Clonce v. Richardson (379 F. Supp. 338, 1974)

MEMORANDUM AND ORDER

JOHN W. OLIVER, District Judge.

I.

The above cases are those remaining from a larger number of cases filed to challenge each prisoner’s transfer and retention in the S.T.A.R.T. program at the Medical Center for Federal Prisoners at Springfield, Missouri. Habeas corpus, federal question, and declaratory judgment jurisdiction are invoked in various of the cases which, by agreement of the parties, were processed on a consolidated basis. Although some of the cases were originally commenced pro se, all of the prisoners were eventually represented by either the Federal Public Defender for this district or by attorneys for The National Prison Project of the American Civil Liberties Union.

This Court has received throughout this litigation exemplary cooperation from all counsel representing the prisoners and from the Bureau of Prisons and counsel representing the Bureau. We therefore express our appreciation to all concerned and commend them for their cooperation with each other and with this Court for their assistance in devising procedures under which these cases were determined.

Pursuant to those procedures, the parties entered into a stipulation of numerous facts and agreed upon particular legal questions which would be presented by motions for partial summary judgment to be filed pursuant to Rule 56 of the Rules of Civil Procedure. It was contemplated that the Court would be able to consider the stipulated factual data, including the voluminous documentary evidence and the expert opinions of court appointed experts, rule all questions of law which did not involve any disputed question of fact, and then enter an order pursuant to Rule 56(d) which would identify what material facts were actually and in good faith controverted so that further proceedings could be directed under which the factual disputes and remaining legal questions could be expeditiously resolved.

As a part of the agreed pretrial procedures, ' counsel agreed to confer and jointly to recommend to the Court for appointment as expert witnesses the most knowledgeable and qualified persons available to examine the S.T.A.R.T. program, interview Medical Center staff and prisoners, and make appropriate reports of their expert opinions to counsel and to the Court. The experts recommended and appointed were Harold L. Cohen, Institute of Behavior Research, Silver Spring, Maryland; Dr. William DeRisi, Camarillo-Neuropsychiatric Institute Research Program, Camarillo, California; and Dr. Nathan Azrin, Anna State Hospital, Anna, Illinois. We are grateful for the services rendered by these experts which we now outline.

The parties agreed on the descriptive materials and data concerning the program and the prisoners involved to be furnished the experts in preparation of their later physical examination of the S.T.A.R.T. facilities and their interviews with Medical Center Staff and prisoners. On November 14, 1973, a further pretrial conference was held in Springfield, Missouri, with counsel and the three court appointed experts in attendance. The experts were explained their duties, furnished an agreed list of questions in writing, and immediately left for the Medical Center to begin their examination of the S.T.A.R.T. facilities and interviews of Staff and prisoners.

The experts’ written reports were filed in the form of answers to the questions which had been submitted to the experts by the parties. In light of developments to be presently stated, it is unnecessary to summarize the reports of the three experts other than to say that one report was generally favorable to the techniques and results of the S.T.A. R.T. program; one was generally unfavorable; and one was generally favorable to the design of behavior modification programs similar to that of S.T.A. R.T. but expressed the firm opinion that all such programs should be voluntary rather than involuntary.

Pursuant to the pretrial procedures outlined, the parties were thus able to have before the Court a great deal of factual data, including the opinions of the three experts whom both sides agreed were competent, qualified, and impartial. Cross motions for summary judgment were filed in accordance with the agreed procedures and briefs were being submitted on an agreed schedule when, on February 11, 1974, the Court was formally advised by Norman A. Carlson, Director of the Bureau of Prisons, that S.T.A.R.T. was to be terminated by March 1, 1974. In that letter, Mr. Carlson stated in part:

As you know, the START program was an attempt to provide a more effective approach for dealing with a small, but highly destructive, group of inmates that are found in any correctional system . . . federal, state or local. For a number of years, we have been aware that the usual approaches in handling such individuals have been totally unsuccessful. In most instances, this group of offenders are housed in long term segregated status, isolated from the remainder of the institution and with no opportunity to participate in the various academic, vocational and recreational programs available.

The primary objective of START was an attempt to work with these offenders to control their behavior so that they could participate in regular institution programs designed to help them make a successful community adjustment when they are eventually released from custody.

At the time the program was initiated, it was anticipated that the population would build up to 30-35 individuals and be maintained at that level. We over estimated the number of individuals meeting the strict criteria of START. When the number of referrals declined to 3 in a 6 month period, it became necessary to reconsider the need for START. This review indicated that there was a disproportionately large investment of manpower and facilities in the program by the Springfield staff.

As we have mentioned, START was a demonstration project during which we were able to try new techniques in working with an extremely difficult group of aggressive offenders. We undoubtedly made mistakes in the program but we also profited from the experience. Taking what we have learned, we are confident that we will be able to improve programs in existing facilities, thereby eliminating the need for the continuation of the unit at Springfield. Based on the insufficient number of inmates now assigned to the START unit and the costs involved, the program will be terminated on or before March 1,1974.

We promptly called upon counsel for suggestions as to what procedural steps should be taken in light of the Bureau’s announcement that S.T.A.R.T. would be terminated and also asked the Bureau to advise the Court as to what it intended to do with the S.T.A.R.T. participants upon the termination of the program. The problem of what should be done with the S.T.A.R.T. participants was solved by the parties’ further agreement that each would be transferred back to his original institution “without prejudice to any suggestion that either side may have in regard to the ultimate disposition of the litigation.” Such action was promptly taken.

The parties were and are in disagreement in regard to what further proceedings should be had in the pending cases. Petitioners contend generally that all questions presented are justiciable and that, in effect, all the procedures originally contemplated should go forward, including, but not limited to, the eventual examination and cross-examination of the expert witnesses in regard to their respective views of behavior modification programs in general and in regard to S.T.A.R.T. in particular. Respondents, on the other hand, contend that the Bureau’s voluntary termination of S.T. A.R.T., under the circumstances above outlined, effectively mooted all questions of law presented by the pending motions for summary judgment and that the case should simply be dismissed.

We do not agree with the position of either side. We believe that while some of the questions presented were mooted by the Bureau’s termination of S.T.A.R.T., all important questions were not mooted and that those questions should and must be decided.

II.

Experience in other prison litigation establishes that it is not unusual for cases involving prisons and jails to take the turn this case has taken. The basic factual circumstances concerning prison conditions and prison procedures are rarely in substantial controversy and if, but only if, the prisoners and the institution are both represented by competent and informed counsel, the problem of establishing the undisputed factual circumstances is no more complicated than that presented in ordinary litigation. Once the factual circumstances are established, experience establishes that it is not infrequent that institutional changes are voluntarily made by the institutional administrators which have the practical effect of mooting many, but not all, of the legal questions presented by the old conditions and procedures.

Glenn v. Wilkinson (W.D.Mo.1970) 309 F.Supp. 411, involving the conditions of confinement of prisoners held under death sentence, is a good example of how changes voluntarily made during the course of litigation mooted many of the questions presented in that litigation. But that case illustrates that changes do not always moot all of the questions involved in a particular case. See also and compare Goldsby v. Carnes (W.D.Mo.1973) 365 F.Supp. 395, in which all parties agreed to a consent decree providing for administrative guidelines and for state court judicial review of administrative decisions for the Jackson County jail at Kansas City.

When we learned that certiorari had been granted in regard to McDonnell v. Wolff (8th Cir. 1973) 483 F.2d 1059, we concluded, in light of the fact all S.T.A.R.T. participants had been returned to their original institutions, to defer final determination of the justiciable questions presented by the pending motions until such questions could be decided in light of the Supreme Court’s opinion in Wolff. The Supreme Court decided that case on June 26, 1974, see Wolff v. McDonnell, - U.S. -, 94 S. Ct. 2963, 41 L.Ed.2d 935 (1974).

Wolff v. McDonnell is peripherally helpful in regard to the mootness question. That case recognized that “the demarcation line between civil rights actions and habeas petitions is not always clear,” directing comparison to the recent cases of Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); and Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971), and concluded that “both actions serve to protect basic constitutional rights.”

While there are quite fundamental differences between civil rights actions and habeas actions by state prisoners, and actions for declaratory judgment and injunction and habeas actions by federal prisoners, we believe that any demarcation line between the two types of cases in regard to the applicability of constitutional standards to particular circumstances is equally dim. Again, the actions maintained by either a state prisoner or a federal prisoner against administrators of a correctional institution both serve to protect basic constitutional rights and principles applicable to any other form of action which raises similar questions of law should be equally applicable to, both state and federal prisoner cases.

Questions of mootness raised by the Bureau of Prisons should therefore be determined by the familiar general standard of whether the problem is “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), most recently quoted and applied in Moore v. Ogilvie, 394 U.S. 814, 816, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969). The gloss of Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L. Ed.2d 917 (1968), which re-examined and redefined standards of mootness in regard to habeas corpus, teaches that the principles applicable to ordinary civil litigation are particularly applicable in habeas cases, independent of declaratory judgment or injunction jurisdiction. Sibron, for example, concluded that “we do not believe that the Constitution contemplates that people deprived of constitutional rights at this level should be left utterly remediless and defenseless against repetitions of unconstitutional conduct.” We are convinced that the mootness standard articulated in a state prisoner habeas case is also applicable to the pending federal prisoner cases.

Application of mootness standards requires consideration of the factual circumstances on a case by case basis. The Director of the Bureau of Prisons stated in his letter of February 11, 1974, that the Bureau intended to profit from the mistakes made in the S. T.A.R.T. program and that the Bureau was “confident that we will be able to improve programs in existing facilities.” Any doubt about the Bureau’s intention to continue various forms of behavior modification programs was eliminated by Mr. Carlson’s statement of February 27, 1974 before the House Committee on the Judiciary, Subcommittee on Courts, Civil Liberties and the Administration of Justice.

Mr. Carlson’s February 27, 1974 statement shows that the Subcommittee had specifically asked him “to comment on the use of ‘behavior modification’ techniques such as the START program at the Medical Center for Federal Prisoners, Springfield, Missouri.” In responding to that request, Mr. Carlson felt that it was necessary to state emphatically and unequivocally that “the Federal Bureau of Prisons never uses and does not countenance the use of psychosurgery, electro-shock, massive use of tranquilizing drugs or any other form of aversive treatment to change behavior, no matter how aggressive or resistive an offender may be.”

Mr. Carlson appropriately pointed out that “the problem in discussing ‘behavior modification’ is that the term is defined in a number of different ways.” He explained that “In its broadest sense, virtually every program in the Bureau of Prisons is designed to change or modify behavior.” With respect to the S.T. A.R.T. program, Mr. Carlson advised the Committee that “The most recent attempt to use ‘behavior modification’ techniques was the START program developed at the Medical Center for Federal Prisoners, Springfield, Missouri, during October, 1972, as a demonstration project.” He explained that “Simply stated, START (Special Treatment and Rehabilitative Training) was an attempt to provide a more effective approach for dealing with those few, but highly aggressive and assaultive, inmates who are found in any correctional institution— federal, state, or local.” Consistent with the advice given this Court, Mr. Carlson stated to the Committee that “While mistakes were undoubtedly made in developing the START program, we believe that the Bureau of Prisons profited from the experience.”

With particular regard to the Bureau of Prisons’ intention to use behavior modification programs similar to S.T.A. R.T., Mr. Carlson advised the Committee that:

We recognize that ‘behavior modification’ does not represent a panacea or cure all for the deficiencies in correctional programming. It is, however, a valuable treatment technique which can be effectively used to motivate some groups of offenders. For this reason, ‘behavior modification’ using positive rewards is an integral part of many of our correctional programs and the Bureau of Prisons will continue to use this technique whenever appropriate. [Emphasis ours.]

Under the circumstances of this particular case, we therefore find and conclude that there is a substantial likelihood that some of the questions presented will recur and that a justiciable issue capable of repetition, yet evading review, does exist which requires a definitive declaratory judgment of this Court under the circumstances. As we will indicate later, we do not believe that all of the questions initially presented need be decided because such questions have been rendered moot by the Bureau’s termination of the S.T.A.R.T. program.

III.

This part of this opinion will state the factual circumstances which exist without substantial controversy within the meaning of Rule 56(d) of the Rules of Civil Procedure and set forth particular material facts stipulated to by the parties.'

The S.T.A.R.T. program was developed by the United States Bureau of Prisons to deal with offenders who have not, in the Bureau’s view, adjusted satisfactorily to life in correctional institutions. It was designed by the Bureau after a study of programs at the State Reformatory for Boys, Yardville, New Jersey, and the Kennedy Youth Center, Morgantown, West Virginia. The Bureau adopted what it considered to be the more successful aspects of those programs in formulating S.T.A.R.T. which was specifically designed for adult offenders who had demonstrated an inability to conform- to institutional standards.

Dr. Albert F. Scheckenback, S.T.A.R. T. program Professional Consultant, described the program as follows in his report of August 17, 1973 [Exhibit #6] :

Project START has been developed for prisoners who have failed to adjust in normal institutional environments. While in this program, they will be confined to an isolated area until they have demonstrated consistently a potential to respond appropriately in a regular institution. Some inmates may never leave the program. Hence, a unit has been developed that will provide for their needs on the unit with movement to other areas of the institution prohibited except in dire emergencies.

A status system is assigned as the initial treatment program for START. The status system involves a number of levels which differ as to their responsibilities and privileges and allow an inmate to work his way through the different levels dependent on the appropriateness of his behavior. As an inmate consistently demonstrates his ability to get along at the current level to which he is assigned, he is rewarded by promotion to a more privileged level. The progressive levels not only reward appropriate behavior but are also an incentive for the inmate to do better. The privileges have been reduced so that a high level of privileges can be attained only if the inmate is returned to population of a regular institution. The START program is based on the theory that appropriate behavior can be strengthened by reward and inappropriate behavior extinguished. Moreover, the use of the team approach in setting goals for each inmate allows for individual programming and increased flexibility of treatment within the rigid status system.

Generally speaking, persons transferred to S.T.A.R.T. were individuals whose repeated aggressive acts within prison had resulted in their continual placement in segregation status. Often the aggressive and destructive behavior of the selected individuals had continued in segregation. In some cases, their behavior resulted in referral to the psychiatric unit at the Medical Center where investigation revealed that the individual was not psychotic. The goal of S.T. A.R.T. was not to develop behavior of an individual so that he would be able to conform his behavior to standards of society at large, but to develop behavior appropriate to confinement in open population of regular penal institutions.

The S.T.A.R.T. program was initiated on September 11, 1972 and continued until its termination by the Bureau of Prisons on March 1, 1974, under the circumstances above stated. During that period 99 individuals were considered for possible placement in the program. Of that number, 26 were determined to be appropriate referrals. Of that number, 19 individuals actually participated in the S.T.A.R.T. program. Seven of the participants had successfully completed the program and had been sent back to the regular institution population. Of the remaining group three were reported to be progressing well, four were resisting the program, three were showing little progress, and one was awaiting trial on charges of taking a correctional officer as hostage.

The functioning of the S.T.A.R.T. program is adequately described in the facts which were stipulated by the parties:

1. S.T.A.R.T. is an involuntary program. Prisoners who are selected for placement in the S.T.A.R.T. program are not notified that they are being considered for placement, not granted an opportunity for a hearing at the time of their selection for such placement, and not provided a forum or procedure to object or express an opposing view to their selection and placement.

2. A prisoner is selected for placement in the S.T.A.R.T. program after a referral by the warden of a federal institution wherein the prisoner is confined in segregation status, to the Office of the Coordinator of Mental Health Services of the Bureau of Prisons. The Coordinator of Mental Health reviews the prisoner’s past history along with other factors as provided under the Policy of Bureau of Prisons, Operations Memo #7300.128. Since May 14, 1973, the Coordinator of Mental Health submits the inmate’s name and history to th