1 The overcrowding that has resulted from the dramatic rise in the prison population over the past few years draws regular media attention these days. There is also extensive, sometimes lurid, coverage of riots and incidents of individual prison violence, including homosexual rape, said to be at least in part at tributable to overcrowding. Other notorious prison “issues” are executions, the threat of them, the plight of inmates waiting on death row, and the controversy surrounding the life sentence without possibility of parole.Google Scholar

2 The solutions sought are spectacular both in their substantive reach and in the fashion and forum in which they are presented. Legislative appropriations are sought for corrections departments to build new prisons, revamp older ones, and augment staff and services. Radical alterations in prison regulations and procedures are demanded. More often than not, the remedial efforts have their origin in the courts. Among the characteristics of major prison litigation are its all-encompassing scope, the length of time the cases take to complete, and the special implementation procedures and mechanisms used. Conditions found constitutionally wanting range from cell space per inmate to food service and from the qualification and training of prison guards to the use of inmate trusties in running the prison, etc. Cases lasting from six to eight years are becoming routine. And the use of special masters to monitor implementation of the court's decree has become commonplace in the big cases. See, e.g., Brakel, Samuel Jan, Special Masters in Institutional Litigation, 1979 A.B.F. Res. J. 543, for some of the earlier cases (at 544 n.4) and for the range of issues dealt with and the depth of judicial intervention into daily prison administration. One of the most wide-ranging and controversial prison cases presently still in the courts is the Texas case of Ruiz v. Estelle, No. 5523 (W.D. Tex., Tyler Div., filed June 1972), 550 F.2d 238 (5th Cir. 1977), 503 F. Supp. 1265 (S.D. Tex. 1980), 650 F.2d 555 (5th Cir. 1981), 666 F.2d 854 (5th Cir. 1982), 679 F.2d 1115 (5th Cir. 1982). See Marc R. Levinson, Special Masters: Engineers of Court-ordered Reform, 8 Corrections Mag., Aug. 1982, at 7.Google Scholar

3 See Breed, Allen F., Instituting California's Ward Grievance Procedure: An Inside Perspective—I. Administering Justice: Implementation of the California Youth Authority's Grievance Procedure for Wards, 10 Loyola L.A. L. Rev. 113 (1976).Google Scholar

4 Bruce Cory, Too Much Power to the Prisoners? 11 Student Law., Dec. 1982, at 22, 23.Google Scholar

5 Id.Google Scholar

6 Civil Rights of Institutionalized Persons Act of 1980, Pub. L. No. 96–247, § 2, 94 Stat. 349, codified at42U.S.C. § 1997 (1981).Google Scholar

7 44 Fed. Reg. 62,248 (Oct. 29, 1979); 46 Fed. Reg. 48, 181–89 (Oct. 1, 1981).Google Scholar

8 See Cory, supra note 4, at 23.Google Scholar

9 American Bar Association Standards for Criminal Justice, Legal Status of Prisoners, Standard 23–7.1(b) (Fourth Tentative Draft, June 1980).Google Scholar

10 E.g., Taylor v. Perini, 455 F. Supp. 1241 (N.D. Ohio 1978).Google Scholar

11 The literature on grievance procedures in prisons is still sparse. Here is a list of the writings that have come to my attention: Breed, supra note 3; David D. Dillingham & Michael K. Lewis, An Evaluation of an Inmate Grievance Procedure: Georgia State Prison, Reidsville, Georgia (Washington, D.C.: Center for Community Justice, 1980); David D. Dillingham & Linda R. Singer, Complaint Procedures in Prisons and Jails: An Examination of Recent Experience (Washington, D.C.: National Institute of Corrections, 1980) (as cited in Dillingham & Lewis supra); J. R. Hepburn, J. H. Lane, & M. L. Becker, To Do Justice: An Analysis of the Development of Inmate Grievance Resolution Procedures and a Final Report to the Center for Community Justice (1978) (as cited in Singer infra); J. Michael Keating, Jr., Improved Grievance Procedures: A Technical Assistance Manual, ed. Barbara Isard (Washington, D.C: BASICS (Bar Association Support to Improve Correctional Services), A Service of the American Bar Association Commission on Correctional Facilities and Services, June 1976) [hereinafter referred to as ABA-BASICS 1976]; Joan Nuffield, Inmate Grievance Procedure Pilot Project (Saskatchewan Penitentiary): An Evaluation (Ottawa, Canada: Solicitor General, 1979) (as cited in Dillingham & Lewis supra); Felix G. Rivera, An Evaluation of the San Francisco County Jail Inmate Grievance System (Washington, D.C.: ABA-BASICS, 1977); Linda R. Singer, The Growth of Non-judicial Dispute Resolution: Speculations on the Effects on Justice for the Poor and on the Role of Legal Services (Washington, D.C: Legal Services Corporation, [1980]); Turner, William Bennett, When Prisoners Sue: A Study of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv. L. Rev. 610 (1979). The ABA-BASICS 1976 work contains a number of reprints worth citing. Virginia McArthur, Inmate Grievance Mechanisms: A Survey of 209 American Prisons, at 137 (reprinted from Federal Probation (Dec. 1974)); George Nicolau, Grievance Arbitration in a Prison: The Holton Experiment, at 231 (reprinted from an unidentified issue of Resolution); Linda R. Singer & J. Michael Keating, Jr., Grievance Mechanisms in American Corrections: The State of the Art, at 226 (reprinted from an unidentified issue of Resolution); and Statistics Compiled on California Youth Authority Grievance Procedure by CYA Research Division, at 238. See also a short bibliography of some minor, earlier pieces on grievance and grievance-like mechanisms in the prison setting, at 158–59.Google Scholar

12 Brakel, Samuel Jan, Administrative Justice in the Penitentiary: A Report on Inmate Grievance Procedures, 1982 A.B.F. Res. J. 111.Google Scholar

13 I served once at Joliet Correctional Center, three times at Pontiac Correctional Center, and once at Dwight Correctional Center. Pontiac is a maximum security prison, housing some 1,800 inmates. Joliet serves two functions: it is the reception center for all new inmates, who are evaluated and classified there before being sent on to the institution with the proper level of security and programming for them, and it serves as a place where inmates are sent who are not strong or prison-wise enough to protect themselves from the more aggressive inmates who populate the tougher prisons. The resident population at Joliet is about 900. Dwight is the state's institution for women offenders. It houses some 500–600 inmates under various levels of security. Additional details on life in the Illinois prison system are provided in my earlier A.B.F. Research Journal article on grievance procedures, supra note 12. The description there is of the Stateville and Vienna institutions, but in a general way it is relevant to the conditions and atmosphere at Joliet, Pontiac, and Dwight.Google Scholar

14 Because of the volume of cases and the difficulty of having to cover (and travel to) 10 widely separated institutions, the ARB actually functions with two separate three-member panels. I served four turns with one panel, one with the other. The two “noncitizen” members on the panels are employees of the Illinois Department of Corrections. One of them is the head of, or a ranking person in, the “inmate affairs” division and the other is usually a staff member from an unrelated branch (e.g., computer programming) within the Department. These two travel from Springfield (the state capital) to the prisons at least once a month, more often in the case of the big institutions such as Stateville, Menard, and Pontiac. In the usual instance (to which my involvement is an exception), the citizen member is from a community near the local prison, and it is that institution's responsibility to recruit this person.Google Scholar

15 Most of the ARB's work consists of reviewing grievances decided on by the local prisons' grievance boards, called the Institutional Inquiry Boards (IIBs). But the taking away of 30 days or more of an in mate's “good time” in any one case or cumulatively for the year by local disciplinary boards (Institutional Adjustment Committees, or IACs) leads to direct ARB consideration, not requiring a prior IIB ruling. Both the IACs and IIBs are, like the ARB, three-member boards, but only persons on the local institution al staff—usually a line guard, a ranked officer, and a prison counselor—serve on them. The IAC, in that it handles all significant disciplinary cases, is probably the most important local board, but there are quite a number of other committees and officials (e.g., the Programs Committee, the Transfer Coordinator, the Personal Property Office, the Education Administrator, etc.) with analogous decision-making functions. The IIB, or grievance board, is the local committee of last resort in that it reviews the decisions of the other committees and officials when inmates request such review and also rules on direct inmate complaints. The prison warden has the final authority of approving, modifying, or reversing all IIB decisions. In addition, the warden and his immediate assistants are a direct source of advice and decision making for prison ers who, for one reason or another, do not use the formal committee structure for making their demands or airing complaints.Google Scholar

16 Technically the ARB only “recommends” to the Department director and the Parole Board what the disposition of the prisoner's case should be. The recommendations are not effective unless approved by the director. Approval is a routine matter in most cases. But in a small percentage, the director modifies or reverses the ARB decision, briefly setting out his reasons for doing so. (See the appendix.).Google Scholar

17 Illinois Department of Corrections Administrative Regulation [hereinafter referred to as AR] 804 (105)—defines the dangerous disturbances offense as “causing, directing or participating in action which may seriously disrupt or endanger the institution, persons or property, including the taking or holding of hostages by force or threat of force.”.Google Scholar

18 There was one case at Dwight that included a dangerous disturbance charge, but it was secondary to the charge of disobeying a direct order, and it was not justified by the facts. An inmate had been found by staff in an intoxicated state, and she was ordered to go to the prison nurse for tests. She refused in a very vigorous fashion, allegedly yelling and screaming and knocking over some furniture. She also apparently gave an arm salute to some fellow inmates, which elicited some verbal response. That was the extent of the commotion, however.Google Scholar

19 A prisoner in Illinois may receive “meritorious” good conduct credit that can be applied against his maximum sentence. In addition, each prisoner is entitled to day-for-day “statutory” good time, which means that for each day served on good behavior a day is subtracted from his sentence. The rationale is to minimize overcrowding by reducing time served and to provide an incentive for good behavior. Infractions of the prison rules on the part of an inmate can lead to withdrawal of good time earned or that to which he is entitled by statute. In addition, all prisoners in Illinois are classified by grade—A-grade, B-grade, or C-grade—depending on their individual security requirements when they enter the prison sys tem and their later adjustment. An A-grade entitles an inmate to the maximum freedom and privileges feasible within the prison setting, while C-grade denotes the greatest deprivation, short of segregation. Rules infractions may lead to a demotion in grade. Punishment may also be exacted in terms of loss of a prison job or (educational) program assignment, usually in cases where the infraction is related to the activity, such as tardiness on the job or theft from the program classroom, shop, or office. Reductions in institutional status or privileges go into effect immediately upon the Institutional Adjustment Committee's (or the Program Committee's) decision. Segregation becomes effective even prior to such a local hearing, its necessity being based on the decision of the moment by a guard, seconded by a captain. In many cases, then, the punishment that the IIB and especially the ARB are asked to review has already been substantially served.Google Scholar

20 As mentioned in note 15 supra, the IIB is by-passed, and direct ARB review obtains in cases where more than 30 days of good time is taken away or where the latest deduction added to previous ones results in a total deduction for the year that exceeds 30 days.Google Scholar

21 The seriousness of the dangerous disturbance offense means that it will usually net punishment in excess of 30 days' loss of good time and thus go directly to the ARB (see notes 15 and 20 supra).Google Scholar

22 The Springfield office puts out monthly reports on ARB activities that categorize cases by type and outcome. The case-type categories hide much detail that, judging from my own experience on the board, is important or interesting, and little would be gained by presenting the official aggregates. The outcome statistics seem more useful. They show that of the cases that reach a final decision, 14% are in favor of the in mates, 7% are compromise decisions in which both sides get some of what they want, and 79% go against the inmates (i.e., they uphold the local institution's decision). A substantial proportion of cases—some 25%—are reported as deferred for further review. Because I followed our 81 cases to their final resolution, the appendix giving our outcomes has no analogous category of undecided cases.Google Scholar

23 AR 804(307): Unauthorized Movement—“Being anywhere without authorization, or being absent from where required to be.”.Google Scholar

24 AR 804(404): Violation of Rules—“Willfully disobeying any rule of the facility.”.Google Scholar

25 AR 804(403): Disobeying a Direct Order—“Willfully refusing to comply with an order, including the refusal to participate in testing for drug abuse and refusing to perform or accept a work assignment or refusing to accept a housing assignment.”.Google Scholar

26 AR 804(I)(1) stipulates: “When the inmate has been found in violation of more than one offense arising from a single incident, the maximum penalty shall not exceed the maximum penalty for the most serious offense he is found to have committed.”.Google Scholar

27 AR 804(102): Assaulting Any Person—“Causing a person or an object to come into contact with another person in an offensive, provocative, or injurious manner, or fighting with a weapon.”.Google Scholar

28 AR 804(202): Damage or Misuse of Property—“Destroying, damaging, removing, altering, tampering with, or otherwise misusing state property, or property of another person, including the obstruction of locks or security devices.”.Google Scholar

29 AR 804(206): Intimidation or Threats—“Expressing by words, actions or other behavior, an intent to injure any person which creates the reasonable belief that physical, monetary or economic harm to that person or to another will result.”.Google Scholar

30 The maximum penalty for participation in a dangerous disturbance is the maximum that can be given by the internal disciplinary system—360 days of segregation, 360 days on C-grade, and 360 days of good time taken. This maximum obtains for 6 other major rules infractions as well. The maximum penalties for the remaining 20 offenses listed in the administrative regulations are lower by at least 180 days.Google Scholar

31 Such conflict surfaces mainly at the debriefing sessions with the warden, which would not show up in the record. It can also come in the form of disagreement between the ARB and the director of the Department of Corrections, in which case it would show up. While it obviously means little statistically, one of the two cases in our “sample” in which the director refused to accept the ARB recommendation was a dangerous disturbance case (see note 44 infra and the appendix).Google Scholar

32 A good part of this conflict is hidden as well, as we generally tried to reach a consensus. The appendix shows that 2 of the 7 cases in which internal disagreement surfaced in the form of minority opinions in the record were dangerous disturbance cases.Google Scholar

33 See note 19 supra for an elaboration of these forms of administrative punishment.Google Scholar

34 The Administrative Regulations, in AR 804(E)(13)(b), provide that the inmate may “be detained in investigatory status for up to 30 days.” The reasons for holding an inmate on this basis must be given to him in writing in a “specific disciplinary report.” Extension for an additional period is possible. While the inmate is on investigative status, an investigation is conducted by “Internal Affairs,” which includes the institution's “Hearing Investigator.” The investigation results in a confidential report, the purpose of which is “not to represent [the inmate], but to provide information to the [Adjustment] committee to help them decide whether [he is] guilty or not guilty.”.Google Scholar

35 The ticket is the report of the infraction handwritten by a guard, usually in quick and rough fashion, on a special form about one-third of a page in length. The IAC report gives that committee's findings and decision on the alleged infraction plus the punishment and reasons supporting the outcome. It runs about one-half page to a page long. The inmate also has copies of these documents.Google Scholar

36 Normally inmates can move about the prison without such encumbrances. Only when they are in segregation are they transported, always in the company of a guard, in this fashion. Because of the ARB's function, a large proportion of the inmates appearing before the ARB are brought in shackled from segregation. This is a disconcerting feature of the hearing experience, even to one who has served several turns on the board. To chain recalcitrant prisoners may be in the general security interests of the institution, not to mention the safety of the ARB members in particular, but it is also a vivid reminder, if the prison itself isn't enough, of how primitive our methods are of dealing with criminal offenders.Google Scholar

37 The ARB typically meets in a small special hearing office in the administrative unit of the prison complex. The number of cases on the docket for the day varies between 15 and 25. The case sequence and files are prepared ahead of time by the local grievance committee, and inmates are brought in from their cells or assignments one by one. The hearings last anywhere from a few minutes to about half an hour, with the average being about 15–20 minutes, which includes a few minutes for our deliberations and a quick dictation of the case report (at which the inmate is not present). The hearings are usually not acrimonious, as most inmates realize that they have everything to gain by being decent with us, and what bitterness there is tends to be reserved for the people who have allegedly done them wrong at the institutional level or even at trial.Google Scholar

38 I use the word “we” to emphasize the communal nature of the deliberation and decision-making process. But I am of course indulging in presumptions when I speak for the other ARB members and, particularly in case of an admission such as this one, they may well want to disassociate themselves from this communal “we.”.Google Scholar

39 In Wolff v. McDonnell, 418 U.S. 539 (1974), the United States Supreme Court outlined a series of “minimal due process requirements” to be observed in prison disciplinary hearings involving serious in mate misconduct and the potential loss of inmate good time. These are:. (a) Advance written notice of charges must be given to the disciplinary action inmate, no less than 24 hours before his appearance before the Adjustment Committee. (b) There must be a written statement by the factfinders as to the evidence relied on and reasons for the disciplinary action. (c) The inmate should be allowed to call witnesses and present documentary evidence in his defense if permit ting him to do so will not jeopardize institutional safety or correctional goals. (d) The inmate has no constitutional right to confrontation and cross-examination in prison disciplinary proceedings, such procedures in the current environment, where prison disruption remains a serious concern, being discretionary with the prison officials. (e) Inmates have no right to retained or appointed counsel in such proceedings, although counsel substitutes should be provided in certain cases. These standards provide only minimal guidance for a board that functions to review local disciplinary decisions. Moreoever, while the head of the ARB would be familiar with these requirements, the two non-permanent members are unlikely to be. No instruction in the Wolff requirements was given in my presence.Google Scholar

40 See Ruiz v. Estelle, 503 F. Supp. 1265, 1357 (S.D. Tex. 1980), regarding the Texas Department of Corrections' disciplinary rules prohibiting “general agitation,”“disrespectful attitude,” and “laziness.”.Google Scholar

41 This view was, in my estimate, confirmed by another dangerous disturbance case we had heard that same day. In that case, the ticket was no more specific, the evidence no more clear cut, the investigative procedures no more open, than in inmate A's case, yet we had unanimously sustained the finding of guilt and the punishment. There was an allegation in the ticket that a weapon (a “shank”—a knife) had been passed to the inmate during the disturbance. However, no weapon was found or confiscated, and there was absolutely nothing to support that allegation. Also the measure of punishment handed out indicated that the IAC had’‘convicted’ only for the general dangerous disturbance charge. I believe, however, that the weapons allegation deflected the “due process” concerns that might otherwise have troubled the two noncitizen board members. It made them think they had more on this guy, that the conviction was better justified, than for inmate A.Google Scholar

42 The custom of a debriefing session between the ARB and the warden is, I believe, a good one. It emphasizes that considerable deference should be accorded to the judgment of the person who is ultimately responsible for the institution and its inmates and who knows the conditions and many of the inmates intimately. The debriefing gives the warden immediate notice of ARB decisions he feels he cannot live with and an early opportunity to contest them to the Department director before they get his final approval. It is also true, however, that this deference can come to undercut the independence of the ARB. I recall one case involving an attack by an inmate on a guard, for example, where the chairman of the board advised us other two board members to keep from going on record with a final recommendation for reduced punishment until the debriefing session, where we could “feel the warden out.” See also note 44 infra.Google Scholar

43 That outsiders are naive is of course a common complaint coming from insiders. It often has substantial validity. Sometimes it may be a kind of institutional naiveté, an inability to grasp the basic workings and power relations. At other times, it may be a more specific problem, an ignorance of the facts in a particular case, something the insiders may often contribute to by withholding the full facts. An ARB case from Pontiac suggests both problems. An inmate charged with complicity in a disturbance gave as his defense that the disturbance occurred on a subzero day when several “pipes had blown” and that the explanation for his being away from his cell and near the disturbance was that he had a plumbing job to do, his regular assignment in the prison. The case was ultimately resolved on technical grounds, but during the debriefing session the warden came close to ridiculing us for (1) believing an alibi of this kind generally and in particular when (2) the disturbance had taken place at 8:00 A.M. when no one was out on assignment, and when (3) the inmate had been caught without his plumbing tools. The third fact we just did not know. The other two reflected more the institutional-type naiveté, which may not be altogether unhealthy for a review board to be afflicted with.Google Scholar

44 That the warden's views are given great weight by the director is perhaps best illustrated by the following case. An inmate was convicted by the IAC of “unauthorized movement” when he was found out-side his “dorm” during a disturbance on the separate “Medium Security Unit” (MSU) at Pontiac. This separate unit is for inmates whose good behavior over an extended period of time makes them good risks for a more relaxed regimen and more humane living conditions than prevail in the cell blocks of the main prison. One aspect of the inmate's punishment was his removal from the MSU and his transfer back to maximum security with the general population. The ARB recommended to overturn the conviction and punishment (expunge his violation and return him to the MSU) because the security regulations at the MSU allow an inmate to be outside his dorm barring a direct order to the contrary. (It is only “unauthorized” for an MSU inmate to enter a dorm not his own without special permission.) The ARB also found credible the inmate's story that he had nothing to do with the riot. The warden, however, thought or knew differently and spelled out his objections to the ARB recommendation to the director. The final ARB re port came back with this statement from the director: “I decline to concur. The disciplinary report is to be expunged. However, if Warden deems the inmate to be a security threat, he may be removed administratively. This is a management decision and not subject to review.” I think the director is on tenuous grounds here. Presumably, the inmate has at least a right to then challenge the “management” decision.Google Scholar

45 AR 804(104): Dangerous Contraband—“Possessing, manufacturing, introducing, or using, with out authorization, any explosive, acid, caustic, material for incendiary devices, ammunition, dangerous chemical, escape material, knife, sharpened instrument, gun, firearm, razor, glass, bludgeon, brass knuckles or any other dangerous or deadly weapon or substance of like character.”.Google Scholar

46 In the dangerous disturbance case discussed in the text, I said that the factual question was probably the least of our problems. This is not to say that it wasn't substantial, only that all is relative. In all too many cases of all types or categories, there is a gnawing sense of having to proceed on only very partial in formation.Google Scholar

47 The maximum penalty for possession of dangerous contraband is the 360-day limit (segregation, C-grade, and good time) that applies to dangerous disturbances and five other major rules violations.Google Scholar

48 On the other hand, the inmate is presenting testimony before the ARB which conflicts with the testimony of his accusers (and sometimes with his own given at earlier hearings on the case). Since his credibility is therefore at issue, the prior record may be used to question it.Google Scholar

49 See note 38 supra.Google Scholar

50 The ARB does not have authority to increase punishment.Google Scholar

51 See note 27 supra for the official definition.Google Scholar

52 AR 804(304): Insolence—“Talking, touching, gesturing, or other behavior which harasses, annoys, or shows disrespect.”.Google Scholar

53 For the official definition, see note 29 supra.Google Scholar

54 One guard we called in as a witness on an assault case testified that the inmate had “thrown urine and uh … bowel movement.” Prison insiders say that “p. and s.” assaults are a common thing in today's prisons, and I was personally warned of them when I visited the segregation units.Google Scholar

55 Regular criminal prosecution is of course an option in the serious cases. Some wardens resort to this option more quickly than others.Google Scholar

56 There is in the regulations a special offense category for “gang activity” (AR 804(205)), defined as “engaging or pressuring others to engage in gang activities or meetings, displaying, wearing or using gang insignia, or giving gang signs.” With maximum punishment set at 180 days (segregation, loss of good time, and reduction of institutional grade), this category seems to be intended and used for relatively trivial things—the jejeune rituals of gang membership rather than more serious pressuring, enforcement, or acquisition activities. In some instances, the “punishment” may be simple confiscation of the offending material. The case of an Hispanic inmate who had printed his gang “insignia” with a permanent-ink marking pen on the inside of his blue jean jacket comes to mind. The issue came before us as a property grievance with the inmate demanding his jacket back. A great deal was made over whether the symbol was actually on the inside or the outside of the jacket, how the guard could have spotted it, what the guard had promised about returning the jacket or the inmate about removing the symbol, how much the outfit cost, whether it was technically contraband or not and what the implications of that were, and so forth. Underneath, however, was the important “symbolic” issue of how hard to come down on gangs and on even the more innocent manifestations of their existence in the prison. It is often said that the gangs can exist only with the collusion of the prison staff. If this means that prison guards and administrators tolerate the existence of gangs or even use them to keep order among the inmates, that is troublesome enough. If it also means, as often alleged, that certain guards are actively involved in the gang business—bringing in the contraband, dealing in information, favors, and so on—then the gang problem assumes an even more serious dimension.Google Scholar

57 Such doubtful tales are not always confined to the inmates' side. In fact, there was a direct analogue from the Dwight prison for women where it was the guard (also female) who begged our credulity. In this case, a prisoner charged with assault, while not denying it, pressed in her defense the countercharge that the guard had thrown hot coffee at her. The guard's version was that she had approached the inmate's cell but had been jostled just before entering, at which point “the coffee just jumped out of the cup and hit the resident.”.Google Scholar

58 Because of time and other constraints, the practice of calling in a guard or any other witness is used infrequently—perhaps once in every 15 cases or so. The head of the ARB, however, makes more frequent inquiries by phone or letter from Springfield to straighten out vague or conflicting details in particular cases.Google Scholar

59 There is no need to discuss in detail each of the disciplinary offenses found in the regulations. There are 27 altogether, from “arson” (AR 804(101)) to “aiding and abetting, or attempt or solicitation” (AR 804(601)). A number of not so major offense categories have received passing reference in connection with the major ones. Others will remain unmentioned. One—“drugs and drug paraphenalia” (AR 804(203))— deserves at least this special footnote. It is a common violation; we encountered it 7 times during the 81 ARB hearings—4 cases at Joliet and 3 at Pontiac, where in addition (as discussed) at least two of the disturbances were reported to be over marijuana. The maximum penalties are in the medium range—180 days of each (C-grade, loss of good time, and segregation). Inmates whom the evidence indicates to be involved in the supply and sale of drugs—as in one of the cases at Pontiac—receive stiff punishment, sometimes on the basis of information developed during special investigations and accusations hidden in a confidential re port and occasionally preceded by a stint on investigative segregation. The cases of individual inmates caught using drugs or alcohol—those we encountered at Joliet—result in relatively mild penalties (e.g., 15 days of each). These cases reach the ARB mostly on issues of fact or credibility, and on the particular ones we heard, it was evident that the inmates' determination to contest as far as the ARB had little to do with their chance of winning. One inmate, e.g., who had been stupid enough to place a deodorant container filled with 12 rolled joints on the washer in full view of the guard while he was doing laundry, came to us with the story that there were really two such containers on the washer, one legitimate and the other with the marijuana, and that the guard had wrongly assumed that the illegitimate one was his. While dealing with these factual questions, we on the ARB were kept ignorant of more important background considerations. It seems safe to suspect, e.g., that when an individual user is caught he will be subjected to heavy pressure from the prison administration to reveal his source and that light sentences are the result of a bargain by which the inmate will “talk.”.Google Scholar

60 AR 804(107): Sexual Misconduct—“Voluntarily engaging in sexual intercourse, deviate sexual con duct or fondling, or touching done to sexually arouse either or both persons.”.Google Scholar

61 “Engaging in any of the above activity with an animal, or against the will of or without the consent of the other person or persons.”.Google Scholar

62 In detailing one of the “amusing” consensual cases, I do not mean to minimize the seriousness of prison rapes. The one forcible case we encountered, however, brought before us the perpetrator rather than the victim and gave us few details on, and even less insight into, the nature and incidence of these of fenses. Recently, the Washington Post published a series of harrowing front-page reports on rapes in the Prince George's County jail in Maryland, which resulted in a public outcry, further official investigations, and a number of lawsuits. See Loretta Tofani, Terror Behind Bars, Washington Post, Sept. 26–30, 1982, at 1, col. 4. It is always extremely difficult to assess the truth of these reports, however. In addition, what goes on in a jail in Maryland hardly qualifies as dispositive information on the situation in the Illinois penitentiary system.Google Scholar

63 A reader of an early draft of this article pointed out that this difference in outcome between disciplinary and nondisciplinary cases showed how heavily systemic needs, as opposed to the merits of the particular case, figured in determining the outcomes of cases heard by the ARB. It is a good point, a recurring theme perhaps in this article. Such an acknowledgment of the weight of systemic considerations is not necessarily bad or different from decision making in many other forums or contexts. See, e.g., Davies, Thomas Y., Affirmed: A Study of Criminal Appeals and Decision-making Norms in a California Court of Appeal, 1982 A.B.F. Res. J. 543, for a documentation of this point in a much more formal setting. Also, the systemic needs occasionally cut in favor of the inmates (see, e.g., the discussion of personal property cases infra at pp. 417–19).Google Scholar

64 See note 63 supra regarding the significance of systemic considerations.Google Scholar

65 The Illinois Department of Corrections' regulations specifically prohibit retaliation for use of the grievance process. AR 845 states that “Under no circumstances may any disciplinary action be taken against a resident for using the procedures established herein.” The officials who recommended the mental health referral felt, I am sure, that they were trying to help rather than punish.Google Scholar