pre-Bono period. The indefinite, prolonged, unjustified and
capricious nature of the confinement has been changed totally.
Each period of closed front status will be limited to a shorter
definable, day long period, at the end of which the inmate can
agree to cease his safety and security threatening activity and
have his outer door opened. Second, when the outer door is
closed, it is closed for an articulable and valid reason
necessarily related to the security of the institution and the
health of the inmates and staff. Testimony indicated the
existence of such a threat when inmates throw things from their
cells, such as personal property, food, garbage, urine or feces.
Thus, closing the outer door is well calculated to halt this
activity or at least to prevent it from posing a health and
safety hazard to others.
This Court has presided personally over this entire Bono
litigation. Having viewed the conditions in the Control Unit
prior to and after the modifications made by prison officials
pursuant to Bono, and considering the cumulative impact of the
proposals on the inmates, the Court is of the opinion that the
use of the Control Unit closed front cells on B Range, numbers 9
through 18, under the proposals offered by defendants, and used
only to remedy an emergency, will not visit inhumane, indecent,
uncivilized or unnecessary pain and suffering on the inmates
However, as an adjunct of this opinion and as part of this
Court's order, defendants are required to submit to this Court
for a period of one (1) year from the date of this order copies
of all Attachment 5 forms filled out, and the results of all
reviews made by the Control Unit Team of inmates under Closed
Front Status for a period of seven (7) days. Since this order is
intended not to allow prison officials to circumvent Bono, but
only to allow them to handle on a short term remedial basis an
especially disruptive inmate who creates by his conduct a danger
to everyone on the range, a review of the records kept will allow
this Court to ascertain whether prison officials are using
"Closed Front Status" only for the limited, latter purpose.
As indicated above, plaintiffs have filed a Motion for
Reconsideration of the order of January 16, 1981. In light of the
result reached above, the Motion for Reconsideration is hereby
DENIED. In the same memorandum, plaintiffs have offered
objections, which the Court shall address in order.
First, plaintiffs argue that this discretion vested in the
Control Unit Manager under the proposals renders his decisions to
close the outer doors free from outside scrutiny. This is not so.
His actions will be recorded in the log, and the Court, as a
condition of its order, requires that copies of all Closed Front
Status Reports on Attachment 5 forms made be forwarded to the
Court for inspection for a period of one year. While plaintiffs
assign to defendants the most diabolical motives, there was no
evidence introduced at the hearing which would lead the Court to
believe that false or misleading entries will be made. The only
apparent danger is that vague and unspecific entries will be
made. However, the Court will be in a position to review those
entries and call for more specific information, if required.
Second, plaintiffs argue that so-called procedural safeguards
provide no protection since they are continuously ignored by the
administration at Marion in other contexts in the Control Unit.
As to this contention, the Court notes that it is a mere
allegation unsupported by any evidence adduced at the hearing on
November 3 and 4, 1980. To underscore this allegation of neglect,
the plaintiffs, in a footnote, characterize the Court as
coalescing in this delay by refusing to address "many urgent
matters . . . raised on remand in this case in November of 1980"
that have "still not been ruled on or even addressed by this
Court." For the record, plaintiffs' Motion for Additional Relief
on Remand was considered and ruled on in the order of December
Third, plaintiffs assert that defendants failed to show any
need which outweighed the harm inflicted. With this conclusion,
the Court simply disagrees. Defendants demonstrated a dire need
to put a stop to certain kinds of behavior which disrupted
the Control Unit and threatened the health and safety of inmates
and staff. And the Court has determined that the conditions
resulting from the closing of the outer door in an emergency
situation, under the proposals advanced, will not inflict cruel
and unusual punishment.
Finally, plaintiffs offer a plea that this Court take the
"first step" in improving the penology at the U.S.P. Marion by
eliminating the power of the prison administration to take
actions, that is, closing the outer door of the closed front
cells, which incite the reactive and negative behavior which, in
turn, the prison officials use to justify the use of the closed
front cells. If the Court could choose among a range of potential
solutions according to which seemed like the best way to operate
the Control Unit, the solution suggested by plaintiffs could well
be the one chosen. However, "Eighth Amendment judgments should
neither be nor appear to be merely the subjective views" of
judges. Rummel v. Estelle, 445 U.S. 263, 275, 100 S.Ct. 1133,
1139, 63 L.Ed.2d 382 (1980). The role of the Eighth Amendment is
not one which allows federal courts unbridled choices. Rather, it
restrains the use of power by the Federal Government to
accomplish otherwise legitimate ends in a manner consistent with
the Constitution. Here, the Court is called upon only to decide
whether the means used satisfy the Eighth Amendment. The Court
has decided that they do.
In sum, (1) defendants' Motion to Supplement Record is hereby
GRANTED; (2) plaintiffs' Motion for Reconsideration is hereby
DENIED: (3) the proposals submitted by defendants pursuant to
this Court's order of January 16, 1981, and now embodied in the
Institution Supplement satisfy the Eighth Amendment to the
Constitution of the United States; and (4) the Court's ruling as
to the constitutionality of the proposal is contingent upon the
defendants filing with the Court at East St. Louis, Illinois, on
a weekly basis for a period of one (1) year, copies of all
Attachment 5 Closed Front Status Reports.
IT IS SO ORDERED.
Federal Prison System Number: MI-5212.3a
U.S. Penitentiary Date : 4/16/81
Marion, Ill. 62959
Subject: CONTROL UNIT PROGRAMS
1. PURPOSE. The purpose of this Institution Supplement is to
provide local guidance for implementation of the Federal Prison
System Program Statement on Control Unit Programs.
2. DIRECTIVES AFFECTED. Federal Prison System Program Statement
5212.3, dated 7/16/79, Control Unit Programs, is referenced.
Marion Institution Supplement MI-5212.3, dated 4/17/80, is
3. ADMISSION TO THE CONTROL UNIT.
a. Classification. Upon admission to the unit, an
inmate will ordinarily be classified within 10
days. When initially classified by the Unit Team,
the inmate is advised of his expected duration of
confinement (status) in the unit. The nature of
the act(s) which resulted in an inmate's placement
in the control unit will be the primary factor in
determining the number of months to be served in
the unit. Status assignments may range from one
month to any definite number of months. The
inmate's status may be increased or decreased by
the unit team dependent upon his behavior within
the unit. At initial classification, the inmate is
given the following: Control Unit Classification
Summary (See Attachment 1) which states the reason
for placement in the unit and the assigned status;
BP-6.1 Program Plan, and Control Unit Orientation
Booklet. In addition, the activities of the unit
are explained to the inmate and the criteria for
release is discussed.
b. Personal Property. Personal property is limited to
those articles provided for in the local
Institution Supplement MI-5580.1A, entitled
"Inmate Personal Property — Control Unit",
dated April 1, 1981. Nothing made of glass or
metal will be issued.
c. Cell Assignment. Cell assignments are made by the
unit manager or his designee. In most cases, new
commitments will be initially assigned to a cell
on B Range, taking into account space
availability. Ordinarily assignment to this range
4. REVIEW OF CONTROL UNIT PLACEMENT.
a. Unit Team. The Unit Team is comprised of the Unit
Manager, Case Manager, Correctional Counselor, and
Education Representative. This panel reviews each
case every 30 days and considers the inmate's unit
status, adjustment and readiness for release from
the unit. A Control Unit Review Form is completed
for each review outlining the inmate's progress
and remaining months to be served in the unit.
This is signed by each member of the Unit Team
with the Warden serving as the reviewing
authority. The inmate is given a copy of each
Control Unit Review Form (see Attachment 2). It is
mandatory that an inmate appear for his 30 day
review in order to receive monthly credit.
b. Executive Panel. The Executive Panel is composed
of the Regional Director, North Central Regional
Office, and the Assistant Director, Correctional
Program Division. This panel reviews each case
every 60 to 90 days to determine the inmate's
readiness for release from the unit.
5. RELEASE FROM THE CONTROL UNIT. Either the Unit Team, with
approval from the Warden, or the Executive Review Panel may
release an inmate from the Control Unit. The Executive Review
Panel is normally the releasing body. The following factors are
considered in evaluation of an inmate's readiness for release
from the unit.
a. Personal grooming and cleanliness.
b. Quarters sanitation.
c. Relationship with other inmates and staff.
d. Work involvement.
e. Self-improvement activities.
f. Adherence to Bureau and Institution Policy.
Prior to each Executive Review, the Unit Team will prepare an
Executive Review Sheet (see Attachment 3) and a list of
recommended releases (which is subject to approval of the
Warden). The Unit Case Manager will prepare an up-to-date
progress report and BP-15 on each inmate recommended for release.
All material is made available to the Executive Panel as they
review each case. The Executive Panel will make the final
decision on those recommended for release from the unit. Prior to
actual release, this panel will designate a suitable institution
for each respective releasee, taking into account the need for
security/supervision, inmate programmatic needs and proximity to
6. PROGRAMS AND SERVICES.
a. Education. An education representative is assigned
to the unit to assist inmates in their
academic/vocational endeavors and hobby craft.
Inmates may earn their GED and/or take
correspondence courses, i.e. (college level) while
in the unit. Certain hobby craft materials are
permitted in the control unit. They are limited to
those that do not pose a threat to the security of
the institution or safety of staff and inmates
subject to the final approval of the education
representative and the Control Unit Manager. The
respective inmate is responsible for assuming the
financial obligations of such projects.
b. Work Assignment. The performance pay in the
control unit supports six positions, i.e., A-Range
Orderly, B-Range Orderly, C-Range Orderly, D-Range
Orderly, and two (2) barbers. Inmates may be
assigned other duties as deemed appropriate by the
c. Industries (UNICOR). C-Range in the control unit
has been designated as the industry range. In
order to be considered for placement in this
program, an inmate must submit a written request
to the Unit Manager. Inmates who have demonstrated
that they can assume additional responsibility and
who are within six (6) months of release, will be
given preference in obtaining this assignment.
Inmates on the industry range are required to wear
safety shoes. Violations of UNICOR regulations may
result in reduction in pay, position, or removal
from this program. Orderlies on industry range are
paid by UNICOR. The feasibility of an industrial
program will be dependent on available UNICOR
contracts that require a product which is not
counterproductive to the operation/security of the
unit, availability of a stable work force of
sufficient size, and flexibility so far as cell
assignments to maintain necessary separation, etc.
d. Legal. The control unit is equipped with a legal
library and a typing room. Material for these
areas is supplied by the education department
through the education representative assigned to
the unit. This staff member also assists inmates
in obtaining legal material from other sources.
The typing room is equipped with a typewriter,
paper, carbon, etc. To use either service, the
inmate must submit a request to the
Officer-in-Charge. The inmate's name is placed on
a waiting list for the particular room requested.
Time in each is allotted in four (4) hour
increments. After using the four hours, the inmate
may request another four hours when his turn
revolves. If an inmate receives an unexpected
verifiable deadline, he may request emergency time
in the law library or typing room through his case
manager. Inmates who utilize these areas for other
than the intended purpose, i.e., visiting, will be
removed from these areas immediately.
e. Recreation. Each inmate is provided a minimum of
seven (7) hours of recreation per week. Equipment
is provided by the education department through
the education representative assigned to the unit.
When practical, inmates will be permitted to
recreate in groups subject to the approval of the
Unit Manager. The following is a breakdown of
recreation groups by ranges:
A-Range. A maximum of two (2) men per recreation
group for inside/outside recreation. The orderly
is not permitted out with any other group other
than the group to which he is assigned.
B-Range. A maximum of two (2) men per
inside/outside recreation group. The orderly is
not permitted out with any other group other than
the group to which he is assigned.
C & D Ranges. Maximum of two (2) men per group for
inside/outside recreation. The orderly is not
permitted out with any other group other than the
group to which he is assigned.
Disciplinary Segregation. Inmates who are placed
in D/S will recreate in single status unless
otherwise authorized by the Control Unit Manager.
Further, inmates in D/S status will be limited to
1 hour of inside recreation daily.
The maximum number of inmates that may comprise any outside
recreation group may not exceed two (2). Outside recreation will
be accomplished on a rotational basis (i.e., A-Range, B-Range,
C-Range and D-Range). Inmates who live on the same range and wish
to recreate together must submit a request signed by each man.
The OIC will verify each signature and give the request to the
Unit Manager for final review and approval. A recreation log is
kept on each inmate with the beginning and ending time of each
recreation period noted. If an inmate refuses to recreate, this
is also noted and is counted toward his weekly recreation time.
With the exception of Disciplinary Segregation, all other cells
are equipped with a television.