses, often drug-related.
They gave profoundly moving accounts of what it was like
to be HIV-positive at Mississippi State Penitentiary, warehoused in a virtual leper colony and left to die.
We were fired up to offer our help, but the first step was to
figure out whether they were already represented. We knew
that in 1992, two HIV-positive prisoners (both of whom had
since died) had brought a pro se lawsuit challenging the conditions of their confinement. The trial court had dismissed

Oh listen you men, I don't mean no harm

If you wanna do good you better stay offold Parchman Fann.
We got to work in the mornin', just at dawn ofday
Just at the settin' ofthe sun, that's when the work is done.
-Bukka White, Parchman Fann Blues
In the sunnoer of 1998, the American Civil Liberties Union
(ACLU) started getting dozens of letters from prisoners with
HIV in Mississippi State Penitentiary-the legendary Parchman Farm.
Parchman Farm was a product of the Reconstruction era
movement to restore white supremacy and ensure a source of
cheap free labor to replace slave labor. Opened in 1903 under
the administration of "the White Chief," Governor James
K. Vardaman, it was set on 20,000 acres in the Mississippi
Delta. In the words of the governor, Parchman Farm was run
"like an efficient slave plantation," in order to provide young
black men with the "proper discipline, strong work habits,
and respect for white authority."
For most of the twentieth century, Parchman Farm continued to function as a virtual slave plantation, cotuplete with
a small army of "trusty shooters," inmates armed with guns
who had the primary duty of overseeing inmates working in
the fields and throughout the prison camp. But in 1971, four
prisoners brought suit in federal court to challenge conditions at the Farm. That case was Gates v. Collier, and in 1972,
the presiding judge, the Honorable William C. Keady, found
that Parchman Farm was "an affront 'to modern standards of
decency.''' Gates, 349 F. Supp. 881 (N.D. Miss. 1972). Judge
Keady ordered an immediate end to all of the unconstitutional
conditions and practices-including pnnishment by putting
inmates naked in a dark hole without a toilet, or by "beating,
Margaret Winter is associate director of the National Prison Project of the
American Civil Liberties Union in Washington, D.C. Stephen F. Hanlon is
a partner at Holland & Knight LLP in Washington, D.C.

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r
their case, but the Fifth Circuit had reversed and ordered that
counsel be appointed to represent the inmates. See Moore v.
Mabus, 976 F.2d 268 (1992).
On remand, the district court appointed Ronald Welch,
who some years earlier had inherited the role of class counsel to provide ongoing post-judgment monitoring in Gates v.
Collier.
We were told that Welch settled the HIV-positive prisoners' case without consulting them, without providing notice
as required under Fed. R. Civ. P. 23(e), and without obtaining
for them any meaningful relief on any of their core issues:

too heavily on prisoner complaints; we could save ourselves
a lot of time and trouble by simply questioning the prison's
doctors about the adequacy of the medical care they were
providing. He added, "Of course, I may be wrong since I
have by far less knowledge than you all and zero access
to any outside expertise, but my layman's impression is
that MDOC has kept reasonably abreast of and has implemented generally accepted HIV treatment."
He added that he had just negotiated a fee agreement with
the state entitling him to fees for post-judgment monitoring
of the overall Gates decree, up to 100 hours per annum, and
said "I hope you can get what you want without cutting me
out of the payday I just negotiated with MDOC."
The next day, our expert, Dr.Cohen, went to Parchman
to review prisoners' medical charts. He was horrified by
what he found. In his preliminary report, he stated, "In case
after case prisoners were deliberately denied the standards
of care promulgated by the Centers for Disease Control
and Prevention (CDC) and the National Institutes of Health
(NIH), and it threatens the survival of these men. It is my professional opinion that the grossly inappropriate care currently
being provided is resulting in unnecessary pain and suffering
and will be responsible for unnecessary deaths for patients
who would respond to appropriate treatment." We decided to
file an application for emergency relief.
Meanwhile, however, Ron Welch had changed his mind
about substitution of counsel. He sent a letter to the ACLU,
with a copy to the district court, withdrawing his written
agreement for substitution of counsel, in order to prevent
"open poaching season" on his attorneys' fees by "johnnycome-lately, aggressive, national counsel" who "will typically want to believe dissidentlhostile stories in order to oust
class counsel and secure class counsel's attorney's fees for
themselves."
On February 8, 1999, the ACLU filed an emergency motion
to intervene in the case on behalf of 10 of the HIV-positive
prisoners, the Moore class, with a motion for substitution of
counsel that was supported by a petition signed by a majority
of the class members and a copy of Dr. Cohen's preliminary

medical care, access to prison programs. and humane living conditions. The district court approved the settlement,
certified a class of all HIV-positive prisoners in the custody
of the Mississippi Department of Corrections (MDOC), and
appointed Welch as class counsel.
According to the prisoners, after Welch was appointed, he
did nothing to help them. They tried to bring motions pro se
to get injunctive relief on their own, but a standing court order
prohibited them from seeking injunctive relief concerning
the conditions of their confinement except through Welch.
We went to the courthouse to review the docket. The
clerk told us that the case had been dismissed some time
ago and the case files sent to storage. It seemed there was
no obstacle to our proceeding with what promised to be an
important and inspiring case. We ordered the files from storage, and made arrangements to have an eminent HIV specialist and correctional ,medicine expert visit Parchman to
review medical records.
Shortly thereafter we got a telephone call from Welch. He
said he had heard at a local watering-hole that we were in
communication with his clients (the HIV-positive inmates).
He told us that the court clerk had been mistaken; the decree
had not been-tetllioated, the case was merely dormant, and he
still represented the prisoners.
We explained to Welch that we wanted to bring in a medical expert, and we offered to substitute in as class counsel. He
said he would be delighted to have us take over the case, but
he believed the medical care was fine and we shouldn't rely

LlTIGATlON Fall 2008

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report. Welch moved to dismiss on the ground that he believed
the ACLU "would immediately, upon substitution, attack the
Gates consolidated cases order, and thus, jeopardize the fees
award to class counsel in the same order."
The trial judge, U.S. Magistrate Judge Jerry A. Davis, acted
swiftly. He said that the prisoners' medical claims were so
serious that they had to take precedence over the representation dispute. He granted the ACLU motion to appear pro hac

moved them all to a feces-smeared, verruin-infested unit and
that correctional staff were retaliating against those who had
played leading roles in the litigation-one had been beaten, a
number had been thrown into "the hole" on bogus disciplinary reports.
We tried to investigate these complaints, but Welch barred
the door. He sent MDOC a letter instrncting it "not to admit
any ACLU National Prison Project Attorney, expert or paralegal to any MDOC facility to interview any member of the
Moore class, to examine the records of any member of the
Moore class, or otherwise conduct investigation/representation with respect to the Moore injunctive relief subject malter."
MDOC's lawyers uotified the ACLU thatMDOC would no longer pennit us to interview or review the medical files of any
class member.
We were confident that ajudge, who had just demonstrated
such humanity and courage in enforcing prisoners' constitutional rights, would understand their fundamental right to consult with any lawyer they chose. We asked Judge Davis for a
status conference.
The telephonic status conference began pleasantly, with
good-natured teasing from Jndge Davis and MDOC connsel as
to whether the Yankee ACLU lawyers were missing the fried
okra in Mississippi. When we got down to business, however,
and asked the judge to clarify that we must be allowed to communicate with any individual inmates who sought the ACLU's
counsel, the tone changed.
The judge said that he had great confidence in Mr. Welch, and
he wamed that if we interfered with Mr. Welch's relationship
with the inmates, he would sanction us to the full extent of his
powers. He said that he would not enter an order prohibiting
us from communicating with the prisoners because that might
be construed as a prior restraint on speech, but that if he saw
any evidence of "alienation of affection," he would make us
regret it.
Stunned, we asked him to clarify what activities on the part
of the ACLU were prohibited. The judge refused, saying he had
made himself clear.
It was at this time that Holland & Knight offered the assistance ofits pro bono program to the ACLU. The offer was
eagerly accepted.
Meanwhile, fmstrated by their inability to consult with the
ACLU, the prisoners decided to take matters into their own
hands. They sent Ronald Welcb a letter accusing him of acting
like their adversary rather tban their advocate, and demanding
that he either resign or else start representing their-interests.
Welch responded in a furious letter that he not only sent
to the prisoners but also filed in the court docket. He taunted
his clients, "Guys, I guess you missed or chose to ignore the
news: The battle to have me replaced has been lost! And
it's going to stay lost. So get used to it!" He declared that
the "ACLU loyalist class members" (that is, the class representatives and the overwhelming majority of the class) were
his "opponents." He said, "The real issue here is not my
credibility with class members, but class members' credibility
with me." He claimed to have "substantial evidence" that his
clients' retaliation claims were false, and he warned them to
"stop pulling [his] chain."
Welch's publication of this letter was a declaration of war
against the class he insisted on representing. But what were
we to do? The judge had made it clear that be considered the
representation matter closed.

vice to represent the plaintiff-intervenors, and set the case
down for an emergency evidentiary hearing. He said he
would sort out the representation issue later.
The hearing was to be held in the federal courthouse in
Oxford, a picturesque little town near Ole Miss. We set up
camp down the street from court in the lovely old highceilinged law offices of Thomas Freeman III and Thomas
Freeman IV. The elder Freeman told uS his secretary had
decades earlier typed np the manuscripts of William Faulkner's
novels in this very building.
The testimony at the hearing was gut-wrenching. Our medical expert testified that the medical care MDOC was providing was so grossly substandard that it was causing horrific

MIloe moved the prisoners
to a feces-smeared,
vermin-infested unit.
snffering and premature deaths. One of the many examples
he cited was the case of Rob S., who had tested HIV-positive

less than a year earlier while he was a scholarship student
at the University of Mississippi. He had been put on tripledrug combination therapy, and had an undetectable viral load
at the time he was arrested (for an unsuccessful attempt to

rob a convenience store, with a toy pistol, a first offense,
for which he received a 25-year sentence). When Rob was

sent to Parchman, however, the prison doctor immediately
discontinued his triple-drug therapy. Rob's viral load soared,
his immune system rapidly deteriorated, and he developed
resistance to all the HIV drugs he had been taking.
Rob and a number of other prisoners also took the stand.

Welch's contribution to the hearing was hostile crossexaminations of our witnesses.
On July 16, 1999, the judge issued au opinion finding that
MDOC was providing constitutionally inadequate medical
care. He entered an injunction, the first of its kind in a contested case in federal court, requiring a state to provide HIV
treatment in conformity with the CDC and NIH guidelines.
To our consternation, however, the judge denied the prisoners' motion for substitution of counselor intervention, and he
declined to order independent monitoring of the injunction.
This meant, for all practical pnrposes, that the injunction on
HIV treattnent would not be enforced. Welch himself could
not monitor; his position was that he could not afford, and
need not retain, a medical expert, and that it was sufficient to
rely on the prison doctors.
In the days following the District Court's decision, we got
frantic messages from the prisoners repOlting that MDOC had

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Volume 35 Number 1

We called the National Law Journal, and the NLJ
called Welch and qnoted him as saying that the 110 inmates
who petitioned for his replacement--essentially the e)llire
class-were "spoiled kids" and "half-truth manipulators,"
and that he didn't "have any sympathy for them any damn
more. They have nsed [their HIV statns] to get everyone's
sympathy." David E. Rovella, "A Civil Rights Civil War,"
The National Law Journal, October 11, 1999, at page AI.
We could now return to the district court with a renewed
motion for substitution and intervention of counsel, based
on new support for our position that Welch was not satisfying
his fundamental obligations to his clients ofloyalty and zealous representation.
On December 8, 1999, the Moore class representatives,
supported by 100 percent of the class members, submitted a Motion for Substitution of Counsel requesting that
the ACLU lawyers be substituted for Welch, along with a
renewed Motion for Intervention. The prisoners alleged that
Welch's failure to represent the interests of the class on its
core claims proved that he did not, and could not, provide
them adequate representation.
Meanwhile, the classmembers had been pleading with the
ACLU to visit to discuss their ongoing concerns over medical
care, retaliation, and the brutal conditions in punitive segregation, where two of the class representatives had been
confined since the court denied intervention five months
earlier. We made arrangements with the prison and with
MDOC's lawyers for the legal visit. On January 5, 2000, a
crisp, sunny morning, we made the three-hour drive west to
Yazoo City and then north through the Delta to Parchman.
But when we arrived at the prison gate, the guard at the
entry said, "The judge has ordered you to report immediately
to the prison legal office!" It felt strangely like being under
arrest. In the prison legal office, we found the Department
of Correcti9n<>'lawyers plus a Special Assistant Attorney
General from Jackson waiting for us. They gave us a copy of
a declaration that Welch had filed in federal court that very
morning, stating that the ACLU had "provided class members gifts offood, candy, and other items." (The accusation
was based on the ACLU lawyers' unhealthy habit during the
preceding spring of fortifying themselves with candy bars and
other junk food during long days in the mv Unit, preparing
witnesses for the preliminary injnnction hearing, and sharing
the food with whatever inmate they happened to be interviewing at the time.)
The state's lawyers also handed ns two orders entered
that same morning by Judge Davis: an order prohibiting the
ACLU from commnnicating with any Mississippi prisoner over the conditions of their confinement; and an order
reqniring the ACLU to appear in two weeks to show cause
why we shonld not be sanctioned for our violation of professional ethics in furnishing candy "and other favors" to class
members.
We decided to retain Robert McDuff, a solo practitioner
in Jackson, to defend us on the Show Canse Order. McDuff,
a latter-day Atticus Finch who is one of the best civil rights
lawyers in Mississippi-and one of the best in the countryprepared a response that included affidnvits from ethics expert
Stephen Gillers and several distingnished Mississippi legal
scholars and practitioners, stating that the condnct of which
the ACLU was accused did not infringe on any ethical rules,
norms, or principles whatsoever.

LrnGATlON Fall 2008

;:7.~~:"+

"oi>~~'fI
"",,_..,.,-:-::;:r

On Febrnary 1, 2000, Judge Davis vacated the Show
Cause Order based on McDuff's submission. At the same
time, however, the judge not only denied the prisoners'
renewed motions for intervention and substitution, but he also
entered a permanent gag order, providing that "the ACLU
shall cease contact with inmates on matters that fall within
the jurisdiction of class counsel" (that is, anything concerning
the conditions of Mississippi prisoners' confinement).
It was a relief to finally have an appealable order. We
filed notices of appeal and a motion asking the Conrt of
Appeals to stay the "no-contact" order pending appeal. In
June 2000, the Fifth Circuit granted our motion to stay the
gag order.
Meanwhile, because we couldn't litigate anything in the
trial court with our appeal of the representation issue still
undecided, we decided to tackle the mv segregation policy
in a non-adversarial way, seizing on a political opening: the
appointment of a new commissioner of the Department of
Corrections, Robert L. Johnson.
In September 2000, we organized a coalition of local
clergy, community activists, and family of prisoners with
HIV and prepared a briefing paper for the commissioner.
We explained that Mississippi and Alabama were the only
two remaining states in the union that segregated all HIVpositive prisoners and excluded them from all prison programs, that this resulted in their serving longer sentences
under harsher conditions than similarly situated HIV-negative

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Volume 35 Number I

inmates, and that there was no legitimate scientific, medical,
or correctional basis for the segregation policy.
Commissioner Johnson agreed to meet with the delegation. The meeting was successful beyond our wildest
dreams. Within the month, the Commissioner convened a
IS-member task force, composed of MDOC officials, state
public health officials, an inmate's mother, and the ACLU.
The mission of the task force was to study the issue and prepare a report on HIV-positive prisoners' access to programs.
In March 200 I, after some months of investigation, the
task force met for a two-day retreat. The outcOme was very
much in doubt for most of those two days. There were deeply
entrenched positions against allowing HIV-positive prisoners
to have any contact with other prisoners, in any prison program whatsoever.
At last, after an intense debate in which Parchman's security chief Lawrence Kelly, who would later become superintendent ofParchman, played a critically important role arguing
in favor of integration, the task force voted unanimously to
recommend an end to the policy of segregated prison programs. The task force also reco,mmended that integration
be preceded by a mandatory educational course on HIV for
all prison correctional staff, administrators, and prisoners
throughout the MDOC system. In May 2001, Commissioner
Johnson announced that he was adopting the task force's
recommendations.
The HIV-positive inmates were uneasy and fearful as the
first day of integrated programming approached. They had

LITIGATION Fall 2008

been warned by prison employees that they probably would be
met with insults, abuse, and perhaps even physical violence
by other prisoners, and that they would be ignored or treated
with contempt by the teachers. But in September 2001, when
HIV-positive prisoners at Parchman entered an integrated
adult literacy class-the very first integrated class since the
HIV segregation policy had gone into effect a dozen years earlier-prisoners and staff alike warmly welcomed the HIVpositive inmates. A huge milestone had been reached.
Meanwhile, in November 2000, the Fifth Circuit issued
its decision on the prisoners' appeal. Gates v. Cook, 234
F.3d 221 (5th Cir. 2000). The court (with Judge Edith Jones
vigorously dissenting) vacated the no-contact order, and also
held that the district court abused its discretion in denying the
inmates' request to substitute class counsel. Substitution was
required, the court explained, not only because "the sentiments
of the class indicate[d] a clear preference" for the ACLU lawyers, but also, "and more importantly, Welch's nonfeasance
and the constraints upon his ability to adequately prosecute
the sub-class' case urge the rare remedy of substitution." The
court pointed to Welch's failure to give the class adequate
notice and opportnnity to object to the settlement; his disclosure in the public record of a class member's confidential communications; his failure to secure outside expert review of
the HIV-positive prisoners' medical claims; his deliberate
substitntion ofhis own snbjective judgment regarding appropriate relief for the class, even against the explicit wishes of
a majority of the class; and his publicly expressed hostility to
his clients. The Fifth Circuit's decision occupies six pages of
discussion in Newberg on Class Actions. See 5 Alba Conte
& Herbert Newberg, Newberg on Class Actions § 15:9 (4th
ed.2002).
The state's lawyer called that day to congratulate us on the
victory. He said that the state had no intention of seeking a
rehearing, and that he looked forward to working with us.
AJI this time, we had been pursuing the troubling issue of
retaliation against class members who submitted grievances
about the conditions of their confinement. With the help of
the office of the U.S. Attorney in Oxford, we got the FBI to
secretly administer polygraph tests to two of our key retaliation witnesses, Robert S. and Martin G., who under threat
of severe punishment by prison administrators in the HIV
unit, had been drafting bogus rules violation reports against
inmates whom prison staff wished to punish. On the basis
of these fake reports, correctional staff would get even with
inmates who filed grievances, by getting them ')acked to the
hole" on false charges. The hole was truly a hellhole..
Marty and Rob passed the FBI polygraph tests with flying colors. We decided we should proceed with a retaliation case. In October 2001, the ACLU and Holland & Knight
filed suit on behalf of the class members who had been beaten,
thrown into the hole, or suffered other severe retaliation for
bringing grievances over the conditions of their confinement.
When we appeared before Judge Davis in the retaliation
case, it was the first time we had appeared before him in
person in three years. During that time, he had threatened
us with contempt, entered an Order to Show Cause and gag
order against the ACLU, and been reversed by the Fifth Circuit. We didn't know how he would respond to having us back
in his courtroom.
We need not have been concerned. He warmly welcomed
us back. Judge Davis had already shown, in decisively

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granting the injnnction on HIV care, his nnshakeable commitment to npholding prisoners' fundamental right to humane
treatment. We were to witness the strength of that commitment
time and again over the course of the next several years.
We eventually tried the retaliation case before Judge
Davis and lost. The public airing of the facts in court nevertheless had a thoronghly salutary effect. MDOC removed
the most pernicious officers from the HIV Unit and put a new
administrator in charge, and the toxic culture of retaliation
and bogus charges came to an end.
But a much bigger challenge lay just ahead of us at Parchman Farm. In January 2002, prisoners on Mississippi's death
row, which is located inside Unit 32, Mississippi's supermaximum security prison at Mississippi State Penitentiary,
went on a hunger strike to protest the brutal conditions of
their confinement.
The death row prisoners described profound isolation,
unrelieved idleness and monotony, denial of exercise, intolerable stench and pervasive filth, grossly malfunctioning
plumbing, and constant exposure to human excrement. Each
Cell had a "ping-pong" toilet, allowing waste from one cell
to back up into the toilet in the adjoining cell. The temperatures in the cells during the long Delta summers were lethal,
with heat indexes, we later proved, of over 130 degrees
Fahrenheit.
The cells were so infested with mosquitoes that inmates
had to keep their windows closed and their bodies completely covered even in the hottest weather. Leaking rainwater and foul water from flooded toilets on upper floors
soaked inmates' beds and personal items; prisoners weren't
provided clean water, soap. and other basic cleaning supplies, even when they were moved into a cell smeared with
excrement by the previous tenants.
Lighting in the cells was so dim that the prisoners couldn't
see to read,. write, groom themselves, or clean their cells.
They were denied basic medical, dental, and mental health

Corrections officers
beat prisoners already
in full restraints.
care. They were exposed day and night to the screams and
ravings of severely mentally ill inmates in adjoining cells.
It was impossible to ignore this cry of pain from ont of the
depths, but without a donbt, this was going to be a hard case in
many ways. There is little sympathy for death-sentenced prisoners in the United States, and we found that in Mississippi, it
is widely considered fitting that these prisoners should suffer
as much as possible before their execution. Ironically, as a
result of constitntionally defective trials, as many Mississippi
death-sentenced prisoners are eventually released from death
row as are executed.
We made the hard decision to first try to help the death row
prisoners; with a class of only 65, housed in a small part of
the prison, we could move swift!y through discovery, and if
we won, we could go on to extend the victory for the benefit
of the remaining prisoners in Unit 32.

LITIGATION Fall 2008

Because we had established a good rapport with Commissioner Johnson, we agreed to try to persuade him to improve
the conditions on death row to avoid suit. We had a cordial
meeting with him in early March, in which MDOC agreed to
change a few egregiously arbitrary policies.
But June arrived, and with it scorching weather, and
MDOC still had done almost nothing to relieve the hellish conditions on death row. We filed the complaint and
motion for class certification in July, together with a motion
for a temporary restraining order and preliminary injunction
that requested nothing more than a court order directing the
MDOC to allow us to tour death row with our emergency
medicine doctor, psychiatrist, environmental health and safety
expert, and corrections expert.
Judge Davis granted onr motion to tour death row, and
in early Augnst 2002, plaintiffs' lawyers and experts met in
Clarksdale, the "Birthplace of the Blues," a few miles north
of Parchman. We had assembled a stellar team offour experts
on mental health, corrections issues, environmental health
and safety, and heat-related illness. By the time we gathered
in Clarksdale, we were all pretty well-acquainted with one
another through e-mails and conference calls, but dinner at the
be_st home-style barbecue and beer joint in town was onr first
face-to-face meeting. We spent a few hours over dinner nntil
closing time, mapping out our strategy for the tour.
At the crack of dawn the next morning, we arrived at the
prison and proceeded to conduct our tour of death row-14
unforgettable hours of bedlam and hellish heat. We entered
the cells of many prisoners to interview them and heard their
accounts of life on death row. We marveled that anyone at
all could be confined there without going insane. Our environmental expert found heat index readings in excess of 120
degrees Fahrenheit; even at 10 PM that night, the temperamre
in some cells was in the 90s. Our medical expert found that it
was inevitable that the excessive heat would result in illness,
permanent disabilities, and premature deaths.
One of the cases that particularly shocked us was the
situation of our lead plaintiff, Willie Russell, a handsome,
gannt, dark-skinned, imposing man standing more than sixfoot-seven. Willie was being held in a "special punishment
cell" covered by a Plexiglas door, which cut off air flow to
the cell. He was removed from the cell for a few minutes
so that we could enter it one by one. Our medical expert said
afterward, "It was jnst like getting into a car parked in the hot
Texas sun and sitting with the windows rolled up. I needed to
breathe deeply just to feel that I was getting enough air. I was
immediately reminded of the reports of Mexican nationals
dying in closed boxcars as they tried to cross into the United
States. I couldn't nnderstand how anyone could be locked up
in that hot box for any length of time withont losing control."
Willie described an incident a few weeks earlier, when
there had been no water on death row for a week. The sewage backed up in every cell, and people started to throw
their wastes out into the hall. It was hard to breathe from
the stench. No one cleaned the tier. The inmates were given
only a small amount of liquid to drink three times a day. He
said, "I felt myself drying out and getting weaker. My month
was cracked and my throat was rough. It was getting hard to
concentrate. I couldn't think of anything but getting water,
but there was no way I could get any."
A few days later, we fiied a motion for expedited discovery and trial, which the judge granted. We went to trial in

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Volume 35 Number 1

February 2003. Judge Davis took care, as usual, to appear
impassive, but there were moments during the testimony~
including the descriptions of sane men being driven raving
mad by the conditions in Unit 32-when he was visibly
moved. In May 2003, he entered an opinion and far-reaching
injunction granting most of fhe relief we had asked for. The
Fiffh Circuit issued a unanimous decision upholding, with a
few minor exceptions, all the relief ordered by Judge Davis.
Gates v. Cook, 376 F.3d 323 (5fh Cir. 2004).
As soon as the Fifth Circuit issued its decision, we knew it
was time to redeem the pledge we had made to ourselves and
to the prisoners: to extend the relief we had won for the
death row prisoners to fhe ofher 1,000 men in Unit 32.
Ever since 1999, when we first started litigating at Parchman, prisoners and fheir families had been pleading wifh fhe
ACLU to challenge the conditions in Unit 32. The lethal
heat, the filth and stench, the malfunctioning plumbing, and
the lack of access to exercise, fresh air, and basic medical
and mental health care were just as bad as on deafh row, but
in some ways, conditions were even worse.
The men in Unit 32 in administrative segregation were all
locked down 23 to 24 hours a day in even more profound isolation and unrelieved idleness fhan on deafh row. There was
a pervasive culture of violence and sadistic use of excessive
force. Corrections officers gratuitously beat prisoners already
in full·restraints. Take-down teams forcibly extracted shackled prisoners from their cells, sprayed them with a chemical
agent that causes vomiting and shortness of breafh, and then
assaulted them again.
The combination of all these conditions was causing serious mental illness to emerge in previously healthy prisoners, and causing psychosis and complete mental breakdown
in less healthy prisoners. Suicides and attempted suicides
occurred wifh alarming freqnency.
For example, in November 2003, Christopher S., a youthful
prisoner on psychiatric medications, threw a glass of water
at a corrections officer. The officer screamed that she was
going to kill him, and a take-down team of several officers

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LmGATION Fall 2008

was summoned. The officers put him in full restraint gear,
then gassed him, and dragged him into a hallway where they
severely beat him. Then they put him naked in a freezing
punishment cell, where he spent fhe night wifhout clothes or
bedding. Officers refused to give him his psychiatric medications and denied him meals. The next day an officer told him
"you'd better be gone when I come to work tonight." Prisoners in neighboring cells heard him moaning all night in terror. The next day he was found dead, hanging in his cell. A
few weeks later another prisoner, Patrick P., who was in Unit
32 simply because he needed protective custody, was fonnd
hanged in his cell.
In some ways, this case would be easy becanse all the horrendous conditions we had successfully challenged in the
death row case were identical fhroughout the rest of Unit 32.
We knew where fhe bodies were buried, so to speak, and we
had a detailed road map for trying fhose issues.
The problem was that the additional issues in Unit 32
would not be so easy to resolve. Chief among fhem was fhe
fundamental problem fhat fhe overwhelming majority of fhe
1,000 men in Unit 32 did not belong fhere at all.
Although Unit 32 is supposedly used to incarcerate the
most dangerous and incorrigible offenders in the state, in
reality, the vast majority of the men honsed in Unit 32-for
years, sometimes for decades-did not have the kind of
criminal or institutional history that would justify incarceration under I'supermax" conditions. Many prisoners were
placed in Unit 32 simply because fhey had special medical
needs, were severely mentally ill, or had requested protective custody. And once classified to Unit 32, there was no
emerging from it. Hundreds of prisoners were doomed to
stay there forever. "Abandon all hope, ye who enter here"
might as well have been carved over the entry gate.
So the Unit 32 case wasn't just a "simple" Eighfh Amendment case as the death row case had been. It was to be, in
addition, and above all, a challenge to classification-to
the arbitrary assignment and retention of prisoners in permanent administrative segregation. And that was indeed a
daunting task. It was firmly established in the Fifth Circuit
that prison officials had essentially nnfettered discretion to
classify prisoners and to confine them to whatever degree of
isolation they saw fit.
We filed fhe Complaint on June 22, 2005. In August, Jndge
Davis told the parties that we ought to be able to resolve
the Unit 32 case without further discovery or litigation, and
asked if we would be willing to sit down together to negotiate.
Re made it clear fhat his opinion of the facts had not changed
since the death row trial, and that he wanted to extend his
remedial order to all of Unit 32.
In November 2005, we all met for settlement discnssions in
Judge Davis's courtroom. By the end of the day, we had hammered out a proposed consent decree.
We strongly suspected that Leonard Vincent and Jim
Norris, MDOC's in-house counsel, had nsed considerable
persuasive power to get the department on board with that
consent decree. By that time, we had been litigating against
Leonard and Jim over conditions at Parchman for almost
seven years. We'd spent many long hours with Jim on tours
of Parchman in the Delta heat, and we'd listened to Leonard preface numerous keen cross-examinations of our expert
witnesses with the disarming phrase, "Now, I'm just an old
country lawyer, I don't have the intelligence to trip up a

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Volume 35 Number 1

:~

highly educated man like you." We had developed a strong
respect for their skills and admiration for their integrity and
civility as litigators. Our huuch was that Leonard and Jim
knew that reform was desperately needed and was very much
in their clients' best interests, as well as the public interest. In
November 2005, and again and again in the days to come as
we worked together to bring about profound changes in Unit
32, we felt that Leonard and Jim were working with their clients to make things right.
The proposed settlement incorporated all the relief upheld
by the Fifth Circuit in the death row case, and on that foundation added provisions on excessive force, procedural due process, and classification. The provision on classification was
only 65 words long. It read, simply,
Defendants will formulate and implement a plan, clearly
communicated to prisoners, whereby all prisoners who
are assigned to Unit 32 and not sentenced to death
may, through good behavior and a step-down system,
earn their way to less restrictive housing. The Parties agree to work together to prepare a written plan to
effectuate the goals of this paragraph and to present the
agreed-upon plan to the Court for approval.
That brief paragraph looked like an awfully fragile little vehicle to carry us to our goal-nothing less than emptying Mississippi's super-max prison of all but a small fraction of
the 1,000 prisoners incarcerated there. But we figured this
was likely to be the best shot we would ever have. The guarantee that aU prisoners in Unit 32 "may, through good behavior, earn their way to less restrictive housing" was the very
essence of what the men in Unit 32 wanted.
Getting the defendants' agreement to the provision in a
court-enforceable consent decree was a stroke of amazing
good fortune. W'e all knew that it would have been virtually
impossible to win that remedy from the judiciary in the Fifth
Circuit. But how in the world could we actually turn that consent decree from a piece of paper to a living reality?
We constantly mulled over that problem during the process
of notice to and comments from the class about the proposed
settlement, leading up to the Rule 23(e) Fairness Hearing at
the end of April 2006. Dozens of class members submitted
comments stressing the importance of the classification provision, and questioning whether MDOC could possibly be
made to abide by it.
That was the very question we were asking ourselves,
and we told class members again and again that we could
guarantee only that we would try, and keep trying. Judge
Davis approved the consent decree at the end of the fairness
hearing, noting that the relief we had obtained for the class
probably went well beyond what he could have ordered had
we gone to ttial and won.
When we stepped out of the courthouse on that gorgeous
clear blue April day, we were jubilant. At last, after long years
of suffering in the harshest prison in Mississippi, the prisoners
in Unit 32 had a bill of rights enforceable in the federal court.
But even that day our emotions were mixed. We
couldn't help thinking about what a monumental job we
had ahead of us. Winning this piece of paper was only the
first step. Now we had to begin the huge task of monitoring
and enforcement to transform those paper rights into a living
reality.

LITIGATION Fall 2008

At the core of the problem was MDOC's classification
system. Our classification expert, Dr. James Austin, did an
analysis of the population in Unit 32 and concluded that
about 80 percent of the 1,000 men did not belong in administrative segregation at all and should be released from lockdown into the general prison population.
In December 2006, we met with Commissioner Christopher Epps, Deputy Commissioner of Institutions Emmitt
Sparkman, and MDOC's classification officials. Dr. Austin
made a presentation on the results of his analysis and gave

Unit 32 was a tinderbox
about to explode.
his view that under widely accepted correctional standards,
prisoners should be housed in admiuistrative segregation only
when there is evidence of the prisoner's potential for violence
resulting in serious injury to others, based on recent acts of
assault while in custody. He proposed collaborating with
MDOC to help them reform their system within a 12-month
period.
We were elated when Commissioner Epps accepted this
proposal. Epps promptly established a "Classification Task
Force" under the direction of Deputy Director Sparkman to
work closely with Dr. Austin and other key MDOC officials.
The classification task force spent the next several months
considering options for reform of the system.
But we were having less success negotiating with MDOC
on mental health. The mental health issues were too complex
and far-reaching for any simple fix. The psychosis-inducing
effect of permanent administrative segregation, the culture of
excessive force in Unit 32, and the lack of basic mental health
treatment made Unit 32 an incubator for serious mental illness and violence. Prisoners with untreated mental illness
became more disturbed in isolated confinement; their illness
led them to break rules; security staff routinely sprayed
them with pepper spray to forcibly subdue them, and then
threw them into extraordinarily harsh "special management
isolation cells" where their mental health deteriorated to the
point of no return.
In April 2007, we had an evidentiary hearing on the
mental health issues. The testimony of our mental health
expert, Dr. Terry Kupers, provided graphic and compelling
examples of the crazy-making conditions in Unit 32. One
case he described was that of James C. This prisoner had
a long history of bizarre and disruptive behaviors that the
MDOC psychiatrist characterized as merely "manipulative,"
and which security staff punished with extreme and increasing harshness and brutality. Mr. C's behavior became more
and more desperate, and he repeatedly ttied to kill himself. At
last, one of Mr. C's botched suicide attempts, by hanging,
left him in a permanent vegetative state. Dr. Kupers testified
that the very same conditions that resulted in this tragedy were
bound to result in dozens more such cases unless these conditions were changed.
At the end of six hours of such testimony, Judge Davis
called the lawyers into chambers. He told the state's lawyers

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Volume 35 Number I

that they simply had to remedy this situation. And he told us
we should be prepared to start "cutting the baby in half to
get an agreement from the state." We said that we had to get
the whole baby on the table, and address the classification and
use of force provisions together with the mental health issues,
because these problems were so linked that the solutions would
have to be linked, too. When we left his courtroom that day,
Judge Davis made it very clear to the parties that he feared Unit
32 was a tinderbox ahout to explode.
And only a few weeks later, Unit 32 did explode. Beginning at the end of May 2007, and continuing throughout June,
July, and into August, there was an outburst of gang warfare in
which many inmates were stabbed and some died. There was a
suicide. A gun was found in one inmate's cell.
The bloody conflict had a devastating effect on the entire
population of Unit 32. The institution was under such stress
that for weeks on end during high summer, prisoners weren't
even let out of their cells to shower or for their daily allotted hour of exercise. There was a breakdown in basic services
such as sanitation, maintenance of plumbing, and food service.
A mood of anxiety and despair prevailed among the prisonerS. The legal team was frustrated and essentially helpless. It
appeared that the tremendous progress we had been achieving
had been not only halted but reversed.
But then there was a really extraordinary development.
Commissioner Epps, instead of allowing MDOC to retreat into
its old ways in the face of this deep crisis in security, decided
to plow forward to implement the recommendations of Dr.
Austin and the classification task force. Deputy Commissioner
Sparkman left his horne in Jackson in order to be at Parchman
round the clock. Sparkman essentially lived in the prison for
the next several weeks, overseeing the release of several hundred carefully selected men into the general population, walking among them, speaking and interacting with them, getting to
know their histories, showing his staff at the prison that these
men were not so dangerous that they needed to be in 23-houra-day lockdown.
It was a remarkable act of courage-and it worked.
Within a very few months, a striking transformation of Unit
32 had taken place. Nearly 80 percent of Unit 32's total popnlation had been reclassified from administrative segregation
to general population. Construction of program and recreation
areas at Unit 32, and the creation of work assignments, was

underway. General population housing areas had been created in housing areas that had always been used to lock down
prisoners. The inmates in these housing areas were spending
several hours a day out of their cells. The task force was developing a clearly defined incentive program that would allow
prisoners to earn their return to the general population as they
met behavior-based criteria. Education and general mental
health services were being expanded. Plans were in the works
to offer remedial classes and even two college courses. There
were plans to allow contact visits for the first time. A dining
hall was being constructed so that for the first time, prisoners
would be able to eat meals together rather than in their cells.
Prisoners were being allowed for the first time to play SPOltS
and to recreate together:
Most remarkable ofall, violence and incidents of use afforce
had plummeted. Monthly statistics showed a drop of almost 70
percent in incidents of use of force, coinciding with the reforms
of the classification system.
When we visited Parchman in October 2007, and entered
the courtyard of Unit 32, we came upon an amazing, almost
unbelievable, scene: dozens of prisoners laughing and shouting
as they played basketball in the sunshine.
In November 2007, we entered into a far-reaching supplemental consent decree with MDOC on classification, mental
health, and use of force and took it to Judge Davis in Aberdeen
to have him approve the settlement. He greeted us all by saying, "I've seen with this Consent Decree, and what y'all have
been able to agree to, I'mjust floored, candidly, Ijust think it's
a tremendous step forward in corrections." He approved the
settlement and signed the decree, making it a court-enforceable
order, and closed the hearing with these words:
I think that that is a tremendous step that 80 percent of
the people basically, what you're saying, now are able to
go back into general population and to have some contact with everybody. That's wonderful. ... I-want to
commend both sides. Y'all did exactly what I hoped you
would do. I had my fingers crossed, and I was holding my
breath because I-yon did a lot better than I could have
done-I have spent an awful lot of my career dealing
with.prison cases and prison.... The State of Mississippi should be real prond of all of y'all, because we've
made tremendous progress. IQ

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LJTlGATION Fall 2008

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Volume 35 Number 1

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