Full opinion text
MEMORANDUM OPINION JOHNSTONE, District Judge. This action is before the Court for judgment following a four week trial, submission of post-trial briefs and oral arguments. Plaintiffs are inmates at the Kentucky Correctional Institution for Women (KCIW). They seek a broad range of relief concerning the conditions of their confinement, disparate treatment of men and women inmates in Kentucky’s prisons, and the denial of opportunities for vocational training and education. This action was filed on October 31,1980 and a class was certified on December 22, 1980 pursuant to Rule 23(a), (b)(1) and (b)(2) of the Federal Rules of Civil Procedure for purposes of declaratory and injunctive relief. Defendants are officials of the Kentucky Department of Corrections with responsibility for operating KCIW. Plaintiffs’ complaint was amended for the second time by motion, made December 23, 1981 and sustained February 22, 1982. The second amended complaint joined the Superintendent of Public Instruction as a defendant, alleging the Department of Education operates vocational education programs for the Department of Corrections in a manner which discriminates against women in violation of Title IX of the Education Amendments of 1972 and Title II of the Vocational Education Amendments of 1976. The Court severed the claims against the Department of Education on April 6, 1982, pending trial of the claims against the Department of Corrections. The United States Department of Justice filed a complaint in intervention on March 11, 1982, alleging discrimination against female inmates in the Kentucky prison system in violation of the equal protection clause of the fourteenth amendment and 20 U.S.C. § 1681. This action is properly maintained as a class action and jurisdiction is proper under 28 U.S.C. §§ 1341, 1343, 1345 and 42 U.S.C. § 2000h-2. Venue is proper under 28 U.S.C. §§ 1391 and 1392. KCIW is a multi-custody prison located on a compound of 276 acres, seven of which are fenced and contain the main institutional buildings. One building, opened in 1938, contains the dormitories, cafeteria, kitchen, infirmary, academic school, institutional offices, admissions and orientation unit, canteen, laundry, special management unit (cellbloek), and law library (PX 55, DX 8). An annex to this building, constructed more recently, houses the vocational education program. In addition to the main building, KCIW has an honor cottage, a chapel, a recreation building called the “Barn”, and a minimum security unit known as “staff house.” The institution was designed to house a maximum of 110 inmates. Its population reached a modern high of 145 in 1976, at which time the state opened a new minimum security institution in northern Kentucky for women to relieve overcrowding at KCIW. That minimum security facility, the Daniel Boone Career Development Center (DBCDC), which usually housed around thirty women, (DX 22, p. 5), was closed in September, 1981 for budgetary reasons. The prisoners at DBCDC were all transferred back to KCIW. Thus KCIW houses all minimum, medium and maximum security female offenders in Kentucky. Most inmates at KCIW (63%) are between 18 and 30 years old. The median education level is tenth grade. About two-thirds of the inmates come from broken homes and almost three-quarters were responsible for at least one dependent child before incarceration. All but a handful were the sole or primary support for at least one dependent. A large majority (74%) of KCIW inmates were being incarcerated for the first time. Property crimes of theft, fraud and forgery comprise nearly half of all convictions. Murder and manslaughter are the next most frequent crimes, followed by drug related offenses. (See Peachee, “A Description of Female Offenders at KCIW,” PX 5). KCIW has operated since 1977 under a Levels System in which all institutional privileges are allocated on the basis of behavior and seniority. This system is all encompassing and is at the heart of plaintiffs' allegations of sex-based disparities in conditions of confinement. The Court has divided the case into three main parts: the Levels System, vocational education and training, and general conditions of confinement. Issues concerning the classification procedures used at KCIW overlap into each of these areas, but some aspects of the classification system will be addressed separately. Although the findings and conclusions which follow dictate that substantial changes must be made at KCIW, this should not be taken as an adverse reflection on Superintendent Kassulke, Associate Superintendent Chandler or the other highly committed staff people at the institution. Officials at KCIW, contrary to the case in so many conditions of confinement lawsuits, have exhibited great dedication to their jobs and genuine concern for the welfare of the inmates in their charge. The Court respects the efforts of these officials in a difficult job. I FINDINGS OF FACT A. THE LEVELS SYSTEM 1. History and Purpose The Levels System is a behavior modification program which regulates virtually every dimension of each inmate’s life at KCIW. It controls visitation, phone calls, receipt of packages, bedtime, personal belongings, clothing, cosmetics, television viewing, recreation, bedding, and many other facets of daily existence. (See Plaintiffs’ Exhibit # 122, Incentive Levels, 5th revision). Each prisoner, upon admission to KCIW, is placed on Level 1, the status of all new inmates and inmates “who have normal privileges restricted.” (PX 122, p. 5). Level 1 inmates are restricted to two one hour visits per week, and one five minute telephone call per month. They are denied access to the lounge and must be at their beds by 9:00 PM and in bed by 9:30. They cannot wear their own clothes, possess a hairdryer, display pictures of loved ones, or decorate their living areas. (PX 122). These restrictions on normal privileges are gradually lifted as an inmate progresses through the system. A minimum amount of time must be spent on each level before promotion. The inmate must complete at least 30 days on Level 1, 60 days on Level 2, and 120 days each for Levels 3 and 4. There is a monthly review for all Level 5 inmates. Many inmates, solely because they are admitted after the third day of the month, when the Levels Committee meets, must spend up to 59 or 60 days on Level 1. (Testimony of Elizabeth Chandler, Assoc. Supt.). The average length of incarceration at KCIW is between eleven and thirteen months (DX 7). Most inmates, therefore, are not at the institution long enough to go beyond Level 3. (Chandler Testimony). Indeed, eighty (80) of the one hundred thirty (130) women who live in the main building were on Levels 1 and 2 at the time of the trial. (PX 2). Inmates, to advance in the system, must avoid disciplinary infractions and meet certain minimum levels of performance in designated areas for which the correctional staff evaluates each prisoner. The areas of evaluation are work assignment, program participation, house cleaning and “4 to 12” (conduct during free time). (PX 135). The evaluations are based on the subjective judgment of the staff, but testimony established that in over 99% of all cases, the evaluations yield a score high enough to ensure promotion (Testimony of Elizabeth Chandler, Assoc. Supt.). As a practical matter, therefore, the evaluations are pro forma and one’s ability to progress through the system is dependent on a single, overriding factor: the ability to avoid disciplinary write-ups. (See plaintiff’s cross-examination of Elizabeth Chandler, May 10, 1982). The stated goal of the Levels System is “to promote personal growth, a positive attitude and socially acceptable behavior.” (PX 122). The Court finds that the system in actual operation, however, “probably does just the opposite,” as Shirley Goins, plaintiffs’ expert in corrections and the female offender, testified. Though the system purports to emphasize “positive reinforcements rather than punishment as a means of controlling behavior” (PX 122), in reality “it is primarily a punishment oriented system.” (Testimony of Dr. Michael Nietzel, plaintiffs’ expert in behavior modification). Dr. Michael Milan, professor of community psychology at Georgia State University, testified that, contrary to its stated goal, the system operates as if “intentionally designed to cause psychological and emotional damage.” To understand why, the evolution of the system must be examined. KCIW began to receive a new type of offender in the early 1970s. The staff, for the first time, was confronted with a group of inmates who were institutionally sophisticated, disruptive, and potentially dangerous. This posed special problems at KCIW, a small institution with open dormitory style living areas which housed all categories of offenders, from a wide variety of backgrounds. (Testimony of Betty Kassulke, Supt.). A series of incidents from 1972 to 1976 convinced Superintendent Kassulke that the institution “was out of control.” The monthly incident reports from the periods in question, (PX 181-83), show that this reaction was probably exaggerated. There were no assaults on guards, no riots, no stabbings, and a number of violent incidents which was not disproportionally high. There is no question, however, that a small number of inmates in this period presented a serious behavior problem. According to Superintendent Kassulke, the number of prisoners who caused most of the disruption was never more than six to eight. The composition of the inmate population has changed dramatically since the period from 1972 to 1976 when this disruption was a problem. In 1977 when the Levels System was first imposed and shortly after the institution was characterized as being “out of control,” over 50% of the population had served time before. (PX 5). Yet, even during that period, only a handful of inmates caused most of the disruption. In contrast, by 1980, 74% of the KCIW population was incarcerated for the first time. The lack of institutional sophistication in the more recent period is illustrated in Table 8 of PX 5. For example, in 1980, all of the inmates serving time for serious crimes such as arson, robbery and assault, were being incarcerated for the first time. Over 90% of KCIW drug offenders in 1980 had no prior incarcerations. KCIW has thus developed the most harsh system of allocating privileges in the entire Kentucky penal system in order to deal with problems posed by institutionally sophisticated inmates, during a period when defendants’ own research shows KCIW has become predominately an institution for first offenders. There was no modern, objective system of classification in effect at KCIW during this early period of institutional turmoil. Inmates were not evaluated for purposes of security, custody and treatment on the basis of standard criteria for determining their ability and willingness to adjust to prison life. Thus the street-wise and the unsophisticated were indiscriminately mixed. The resulting problems of institutional management were addressed not through isolation of the few troublemakers or adoption of a modern, objective classification system, but rather through imposition on the entire population of a mandatory system of behavior modification. The Levels System was voluntary at its inception, but soon participation became required. It was designed by staff members with no training in behavior modification. It has never been tested for validity or reliability. Prior to this lawsuit, it had never been evaluated by a psychologist or psychiatrist professionally qualified to judge its effect on the prisoners. (See Kassulke Deposition, January 18, 1982, pp. 79-107). None of the prisons in which men are incarcerated have a levels system that is comparable to the one at KCIW in scope or application. Neither Kentucky State Reformatory (KSR), the medium security male prison, nor Kentucky State Penitentiary (KSP), the maximum security institution for males, has a levels system. (Rees and Parke Testimony). Blackburn Correctional Complex, a minimum security institution for males, has the most highly developed levels system for males. The system at Blackburn is used to award only a few special privileges such as off-the-complex recreation and furloughs. (Kavanaugh Testimony). The system at Blackburn has no application to such daily activities as bed time, phone calls, access to dayrooms, decoration of living areas, wearing of personal clothes, visitation, use of cosmetics or jewelry, participation in group activities and other areas governed by the Levels System at KCIW. In other words, no male inmate is subjected to a system which restricts the exercise of “normal” privileges. (See PX 122, p. 5). In this context, the Court’s definition of a “normal” privilege is any privilege which can be regularly exercised by all inmates without compromising any valid purpose of the institution (e.g., security and safety). This definition thus includes all privileges routinely accorded male inmates in Kentucky’s male prisons. 2. Impact on Classification The Levels System served as the only classification system at KCIW from its initial adoption in May, 1977 until April, 1981, some six months after the filing of this lawsuit. At that time the Bureau of Corrections adopted a system wide classification program as a result of class action suits over conditions of confinement in the men’s maximum and medium security institutions (Kendrick v. Bland, W.D.Ky., 541 F.Supp. 21, and Thompson v. Bland, C.A. 79-0092—P, W.D.Ky.). Thus, until recently even the most non-violent first offender was classified as a maximum security prisoner while she was on Level 1, and the same non-violent first offender would not be eligible for minimum security status until reaching Level 4 (See PX 144, Incentive Levels, 4th revision). The classification process was, in theory, split from the Levels System in April, 1981 (Defendants’ Exhibit 3). The Levels System in practice, however, is still hopelessly intertwined with classification. The Court agrees with the assessment of Dr. Brad Fisher, primary author of the National Institute of Corrections’ Model Classification System, the system upon which Kentucky’s new classification process is based. Dr. Fisher found that the Levels System “totally confuses” the classification process. For example, a basic classification decision is eligibility for furloughs. According to PX 122 and the Resident-Staff Handbook (PX 55, pp. 37-38) even an undoubted minimum security prisoner (e.g., a first offender with no history of violence, drug abuse or other objective problems) is ineligible for a furlough until she reaches Level 3. Disciplinary reports over non-violent, minor offenses (e.g., talking too loud) can result in the loss of meritorious good time and other punishments under the Levels System, which interfere with custodial decisions that should be made on the basis of security risk assessment and objective criteria. (See e.g., PX 137). Proper classification brings objectivity and certainty to the penal system. Through the classification process, inmates are told what society expects from them to earn the right to re-enter the community. Each inmate is given a timetable for progression through the penal system. See IMD 721.02. (Corrections Cabinet Internal Management Directives, Joint Exhibit 8). This classification system, however, is virtually superfluous to female inmates at KCIW due to the superimposition of the Levels System over so many facets of daily existence. The Levels System is a complicated program which rigidly governs such elementary decisions as when to go to bed and even the ability of a mother to display a picture of her child. It is not surprising, then, that female inmates are vitally concerned with their level, and generally unaware of their classification. (See e.g., Testimony of Patty Lettelier). The Court finds that this institutional preoccupation with the Levels System fenders the classification system impotent to meet its goal of treating each inmate objectively in an effort to achieve re-integration into society. Although Steven Kaiser, Director of Classification for the Department, testified that he saw no conflict between the Levels System and the classification program, the Court is persuaded by the testimony of Dr. Fisher, Mr. Sielaff, and Ms. Goins that the Levels System overlaps with and conflicts with classification. As Dr. Fisher testified, the classification system at KCIW “isn’t getting out of the starting, blocks” due to the Levels System, which operates in a subjective and unpredictable manner. The Court finds that the objective classification program recently adopted by the Department, to benefit all inmates, is ineffective for female inmates because the Levels System preoccupies the interest of both inmates and staff at KCIW. 3. Operation of the System: Punitive Restrictions, Sex-based Disparities and Correctional Goals The Levels System is confusing to inmates because a single disciplinary write-up can affect a prisoner in several different ways. It has one effect in terms of punishment (e.g., segregation, extra duty, loss of good time), another in terms of levels (loss of privileges), and still another in terms of classification (e.g., eligibility for community programs). (See Testimony of Dr. Fisher). This confusion is exacerbated by the constant changes which occur in the rules governing Levels System. The operative document governing implementation of the Levels System is PX 122, the fifth formal revision of the program in its five years of operation. According to PX 122, Level 3 inmates are ineligible for furloughs, Level 2 inmates are ineligible for any trips, only Level 4 and 5 inmates are eligible to live in staff house (the minimum security unit), a prisoner cannot receive meritorious good time until she reaches Level 4, all extra duty must be complete before promotion to a new level, and eligibility for incentive visits begins at Level 4. Yet all these policies changed in the six months since PX 122 went into effect in November, 1981. (See Testimony of Elizabeth Chandler, Assoc. Supt., and Christine Loving, Director of Admissions and Orientation). None of these changes have ever been put in writing, nor has the general population ever been informed of them. Lack of certainty about what the rules are undermines any positive effect of this form of behavior modification system. The experts all agreed on one point: Certainty about expectations is a vital element of behavior modification. The expectations and rules of the Levels System are hopelessly muddled, confusing and constantly changing. The uncertainty and subjectivity which pervade the system thus undermine the values the system was intended to promote. This problem is intensified by the nature of the “privileges” which are parceled out by progression through the system. Most of these “privileges” are things which are available as a matter of course, and in some instances as a matter of right, at all male institutions in the Kentucky penal system. (See Plaintiffs’ cross-examination of Wardens A1 Parke, John Rees, William Seabold, Paul Kavanaugh, and Michael O’Dea and Testimony of Inmate Mike Bolton). For instance, over fifty per cent of the women inmates at KCIW are not allowed to display pictures of family and loved ones because they are below Level 3. The thirty inmates on Level 1 must be at their bed by 9:00 P.M. and in bed by 9:30; they must wear a drab, shapeless “state dress” that even prison administrators concede is “demeaning.” (Kassulke and Chandler Testimony). The use of dormitory dayrooms is governed by levels, and only those women (less than half the population) on Level 3 or above may use the dayroom until the usual 11:00 P.M. closing time. None of these restrictions are imposed on male inmates. All male inmates have virtually unrestricted access to phone calls during free time; at KCIW most women inmates are allowed no more than 15 minutes per month for phone calls. A male prisoner in disciplinary segregation at KSP, the male maximum security institution, is allowed more visitation than a model female prisoner at KCIW on Level 2. All male general population inmates have at least twice as much visitation as a Level 5 female inmate at KCIW. As defendants’ own document puts it, the Levels System entails substantial restrictions on “normal privileges.” (PX 122, p. 5). Though rehabilitation is “a primary thrust” of the Levels System (Chandler Testimony), there is little doubt that the system is counter-rehabilitative. As Allyn R. Sielaff, former chief corrections official in Wisconsin, Illinois and Pennsylvania, testified, the Levels System teaches the women to be docile and childlike rather than preparing them to return to society. Shirley Goins, a former corrections administrator in Illinois who has worked extensively with female offenders, convincingly explained how an inmate can be completely successful in the Levels System (achieving and maintaining Level 5) without developing any skills needed for reintegration into society. The system instead creates a virtual caste system which promotes negative manipulation, fosters jealousy and produces anxiety, tension and frustration. (Goins Testimony; see also Nietzel, Milan and Baxter Testimony). This problem is intensified since women on Level 5 live side by side Level 1 and 2 women in crowded open dormitories. The system is fundamentally punitive in nature. This becomes evident when its individual components are examined. The testimony established that even the correctional staff who designed the system could not explain the penological justification for its components. By way of illustration, no correctional justification could be given for restricting, new inmates to one five minute phone call per month, requiring new inmates to get staff approval before attending religious services other than on Sunday, restrictions on visitation, prohibiting women below Level 3 from displaying pictures, or requiring Level 3 status for possession of blow-dryers or. electric razors. (See Testimony of Christine Loving, Director of Admissions & Orientation). The hierarchy of restrictions on visitation and phone calls is particularly noteworthy. As John Rees, Superintendent of Kentucky State Reformatory, testified, visits and phone calls are “the most important things an inmate can have.” Superintendent Rees explained how increased phone calls and visitation were now generally accepted in the correctional field and how this change in philosophy has benefited the institutions by reducing tension and anxiety among prisoners. Shirley Goins explained why phone calls and visits were most important in the initial period of incarceration and how they enhance both security and reintegration skills. Yet the Levels System restricts phone calls and visits most severely in the initial period and denies female inmates at KCIW the benefits described by Superintendent Rees and Ms. Goins. The Levels System restrictions on visitation, moreover, are in direct conflict with IMD 403.04, which states in part “[vjisiting limitations and restrictive length of visits will be only to avoid overcrowding.” (Joint Exhibit 8). Although the Director of Admissions & Orientation testified that requiring Level 1 inmates to wear “state dresses” was her idea, she was unable to articulate any purpose for this requirement. Associate. Superintendent Chandler testified that the state dress requirement was a “form of hazing. The Court is persuaded by the evidence that the same can be said of most of the restrictions of the Levels System. The lack of correctional justification for these measures renders the system punitive and artificial. Because mediocre performance is rewarded equally with outstanding performance and because so many basic aspects of daily life are arbitrarily labeled “privileges”, the system breeds disrespect for authority and fosters a “malicious compliance” which undermines the relational skills needed for rehabilitation. (Goins Testimony). As previously discussed, the system-was originally implemented to deal with problems of institutional control and security caused by a small number of incorrigible inmates. The imposition of the Levels System on the entire population in order to deal with problems attributable to only a few individuals proved to be an exaggerated response, which has been counter-productive in terms of the behavior of the average inmate. The system became mandatory in October, 1977. The number of incident reports per inmate averaged between two and three per year from 1974-78. In the next two years, there was a steady and dramatic increase to an average of over six incident reports per year per inmate in 1980. (PX 152). Thus, the system has had the opposite of its intended effect as a mechanism for managing the institution. The sharp rise in incident reports corresponds precisely to the period when the population was dramatically changing from institutionally sophisticated to very unsophisticated. This indicates to the Court that the system has had no effect on the behavior of hardened career criminals who are adept at manipulating the system. Those incarcerated for the first time, on the other hand, have difficulty adapting to this arbitrary system of allocation of privileges and have responded with behavior that has resulted in the dramatic increase in write-ups. This conclusion is bolstered by the fact that the sharp increase in write-ups occurred almost exclusively in non-violent incidents (PX 154), the type of incidents in which first offenders are most frequently involved (Table 9, PX 5). The prison officials who testified did not seek to justify the system on security grounds. Indeed, the Director of Admissions & Orientation, who helped design the system and teaches it to all new inmates, expressly testified that the system was not a security measure. This comports with the evaluation of Professor Sielaff, who, based on his experience as a corrections administrator in three states, testified that the system serves no security purpose. (See also Goins Testimony). In view of the lack of correctional purpose for the individual elements of the Levels System, the absence of an over-all security related purpose, and the adverse impact on rehabilitation and the classification process, the Court must conclude that the Levels System is primarily a punitive system of behavior modification. 4. Adverse Impact on Plaintiff Class Dr. Michael Nietzel, professor of psychology at the University of Kentucky and a specialist in behavior modification theory, explained how a punitive behavior modification system produces the following side effects: 1) fear and tension anxiety (resulting in sleep disturbance and depression); 2) learned helplessness (apathy, loss of will to change); 3) aggression (anger, jealousy, friction); and 4) underground behavior (complying with rules while authorities are present, then undermining the system when unobserved). The testimony of the inmates presented credible evidence that these side effects are indeed experienced by prisoners at KCIW. Dr. Nietzel also noted another factor which the Court finds significant: on virtually every other aspect of life at KCIW there was a marked difference of opinion among inmates. Many inmates testified that various programs or jobs or staff members were good. But there was a unanimous and deeply felt belief that the Levels System is oppressive and unfair. The Court finds that this system of artificial punishment and rewards, in which inmates become the objects of an institutional stimulus/response experiment, blocks reintegration into society by requiring dependence on the system for many basic elements of self-identity. The artificial “rewards” of the institution become the focus of existence. Thus, as Dr. Baxter, a University of Texas psychiatrist and expert in systems behavior, testified, the system tends to demoralize the inmates, producing depression and childlike responses. The impact of the system on the mental and emotional state of the inmates is evidenced by the fact that, at any given time, from one-third to one-half of the population at KCIW is under prescription for some form of mood-altering medication. (Defendants’ Exhibit 116, Testimony of Dr. Milan, Dr. Starrett). The widespread prescription of psychotropic drugs is a tangible indicator of the effect of the Levels System. Neither plaintiffs nor defendants contend that these drugs are being improperly or over-prescribed. Yet, as Dr. Milan testified, it is unusual for more than 10-15% of the population to be under this kind of medication in similar penal institutions, even when the physical conditions are inferior to those at KCIW. Indeed, a report prepared by defendants’ own research department shows that 60% of the women at KCIW were “in the high range of the stress scale.” (PX 6). Thus, the Court concludes that the high level of stress and widespread need for psychotropic drugs reflects problems unique to this institution and the behavior modification system under which it operates. The Court is convinced by the testimony of Doctors Baxter, Milan and Nietzel and the testimony of the inmates themselves, that the system is poorly designed, punitive and has unhealthy side effects. But whether the harm inflicted by the Levels System results in measurable and lasting psychological injury is a question that this Court simply cannot answer. There are too many human variables, not susceptible to precise measurement, involved for the Court to make a factual finding on this important question. As Dr. Robert Granacher, defendants’ psychiatric consultant, pointed out, there are a host of factors which contribute to the mental and emotional health of each individual inmate. Many of these factors are unrelated to conditions of confinement, and are rooted in experiences dating back to early childhood. Dr. Granacher noted that the fact of incarceration is stressful to begin with. According to Dr. Granacher, the adverse consequences of the system’s potential for creating stress and teaching learned helplessness are avoided because the system has an “escape” mechanism: each inmate, through good behavior, can progress through the system (no one is locked into a low level where stress is high). Dr. Granacher testified that certainty about rules and expectations actually reduces stress. This testimony overlooks two factors which were demonstrated beyond doubt at trial. First, the stress and other adverse psychological impact of the system demonstrated by plaintiffs are not related to any single deprivation or any single level of the system. The adverse consequences flow from the fact that inmates are in constant fear that even the most basic “privileges” (e.g., wearing one’s own clothes or going to bed after 9:30), which have taken months to build up, can be withdrawn in an instant due to a single, isolated act of misbehavior. (See e.g., Testimony of Betty Jane Starks, President of the KCIW, Resident Liason Council, Mary Katherine Shadrick, and Brenda Griffett). This apprehension is increased by the knowledge that a relatively minor act of misconduct can result in the loss of levels. (See PX 137). In the words of one inmate, “it scares me to death” that an isolated human error could result in the loss for months of “privileges” which in reality are routine aspects of daily life. (Griffett Testimony). Second, there simply is no certainty about the rules and expectations of this system. No one, including the staff, knew exactly what the rules are. Dr. Granacher was unaware of the extent to which uncertainty pervades the system, but he candidly conceded that if major inconsistencies and uncertainties existed, the operation of the system would be undermined. Nevertheless, Dr. Granacher concluded that “it cannot be determined” if plaintiffs have suffered psychological harm as a result of the Levels System. Similarly, Dr. Granacher concluded from the results of mental status examinations conducted on the named plaintiffs, that there was no way to tell if their psychological problems were related to the Levels System or were solely attributable to unrelated or pre-existing psychological conditions. Defendants also offered results of thirty Minnesota Multiphasic Personality Inventory (MMPI) tests given to members of the plaintiff class to show the absence of psychological harm. Defendants contend that if indeed the Levels System inflicts psychological injury, the harm would be reflected in the test results. The MMPI is designed to measure personality traits, not to measure the psychological impact of an experience or a system. (Testimony of Dr. Curtis Barrett, professor of psychiatry and behavior sciences, University of Louisville). Serious questions exist about the methodology employed in selecting the inmates who were tested and in the administration of the tests (See plaintiffs’ cross-examination of Dr. David Roebker, and Testimony of Dr. Curtis Barrett). Without addressing those questions, and taking the test results (DX 97) at face value, the Court is unable to draw any conclusions whatsoever about the psychological impact of the Levels System from the results of these tests. Courts are not the best forum for testing the validity of scientific theories, but Courts are well equipped to determine if a system is punitive. Much of the evidence at trial concerned psychological and psychiatric effects of the Levels System. The Court finds the testimony of Dr. Nietzal, Dr. Milan and Dr. Baxter persuasive in demonstrating the punitive and harmful effect of the Levels System. The testimony of Dr. Granacher, however, showed how difficult it is to measure the psychological impact of this system on any individual in a way that is scientifically verifiable. This Court finds that the Levels System has a harmful impact on the plaintiff class which is attributable to the punitive and arbitrary nature of the system. This harmful impact is evidenced by unusually high levels of stress, tension and sleep disturbances, and by the widespread reliance on psychotropic drugs. These indicators of harm may or may not demonstrate psychological harm to experts in the field, but they prove to the satisfaction of the Court that the system does not achieve its stated goal of “promoting personal growth, a positive attitude and socially acceptable behavior.” (PX 122). They demonstrate not only the absence of a positive impact, but the presence of a negative effect. It is not for this Court to decide if the system’s negative impact can be clinically diagnosed or if it is properly classified as psychological injury. The Court, however, must decide whether the system is punitive, and the indicators of harm described above bolster the Court’s conclusion that the system is fundamentally punitive. The Court, in summary, is convinced that the Levels System is harmful to the plaintiff class. It is punitive and unsupported by any valid correctional goal. It alters conditions of confinement in a way qualitatively different from punishment to which persons convicted of crimes are normally subjected. It undermines the ability of inmates to acquire the relational skills needed to achieve rehabilitation and re-integration into society. Whether the harm inflicted results in measurable and lasting psychological injury is uncertain. But there is no question that the system has a detrimental effect on the plaintiff class members while they experience it. The system results in massive disparities within Kentucky’s penal system between male and female prisoners in the availability of privileges and the opportunity to fulfill basic human needs. These pervasive disparities exist without state purpose or penological justification to support them. B. VOCATIONAL EDUCATION, TRAINING AND JOBS The Corrections Cabinet offers vocational education and training programs to prisoners in order to facilitate their re-integration into society. These programs fall into four general areas: vocational school courses within the institutions, prison industries and farms, on-the-job training (OJT), and community based programs. Because all women offenders are classified to KCIW on the basis of gender, they are denied access to many vocational education and training programs which are available to male prisoners. Of the programs which are available to females at KCIW, many are inferior in quality to the corresponding programs at the male institutions. The vocational school courses are operated by the Department of Education’s Bureau of Vocational Education, under an agreement with the Corrections Cabinet. (PX 42). Prisoners are enrolled as students in vocational schools inside the prison walls in this joint Education/Corrections program. (Spillman Testimony). Prison industries provide prisoners with the chance to work in an environment similar to that of private industry on the outside. Inmates manufacture products such as soap, furniture and license plates, for use by other units of government. See K.R.S. 197.200, et seq. Emphasis on worker productivity and operating within a budget make this the closest thing to “real world” work in a prison. (Lawson Testimony). OJT, as the name implies, is designed to teach skills through on the job experience. Inmates carry out institutional janitorial and kitchen duties and are trained to perform the basic tasks of institutional maintenance (e.g., plumbing, electrical and masonry work) necessary to keep the extensive physical plants of the institutions in working order. (Shirley, Campbell, Johnson Testimony). Community programs include employment with government agencies, vocational study release (attending outside vocational school while residing in half-way houses), and a gradual release program for inmates who are closely approaching parole or who have met parole guidelines but need a job or placement before release. (Kassulke, Shirley and Lowry Testimony). Defendants, in their own internal policy statements, advance vocational education and training as the preeminent goal of the institution. The KCIW philosophy statement reflects this commitment: “The Kentucky Correctional Institution for Women’s primary program thrust is that of preparing women to return to the community as employable citizens.” (PX 19, Chap. Ill, p. 2). There is a wide gap, however, between this statement of philosophy and the practical reality of inferior vocational programing at KCIW. 1. Vocational School Courses Within the Institutions KCIW has only two vocational course offerings for female inmates: business office education (BOE) and upholstery. (PX 23). At the time of the trial, one of these, upholstery, was closed because the teacher quit and a replacement had not been hired. The courses are of limited value in today’s competitive job market due to the absence of modern equipment. The BOE course has. no word processing component and the upholstery course had no commercial scale equipment and only one operational sewing machine. (Lawson, Turner and Sielaff Testimony). These courses for women, moreover, are offered only part-time basis, while the vocational courses at the men’s prisons are full-time. Part-time courses are less effective than full-time courses in vocational education due to the importance of combining instruction with production. (Lawson and Spillman Testimony). Defendants maintained the part-time courses allowed greater flexibility, enabling women to work toward completion of their general education development (GED) course while receiving vocational training at the same time. (Kassulke Testimony). This opportunity for diversity may be desirable in some settings. It seems questionable, however, at KCIW, where only two vocational courses are offered, one of which (BOE) requires as a prerequisite significant skills in spelling and grammar. The BOE course in the morning is not very helpful to an inmate who has yet to complete the GED course in the afternoon because she must learn to read and spell before she can type and perform other business office skills. (See Karen McAuliffe Testimony). Similar problems plague the upholstery course. Apart from the difficulty of keeping a teacher employed, the lack of up-to-date equipment makes it difficult to learn skills which can lead to a job. (Testimony of Alice Turner, Director of Blitz House). Since only one woman could operate the single sewing machine at a time, the primary focus of the class was domestic, not commercial, upholstery. Lack of equipment inhibits the learning process (Spillman Testimony) and there is unrebutted testimony that lack of supervision led to a great deal of idleness while the program was in operation (Martinez and Marshall Testimony). The BOE course prepares women who complete it successfully for jobs with an average salary of $11,481, according to the U. S. Department of Labor’s Bureau of Labor Statistics. For women who complete the upholstery course, and find a job in that area in spite of the lack of training in commercial skills, the average salary was $12,212 in 1981. (PX 161, Denison Testimony). By way of contrast, men are offered training in fourteen different trades, with average annual earnings ranging from a low of $12,212 for upholsterers to a high of $20,216 for pipefitters. The average annual salary for trades in which men can receive vocational training is $16,726.21. For women, the average is $11,846.50. (PX 161). There are 81 jobs in the U. S. Labor Department’s Dictionary of Occupational Titles (DOT) for which men at Kentucky State Reformatory (KSR) are trained. At Kentucky State Penitentiary (KSP), men can receive training for 47 DOT job listings. There are only 17 job titles in DOT for which women at KCIW receive training. (PX 23).- Defendants made no attempt to show that the quality of the vocational courses at KCIW is comparable to the quality of the courses at KSR and KSP. Rather, their defense has been that the percentage of inmates enrolled in the courses at KCIW is comparable to or perhaps higher than the percentage of inmates enrolled at the men’s institutions. (DX 148, Defendants’ Post-trial Brief, pp. 7-9). A comparison of raw numbers in this area can be misleading. Close to 30% of the inmates at KCIW were enrolled in the part-time courses; at Blackburn Correctional Center, almost 26% of the inmates were enrolled in full-time vocational courses; 10% of KSR’s inmates are in vocational school full-time; KSP has an 8.1% full-time enrollment. (DX 22). KSR and KSP operate full-time prison industries which employ a high percentage of male inmates (20% at KSP, 10% at KSR, (Parke and Rees Testimony). Male inmates at KSR, KSP, and BCC are also employed in significant numbers in full-time on-the-job training programs in skilled trades. (PX 11, p. 2 and Attachment 5, PX 19). Thus the percentage of inmates receiving the equivalent of full-time vocational training is substantially higher at all male institutions with in-house vocational courses than at KCIW. Indeed, the percentage of male inmates in institutions with in-house vocational courses who get full-time vocational training is higher than the percentage of KCIW inmates enrolled in the halftime courses of inferior quality. Another factor concerning the vocational school courses offered within the institutions deserves comment. Warden Parke and Warden Rees testified that there were serious problems at KSP and KSR in keeping enrollment in the vocational courses full. The problem is particularly bad at KSR due to the high turnover in population necessary to keep the inmate count within the limits agreed to in the Thompson litigation. (Rees Testimony). Lack of interest and motivation, in addition to the turnover problem, have resulted in an average of 20-30 vacancies in vocational courses at KSR (Rees, Campbell Testimony). KSR has had to assign recruiting duties to a staff person in order to increase enrollment (Campbell Testimony), while approximately 15 miles away at KCIW, women who are highly motivated and have exhibited a strong interest in these courses, are unable to receive similar instruction. Thus, vocational courses are available to many men at KSR who have no interest in them, and unavailable to female inmates at KCIW who want and need the training. The in-house vocational school programs are federally funded under the Vocational Education Act of 1976, 20 U.S.C. 2301 et seq. This funding comes through the Bureau of Vocational Education and is matched on a dollar-for-dollar basis with funds appropriated to the Corrections Cabinet by the Kentucky General Assembly. (PX 23). The vocational classes offered within the prisons operate as extension centers of the Bureau of Vocational Education’s Area Schools. KCIW and KSR are extensions of the same area school and report to the same Regional Director in the Bureau of Vocational Education. (PX 23). The state has received federal money for prisoners’ vocational training as part of a program in which the Department of Education made the express assurance to the United States that it would: encourage and promote the enrollment of both men and women in all programs and courses supported under the Act and managed by the state Board and eligible recipients. Annual Program Plan for 1982 and Accountability Report for 1980, Ky. Department of Education, Bureau of Vocational Education, PX 170, at X (first excerpted page). The projected federal contribution under this program for 1982 is $422,850 (See PX 170, Table 9b). The amount was $348,049 in 1981 (PX 168, Table 10) and $338,506 in 1980 (PX 170, Table 13). The Cooperative Agreement under which the joint Corrections/Education vocational program operates (PX 42) contains no restrictions which would prevent the enrollment of women in courses at KSR. Dr. Robert Spillman, the Department of Education’s Assistant Superintendent for Vocational Education, testified that the better educational practice is to operate co-ed programs, but that the vocational courses operated inside prisons remained segregated by gender because of the internal policy of the Corrections Cabinet. Concern was expressed over possible security problems which could arise if KCIW inmates were allowed to take courses at nearby KSR. (Rees Testimony). The record shows that men from the West Kentucky Farm Center are bussed to nearby KSP, however, in spite of those same security concerns, for the purpose of taking vocational courses. (Parke Testimony). To the extent the security concerns differ because of the gender of KCIW inmates, the record shows female inmates have successfully completed paralegal training in a co-correctional class without incident, (McAuliffe, Jarvis Testimony), although additional security was provided. (Kassulke Testimony). Females have been employed as guards on a widespread basis at KSR, without any remarkable problems. (Rees Testimony). The vocational courses at KSR have a low student-teacher ratio and are closely supervised. (Campbell Testimony). The internal policy of the Department of Corrections prohibiting co-correctional programs sharply limits the availability and quality of vocational education at KCIW. According to Dr. Spillman, a witness called by defendants, “It’s almost futile to start a non-traditional program for women” unless the program is integrated by gender. Nontraditional job training, defined by Dr. Spillman as courses offering preparation for jobs in which 80% of the workers are of the same sex, includes most courses which could prepare inmates for jobs in skilled trades with high wages. 2. Prison Industries The most effective way of teaching marketable skills to inmates is through use of a prison industry program. (Testimony of Robert Lawson, former Director of Industries, California Department of Corrections). Prison industries are run like a business, to the greatest possible extent. Inmate workers are placed in a work environment closely approximating real world conditions. This facilitates development of job skills, inculcates work habits such as punctuality and dependability, and promotes realistic expectations about employment that are necessary to get and keep a job. Inmate workers are held accountable for the quality of their work and held to a standard of productivity. This is a particularly valuable program for inmates who lack job experience. As defendants’ research points out, “it is evident that Kentucky’s offenders are deficient in vocational training and job readiness skills,” (See A Description of Classification and Program needs of Kentucky Offenders, PX 6), the precise skills promoted by the prison industries program. The need for job readiness skills is particularly evident among female offenders. Table 9 of PX 6 shows that 44% of all female offenders in Kentucky have never held a job as long as one year, as compared to 37% for males. Of the inmates at KCIW, 69% were unemployed or had been working three months or less at the time of their arrest, as compared to 52% for males. The need for skills promoted by prison industries therefore appears more acute for female offenders. Yet not a single prison industry is operated at KCIW, or is otherwise available to women inmates. KSP, KSR and Luther Luckett, on the other hand, all have prison industries programs for male offenders. KSP has a population of about 900, with 15-20% in segregation, protective custody or otherwise unavailable for employment in prison industries. (Parke Testimony). The Garment Plant at KSP employs between 75 and 105 inmates producing shirts, pants, underclothes, jackets, mattresses, sheets, pillow cases and other such goods. The KSP Upholstery and Re-Upholstery Shop employs eight to fourteen inmates in the manufacture and repair of office chairs, sofas, and many other upholstered items. The Mill Room of the Furniture Plant at KSP employs fifteen to thirty inmates in custom woodworking, building conference tables, credenzas, and bookcases. Eighteen to twenty-four inmates work in the Fiberesin Department of the KSP Furniture Plant, producing desks, typing tables and file cabinets. The KSP Metal Plant has eight to twelve inmates trained as welders, cutters and grinders, producing chairs, tables and other metal products. (PX 29, KSP Answers to Interrogatories). KSR operates similar programs in which inmates re-cap tires and manufacture soap, license tags, validation stickers. (Campbell Testimony). A print shop which was formerly operated by male inmates at Blackburn, is now being relocated to Luther Luckett. (Seabold Testimony). Defendants maintain it has been impossible to operate an industry at KCIW due to the small population. (Kassulke Testimony). They assert that, with the increase in population resulting from the closing of the Daniel Boone Career Development Center, consideration is now being given to establishing an industry at KCIW. The only industry under active consideration, however, is a keypunch operation (Kassulke Testimony, DX 16) which would offer training in a low-paying, sexually stereotyped job which, according to Dr. Spillman, will probably be rendered obsolete by improved technology in the near future. (See also PX 161, Testimony of Elsie Denison, labor economist and specialist on women offenders, U. S. Labor Department, Women’s Bureau). Examination of the composition of industries at KSP casts doubt on defendants’ assertion that KCIW’s relatively small population precludes operation of an industry. Of the five industrial operations at KSP only the Garment Plant employs more than thirty prisoners. Two KSP industries, Upholstery and Re-Upholstery and the Metal Plant, require only eight to fourteen inmate employees. The Mill Room operates with fifteen to thirty workers and eighteen to twenty-four laborers are employed in the Fiberesin Department. Finally, it should be noted that, while prison industries are designed to be self-sustaining, the program at KSR has received substantial federal aid on at least one occasion. A two-part grant totaling $219,000 was awarded, under Title I of the Omnibus Crime Control and Safe Streets Act of 1968, to improve and expand the KSR validation sticker plant in 1979. (PX 72). This money from the Law Enforcement Assistance Agency (LEAA) was used entirely for the benefit of male inmates, despite a specific prohibition against sexual discrimination in the enabling Act. See 42 U.S.C. § 3789d(c)(l). 3. Inmate Wages The absence of an industry and lack of maintenance jobs for females at KCIW deprives female inmates not only of the opportunity to acquire valuable skills and work habits, but also of the highest paying prison jobs. The average pay for KCIW women is $8.68 per month, and the highest pay a female can hope for is $1.25 per day. (PX 126). Prison industries, however, offer male inmates the chance to earn up to $2.25 per day. (PX 29, Campbell Testimony). Pay records reflect the fact that many male inmates are at the high end of this pay scale, earning over $60 per month. In contrast, the highest paid female inmate earns only $35 per month, and only three other women inmates earn over $25 per month. (PX 126). The dramatic impact of prison industries and maintenance jobs on inmate wages is illustrated by a comparison of the chart found on page 38 of the U. S. Post-trial Brief (which includes wages from prison industries) with the chart in Defendants’ Post-Trial Brief on page 9 (which omits wages from prison industries). Defendants’ chart shows the average monthly wage at KCIW was $9.09. This figure includes all wages, for females and the relatively higher wages for male KCIW inmate maintenance workers. When the handful of male inmate maintenance workers are omitted, the average monthly wage at KCIW falls to $8.68. The average monthly wage for over 1500 inmates at KSR drops from $13.63 to $11.15 when prison industry wages are omitted. The average wage for the 212 minimum security men at West Kentucky Farm Center falls from $14.79 to $11.32 when industry wages are not considered. The average pay for the 267 minimum security men at Roederer Farm Center is $11.26; omitting industry wages, the average is reduced to $6.09. Thus, the negative effect of the absence of prison industries at KCIW is striking in the area of inmate wages. 4. On the Job Training The Corrections Cabinet operates on the job training program for inmates which seeks to “simulate the employment market within the open community.” (Report of the Ad Hoc Committee for Development of Job Descriptions, at ii, attached to PX 11). This program helps inmates through development of job skills and benefits the institutions through provision of services. The system includes eleven main categories of services: food, laundry, janitorial, maintenance, landscape, clerical, medical, personal, industrial, agricultural, and domestic. (Id.). Within the eleven main categories, there are 84 different job descriptions. Jobs are broken down according to skill levels, and pay increases incrementally with increased skills. See IMD 6.10, Joint Exhibit 8 and PX 11. Women have been excluded entirely from industrial services, agricultural services, and maintenance services. Maintenance services — keeping the physical plant of the institution in operating condition — have traditionally been performed at KCIW by male inmates imported from KSR. Many of the most valuable and marketable skills such as plumbing, electrical, masonry, mechanical and carpentry, can be developed in the maintenance services. Well after the filing of this lawsuit, in the months preceding trial, the all male KCIW maintenance crew was integrated with the assignment of one woman, Patty Lettelier, as a maintenance worker. The formal policy of excluding women from the maintenance crew appears to have been in effect until after the closing of Boone and the return of those minimum security inmates to KCIW. Although the formal policy of excluding women from maintenance crews has been recently modified, women who desire these jobs are still subject to a number of significant restrictions not imposed on male inmates. To be eligible for the maintenance crew, women must live outside the prison fence in the staff house (Gardner, Lettelier and Chandler Testimony). Thus medium and maximum security females are automatically ineligible. A strict “no talking” rule is maintained banning all women inmates from communicating with the male inmates at KCIW, although an exception is allowed for the sole female on the maintenance crew during working hours only. Because KCIW has no prison industry, no agricultural operation, and only extremely limited and recently opened opportunities for maintenance work, a large plurality of female inmates are assigned to the chores of cooking and cleaning. (See PX 1). According to the Lawson testimony, based on defendants’ classification lists (PX 19 and 47), 5-8% of the male inmates are assigned to janitorial work, compared with 30% of the women prisoners; kitchen work employs approximately 6 — 10% of men prisoners and 17-19% of female inmates. Thus, even taking into consideration the half-day job assignments at KCIW, a disproportionately high number of women are assigned to these tasks. In fact, Lawson testified that even the lower percentage for men often reflects overclassification to cooking and cleaning jobs. Defendants assert that women have been excluded from maintenance jobs and other skilled labor in part due to their lack of skills. (Kassulke Testimony). Inmate Mike Bolton, a member of the KCIW maintenance crew, testified he had some experience as a maintenance worker before coming to KCIW, but many of his skills have been acquired since he began work at KCIW, by learning on the job. This appears to be the way defendants envision the OJT program should work. (PX 11, IMD 610). The Corrections Cabinet has instituted a valuable new element to the OJT program which could correct the problem of a lack of qualified female inmates, if such a problem does exist. Classroom components have been added to OJT assignments, enabling prisoners to learn new job skills from trained professionals. These programs have been implemented over the last year at Blackburn, KSR, KSP, and Luther Luckett in food services and building maintenance. (PX 11, Attachment 1). Thus, while defendants import men to do maintenance work at KCIW, maintaining women are unqualified for such labor, new programs have been instituted to teach these skills to men; no such program is available to women at KCIW who desire to learn these skills. This lack of opportunity for training in marketable skills through the OJT program at KCIW led Professor Sielaff to characterize OJT as “virtually non-existent” at KCIW. Even in the areas of cooking and cleaning, where so many KCIW inmates are assigned, there is no effort made to develop the kind of skills that could lead to jobs in commercial janitorial or.food service industries. Thus, as numerous inmates testified, the janitorial pool is often reduced to “make work,” with the actual cleaning required completed in the first 45 minutes of a three-hour shift. (See, e.g., Testimony of Karen McAuliffe, Ethel Kissic, and Octavia Gardner). The Court finds this testimony credible in view of the fact that close to fifty women are assigned to three-hour cleaning shifts on a daily basis. (PX 1). This is the equivalent of having 15-20 full-time forty hour per week janitors in a building no larger than a typical neighborhood school. Another adverse effect of the disproportionate concentration of women in cooking and cleaning jobs is lower pay. Under the pay scale set forth in IMD 610, jobs requiring greater skills receive greater pay. Thus over-assignment of women to low-skill cooking and cleaning jobs results in lower