Bruscino v. Carlson

• Decision Date: 04 November 1988
• Docket Number: 87-1943,Nos. 87-1683,s. 87-1683
• Citation: 854 F.2d 162
• Parties: Ronnie BRUSCINO, et al., on behalf of themselves and others similarly situated, Plaintiffs-Appellants, v. Norman CARLSON, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 162

854 F.2d 162

57 USLW 2132

Ronnie BRUSCINO, et al., on behalf of themselves and others

similarly situated, Plaintiffs-Appellants, v. Norman CARLSON, et al., Defendants-Appellees.

Nos. 87-1683, 87-1943.

United States Court of Appeals, Seventh Circuit.

Argued April 1, 1988.

Decided July 22, 1988.

Rehearing and Rehearing En Banc Denied Nov. 4, 1988.

Nancy Emmet Horgan, Howard B. Eisenberg, S.I.U. Legal Clinic, Carbondale, Ill., for plaintiffs-appellants.

Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for defendants-appellees.

Before BAUER, Chief Judge, and POSNER and FLAUM, Circuit Judges.

POSNER, Circuit Judge.

The United States Penitentiary in Marion, Illinois, is the successor to Alcatraz as the prison designed to hold the most violent and dangerous prisoners in the federal system. The only "Level 6" prison in that system (federal prisons carry a security rating ranging from 1 to 6), it may be the most severe prison in the country, and it houses not only the worst federal prisoners but, on a contract basis, state prisoners too violent for state prisons to handle. Its 300-odd inmates are among the most dangerous people in this nation of 240 million. In 1983, one-third of Marion's inmates were serving terms either of life or of 70 years or more; in 1985, 40 percent were serving time for murder, manslaughter, or assault with intent to kill. Because there is no death penalty for committing crimes in federal prisons (even murder), and because evolving notions of due process and of cruel and unusual punishment limit the ability of correctional officers to prevent or deter prison violence, the control of these inmates presents a formidable problem indeed.

Before us is an appeal from the denial of injunctive relief, after extensive evidentiary hearings before a federal magistrate and a federal district judge, in a class action on behalf of all of Marion's inmates, comprehensively challenging the operations of the prison as violating the Constitution's guarantees of due process, access to the courts, religious freedom, and freedom from cruel and unusual punishments, 654 F.Supp. 609. The focus of the suit is the procedures that the prison adopted in the wake of a crescendo of violence in October 1983, violence that included the murder of two guards and an inmate. These procedures, the plaintiffs argue, have made the conditions of confinement at Marion so savage and brutal as to constitute cruel and unusual punishment; alternatively, even if the conditions do not violate Eighth Amendment norms of civilized punishment they are so much harsher than those prevailing in any other federal prison, even Level 5 prisons such as Leavenworth, that assignments to Marion are actual (albeit incremental) deprivations of liberty and are therefore unconstitutional unless made after notice to the inmate and an opportunity for at least a minimal hearing. The district court dismissed on summary judgment an earlier suit attacking the conditions created by the "permanent lockdown" that began in 1983; we affirmed in part and reversed in part. See Caldwell v. Miller, 790 F.2d 589 (7th Cir.1986). The present case, as mentioned, was decided after extensive evidentiary hearings.

As a result of the permanent lockdown, each inmate at Marion is confined to a one-man cell (there are no female inmates in the prison) round the clock, except for brief periods outside the cell for recreation (between 7 and 11 hours a week), for a shower, for a visit to the infirmary, to the law library, etc. (Some inmates have more time outside the cell, as we shall see.) Recreation means pacing in a small enclosure--sometimes just in the corridor between the rows of cells. The inmate is fed in his cell, on a tray shoved in between the bars. The cells are modern and roomy and contain a television set as well as a bed, toilet, and sink, but there is no other furniture and when an inmate is outside his cell he is handcuffed and a box is placed over the handcuffs to prevent the lock from being picked; his legs may also be shackled. Inmates are forbidden to socialize with each other or to participate in group religious services. Inmates who throw food or otherwise misbehave in their cells are sometimes tied spread-eagled on their beds, often for hours at a stretch, while inmates returning to their cells are often (inmates of the control unit, always) subjected to a rectal search: a paramedic inserts a gloved finger into the inmate's rectum and feels around for a knife or other weapon or contraband.

To live under such conditions is sordid and horrible, and though they would have raised few eyebrows a hundred years ago, the concept of cruel and unusual punishments is an evolving one; the minimum standard of decency in prisons is a function of the conditions of life on the outside, and therefore as society becomes wealthier, more comfortable, more sensitive, more civilized, the constitutional minimum of decency in incarceration rises. Davenport v. DeRobertis, 844 F.2d 1310, 1314-15 (7th Cir.1988); see Rhodes v. Chapman, 452 U.S. 337, 346-47, 101 S.Ct. 2392, 2398-99, 69 L.Ed.2d 59 (1981). There is no question that conditions in Marion deserve careful scrutiny, but they must be evaluated against the background of an extraordinary history of inmate violence and with proper regard for the limited competence of federal judges to micromanage prisons. Cf. Duran v. Elrod, 760 F.2d 756, 759 (7th Cir.1985), and cases cited there.

The defendants placed in the record a remarkable narrative of the violence that led up to the lockdown. We note a few highlights (some corroborated by decisions of this court). Two inmates, while exercising in the corridor outside their cells, garrotted a third inmate, who was asleep in his cell with his head against the bars. See United States v. Silverstein, 732 F.2d 1338 (7th Cir.1984). An inmate stabbed another inmate with a knife while they were exercising and was in turn stabbed by two inmates with knives on his way back to his cell. An inmate fired a zip gun (a homemade pistol) at another inmate and at a guard, wounding both. Inmates have attacked other inmates and guards with a homemade bomb, with a light bulb, with a padlock, with a sharpened pencil wielded as a knife, with a sharpened toothbrush, with feces, with a chair, with a mop wringer, with a home-made mallet, and with a bucket of boiling water, as well as with the usual zip guns and shanks. (Shanks are homemade knives, often carved out of the legs of the steel beds in the cells. The steel beds have now been replaced by concrete blocks in an effort to prevent the manufacture of shanks.) A number of inmates were killed in these assaults, and in addition there were frequent riots and strikes by inmates, takings of guards as hostages, takeovers of cell blocks, and ingenious attempts to escape--once to the accompaniment of rifle fire directed at the prison from the outside. One inmate managed to detonate a bomb in his cell.

In the climactic week that preceded the lockdown, two guards were murdered in similar incidents. In each a prisoner being escorted from his cell broke away from the three guards escorting him, thrust his handcuffed wrists (this was before the innovation of placing a box over the handcuffs) into an accomplice's cell, emerged sans handcuffs but holding a shank in his hand, and proceeded to attack the guards. In one of the incidents, another guard was crippled and the third seriously injured. See United States v. Fountain, 768 F.2d 790, modified on other grounds, 777 F.2d 345 (7th Cir.1985). Throughout this period, searches uncovered an astonishing quantity of knives, zip guns, and other contraband, including many homemade keys that fit handcuffs and others that fit doors in the prison. Searches of body cavities, including the nose, the mouth, and the rectum, continue to turn up an impressive quantity and variety of contraband, including knives and hacksaw blades.

The incidence of violence has declined since the lockdown. It appears that in the four and a half years since, "only" 3 murders have been committed, while in the four preceding years 11 murders--almost four times as many in a shorter time than has elapsed since the lockdown--had been committed. In the nine months following the adoption of the new procedures the number of armed assaults by inmates declined (in comparison to the preceding nine months) from 19 to 8, although the number of unarmed assaults rose (from 7 to 18). See The United States Penitentiary, Marion, Illinois: Consultants' Report Submitted to H.R. Comm. on Judiciary, 98th Cong., 2d Sess., ser. 21, p. 20 (Comm. Print Dec. 1984). If the comparison is broadened to approximately the four years before and four years after the lockdown, the number of armed assaults fell from 115 to 34 and the number of unarmed assaults was unchanged at 53 (Bureau of Prisons statistics). Since the principal victims of murders and armed assaults in Marion penitentiary are inmates, the procedures that the plaintiffs describe as cruel and unusual punishment are the very procedures that are protecting them from murderous attacks by fellow prisoners.

If order could be maintained in Marion without resort to the harsh methods attacked in this lawsuit, the plaintiffs would have a stronger argument that the methods were indeed cruel and unusual punishments. But the plaintiffs' able counsel have no suggestions as to how this might be done. Cf. Duckworth v. Franzen, 780 F.2d 645, 655 (7th Cir.1985). They do not acknowledge the difficulty of controlling inmates who, since they have no expectation of ever being released from prison and are in no danger of being...