Howard v. Smyth
| Decision Date | 09 August 1966 |
| Docket Number | No. 10441.,10441. |
| Citation | 365 F.2d 428 |
| Parties | William HOWARD, Appellant, v. W. Frank SMYTH, Jr., Director, Virginia Division of Corrections, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Wilbur C. Allen, Richmond, Va. (Court-assigned counsel) Allen, Allen, Allen & Allen, Richmond, Va., on brief, for appellant.
Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Robert Y. Button, Atty. Gen. of Virginia, on brief), for appellee.
Before HAYNSWORTH, Chief Judge, SOBELOFF, Circuit Judge, and FIELD, District Judge.
William Howard petitioned the District Court to order his release from the maximum security ward of the Virginia State Penitentiary, where he has been confined for four years, and to allow him to rejoin the rest of the prison population. After an evidentiary hearing, the District Court denied the requested relief, and Howard appealed.
Petitioner has been incarcerated in the Virginia prison system since 1956, having been sentenced for armed robbery, and is scheduled for normal discharge without benefit of parole on February 24, 1967. He has been confined in the maximum security ward, known as "C" building, since August 7, 1962.
The prison officials argue that confinement in the maximum security ward is not "punishment" but merely "segregation," and that therefore courts have no power to interfere with their decision to confine an inmate in maximum security. We do not accept this argument. While confinement in "C" building is not as harsh as solitary confinement, the District Court noted that the prisoner's "institutional privileges are severely limited," whether the confinement be described as "punishment" or "segregation." Prisoners in "C" building are not permitted to work and earn money; they are allowed only two meals a day, and are deprived of radio, television, and movie privileges; they do not have access to the library and are not permitted to attend educational classes; they are allowed to bathe only once a week, as opposed to daily bathing allowed other prisoners. It is also highly significant cant that the Parole Board declines to consider as eligible for parole any prisoner who is confined in the maximum security ward. These deprivations cannot be treated as insubstantial.
The circumstances which led to petitioner's confinement are as follows. In July, 1962, Howard, then a professing Black Muslim, met with Prison Chaplain Cecil Gunn in an effort to secure for the Black Muslims among the prison inmates an opportunity to worship according to their religion's tenets. Howard reiterated his request to Chaplain Gunn on August 5, 1962, and on that occasion Gunn called C. C. Peyton, the assistant superintendent of the prison, and arranged for Howard to go to Peyton's office. Howard testified at the hearing in the District Court that in his conversation with Peyton he repeated his request that the prison permit religious services for Muslims. Peyton replied that he would have to discuss the matter with the prison superintendent, W. K. Cunningham, Jr.
Two days later, on August 7, 1962, Howard was called to Superintendent Cunningham's office, where he again voiced his desire for religious services for himself and others of the Muslim faith. Cunningham then demanded the names of the prisoners for whom Howard spoke. This demand Howard refused, explaining at the hearing that he feared that some sort of disciplinary action would be visited upon them. Cunningham then summarily ordered that Howard be confined in the maximum security unit of the penitentiary, where he has remained from August 7, 1962, to the present. Superintendent Cunningham admitted that he gave no hearing to Howard before ordering his confinement in the maximum security ward, although it was the customary practice to hold such a hearing. The only record of the reasons for this confinement is a notation, "transferred * * * by order of the superintendent for the good of the institution."1 Nor is there any record or notation indicating the reasons for his continued confinement, despite the fact that the status of prisoners in the maximum security ward is reviewed every six months.2
There is no contention...
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