Full opinion text
MEMORANDUM MERHIGE, District Judge. This class action by prisoners of the Virginia Penal System is brought against defendants charged with the powers and duties encompassing the maintenance and supervision of the correctional system of the Commonwealth of Virginia. The jurisdiction of the Court is acquired pursuant to 28 U.S.C. §§ 1343(3), (4), 2201, and 42 U.S.C. §§ 1981, 1983, 1985. Defendants named in the complaint, or their successors, are the Director of the Department of Welfare and Institutions, the Director of the Division of Corrections, the Superintendent of the State Penitentiary, and the Superintendent of the State Farm. Plaintiffs, who are representative of the class they purport to represent, mount their attack upon the administration of discipline within the prisons: the reasons for invoking sanctions, the adjudication process, and the various penalties imposed. The evidence adduced has disclosed as to each of these points a disregard of constitutional guaranties of so grave a nature as to violate the most common notions of due process and humane treatment by certain of the defendants, their agents, servants and employees. One of the principal issues before the Court has to do with lack of appropriate due process prior to punishing members of the class for supposed infraction of rules. As the Court has already indicated, it finds that in many instances punishment has been of such a nature as to be abusive and violative of the most generic elements of due process and humane treatment. Of necessity the Court must herein set out an extensive review of the testimony to illustrate the existence of what the Court finds to have been a consistent course of conduct by prison administrators and those beneath them, resulting in the denial of the fundamental elements of due procfess. A prefatory remark is due on a point of terminology. The good conduct allowance — “good time” — is a credit of ten days against one’s sentence for each twenty days served without a rule infraction. Va.Code § 53-213 (Supp.1970). The Director of the Department of Welfare and Institutions is empowered to impose forfeitures and restorations of accumulated good time. Va.Code § 53-214 (1967 Repl. Vol.). “C-cell” inmates at the Virgina State Penitentiary and occupants of other “segregation” units there and at the Virginia State Farm enjoy substantially fewer privileges than men among the general population. Prisoners in C-cell cannot be employed in any work program; thus they are denied the opportunity to earn money. A reduced diet— two meals a day — is served. Religious services and educational classwork are unavailable, although men may be visited by a chaplain. There is no access to a library, although the men can receive magazines (under a recent change in rules) and books. The likelihood of release on parole is almost nonexistent for men placed in C-cell, and in practice there is no chance that lost good time will be restored. In addition, showers are permitted only at weekly intervals instead of daily, and men in some segregation units are unable to exercise outdoors. In the Virginia penal system there are five major units and about thirty smaller correctional field units. About 1100 inmates, all felons, are housed in the maximum security Virginia State Penitentiary, located in the City of Richmond. The Virginia State Farm, a medium security facility, holds about 1200. The Virginia Industrial Farm for Women contains about 300 inmates. Southhampton and Bland Correctional Farms each hold about 450. The combined Correctional Field Units, minimum security institutions, hold some 2200 inmates. There are about 30 of these “road camps;” the permanent ones house about 80 to 90 men, and the semi-permanent units contain 50 to 60. The volume of testimony concerning rules generally covering sanctions and their application in specific instances is immense. Even allowing for the changes in policy which no doubt took place over the time period — over two years — embraced by the deposition and ore tenus evidence presented, the Court has observed a disturbing number of inconsistencies in the officials’ accounts of applicable rules. These factfindings must be read, and compared with the evidence, with the awareness that when it is said that a given disciplinary procedure is followed, the Court is speaking of theory and not necessarily practice, and, at that, theory as expressed by the most apparently authoritative individual. There was at the time the Court heard this case no general, central set of regulations for the penal system stating which offenses justify the taking of a prisoner’s good time or his commitment to a solitary cell. As of July, 1970, according to depositions then taken, the Superintendent of the Virginia State Penitentiary was empowered to take a man’s good time in any amount on the recommendation of a disciplinary committee. No guidelines exist for the penitentiary fixing the range of penalties available for particular infractions. Men in C-cell maximum security section seem generally to be ineligible for restoration of good time. For men among the general population there is a rule of thumb that good time cannot be restored unless a man has served at least twelve months without an offense. The disciplinary committee does not call as a witness the guard who reported an offense. Needless to say, cross-examination is therefore impossible. No written charges are served on the prisoner before or after the proceedings, and lawyers may not participate. The committee does not make factfindings. No formal appeal procedure exists. The Disciplinary Committee jurisdiction, in late 1970, was extended to cover offenses committed in C-eell. It now, therefore, generally hears as well any charge that may result in solitary confinement. The question whether a man should be placed in C-cell in the first instance, however, is not always determined by a disciplinary committee hearing. This decision may be made by the Superintendent alone. Once he is in C-eell, a man’s release to less rigorous quarters may be gained by means of a recommendation to W. K. Cunningham, Jr., Director of the Division of Corrections, by a committee composed of the Penitentiary Superintendent, Assistant Superintendent, and two high guard officers. As of July, 1970, a C-cell inmate could be moved by a guard into meditation without a hearing. Only the Superintendent or Assistant Superintendent could order the man’s release. A guard could request leave to keep a man in solitary for more than 30 days, in which event a written report by the guard was to be passed on to Cunningham who, on the basis of the report, would approve or disapprove the request. The meditation cells measure about 6V2 feet by 10 feet and contain a mattress (at night), a sink and commode. The usual C-cell diet is served, although bread and water is reserved as a selective form of additional punishment. A man may also be denied use of his mattress for up to about three days as a form of penalty, in which case he sleeps on the bare cement with a blanket. If a penitentiary prisoner is continually obstreperous in solitary, there is no further method used to control him other than by chaining or tear gassing. On occasion a man’s clothing may be taken if he appears to be a suicide risk or a menace to others. Transfers from the general population to C-cell, since at least 1969, were in theory made only on the recommendation of the disciplinary committee to the Superintendent. Peyton, the Superintendent in February of that year, said, however, that such a transfer, made solely on the recommendation of the Assistant Superintendent, would not necessarily violate regulations. It was his practice, he said, to interview all prisoners in C-cell every six months to determine whether a return to general population was indicated. Criteria determining the decision to place a man in C-cell or remove him were extremely hazy. A man’s attitude, his disruptiveness, tendency to challenge authority, or nonconforming behavior, as reflected in written or oral guards’ reports, may condemn him to maximum security for many years. In 1969 C-cell inmates’ offenses for which good time might be lost were “tried” usually by the Assistant Superintendent on the record of a guard officer’s report. In the penitentiary the B-basement category of punitive segregation was instituted in September of 1968. Superintendent Peyton himself selected the inmates who were to be placed there. Conditions there were substantially as in C-Building, but somewhat more restrictive. For several months, for example, B-basement inmates were not permitted outdoors for exercise. Isolation of prisoners in maximum security cells of this sort has often been effected without any formalities. No investigation was made into Leroy Mason’s responsibility for a prison work stoppage, yet for that reason, apparently, he was placed in C-cell for nearly two years. As a matter of practice no hearings were held, according to Oliver, when he was at the Penitentiary, on the question of transfers into C-cell, and inmates were held there at the discretion of himself and the then superintendent, Peyton. Generally speaking these two administrators relied exclusively upon written reports submitted by the guards in retaining men such as. Mason, Landman, Hood, and Arey in maximum security units. Elaboration as to the Court’s findings as to each of these men will be set forth in later paragraphs. The Assistant Superintendent at the Penitentiary may “padlock” a man without any hearing for any length of time. In the penitentiary it appears that several disciplinary sanctions are imposed by guards acting alone, or with the permission of the officer in charge. Meditation prisoners lose their mattresses for misconduct, for example. Mechanical restraints such as chains, tape, and handcuffs are placed on rambunctious inmates by guards. At least once an inmate was taken directly to meditation from death row by a guard captain. Several times fines have been imposed by guards. Furthermore, one Captain Baker has both charged inmates with offenses and sat on disciplinary committees which sentenced them to meditation. Superintendent R. M. Oliver described the punishment procedures which prevailed at the Virginia State Farm in December of 1970. There are 32 solitary cells at the south-side part of the State Farm, and 16 at northside. Permissible punishment, without special authorization by the Director of the Division of Corrections, is 30 days’ confinement. Prisoners are given a mattress at night only; during the day they sit on the floor or on the toilet bowl. Two meals per day are served. It is standard fare, save that no beverage, dessert, or second helpings are provided. Prisoners in solitary cells could not initiate legal proceedings nor answer any letters save those concerning pending proceedings or family crises. Confinement under this regimen is directed only by a disciplinary committee composed of a guard lieutenant, Assistant Superintendent Jackson, a guard captain, and Mr. R. O. Bennett. The group meets as soon as possible after the offense, preferably within 24 hours. Mr. Oliver stated that he would object to assistance by lawyers at such hearings and likewise to lay counsel’s presence as encouraging excessive “hassling.” He would not object to using written charges in cases of serious offenses but saw no need for written factfindings. At the State Farm a prisoner' may be taken by a guard directly to a solitary cell if he is incessantly disruptive. In any case, however, a hearing by disciplinary committee is held within 24 hours of the alleged offense. At least since February of 1969, a committee has met on questions of good time loss, which they might recommend to the superintendent, and transfers to maximum security. Confinement to maximum security areas at the State Farm (formerly C-5 now M Building) entails a reduced diet, rationalized on the basis that the inmate is not working, weekly showers only, and no outdoor exercise. At the State Farm, testified Assistant Superintendent Jackson, no prisoner would be confined to meditation without a hearing before himself. Once at least, he said, he placed a prisoner in meditation not for violation of any regulation but because he was mentally incapable of abiding by rules governing life in the general population. Solitary confinement cells at the State Farm are similar to those at the Penitentiary. The bread and water regimen is now very rarely used, and meditation inmates have not in recent years been deprived of clothing as a type of punishment. Both of these sanctions, however, are held in reserve. Current practice on good time loss is for the disciplinary committee to forward its recommendation that a man lose good time to the Superintendent. That officer almost invariably approves the recommendation and determines, all on the basis of written reports, by how much time a man’s sentence should be lengthened. No specific guidelines prescribing penalties for various offenses exist. The Assistant Superintendent of the Virginia State Farm may place a man in confinement in his own cell — “padlocked” —without a hearing. This is usually done on a guard officer’s recommendation. There is no maximum term. As of July 1970, the Superintendent of one Field Unit had four men in solitary for various offenses, such as general “misbehavior.” While this witness’ testimony was to some extent inconsistent and contradictory, the Court concludes that men at this particular Field Unit have been jailed summarily, without a hearing, on the authority of either the Superintendent or a guard. Such solitary confinement has been for an indeterminate period in the sense that as of the time of the taking of evidence in this case the witness could not say for how long those then in solitary would be so confined. In at least one instance a hearing of sorts was held in the Superintendent’s office in which one of the men who sat in judgment of the accused prisoner was the guard who had accused him. This witness also said that no particular standards governed his requests that good time be taken. No hearings are held at which the men are allowed to disprove the information on the basis of which good time loss is recommended. In 1969, one Reynolds, Superintendent of Field Unit No. 9, stated that he permitted men in meditation to write an attorney whenever they wished, even when held in isolation cells. Whenever an offense meriting taking good time was involved, he said, he would call the inmate accused before him; he did not mention that a formal hearing was requisite. At Bland Correctional Farm, disciplinary proceedings are conducted by a committee including the Superintendent, Assistant Superintendent, and a captain of the custodial force. Good time forfeiture is often haphazardly administered. After one incident including a sitdown strike involving several inmates, the Superintendent docked several participants all their good time, despite that some had accumulated far more than others, and even though in professed theory the amount forfeited is related to the gravity of the offense. At the hearings inmates were not informed of their right to present evidence by witnesses. The Superintendent of Unit 7 confirmed that on one cold day when several inmates declined to work, some were given the choice of road work or solitary confinement. One Wade Thompson was sent to solitary. A prisoner named Melton, who the witness felt had instigated or agitated the strike, was also sent to solitary. No firm evidence lay behind this finding of “agitation” by Melton. Nevertheless the man was kept in jail and put on a diet of bread and water for two days out of three because the administrators disapproved of his “attitude.” Although permission is nominally required for extended “jail” terms and bread and water, Blankenship, the Superintendent, did not secure this before the extra sanctions were imposed. Good time also was taken. This witness stated that he had never held a formal hearing of any sort on restoring lost good time, and the Court so finds. Good time administration in the field units is in the control of D. P. Edwards, Superintendent of the Bureau of Correctional Field Units, who acts on the basis of written reports and recommendations by the disciplinary courts in the various field units. A guard is often one member of the court panel, although theoretically not the man who reported a violation. Procedure is not fixed by written rules, but the practice prescribed for field units does not provide for a written notice of charges but does allow some cross-examination and the presentation of a defense. This code of practice is passed on by word of mouth to camp superintendents at regular meetings. A man at a field unit who claims to be ill will be taken to a doctor at his request; there is, however, no provision for regular visits by doctors to some units, much less to men in solitary. There are no medical staffs at any field units. A prisoner who escapes, or attempts to escape, is automatically docked all accrued good time when he is recaptured, whether or not he is tried and convicted, and he is not considered eligible for restoration of that credit. When a prisoner is put in solitary he some times stops accruing good time and some times does not, depending on the administrators’ view of his attitude. Certain principles with respect to discipline apply throughout the Virginia Penal 'System in theory. There have been, however, no general rules which establish those offenses for which commitment to solitary confinement or the taking of good time may be imposed. Confinement in meditation is ordered by the institution superintendent or assistant superintendent after a hearing. One of these officials and one or more of his subordinates hear the case. In theory the complaining officer presents his charge in the inmate’s presence, and then the presiding hearing officer asks the convict to make a defense or explanation. The prisoner may then depart while the disciplinary committee discusses the case. Subsequently a decision is announced. The prisoner about to be tried is not given a written notice of the charge he faces. Only custodial personnel sit on the disciplinary boards. No explicit recognition of the prisoner’s right to cross-examine exists. After the hearing no written factfindings are made or given to the prisoner. No particular process for appellate review exists, although one can complain by letter to higher officials. Before his healing an inmate, if considered violent, may be held in a detention lockup on a guard’s authority, but in theory no guard may commit a man to meditation. Nor does an accusing guard sit on the adjudicatory panel. No lawyer or lay assistant is permitted to represent or advise an accused prisoner. These rules also govern proceedings resulting in a recommendation to deny good time. There are no procedures set up to review requests to restore good time. Until very recently, an inmate in solitary confinement was subject to almost total restriction of his correspondence privileges. On entering meditation he might send a form letter to his family explaining his status and that he could not correspond or receive visitors. The man could receive mail from an attorney, however, and correspond with counsel concerning pending litigation only. He could not file suit. Meditation cells are equipped with a mattress at night only. No man in theory is fed on a bread and water diet save with the permission of the Director of the Division of Corrections. A doctor’s approval is not required, however, and this practice is authorized on the basis of brief written requests. A man in meditation is alone, save when overcrowding requires the placement of more than one man in an isolation cell. The only reading matter is a Bible. The use of further restraints such as chaining or gagging is not covered by regulation, but is left to the discretion of the unit superintendent. Cells almost uniformly are equipped with a sink and a commode. No specific regulation allows inmates to have a toothbrush, toilet paper, soap, and so forth. Most are given a towel. They are permitted to shower and shave once a week only. A doctor does not regularly visit men in solitary cells. In the penitentiary a man will be examined by a doctor only if the male nurse — a former military medical corpsman or man of equivalent training — recommmends that he be taken to the hospital. W. K. Cunningham, the Director, testified that no intelligible guidelines govern the taking of good time, save that escapes and escape attempts always result in full forfeiture. He could not recall any instance of his overruling a superintendent’s decision to take good time. Field Unit superintendents forward their recommendations to Mr. Edwards, the overall superintendent of field units; he usually follows their lead. The individual unit superintendents are for the most part former guards who worked up through the ranks, and not all are high school graduates; in fact a majority are not. The great majority of prisoners have lost good time restored to them, according to Cunningham; nonetheless he testified that in the last eight months of 1970 only one penitentiary inmate received such grace. Disciplinary boards have at times included the accusing guard. Furthermore, although representation by another is forbidden, the Director testified that some inmates are so very dull mentally that they probably cannot properly present their case. Good time has been taken in amounts at least as large as one year on the basis of the briefest of guards’ reports. Maximum security confinement has often been imposed out of unsubstantiated fear, suspicion, or rumor. In some cases this form of detention has been used for prisoners who were simply too feeble minded to adhere to the usual prison routine. On October 1, 1970, less than two months before trial on this case, Division Guideline 800 was put into effect. These regulations, as adapted to cover all institutions, govern inmate discipline. They are set out in full in a footnote. These were the first substantive regulations on the subject put into effect in the Virginia penal system. The new guidelines require a three to five member “adjustment committee” composed “normally” of department heads or their assistants. A counselor— a social worker assigned to one of the large institutions — may be present if one of his charges is accused. There is provision for notice of charges to the inmate, although not in writing. The inmate is put in “detention” pending hearing, which takes place within 48 hours. There is some vague provision for witnesses and cross-examination, at the discretion of the committee chairman. The result of the hearing is recorded and transmitted to the Superintendent for “review and approval; ” whether that officer can reverse a not guilty verdict is unclear. The new regulations do not forbid a charging officer from sitting in judgment. Presumably this practice will be disapproved in theory, as in the past. In practice, however, an accusing official has sat on the panel; Assistant Superintendent H. P. Jackson of the State Farm has done so numerous times. Offenses are described only as major or minor misconduct. There is no apparent restriction on available penalties, save that corporal punishment is outlawed, and described “minor” penalties can be imposed by a guard supervisor, with appeal to the committee. The guidelines place conditions on the use of solitary confinement cells. Normal practice will be to permit an inmate to keep his usual clothing. The cells are to be lighted and heated, and occupants receive something to sit on in the daytime. Mail is not substantially curtailed, and “jail” terms are limited to 15 days. However, a “supervisory officer” may direct the removal of all furnishings and clothing from the cell if the inmate is “destructive,” and a man can be kept in isolation longer than 15 days at the order of the Director. Alternatively, he may be placed in a maximum security cell “until he can, with reasonable safety, be returned to the general population.” Forfeiture of good time is imposed on the recommendation of the adjustment committee to the institutional superintendent. That official withholds his decision for seven days while the inmate presents his case to him in writing. There is no procedure established to cover the restoration of lost good time, although the discipline board may “set new behavioral goals * * * and offer restoration of good time.” Final authority to restore credit, however, seems to rest in the superintendent, as it did previously. Procedure for transfer to maximum security facilities is not established, although there is provision for a “formal review” every 120 days of each inmate’s “behavior and attitude.” Finally there is a saving provision reserving full authority over disciplinary matters in the Director. Copies of these regulations were not sent to inmates. The rules do not seek to define offenses. As before, inmates may be penalized for “abusive language,” a term particularly vague in its content in the prison milieu, where the norms of polite conversation do not prevail. Whether language is “abusive,” according to Cunningham, depends a great deal on the tone of voice or manner in which words are spoken. In the past, nevertheless, men have been punished for “abusive language” on the basis of written guards’ reports which sometimes did not even report the words spoken. “Insubordination,” “insolence,” and “sarcasm,” likewise offenses, are also undefined; their substance is left to the judgement of administrators. A superintendent also may penalize men for “poor work” and “disrespect” if their conduct is such, in his opinion. Whether a man has in fact attempted to escape or has escaped will be left to the determination of the adjustment board and the superintendent, as before. “Agitation” is also undefined. Cunningham states that it consists of influencing others to do illegal things, or acts which would be disturbing to the institution. Guards’ reports, however, occasionally give no specifics as to the acts constituting “agitation.” No maximum time of padlock confinement is fixed by the new rules. Cunningham stated that the decision to padlock a man must be made by an official of the office of Assistant Superintendent or higher, but the “minor misconduct" provision appears to allow the chief guard officer to impose this penalty. The guidelines make no reference to the practice of imposing fines. In the past this has been done summarily by guard officers. Maximum and minimum amounts of good time that can be taken for various offenses are not set forth. As before, these will be governed, under guideline 800, by patterns and rules of thumb passed on orally. Moreover in practice a superintendent's decision to take or restore good time will not be effectively appealable. At most correctional field units this means that the ruling will be made by a man without a high school education or any special training in the goals and techniques of penology. Guideline 800 also authorizes a continuation of the practice of confining mental defectives in the maximum security segregation cells. The inmates Elbe and Gonzales were referred to C-5 segregation at the State Farm for the offense of having insufficient mentality to participate in ordinary prison business. This is still authorized for those who “cannot safely function in the regular inmate population.” Regular appeal procedures are not established. In the past prisoners aggrieved by decisions against them have been able to “appeal” to the institution superintendent or the Director, by writing a letter. Review, however, has been highly informal, and the Director has not hesitated to go outside the record to secure information on a man’s behavior both in the incident in issue and in the past. Never, however, has he reversed a superintendent’s decision to take good time. The Court finds that the reserved powers clause would retain for Cunningham the power to take good time without a committee hearing, to place someone in a solitary cell without a statement of reasons, and to keep a man in maximum security indefinitely on his sole order. Despite that according to Guideline 800 a normal diet is served in isolation, the director may still nonetheless impose a bread and water menu. Moreover, even the adjustment committee may extend a man’s term in “jail” if it finds that he committed a second offense during his first fifteen-day term. Cunningham had formed no fixed opinion on whether counsel should be admitted to the disciplinary committee hearings. He thought that lawyers, might be unfamiliar with the goals and means of penology, even by comparison with some of the guards. The director had no objection to the presence of lay counsel, however. Going to the Court’s findings concerning not only the named plaintiffs but others of the class, the Court makes the following additional factual findings: ROBERT JEWELL LANDMAN Landman, a prisoner now released from the Virginia system after having served his full term on August 28, 1970, had been technically eligible for parole for six years prior to his release. Commencing in 1964, Landman embarked upon a career, well-known to this Court, as a writ-writer. The evidence before the Court is that between that time and the time of his release, on behalf of himself he filed a minimum of 20 suits, and it is estimated that in addition he assisted fellow inmates in approximately 2,000 other petitions. Landman’s troubles with the prison authorities apparently commenced with his having written a letter to one of the local newspapers, for which he served 20 days in solitary confinement. This was followed with correspondence to the then Governor, and in 1964 he was sent to what is known as the “C” Building and placed in punitive segregation where he was held for a period of 150 days. He was removed from there and put in the general population until January 1965 when he was moved to a prison camp. His move from the penitentiary to the camp came the day before he was due to confer with a local attorney. His reassignment to the penitentiary from the camp undoubtedly came about by reason of his having by then commenced his writ-writing endeavors, and in may 1965 it was recommended that he be placed in the “C” Building for his efforts in that regard. In “C” Building his life appears to have been a series of transfers to and from solitary confinement. In at least one instance he was put in solitary confinement for 58 days and never given any reason whatsoever for this confinement. Apparently for assisting another prisoner in preparing a writ in 1966, he was once again put in solitary confinement. This Court finds that up to November 1966, the man was punished 16 times and had good time taken from him once. He served a total of 266 days in solitary confinement and 743 days on padlock. In August of 1968, this Court entered a consent injunction enjoining the prison officials from denying inmates of the Virginia State Penitentiary certain of their rights. The day following the injunction, Landman was once again put in solitary confinement for a period of 40 days, allegedly for conferring with another prisoner. Landman’s attempts to contact his lawyer were to no avail. From March 15, 1969, to July, Landman was placed on what is known as “padlock,” wherein a padlock is placed on a particular cell so that when all other cells are opened electronically, that particular cell remains closed. In short, the Court finds that there was imposed upon Landman over 265 days of solitary confinement and in no instance did he receive even the rudimentary elements of a hearing or opportunity to defend any allegations made against him. The Court is satisfied that Landman’s exercise of his right to file petitions with the courts, and his assisting other prisoners in so doing, were the primary reasons for the punishments put upon him. CALVIN M. AREY Arey was placed in solitary confinement on December 6, 1965. Although the record is devoid of any accounts of violence on the part of Arey, he had with justification been considered an escape risk and remained in “C” Building for a period of more than 4x/2 years until released into the general population in July 1970. At least twice while in maximum security he was placed in solitary confinement, one of the times for allegedly discussing with Landman an order of this ■ Court, and he, like Landman, was transferred to solitary confinement for a period of 42 days during which time neither of them was permitted to file legal pleadings or to send letters to courts or attorneys; and in one instance he was placed in solitary confinement for reading to inmates a letter that he had received from a state senator. No notice or hearing of any kind was held in regard to these punishments, nor in regard to his loss of good time which he sustained. It would appear from the evidence that Arey’s good time was taken on the basis of information received from a guard and upon the recommendation of the Assistant Superintendent that his good time be taken. Not even the rudimentary elements of a hearing or opportunity to be heard was given this man prior to the taking of good time. The fact that some of the matters which gave rise to the many punishments received by Arey may well have been factually accurate can in no way be used as an excuse for the failure to accord him due process. The record abounds with evidence of Arey’s attempts to communicate with attorneys, only to be subjected to delay or frustration. In at least one instance Arey was forbidden by the Superintendent to communicate with an attorney who was not then currently representing him. Perhaps the most striking example of the indignities suffered by Arey is exemplified by an incident which occurred on August 13, 1968. On that day radio news reports gave an account of this Court’s injunction against the employment of certain methods of punishment in the state prisons. According to punishment reports submitted by guards, Arey yelled to other inmates concerning the Court order, telling the population of “C” Building generally that tear gas and the taking of bedding had been prohibited. Arey’s commitment to solitary for this was approved by Superintendent Peyton who, so far as the evidence before this Court shows, failed to check out the account of the occurrence with anyone who had been allegedly present. The prison records as to this incident show the spaces on the form designed to record the members of the disciplinary panel who heard the ease to be blank. Obviously no hearing was held. In fact it was standard practice at that time, the Court finds, to discipline men in C-cell without any hearing. On occasion, according to the testimony of R. M. Oliver, a committee might sometimes be used. Arey was released from his isolation on September 23rd. That same day he found on his cell cot a letter he had tried to send to an attorney on August 14th; permission to mail it had been refused. He, of course, had been denied leave to write counsel during his solitary confinement. The record shows that a letter went from Superintendent Peyton going to Director Cunningham, which indicates as well that copies of this Court’s order mailed by an attorney to certain prisoners were intercepted apparently on instructions of an Assistant Attorney General. It was three days after his release from meditation, where he had not been allowed to shave, brush his teeth or comb his hair, and after having been on a bread and water diet for two days out of three while incarcerated in a cell which contained only a sink and a commode, and, in the night, a mattress and two blankets, that he wrote a letter to a state senator which ultimately was returned to him without having been mailed. The letter, which concerned penitentiary conditions, was taken to R. M. Oliver who disapproved this correspondence. No satisfactory explanation for this action has ever been received. In 1969 Arey received a copy of a letter from a state senator which he read aloud to another inmate. While there is some dispute over how loud he spoke and what extemporaneous remarks he added, as a consequence a guard filed a punishment report. While no hearing was held, Arey lost all accumulated good time and stayed in meditation until February 5, 1970. The effect of the loss of good time was to extend his term by a year and eleven days. Arey was kept in C-eell through 1969 and well into 1970. In early 1969 no concrete reason could be given by Peyton as to why Arey was still in maximum security. At least one official testified that it was principally on account of his alleged disruptive, contentious attitude. The same official, however, in conversation with the state senator who visited the prison, stated that Arey’s litigiousness was at least a contributing cause for the resolve to keep him in C-cell. In mid-1969, after J. D. Cox succeeded Peyton as Superintendent, a four-man review committee for the penitentiary recommended to W. K. Cunningham that Arey, Leroy Mason and several others be returned to the general population from C-cell. Cunningham rejected this proposal, and the men were kept in segregation for many more months. ROY E. HOOD Hood had been in the penal system continuously since 1963 and in at least two instances escaped from road camps and undoubtedly has admittedly caused difficulty, in some instances, during his stay, although in at least one instance he had been made a trusty. Some of the punishment accorded Hood, such as allegedly for refusal to work, fails to show up on the records kept by the authorities. While in most instances Hood knew of the reason for a particular punishment, the Court finds that he has been put in “the hole”, or solitary confinement, in some instances without benefit of any opportunity to be heard as to whether the punishment was either deserved or appropriate. He has lost good time under the same circumstances. From January 1967 to November 1968 this particular prisoner was apparently devoid of any particular problems until he conferred with an attorney, and within eight days thereafter he was transferred to the penitentiary. Interestingly enough, the attorney with whom he had conferred was the same attorney who was representing the inmates in their suit to desegregate the penitentiary. The attorney had conferred with Hood and one Lambur, and had asked the prisoners to send him information concerning alleged tear gas incidents which might be useful in a case he was then litigating. The same day of the conference prisoner Lambur was incarcerated in a high security section and, as heretofore stated, eight days later Hood was transferred to the penitentiary and put in a padlocked cell. No satisfactory reason for the treatment accorded these men has ever been given. The response received to his several inquiries as to why he had been accorded the treatment referred to was a brief notation from an official to the effect that Hood knew the answers as well as he did. The files reflect a letter from the Director indicating that Hood and others had been sent to the penitentiary as a result of “agitation” that they were allegedly committing among State Farm inmates. The evidence before this Court shows that the agitation apparently was Hood’s inquiries about tear gas incidents. On March 31, 1969, guards took an inmate named Hargrove from a cell near Hood in a fashion that Hood thought was rough. On that same day he wrote to an attorney — the same attorney with whom he had conferred at the State Farm — and in this letter he wrote of the alleged rough treatment and remarked about alleged poor medical care. The following day he was placed in B-basement, a high security area. That the prison authorities imposed summary punishment on Hood for exercising his right to communicate with an attorney about conditions of confinement is clear. As a consequence he remained in B-basement for thirteen months. LEROY MASON A named plaintiff, Leroy Mason, admitted to the Richmond Penitentiary in 1965, had no noteworthy clashes with prison authorities prior to 1968. In early 1968 Mason was known by the authorities to have contacted an attorney concerning certain prison conditions, in particular the alleged segregated nature of the State Penal System. In July 1968, while he was working as a Chaplain’s Assistant at the penitentiary, there came about an inmates’ non-violent strike or work stoppage. The Court finds that Mason had no prior knowledge of the work stoppage. The then Superintendent, Peyton, suggested that the prisoners go to their respective work places and elect several spokesmen with whom he would confer. Of those spokesmen Mason was elected as an inmate representative, and generally he spoke for those representatives and met with Superintendent Peyton several times, but continued to perform his regular job. By that time Mason was a named plaintiff in a class action suit pending in this Court for the purpose of requiring a racial desegregation of the Virginia Penal System. On July 19, 1968, four guards came to Mason’s cell, handcuffed him and took him to the isolation cell block in the prison hospital where he remained in what amounted to solitary confinement for approximately a month. It is to be noted that another spokesman, one Pegram, met the same fate. Prison records indicate that the transfer of Mason was allegedly for refusal to ■ return to work, for his own protection, and in an effort to keep him incommunicado. No hearing in regard to this punishment was held and he was kept in an isolation cell for approximately thirty days. Shortly after being released from isolation he was transferred on August 20, 1968 to the maximum security lockup, i. e. C-eell segregation block, and was held there until April 27, 1970. In addition, it was ordered that he lose ninety days good conduct time. The Court finds that he was not accorded any hearing, and in addition his release from maximum security had been recommended for some time prior to his actual release from same. The record is devoid of any valid reason as to why he was not released sooner. While the Court is not fully apprised as to the use of punishment report forms in the prisons, it notes with some interest that the report of Mason’s August 20th transfer to C-cell was apparently received by the Superintendent’s office on August 19th. While much disciplinary action was accorded many of the prisoners without notice or hearings and for reasons still vague to the Court, and in some instances simply upon the whim of a guard, in the treatment accorded Mason the record is devoid of any justification, and the Court is therefore satisfied that his punishment was attributable to his instituting an action in this Court for purposes of desegregating the Virginia Penal System. Superintendent Peyton had stated that he could not say for sure whether Mason had stopped work during the strike. According to Peyton’s explanation Mason was put into isolation only to keep him out of danger and contact with other inmates. Yet in spite of the uncertainty expressed by Peyton concerning any alleged work stoppage by Mason, ninety days good time penalty was imposed for allegedly refusing to work. In late 1969 in spite of recommendations of the prison staff that Mason be released from maximum security, Cunningham refused to go along with the recommendation apparently on the basis of Peyton’s reports that Mason had been a strike ringleader. Mr. Cunningham’s justification for the continued refusal to air these charges in a hearing was based on the grounds that an emergency condition still persisted at the penitentiary. The proffered justification for Mason’s segregation confinement and loss of good time is so specious as to add weight to the Court’s conclusion that he had been penalized for his participation in a law suit begun in January 1968 in this Court in which he sought and achieved the desegregation of the Virginia Penal System. THOMAS C. WANSLEY Wansley, serving a life term, had apparently been in no difficulty prior to the strike in July 1968. He, like Mason, was one of the original parties in the suit filed in February 1968, for the purpose of desegregating the penitentiary. Wansley was one of several hundred inmates who refused to work on July 18th at the time of the alleged work stoppage. The Court finds that shortly thereafter he did request an opportunity to return to work. As a consequence of his actions he was placed in solitary confinement from July 1968 to August 1968 and kept in a cell for a period of ten months. The Court is satisfied that, unlike Mason, Wansley knew of the contemplated work stoppage. It is of particular note that Wansley remained confined for some considerable period after other striking prisoners were returned to their regular duties. It is a fair assumption, and the Court finds, that the reason for this was his actions in the suit to desegregate the Virginia Penal System. Penitentiary records indicate that the padlocking of Wansley was allegedly for “agitating” by advising other prisoners to file suits contesting their treatment and by telling others, after his return from Court on August 13, 1968, that guards were barred from using tear gas against them and, apparently according to him, would be jailed if they did. Wansley, the Court finds, was never formally confronted with' this alleged charge of agitation and never saw the prison reports prior to the trial of this case. In short, he was put under padlock on the basis of reports that he was yelling in the cellhouse and “agitating.” The witness Oliver recalled no details save that Wansley had not been violent. Peyton, in February 1969, made no effort to justify Wansley’s detention beyond saying “in his judgment” he should be confined. As already indicated, the trial of the issues before the Court consumed many days of testimony in which the Court heard at least 46 witnesses, including the named plaintiffs, and read designated depositions of others. As one would expect, the witnesses called on behalf of the plaintiff were for the most part prisoners who either were or had been confined in places of incarceration under the jurisdiction of the defendants. The Court is satisfied that the testimony received is representative of conditions existing generally throughout the Virginia Penal System. The Court has attempted to bear in mind in its ultimate conclusion that the burden is upon the plaintiffs to prove their case by a preponderance of the evidence, and this the Court is satisfied has been done. The following additional factual findings are intended to be illustrative to the end that the Court’s legal conclusions based upon same may be more readily understandable: FREDDIE LEE HYTHON, JR. Hython, a State Farm inmate for approximately six years prior to the date of hearing in this case, refused to perform work at that facility allegedly because another inmate had threatened him and he feared to mingle in the population. He explained his plight to a guard lieutenant and he was forthwith ordered to an isolation cell. Hython’s testimony has been weighed by the Court in light of the Court’s conclusion that apparently he was a person of extremely limited intellectual capability. He had had his good time taken from him several times without benefit of a hearing, although he did have at least one hearing concerning good time forfeiture. NATHAN BREEDEN Breeden, a prisoner at the State Farm, was incarcerated in the C-5 high security section at his own request because of his alleged fears of persons in the general population. His testimony was of significance to the Court in that it corroborated the allegation brought out during the trial that it was common practice to place mentally ill inmates in solitary confinement. While incarcerated in C-5 Breeden witnessed, in a manner of speaking, the death of another inmate, one Philip Lassiter. The Court finds that in late August of 1970, Lassiter was placed in a meditation cell by reason of the fact that he was mentally disturbed and his behavior was sometimes uncontrollable. Breeden, through an inmate named Marsh Whitney, secured copies of records of Lassiter’s psychiatric care over the prior three years. Between August 25th and Lassiter’s death, while Lassiter was confined to a meditation cell, he screamed day and night apparently seeking help. Indicative of Lassiter’s state of mind was that on that day he plugged the commode in his cell with a shirt, causing the flooding of his cell. Efforts were made by Breeden to bring to the attention of the prison nurse the records he had secured from inmate Whitney. On August 27th Breeden spoke to a lieutenant and subsequently gave him a copy of what purported to be a doctor’s letter diagnosing Lassiter’s condition as chronic schizophrenia. On August 29th Breeden wrote to Superintendent R. M. Oliver about the case. Lassiter continued to scream for help until he died on August 31st. At least four inmates in nearby cells corroborated Breeden’s account including the fact that at some .point, which the Court determines to be approximately August 26th, at least one guard had an altercation with Lassiter concerning a food tray, during which Lassiter, if not the guard, landed some blows. It should be noted that Superintendent Oliver said that Lassiter had been placed in solitary confinement at his own request, and while he knew that the inmate was under psychiatric care, he never received reports of Lassiter’s alleged screaming. The Court finds that while it was not the routine practice to put mentally disturbed persons in solitary cells, they were occasionally placed there for want of other space pending commitment proceedings. EDWARD R. BELVIN The prisoner, Belvin, a person with a sixth grade education, had lost 66 days good time for alleged attempted escapes. He was accorded no hearings prior to the taking of his good time. The prison administration simply sent him a “green slip” revising his sentence. As a consequence of these sanctions, 66 days were added to his term. In April, 1970, Belvin was in the prison hospital for treatment of a nervous condition. On one occasion he threatened to scream if he was not given a shot which he felt he needed. As a result he was taken to a meditation cell without a hearing. There the guards restrained him by handcuffing him and chaining his body to the cell bars. They wrapped tape around his neck and secured that to the bars also. Belvin remained in this position for fourteen hours until a guard cut him down at 4:00 a. m. Belvin was kept nude in a bare meditation cell for seventeen days during April. His clothing was taken because he refused to surrender a food tray to guards. Guards in the penitentiary have had the authority to chain a violent man until recently; currently it can be done only at the Superintendent’s orders. Prison policy, however, dictates that mentally disturbed' inmates not be so treated, but rather that commitment proceedings be begun as soon as possible. It is inexplicable why Belvin was placed in an ordinary punishment cell rather than some less brutal form of confinement. He had reportedly twice attempted suicide prior to this episode, yet medical supervision appears to have been lax. The decision to chain him was made by guards, without the prior approval of any doctor, yet this incident did not, so far as the record shows, result in so much as a reprimand for those responsible. BARRY CLINTON JOHNSON Johnson, a prisoner under sentence of death, was placed in meditation three times. In January, 1969, he spent about seven days in meditation for complaining to guards and arguing about officials’ treatment of money sent to him at the prison. The guards’ reports recount a very poor attitude in making requests and nasty remarks about personnel. No hearing was held; Johnson gathered from a guard that his complaints about his money were cause for his “jailing.” Just before his confinement, Johnson filed a complaint in this Court along with one Short alleging mistreatment by guards. The second time, Johnson was reported as having harassed a guard when he inquired of him about some shirts which another correctional officer had promised him. The week before he had been shot with tear gas in his cell and had written to Philip J. Hirschkop, an attorney in his case, complaining about the incident. He also encouraged other inmates subjected to such treatment to write Hirschkop. Before his transfer to solitary, Johnson was accorded a semblance of a hearing in that he was taken to a back office and confronted with the charge by three guards, two of whom were officers. The allegedly harassed guard was not present at this hearing to be questioned. The guards sent him to meditation without advising him of the length of his stay. In July, 1970, Johnson was sent to solitary for loud talking, although the man with whom he allegedly was engaged in loud talking was not punished. One guard, Captain Baker, had previously threatened to punish him for cursing other guards. Another, Gibbs, told him to stop complaining to courts and lawyers or he would be placed in solitary. Johnson was taken to solitary by five or six guards and brought the next morning to the guards’ office. There, Gibbs threatened to cut off commissary privileges, hot water, and coffee if he did not cease his complaints. Others accused him of cursing a guard; he denied it, but they refused to check out his story. Less than two weeks before this incident Johnson had written a complaint letter to the Governor of Virginia. When he was taken to C-cell solitary the third time, Johnson was punched by Captain Baker with a tear gas gun and then, at Baker’s orders, chained to the cell bars. This endured for five days. His waist and arms were secured to the bars in such a fashion that he could just barely recline. He was not released in order to urinate or defecate. At trial there was no cross-examination of this witness. SAMUEL MACKMAN Mackman, a fifteen-year veteran of the Richmond penitentiary, gave accounts of being placed in solitary and losing “good time” for breaking up a fight and for having requested his prescribed medicine. On October 31, 1968, punishment report has it that Mackman threatened to hit a guard, one Catron. This occurred, the prisoner said, after Catron shot him with tear gas for failing to eat. In January of 1969, Mackman lost 90 days good conduct time, for “yelling * * * cursing and raising hell.” He spent ten days in meditation and received a “green slip” extending his sentence 90 days. No hearing was held. When the authorities concluded that Mackman in fact had only sought to break up a fight, they restored good time earlier lost. No hearing was held on the charge, however, at any time. BERNARD R. BOWSER Inmate Bowser, serving a five year sentence, has lost good time without any hearing. The Court is satisfied that Bowser, on being placed in meditation, was cognizant of the reason for it as well as the reason for good time being taken. The Court does find that no hearing, in at least several instances, was held with a view to finding the facts. The same situation exists as to the witness Robert Powell and one Wiley A. Reynolds, another State Farm prisoner who, although he did receive the benefit of one or more hearings, stated the accusing guard was sometimes not present. The Court concludes that the regulations which existed frequently only became clear when one was punished for a violation. WADE EDMOND THOMPSON Wade Edmond Thompson testified concerning discipline in the correctional field units, the state convict road force. At Field Unit No. 27, he was placed in solitary confinement three times. The first time, in March of 1969, a guard complained of his conduct and he was brought before a lieutenant, acting as superintendent. The complaining guard and a state highway employee were present as well. After about a week Thompson was released from “jail”; he learned sometime later that the charge had been insubordination. In August, 1969, Thompson, feeling unwell, requested to see a doctor. Instead he was given the option of working on the road or going to solitary. He chose the latter. In January of 1970, Thompson, having had a series of run-ins with one particular guard, was brought before the Superintendent on the latter’s complaint. The guard stated that Thompson had used profane language; another verified this, and the prisoner was sent to solitary by the Superintendent without an opportunity to state his side of the case. On his request, Thompson was transferred to Unit No. 7 soon thereafter. At that camp, in February of 1970, Thompson and a number of others refused to work when the temperature fell to eleven degrees. Thompson was called into the Superintendent’s office. He told that official that he would not work in such cold weather, as he understood he was not required to do, under applicable regulations. He was ordered to solitary confinement, where he spent twenty-four days, without a disciplinary hearing. Some weeks after his release he learned that he had lost sixty days’ good time. Conditions in "solitary” were extremely crowded; from four to seven men were put in a one-man cell. Thompson later went to Field Unit No. 18, from which he escaped. After trial and conviction for this offense, he was also docked eighty days of good time; no hearing was held. This witness approached the Superintendent of Unit 18 to request another transfer, stating that he had difficulty living under the regulations. As an example, he stated that a guard in the mess hall had once forced another prisoner to eat a raw sweet potato. In response to this complaint, the Superintendent ordered Thompson summarily taken to solitary confinement. While in “jail,” Thompson complained of his plight in a letter to Philip Hirschkop, an attorney. The very day that the letter was mailed, he was given a hearing on his infraction by three guards. The charge was “agitating” the inmate who balked at eating raw food. In fact, Thompson never spoke to the man, nor did he tell anyone save the Superintendent of the incident. This was the only “hearing” that Thompson ever was granted on the issue. STANLEY DOUGLAS POWELL Powell, an inmate of Correctional Field Unit No. 4 for six months prior to trial, stated that he was summarily punished for allegedly cursing a guard. Two days after the offense he was taken aside by that guard, Anderson, and one other; the latter ordered him to strip naked. Lieutenant Anderson thereupon struck him with a nightstick. Powell was taken to a doctor some time later arid his head was stitched up. The same day he was taken before the Superintendent and ordered into solitary confinement. At some point during this episode, Powell wrote his brother about the incident. Anderson, having apparently intercepted the mail, called him in and said that if he made no trouble about the beating he need not go to “jail.” Powell spent eighteen days in solitary confinement; he never had a hearing, nor was he given reasons for his punishment. The guard, Anderson, testified that he struck Powell only after being attacked himself. Cunningham stated, however, that it is the policy throughout the penal system that any man who attacks a guard loses all of his good time. This did not occur in Powell’s case. The Court rejects the account given by Lieutenant Anderson. THOMAS JEFFERSON Jefferson gave an account of a series of run-ins with authorities in various field units. His innocence of misconduct may be and indeed is open to question; nevertheless the procedures followed in imposing sanctions is riot seriously disputed.