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        A “Safe Outlet” for Prisoner Discontent: How Prison Grievance Procedures Helped Stymie Prison Organizing During the 1970s
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        A “Safe Outlet” for Prisoner Discontent: How Prison Grievance Procedures Helped Stymie Prison Organizing During the 1970s
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        A “Safe Outlet” for Prisoner Discontent: How Prison Grievance Procedures Helped Stymie Prison Organizing During the 1970s
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Abstract

This article demonstrates how civil liberties lawyers’ efforts to address the complaints of imprisoned people in the 1970s inadvertently helped provide state attorneys with tools they used to stymie prisoners’ organizing efforts. Using North Carolina as a case study, I explain why a diverse range of legal actors—including civil liberties lawyers, federal judges, and state attorneys—supported the creation of prison grievance procedures. I then reveal how state attorneys successfully used them, once implemented, to argue that because the procedures offered a seemingly fair, institutional avenue for imprisoned people to express their grievances, prison administrators could ban prison organizing without violating prisoners’ First Amendment rights to free speech and assembly. The history of prison grievance procedures, I suggest, highlights the limits of constitutional rights litigation for achieving social change, offers a new approach to the study of legal endogeneity, and helps explain the demise of the prisoners’ rights movement.

INTRODUCTION

In February 1972, Donald Morgan, a man confined to North Carolina’s maximum-security Central Prison, requested assistance from the North Carolina chapter of the American Civil Liberties Union (NCCLU). The issue at hand, Morgan explained, was one of “utmost importance” to the people held inside the facility. Each night, noisy trains passed by the prison, preventing the men housed nearest to the tracks from sleeping for “more than an hour at a time.” To Morgan, this situation represented “a clear violation” of the Eighth Amendment’s ban on cruel and unusual punishment and mandated a federal lawsuit (Letter from Donald Morgan to Norman Smith 1972). Norman Smith, the NCCLU’s sole staff attorney, remained unconvinced. During a NCCLU board meeting, Smith used Morgan’s letter to illustrate a dilemma he regularly encountered when responding to prisoners’ requests for aid. On the one hand, he recognized that Morgan had identified a “real and pressing problem” inside the prison. “Sleep deprivation can drive a man mad,” he acknowledged. On the other hand, Smith did not believe that “any federal judge in their right mind” would view the noisy trains as infringing upon the men’s constitutional rights. According to case law, prison practices had to “shock the conscience” in order to qualify as an Eighth Amendment rights violation, a high bar to reach in an era when some incarcerated people lacked clean water, let alone an uninterrupted night’s rest (Rochin v. California 1952, 209). “We need to figure out a third way,” Smith explained to the board. “How should we handle inmates’ complaints that are neither petty nor rights violations?” (North Carolina Civil Liberties Union Board Meeting Minutes 1972).

Civil liberties lawyers were not the only legal professionals grappling with how best to respond to imprisoned people’s grievances. By the early 1970s, federal judges found themselves overwhelmed by prisoners’ self-filed, or pro se, lawsuits contesting state prison practices and conditions. But the federal judiciary lacked the legal authority or institutional capacity to resolve most of the claims. Between 1966 and 1972, the number of constitutional rights cases focused on prison practices and conditions increased by more than 1,400 percent while the number of people confined to state penal institutions decreased by approximately three percent.1 Many judges, including Supreme Court Chief Justice Warren Burger, noted the suits often described meaningful problems, but the federal courts dismissed the vast majority of the cases at pretrial for failing to outline an issue judges believed federal law could address or remedy.2 To make matters worse, many imprisoned litigants waited months or even years to learn their cases had been dismissed because case backlogs made the litigation process painfully slow. With most prisoners’ grievances left unaddressed, civil liberties lawyers feared prisoners’ frustrations would erupt into violence.

This article demonstrates how civil liberties lawyers’ efforts to respond to the legal and institutional issues raised by incarcerated people’s complaints ultimately helped provide state attorneys with tools they used to undermine prisoners’ organizing efforts. Recognizing that the federal courts lacked the ability to address the full range of prisoners’ concerns, the lawyers worked alongside federal judicial officials and state attorneys to develop grievance procedures inside prison systems. By the mid-1970s, such procedures had garnered widespread support because they appealed to a variety of stakeholders, albeit for different reasons. Judicial officials hoped they would reduce their caseloads by resolving prisoners’ problems before they reached the courts. State attorneys believed the procedures would shield prisons from liability in the few prisoner-filed cases that made it beyond pretrial. And the NCCLU lawyers viewed the procedures as a means to improve life for the vast majority of imprisoned people who had troubling grievances that fell short of constitutional rights claims.

Once in place, however, the procedures made it easier for federal judges to justify limitations on prisoners’ First Amendment rights to free speech and association. In the 1977 Supreme Court case Jones v. North Carolina Prisoners’ Labor Union, Inc., state attorneys, aided by the US Office of Solicitor General (OSG), argued in part that because the new procedures offered a seemingly fair, institutional avenue for incarcerated people to express their grievances, prison administrators could ban prison organizing without violating prisoners’ First Amendment rights. The Court endorsed their claim, citing the procedures in a footnote supporting the legality of prison officials’ actions. The attorneys’ argument proved enticing to the Court, I suggest, both because the presence of the procedures seemed to lighten the blow to prisoners’ rights and because the justices were invested in the procedures as a means to reduce prison litigation. While evidence suggested the procedures failed to fully address prisoners’ complaints, they gave the prison system the appearance of a modern administrative agency governed by law-based rules rather than the personal whim of its employees. Within days of the ruling, Department of Corrections (DoC) officials issued new policies making it nearly impossible for prisoners to organize.

Civil liberties lawyers’ struggle to address prisoners’ complaints sheds fresh light on the limitations of constitutional rights litigation as a tool for social change. Many scholars have pointed to the rise of conservative politics after 1968 to explain why the rights revolution of the 1950s and 1960s failed to transform American life more fully than it did. They lay blame on conservative federal judges, appointed by Republican presidents, who worked to scale back the rights of disadvantaged individuals, and on conservative lobbyists and lawyers who did the same.3 Other sociolegal scholars have documented the structural challenges federal courts faced in enforcing their decisions and shifting the broader political consensus.4 Still other, more theoretically minded scholars have illuminated how the gendered and racialized nature of citizenship within emerging nation-states made it difficult to extend rights to those on the margins.5 By tracing the responses of judges and lawyers to prisoners’ varied claims, this article highlights a different set of legal and institutional constraints individuals encountered when filing constitutional rights lawsuits. Not only did most issues fail to reach the high standards of constitutional rights violations, but the federal courts also lacked the capacity to respond to litigation in a timely manner.6 Nowhere were these limitations more evident than within prisons, where constitutional rights litigation was one of the only avenues for people to seek help for their problems.7

In Jones, the Supreme Court, I suggest, deferred to North Carolina’s prison grievance system in part because it hoped such procedures would address some of the challenges federal judges faced in resolving prisoners’ claims. The Court’s action highlights the importance of archival research to the study of what sociolegal scholar Lauren Edelman has called “legal endogeneity,” the process in which courts defer to organizational policies and practices designed to symbolize compliance with the law without scrutinizing their effectiveness. Edelman’s scholarship explains this phenomenon by analyzing language in published court decisions and drawing on tools from the field of social psychology to suggest that managerial ideas about legality and compliance “seep into the judicial realm” over time (2016, 170).8 By situating the Jones decision within the context of the rich archival record documenting judges’ concerns about their caseloads, this article offers an alternative, more material, explanation for judges’ deference to organizational practices. While the Court may have been influenced unwittingly by prison officials’ understandings of the law, it also had practical reasons for emphasizing the utility of prison grievance procedures. Time and again, federal judges made clear in their private correspondence, public speeches, and judicial reports that they believed the procedures would reduce their caseloads.

Ultimately, Jones and its aftermath help us to better understand the endurance of punitive penal practices, despite the promise of the prisoners’ rights movement during the early 1970s. Scholars such as political scientist Naomi Murakawa have suggested liberals’ efforts to make prisons more “rights-based” and “rule-bound” during the mid-twentieth century helped “legitimize extreme penal harm” by obscuring the deeper structural inequalities undergirding America’s criminal justice practices (2014, 18).9 The fate of North Carolina’s grievance procedures paints a darker, indeed more tragic, picture. Inundated with prisoners’ requests for assistance, civil liberties lawyers viewed grievance procedures as a politically feasible, though partial, way to offer imprisoned people a degree of relief from their suffering. Yet state attorneys, recognizing the Court’s growing frustration with prisoners’ claims, used them to support their efforts to foreclose prisoners’ ability to organize. With procedures in place that at least appeared to address prisoners’ complaints, federal judges felt free to curtail their First Amendment rights. Empowered by the Jones decision, prison administrators used their expanded administrative discretion to reshape prison policies to better reflect their managerial desires, among them the suppression of prison organizing.

THE LIMITED REACH OF CONSTITUTIONAL RIGHTS

In 1964, the Supreme Court in Cooper v. Pate reinterpreted Section 1983 of the 1871 Civil Rights Act to enable state prisoners to file federal lawsuits against state officials who violated their constitutional rights. In turn, a growing number of imprisoned people drew on Cooper to contest prison practices and conditions.10 They also wrote to the American Civil Liberties Union (ACLU), a nationwide organization dedicated to defending individual rights and liberties guaranteed by the Constitution. Both judges and lawyers evaluated prisoners’ claims, determining which to recognize in light of their understanding of the law and, in the case of the ACLU, the organization’s strategies and priorities. Many soon identified a gap between prisoners’ needs and their ability to offer assistance. Not only did the courts and the ACLU lack the institutional capacity to respond to all of the prisoners’ complaints, but many of the grievances also seemed to describe problems that failed to rise to the level of constitutional rights violations.

When the North Carolina Civil Liberties Union began receiving letters from imprisoned people, its affiliated attorneys, like those in most states, were unsure how to respond. Founded in 1965 as part of the ACLU’s dramatic expansion in the 1960s, the NCCLU was comprised almost entirely of white men in their thirties and forties who cared most about protecting the First Amendment. Most were unfamiliar with the burgeoning field of prisoners’ rights law.11 Yet prisoners’ activism made it impossible to ignore. In 1968, men confined to the state’s maximum-security Central Prison launched a strike that left six dead and seventy-seven injured. Shocked by the violence, the NCCLU signed a petition calling for a grand jury investigation (Lewis 1968; Letter from Norman Smith to McNeill Smith 1968). After hearing the news, imprisoned people, recognizing the NCCLU as a potential ally, flooded its office with requests for assistance. With limited resources and expertise, the NCCLU responded to the best of its ability, mailing legal texts and providing bits of advice.

In early 1972, the ACLU launched its Washington D.C.-based National Prison Project, which the NCCLU hoped would offer new ideas regarding how best to respond to problems inside prisons. The Prison Project operated on two levels. First, its staff took on cases it believed would establish positive precedents, especially in regard to imprisoned people’s access to the courts, due process rights and, most importantly, First Amendment rights to free speech and assembly. The lawyers hoped such cases would hold prison officials accountable for their actions, better inform outsiders of conditions inside prisons, and increase prisoners’ ability to organize collectively. The project relied on local affiliates to screen letters from people imprisoned in their state and to alert project lawyers to potentially important cases. Second, the project provided assistance to affiliates working to ensure corrections officials upheld established prisoners’ rights, such as bans on particular practices and conditions that federal judges had recently deemed “cruel and unusual.”12

While the NCCLU welcomed the Prison Project’s assistance, prisoners’ letters made clear that imprisoned people’s needs extended beyond the priorities of the Prison Project or even those of the NCCLU. With few other places to turn for help, incarcerated men and women wrote regarding all aspects of prison life, from the lack of milk for their coffee to personal disputes with guards to unmet healthcare needs, violence, and abuse. The NCCLU, like all ACLU affiliates, had only the resources to pursue cases that had the potential for widespread effects. But many prisoners’ complaints, while often serious, seemed only to apply to individuals rather than to groups. As staff attorney Norman Smith regularly reminded the correspondents, “The NCCLU [was] not a legal aid service” (Letter from Norman Smith to Jack Stallings 1968). More problematically, Smith believed, as he told the NCCLU board in 1973, that “the great majority of inmates’ applications [were] frivolous,” meaning that, in his opinion, the petitions failed to state a legally actionable claim under the US Constitution, not that the grievances lacked merit in moral or ethical terms (North Carolina Civil Liberties Union Board Minutes 1973). As Smith and the board understood, constitutional rights violations were difficult to prove, especially for people in prison. Until the mid-1960s, federal judges believed people gave up the vast majority of their rights when they crossed the prison gates. After Cooper, the courts began to expand the rights of the incarcerated, but they did so slowly and cautiously. The NCCLU doubted that even the most liberal federal judges would entertain the majority of prisoners’ grievances, which left the lawyers in a bind. While they believed addressing the grievances of people in prison was important, they lacked the ability to resolve complaints that fell short of outlining widespread constitutional rights violations.

Imprisoned people had their own idea about how to resolve problems behind bars: unionization. In 1973, imprisoned activists founded the North Carolina Prisoners’ Labor Union (NCPLU) as part of a wave of prison labor organizing across the United States.13 While the goals and strategies of prisoners’ labor unions differed from state to state, the NCPLU sought first and foremost to leverage prisoners’ labor, which at the time helped financially sustain the state’s prison system, to bargain collectively with prison administrators (North Carolina Prisoners’ Labor Union 1974). With the help of a 1,000 dollar start-up grant from the North Carolina Chapter of the AFL-CIO, the union had organized people in at least fifteen of the state’s eighty correctional facilities by 1974. Within two years, over 2,000 people had signed union cards, making the NCPLU one of the biggest—if not the biggest—prison unions in the nation.14 Once the union secured its right to bargain collectively, the members planned to create a grievance council modeled after those used by labor unions outside the prison. Comprised of both union representatives and prison staff, the council would “address issues affecting individual inmates as well as the prison population as a whole.” Union leaders believed the grievance council could “quickly address problems” and “develop resolutions agreeable to both prisoners and prison staff.” The union argued that prison staff would uphold the council’s decisions because, if not, the prisoners would have the power to strike (Letter from Wayne Brooks to Fred Morrison 1976a).

The union also filed its own federal lawsuits. Forced to endure dehumanizing conditions, imprisoned men and women deployed a variety of tactics, often simultaneously, to improve their lives. The union’s leaders envisioned the organization as a clearinghouse for prisoners’ complaints, which skilled, self-trained jailhouse lawyers would compile into sophisticated class action lawsuits (Brooks 1974–1975b). For assistance, jailhouse lawyers often wrote to the NCCLU, which rarely agreed with the prisoners’ legal reasoning. Nevertheless, the jailhouse lawyers proceeded with most of their cases. They believed that, at the very least, the cases would compel corrections officials to answer for their actions (Letter from Daniel Pollitt to Norman Smith 1974). Whenever an imprisoned person filed a suit, the prison administrators named as defendants had to meet with a staff member from the Attorney General’s Office to file depositions in response to the charges.

The union’s jailhouse lawyers also hoped their class action suits would focus judges’ attention on key issues behind bars. They recognized that federal judges were overwhelmed by the number of cases reaching their desks from the prisons and beyond (Letter from Wayne Brooks to Fred Morrison 1976b). Not only did the prison litigation rate begin to skyrocket during the late 1960s, but the overall caseload expanded, too. Between 1968 and 1980, the number of civil lawsuits filed in federal court more than quadrupled.15 Yet while the number of federal lawsuits grew, the size of the judiciary remained largely the same during most of the 1970s. Political polarization after 1968 slowed the appointment of federal judges, leading to a dramatically expanded judicial workload. By 1974, the judges who served the US District Court for the Eastern District of North Carolina, the state’s busiest federal judicial district, handled three times the number of cases they had reviewed in 1965 (Larkins 1974).

Prisoners’ lawsuits often bore the brunt of judges’ frustration with their growing workload because they were particularly difficult and time-consuming to evaluate. In 1972, the Supreme Court ruled in Haines v. Kerner that lawsuits filed by prisoners were subject to “less stringent standards” than those filed by lawyers, which meant their complaints did not have to follow the normal format for legal pleadings (1972, 520). After Haines, judges and their clerks had to conduct close readings of prisoners’ cases to determine whether they contained a legally actionable charge. This was rarely an easy task. Imprisoned people with limited literacy and legal skills filed the majority of lawsuits, often burying actionable claims beneath pages of narrative. While magistrate judges processed most prison lawsuits by the 1980s, this task largely fell on the shoulders of district court judges and their few clerks during the 1970s because the role of magistrate judge, a position first created in 1968, was still ill-defined and subject to debate (Crowe 2012, 246).

Some judges, especially those who were part of the new cohort of “strict constructionists” appointed by President Richard Nixon, decried prison litigation as a symbol of broader problems plaguing the federal court system. Appointed by Nixon in 1969, Supreme Court Chief Justice Warren Burger played the leading role in popularizing this vision. Using prisoners’ rights claims as his prime example, Burger suggested Americans had become too reliant on the federal courts to solve their problems. Not only did the US Constitution limit Americans’ rights, Burger argued, but the federal courts also lacked the capacity to respond to all Americans’ lawsuits, as evidenced by the case backlogs. In speeches and writing, he suggested imprisoned people in particular “wast[ed] scarce judicial time” by filing lawsuits that, “although important to a prisoner,” were “so minor that any well-run institution should be able to resolve them fairly without resort to federal judges” (Burger 1976, 90).

Once in office, Burger worked to streamline the federal litigation process and to reduce the case backlogs (Crowe 2012, 250–54). In February 1970, he recommended the nationwide adoption of prison grievance procedures in a speech to the National Association of Attorneys General. “What we need,” he explained, “is … a simple and workable procedure by which every person in confinement who has, or thinks he has, a grievance or complaint can be heard, promptly and fairly” (Burger, quoted in Federal Judicial Center 1980, 24). He later expanded on his idea, urging the implementation of state prison grievance procedures modeled after those used by labor unions to resolve their issues with management. “With proper grievance procedures in a large industrial operation,” he said, “the hour-to hour and day-to-day frictions and tensions can be carried up through channels and either guided to a proper solution or dissipated by exposure” (Burger 1972).

Other court administrators seconded the problem highlighted by Burger, if not his proposed solution. In 1971, Burger called on the Federal Judicial Center, an education and research agency of the federal courts, to form a committee to investigate the causes of and solutions to case backlogs in the Supreme Court. Chaired by Harvard Law School Professor Paul Freund, the committee released its findings in December 1972. Listing prison litigation among the backlogs’ causes, the study noted that the “number of [prisoner] petitions found to have merit” was “very small, both proportionately and absolutely” and that it seemed a “misallocation of resources to impose the burden of shifting through the mass of these petitions on federal judges.” To reduce imprisoned people’s reliance on the courts, the committee proposed a “non-judicial federal institution”—a new bureaucratic agency of sorts—staffed with lawyers who would investigate prisoners’ complaints (Federal Judicial Center 1972, 12–16). The current system of “endless litigation,” Freund later told Nixon administration officials, was “neither effective nor sustainable” (Letter from Paul Freund to Charles Clapp 1973). The NCCLU and the Prisoners’ Labor Union likely would have agreed.

INSTITUTING PRISON GRIEVANCE PROCEDURES

Unnoticed by the NCCLU or the federal courts, legal aid lawyers had been working since 1970 to develop nonjudicial ways to address prisoners’ problems. In doing so, they sought primarily to reduce prison violence. During the late 1960s, violence in America’s prisons exploded, paralleling broader unrest in many American cities. In 1967, there were five prison uprisings. The following year, the number tripled. In 1970 and 1971, there were twenty-seven and thirty-seven riots, respectively (Unseem and Kimball 1989, 18). After the bloody strike at Attica Prison in New York left forty-three dead in September 1971, the lawyers’ work began to garner attention from the corrections community. But it took more than the threat of prison violence to persuade many state officials, including those in North Carolina, to create new avenues to resolve imprisoned people’s problems. By the mid-1970s, then current trends in administrative law led state attorneys general to believe grievance procedures would reduce litigation and shield prison administrators from liability in the few cases that reached the courts. Although their goals diverged from those of state officials, civil liberties lawyers in North Carolina, recognizing the need for an effective mechanism to address prisoners’ complaints, worked with the State Attorney General’s Office to establish the North Carolina Inmate Grievance Commission.

Inspired by the broader movement to make the legal system more accessible to ordinary Americans, two young legal aid lawyers applied for and received a grant in 1970 from the US Office of Economic Opportunity’s Office of Legal Services to create the Center for Correctional Justice (CCJ), which sought to devise methods beyond the courts to respond to the prisoners’ complaints. The CCJ brought together lawyers, corrections officials, and formerly incarcerated people to develop, implement, and assess various grievance procedures in prisons across the United States. Two years later, in 1972, the Institute for Mediation and Conflict Resolution and the National Arbitration Association received funding from the Ford Foundation for similar projects. CCJ Directors Linda Singer and Michael Keating regularly published their findings in academic journals and other outlets aimed at corrections professionals. They found that grievance procedures had an overwhelmingly positive effect on the relationship between prisoners and guards. Yet for imprisoned men and women to view the procedures as legitimate, they had to play a role in the grievance resolution process, and the system had to be transparent and include some form of independent review (Singer, Arthur, and Schuman 1972, 37–42; Singer and Keating 1973, 375; Denenberg and Denenberg 1975, 32; Keating, et al. 1975a, 87; Keating, et al. 1975b, 33).

Despite the lawyers’ findings, most prison administrators, long accustomed to governing prisons according to their own wishes, remained reluctant to institute formal grievance procedures. In May 1973, the CCJ conducted a survey of 209 penal institutions regarding their grievance resolution systems. While 166 prison administrators reported they had some procedures in place, the CCJ discovered that most of the practices were informal and poorly defined. The majority failed to specify time limits for responses to complaints, and many did not require grievances to be written. Only fifty institutions had designated staff members to handle the incoming complaints. Others continued to rely on older, unwritten methods for addressing “inmates’ gripes.” Imprisoned people in North Carolina, for instance, could write to the corrections superintendent with their complaints, but he was under no obligation to respond to them (McArthur 1974, 41–46).

Unlike prison administrators, state attorneys championed the adoption of grievance procedures. Charged with defending state officials and agencies in court, state attorneys by the early 1970s had grown concerned about federal judges’ growing involvement in prison affairs. In 1972, the National Association of Attorneys General (NAAG), then chaired by North Carolina’s politically ambitious Attorney General Robert Morgan, received a grant from the US Department of Justice’s Law Enforcement Assistance Administration to study the potential benefits of prison grievance procedures for states. First published in February 1973, the NAAG’s report suggested internal grievance mechanisms might shield prison administrators from litigation by enabling them to address imprisoned people’s concerns before they reached the courts—with one important caveat: most prisoners were under no obligation to utilize grievance procedures before filing lawsuits because they drew on Section 1983 of the 1871 Civil Rights Act (National Association of Attorneys General 1973, 10–11). Passed during Reconstruction, Congress had designed the Act to protect newly emancipated African Americans against potentially biased state officials by enabling them to file their constitutional claims directly in federal court without first exhausting any state remedies.

Yet as a widely circulated publication by the South Carolina Department of Corrections suggested, federal judges, frustrated with the large number of prison lawsuits, seemed open to rethinking their interpretation of Section 1983, at least when it came to prisoners’ claims. Recent lower court decisions had implied judges might compel exhaustion if grievance procedures offered prisoners “a complete[,] … impartial[,] … and prompt” hearing (South Carolina Department of Corrections 1973, 8).16 Federal cases in the field of industrial relations also suggested the courts favored methods of adjudication beyond litigation. When asked whether to uphold labor union arbitration procedures or to substitute court-directed methods of adjudication between workers and their employers, the Supreme Court after 1960 consistently decided in favor of the arbitration procedures.17 State attorneys hoped, with grievance procedures in place, similar rulings would be on the horizon for prison administrators.

The lawyers affiliated with the CCJ, the National Arbitration Association, and the Institute for Mediation, hoping to encourage the procedures’ adoption, drew on state attorneys’ arguments. In their publications, the lawyers portrayed the procedures as a means for state officials to retain some control over prison policy during a period of rapid—and inevitable—change brought about by prison activism and court intervention. “The era of unlimited administrative discretion is coming to an end,” Singer and Keating observed in a 1973 article. They argued prison officials had to decide whether new correctional practices would be decided by “judicial fiat[,] … inmate violence[,] … [prisoner] unionization[,] … or by the administrators themselves” (Singer and Keating 1973, 377). In a February 1975 article, George Nicolau of the Institute for Mediation underscored Singer’s and Keating’s points, noting prison administrators could respond to the shifting terrain of prisoners’ rights law with “coercion countered by resistance, endless litigation … or a mutually acceptable dispute settlement system” (Denenberg and Denenberg 1975, 30).

In October 1973, the US District Court for the District of Maryland issued a ruling that confirmed state attorneys’ belief that a new exhaustion doctrine was on the horizon. In McCray v. Burrell, District Judge Edward Northrop ruled that the federal court could stay a prisoner’s lawsuit for ninety days or until he or she presented the complaint to the newly established Maryland Inmate Grievance Commission. In his sixty-one-page decision, Northrop highlighted judges’ own investment in the procedures. To justify his ruling, he noted the “toll” the “meteoric rise” in prisoner petitions had taken on the courts. Although he conceded that federal judicial intervention had remedied “the worst examples of retrogressive American penology,” he suggested the time had come for judges to “take a careful and critical look” at recent interpretations of federal law that had forced courts to accept “all but the most patently ridiculous complaints from state prisoners” (McCray v. Burrell 1973, 1193–94).

Word of Northrop’s decision in McCray spread quickly within the Fourth Circuit. In North Carolina, the news persuaded Herman Smith, a magistrate working for the US District Court for the Middle District of North Carolina, to take action. Frustrated by the number of prisoner cases that landed in his court, Smith wrote to judges, politicians, and the NCCLU to advocate for the creation of a prison grievance commission, suggesting it would allow the courts to become “less involved” in prison administration, especially in light of McCray. Since the decision, he noted, Maryland’s newly formed grievance commission had “cut the state’s court filings by prisoners down by two-thirds” (Letter from Herman Smith to Robert Morgan 1973; Letter from Herman Smith to McNeill Smith 1973; Letter from Herman Smith to Franklin Dupree 1973). Encouraging the adoption of Maryland’s model, upheld as sufficient in McCray, Smith included a copy of the statute creating Maryland’s commission in each letter (Ibid.).

Norman Smith supported Herman Smith’s idea, but he had some reservations. He, like the ACLU Prison Project, opposed the exhaustion requirement created by McCray because he feared it would impede imprisoned people’s ability to use Section 1983 to bring constitutionally valid claims to court. But he hoped the decision would provide North Carolina’s corrections officials with an incentive to adopt procedures that would swiftly resolve prisoners’ complaints. As he told the NCCLU board of directors, imprisoned people had only grown more frustrated with prison officials’ lack of responsiveness since the late 1960s. He also feared the large number of prison lawsuits was beginning to erode federal judges’ ability—or desire—to examine the claims carefully. Norman Smith suggested that because the courts were “overburdened with handwritten applications by prisoners,” the “very few cases that [were] meritorious” became like “needles in the haystack … elud[ing] the necessarily limited judicial scrutiny accorded this type of litigation.” Smith hoped the procedures would address the minor complaints of people in prison so that the courts could be reserved for addressing constitutional rights violations (North Carolina Civil Liberties Union Board Minutes 1974).

Persuaded by Smith’s argument, the NCCLU board voted to support the creation of a prison grievance commission. Smith arranged a meeting with State Senator McNeill Smith, an NCCLU member, and Attorney General Morgan, who embraced the procedures as a means to reduce prison litigation. Since the late 1960s, Morgan had been working alongside legislators to develop North Carolina’s first Administrative Procedures Act (APA).18 The proposed Act, like many state APAs, compelled citizens to “exhaust all administrative remedies” before challenging agency actions in court, a provision in line with court-made doctrine in the field of administrative law (Daye 1975, 904–08). By establishing formal grievance procedures for the DoC, a state agency then subject to the APA, Morgan hoped to encourage federal judges to extend the exhaustion requirement established in McCray. In fact, Morgan requested Senator Smith add language to the grievance commission bill tying it to the APA. “No court shall be required to entertain an inmate’s grievance within the jurisdiction of the Commission … unless the complainant has exhausted the remedies [provided by the commission],” the new clause read (An Act to Amend Chapter 148 of the General Statutes to Create an Inmate Grievance Commission of 1974). Morgan understood that, as a state law, the clause would technically apply only to imprisoned people filing lawsuits in state courts. But, as he told Norman Smith, he hoped the language would strengthen the McCray decision by signaling to the federal courts that North Carolina “intended to handle prisoners’ complaints in house” (Letter from Robert Morgan to McNeill Smith 1974).

Endorsed by the NCCLU and the North Carolina Attorney General’s Office, the Inmate Grievance Commission bill passed with bipartisan support on April 12, 1974, the same day as the APA’s passage. With the exception of Morgan’s clause, its final form mirrored Maryland’s bill. As in Maryland, the North Carolina commission became a separate agency under the director of the Department of Social Rehabilitation and Social Control, who also oversaw the Department of Corrections. People submitted their grievances directly to the commission, which consisted of five members appointed by the governor. If the commission determined the grievance was “not wholly lacking in merit,” either a panel of three commissioners or an examiner, which the commission had the power to employ, held a hearing on the complaint, complete with witnesses and factfinding. Imprisoned people had the option of being represented during the hearing by a prison employee. After the hearing, the commission submitted its recommendations to the director of social rehabilitation, who had fifteen days to accept, modify, or reject the proposals (An Act to Amend Chapter 148 of the General Statutes to Create an Inmate Grievance Commission of 1974).

Not everyone was pleased with the new agency. Soon after the bill’s passage, Norman Smith received an irate letter from four jailhouse lawyers affiliated with the North Carolina Prisoners’ Labor Union. The union members criticized Smith for “selling them out” by failing to advocate for union representation on the commission. “WE want change and WE want to be responsible for it,” they told Smith (Letter from Wayne Brooks, et al. to Norman Smith 1974). As the Center for Correctional Justice’s reports made clear, the union’s wish for imprisoned people to serve on the commission was not unreasonable. After the Attica protest, some institutions had created “inmate councils” that, while less formal than North Carolina’s Inmate Grievance Commission, allowed prisoners to participate in policy discussions with corrections staff (McArthur 1974, 44). Smith, however, believed the “tough on crime” political environment in North Carolina made the union’s proposal impossible to implement. “Perhaps the future holds a system in which prisoner unions bargain with corrections staff,” Smith told the union members (Letter from Norman Smith to Wayne Brooks 1974). But until that time came, he felt compelled to do “the best [he could] do” for the “hundreds of prisoners whose letters arrive[d] on his desk” (ibid.). To Smith, the new procedures were an imperfect and temporary solution to a persistent problem: the inability of the courts to address all imprisoned people’s complaints.

CHALLENGES TO THE GRIEVANCE COMMISSION AND THE PRISONERS’ UNION

By the end of 1974, most states had implemented some form of prison grievance procedures, but those in North Carolina and Maryland were unique. No other states had procedures defined by statutory law, and none established grievance commissions outside the direct oversight of prison officials. When Maryland instituted its procedures in 1972, the Center for Correctional Justice praised the relative independence of its commission, believing it would make a greater impact than those fully internal to departments of corrections (Singer and Keating 1973, 368). Yet by the time North Carolina adopted Maryland’s model in 1974, it was already showing signs of weakness. After only a few months on the job, the director of Maryland’s Grievance Commission had resigned due to conflicts with the state’s director of public safety, who oversaw both the commission and the prison system (The Baltimore Sun 1972). North Carolina soon experienced similar problems. Under growing pressure to “toughen up” prison policies, North Carolina’s director of social rehabilitation and social control, the equivalent of Maryland’s director of public safety, lashed out at the grievance commission and the prisoners’ union, hobbling both organizations.

To fill the position of North Carolina grievance commission director, Republican Governor James Holshouser approached his Democratic legal counsel Fred Morrison, a committed prison reformer who for years had led bible studies inside the state’s prisons. Morrison understood that gaining the trust of people in prison, especially those involved in the union, would be a difficult task (Fred G. Morrison, Jr. Interview by Author 2014). In the weeks following his appointment, he traveled across the state to listen to the prisoners’ grievances, even spending Christmas Day at Central Prison in 1974 (The Raleigh Times 1974). His work paid off. By January 1975, the commission had received over 2,000 requests for assistance and conducted over 150 hearings (Hoover 1975a). In its newsletter, the prisoners’ union even ran articles praising Morrison’s role in advocating for minor policy changes (Strader 1975). Most problems, Morrison found, could be handled through a phone call to the warden overseeing the prison where the complaint originated. For the few problems requiring hearings, the commission sided most often with the administrators. Yet Morrison noted that, more often than not, both sides left feeling better about the situation at hand. The commission’s most important role, he told the Raleigh News and Observer, was “facilitating conversations” between prisoners and guards (Hoover 1975a).

Morrison’s work reinforced his belief that prisons were inherently violent places ill-equipped to rehabilitate individuals convicted of crimes, a view that put him at odds with David Jones, the director of social rehabilitation and social control (Morrison Interview by Author 2014). Appointed to office as a result of his participation in Holshouser’s 1972 gubernatorial campaign, Jones was a television salesman who had never been inside a prison before taking the job (Aldridge 1973). The first Republican governor of North Carolina since Reconstruction, Holshouser had run on Nixon’s coattails, promising to get tough on crime and to bring business principles to bear on state government by trimming budgets and shrinking bureaucracy. When Jones took office, he faced an uphill battle in implementing Holshouser’s agenda within the DoC. The prison system was in a state of disarray. Not only was the prisoners’ union hard at work, but the state’s prisons were also bursting at the seams. By 1974, North Carolina had the highest incarceration rate in the nation, leading to severe overcrowding behind bars. The DoC was also chronically understaffed, making it difficult to control the prisoner population (Allegood 1973). Under pressure to act, Jones went before the North Carolina General Assembly in July 1974 to propose a $58 million prison construction and hiring program that would double the prison system’s holding capacity. Morrison responded by launching a statewide speaking tour to argue against Jones’s plan. The two men were soon exchanging barbs in local newspapers (High Point Enterprise 1975; Cline 1975a; Hall 1975). When the General Assembly subsequently pared the budget request down to $6 million, Jones blamed Morrison for the reduction (Cline 1975b).

Tensions between the two men remained high throughout 1975. Across the United States, the prisoner unionization movement was garnering strength. By early 1975, Rhode Island and Washington officials recognized their states’ unions, and California was considering a proposal to do the same (Bissonette et al. 2008, 76–102; Kohler-Hausmann 2017, 251). Fearful that North Carolina would be next, Jones decided to crack down on prison organizing by promulgating new rules that prohibited imprisoned people from soliciting others to join the union, attending union meetings, and sending or receiving bulk mailings concerning the union (Letter from David Jones to Staff 7 March 1975; Letter from W.L. Kautzky to Staff 1975). In his correspondence with people in prison, Morrison spoke out against the new regulations and encouraged union leaders to challenge them in court (Letter from Fred Morrison to Wayne Brooks 1975.) In later interviews with the press, he told reporters he “[didn’t] see anything wrong” with the union’s organizing efforts (J.A.C. Dunn 1975; see also Cline 1975c). Incensed, Jones submitted a new budget proposal in July 1975 that aimed to eliminate the Inmate Grievance Commission. Prison officials argued that the DoC had “not seen much benefit from the commission” and that, in light of recent developments in McCray, it no longer served its purpose (Hoover 1975b). Soon after the commission’s creation, the Fourth Circuit Court of Appeals, in a decision later upheld by the Supreme Court, overturned the provision in McCray compelling imprisoned litigants to exhaust administrative grievance procedures before filing their claims, thus eliminating the procedures’ ability to slow prisoners’ access to the courts (Burrell v. McCray 1976).19

Asked by the General Assembly to weigh in on the DoC’s proposal, Attorney General Morgan vehemently disagreed. Eliminating the commission, Morgan claimed, “would practically invite litigation” (Letter from Robert Morgan to David Jones 1975). Since the late 1960s, the arc of prisoners’ rights law had bent toward providing imprisoned men and women with greater procedural protections, not less. By 1975, nearly all national criminal justice standards-making organizations, including the American Correctional Association and the US Department of Justice’s National Advisory Commission on Criminal Justice Standards, listed grievance procedures among their best practices. Persuaded by Morgan’s argument, state legislators left the commission intact, only further fueling Jones’s anger.

While the General Assembly debated the commission’s fate, the union acted on Morrison’s suggestion and turned to Deborah Mailman, a young NCCLU-affiliated lawyer, for help on a case combatting Jones’s new regulations. Involved in the union’s organizing efforts since 1973, Mailman presented the case to the NCCLU board. The attorneys agreed that Jones’s rules violated imprisoned people’s First Amendment rights to free speech and assembly—rights the National Prison Project prioritized in its litigation campaign. Yet they questioned whether prisoner unionization was an obtainable goal in their state. North Carolina law banned collective bargaining between state employers and employees, a restriction they believed would apply to imprisoned laborers, too (Chuck Eppinette, Paralegal for Deborah Mailman, Interview with Author 2014). With such a barrier standing between the union and its ultimate goal, they were unsure whether the NCCLU should sponsor the litigation.

With the board still on the fence, Norman Smith wrote to Prison Project Director Alvin Bronstein for advice. Bronstein encouraged the organization to pursue the case, noting that recent Supreme Court decisions made the time ripe for litigation pushing the boundaries of prisoners’ First Amendment rights. He also urged the NCCLU to think beyond its own state’s borders. Bronstein reasoned that even if North Carolina law blocked imprisoned laborers from bargaining collectively, the case had the potential to assist prisoners’ unionization efforts in other states, especially in those with friendlier public sector labor laws. Bronstein noted that prisoners in many states were seeking formal recognition as state employees in order to access protections such as workmen’s compensation and the right to organize.20 And, as of 1975, prisoners’ status as state employees remained unclear. While the government agencies charged with regulating public employment in New York, Massachusetts, and Michigan, for instance, had denied recognition to collective bargaining units for prisoners, they noted numerous real indications of employer-employee relations between correctional institutions and imprisoned workers.21 Bronstein argued that the North Carolina Prisoners’ Labor Union’s case, if won, would help imprisoned activists by expanding the First Amendment rights they needed to continue to mobilize and to push for formal recognition as workers (Letter from Alvin Bronstein to Norman Smith 1975).

After hearing Bronstein’s arguments, the NCCLU agreed to take the case. Mailman, aided by Smith, took the lead. Submitted in August 1975, the lawyers’ case brief argued that the union members’ rights to free speech and association should be upheld because their activities did not interfere with prison operations. In making this claim, they relied on Pell v. Procunier, a June 1974 Supreme Court case stating that “a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system” (1974, 822). Believing North Carolina labor law would prevent prisoners from bargaining collectively, Mailman and Smith claimed “the plaintiff’s corporate name was a misnomer.” Rather than a formal labor organization, the prisoners’ union was a “reform organization” committed to working “legally and peacefully” to implement changes behind bars. As such, the lawyers argued, it was no more dangerous than other groups allowed to operate behind bars and should thus be afforded the same rights. To remedy the DoC’s indiscretions, Smith and Mailman asked the court to issue an injunction against the DoC’s unconstitutional rules and to compel the state to pay the union $100,000 in damages (Deborah Mailman and Norman Smith n.d.).

To support their position, Mailman and Smith turned to corrections experts familiar with prisoners’ unions and other reform efforts led by imprisoned people. Much to Jones’s chagrin, Morrison submitted an affidavit stating that the union “did not pose a danger” to prison operations (Fred Morrison, Affidavit 1975). The lawyers also submitted a book by Paul W. Keve, a former commissioner of corrections in Minnesota and then director of adult corrections in Delaware, that suggested prisoner organizations increased lines of communication between prisoners and guards. Powerfully, the Rhode Island superintendent of corrections, who cooperated with his state’s prisoners’ union, testified that the organization had not led to increased rioting or violence. When asked if he would abolish the union if he could, he responded that he “didn’t think so.” While he “certainly didn’t get along” with the union, he admitted that its members had “suggested changes that had benefited both inmates and prison administrators” (James Mullen, Affidavit, 25 August 1975).

When Mailman and Smith received the affidavits of David Jones and Ralph Edwards, the director of the DoC, they were surprised by the state attorneys’ strategies. As the lawyers expected, both men claimed prisoners would use the union as an avenue to control their peers and challenge prison staff. But the affidavits also revealed the makings of a more nuanced legal argument. While the Pell decision had restricted prison administrators’ ability to curtail imprisoned people’s First Amendment rights to free speech, it had also suggested prison staff could decide the most appropriate means for prisoners to express those rights. In Pell, the Supreme Court upheld a regulation prohibiting the media from interviewing individuals behind bars “in light of the alternative channels of communication” open to the prisoners (1974, 828). Seizing on this loophole, both Jones and Edwards, instructed by state attorneys, argued that the Inmate Grievance Commission provided an adequate and “safe outlet” for prisoners to voice their complaints (David Jones, Affidavit 1975; Ralph Edwards, Affidavit 1975). “Because I believe that inmates have an effective means of channeling their grievances,” Jones stated, “[I have] refused to recognize the so-called North Carolina Prisoners’ Labor Union” (David Jones, Affidavit 1975).

Mailman and Smith believed the state attorneys’ argument would be easy to defeat, given Jones’s ongoing war with the grievance commission. The lawyers submitted as evidence the many newspaper articles in which Jones and his staff criticized Morrison and called for the elimination of the commission. Their plan worked. In March 1976, the court announced that the union had won its case, granting the union the injunctive relief, though not the damages, it had sought.22 During the trial, Jacob Safron, the deputy assistant attorney general representing Jones, largely dropped the argument concerning the grievance commission, focusing instead on the alleged threat the union posed to prison security. Yet the court, citing the affidavits of Morrison and the other corrections officials, noted that “there [was] not one scintilla of evidence” to suggest the union posed a danger to North Carolina’s prison system. Thus, the court claimed, it deserved the same treatment as other organizations behind bars (North Carolina Prisoners Labor Union, Inc. v. Jones 1976, 944).

Enraged by the decision and Morrison’s role in it, Jones once again attacked the commission, this time by refusing to accept its recommendations. In response to prisoners’ complaints, the commission often suggested minor changes to DoC practices. In late 1974, for instance, Morrison had persuaded Jones to extend the prison system’s visiting hours and allow imprisoned people to withdrawal a larger sum of money from their trust funds. During the spring and summer of 1976, after the court’s ruling, the commission made eleven policy recommendations, including more locker space, increased shower privileges, and more transparent regulations regarding transfer and disciplinary practices. Jones dismissed them all (Jones, Order 1976). In his letters to union members, Morrison blamed the recent court decision for Jones’s recalcitrance. “He wants the commission gone,” Morrison said. “Since he’s stuck with us, he’s determined to undermine [the commission’s] effectiveness any way he can” (Letter from Fred Morrison to Wayne Brooks 1976). Yet in the coming months, the commission would become one of Jones’s greatest assets.

JONES V. NORTH CAROLINA PRISONERS’ LABOR UNION

Less than two weeks after the district court released its decision in North Carolina Prisoners Labor Union, Inc., the State Attorney’s General Office announced its plans to appeal the case. Jones also made clear he had no intention of recognizing the union by issuing a new rule mandating that only “approved” organizations could access meeting space. When the union applied for approval, he promptly denied its request (North Carolina Department of Corrections 1976; Letter from Deborah Mailman to Norman Smith 1976.) After the Supreme Court agreed to hear the case in August 1976, the prisoners and their lawyers hoped for relief from Jones’s escapades, but they braced for the worst. They understood that the Supreme Court was less friendly than the lower courts to prisoners’ rights.23 They also recognized that the Court had grown increasingly deferential to administrative agencies, especially those within the field of criminal justice, during the past few years.24 The lawyers were prepared to lose the case. What they did not anticipate was that the Court would endorse the state attorneys’ argument regarding North Carolina’s grievance procedures.

The lawyers on both sides got to work. This time, the state attorneys had outside assistance. In December 1976, the US Solicitor General Robert Bork successfully petitioned the Supreme Court to file an amicus curiae brief and participate in the oral argument on behalf of Jones and the other named appellants. The United States had “direct and immediate interest” in the case, Bork explained, because imprisoned people were also attempting to unionize inside Federal Bureau of Prisons (BoP) facilities. Like Jones, BoP Director Norman Carlson adamantly opposed prisoners’ efforts. To stop them from organizing, Carlson had enforced a “strict prohibition against all forms of union activity.” In the petition, Bork noted that Carlson’s ban was “quite similar” to the “regulatory scheme” issued by Jones (Amicus Curiae Petition for the United States 1976).

The amicus brief filed by the Office of Solicitor General (OSG) extended the argument regarding the state’s grievance procedures first introduced by the North Carolina Attorney General’s Office. Despite the evidence regarding Jones’s recent clashes with Morrison, the OSG claimed that the prison administrators’ ban on the union did not violate imprisoned people’s First Amendment rights because the grievance commission provided prisoners with an “effective” outlet to resolve their complaints. At the heart of the brief was the claim that the district court had failed to respect the “expert judgment” of corrections officials who alleged the union threatened prison security, a statement alluding to the idea that courts should defer to trained professionals who staffed administrative agencies. To bolster prison administrators’ professionalism, the OSG underscored that the grievance procedures instituted in North Carolina were “fair” and bound by clear rules and thus, it implied, capable of addressing the complaints of people in prison in an objective manner (Brief for the United States as Amicus Curiae 1976, 7, 31).

Lacking statistics regarding the North Carolina Inmate Grievance Commission, the OSG supported its argument by describing the Federal Bureau of Prisons’ grievance resolution process, which it claimed was similar to North Carolina’s. Unsurprisingly, the OSG failed to mention a recent study by the Center for Correctional Justice highlighting the system’s problems. Unlike North Carolina’s grievance commission, the BoP’s grievance process lacked any form of outside review. People filed complaints directly with their prison wardens. If unsatisfied with the warden’s response, they could appeal the decision to the regional prison director. While the OSG noted that federal prisoners filed 6,076 complaints in 1975 with eighteen percent resolved in their favor, the CCJ suggested they had little faith in the grievance process (Brief for the United States as Amicus Curiae 1976, 31). Less than five percent of the people confined to Atlanta’s federal penitentiary told CCJ staff they would bother filing a grievance if they had a serious complaint about an institutional policy (Keating et al. 1975a, 9). Yet the OSG claimed “a union grievance procedure would be a no more efficient or effective means of securing relief than the present system.” As a nod to judges’ concerns with prison litigation, the brief mentioned in a footnote that “the Administrative Office of the United States Courts [had] attributed the recent decline in the rate of growth of federal prisoner petitions filed in the district courts to the operation of the procedures” (Brief for the United States as Amicus Curiae 1976, 31–32).

During oral arguments in April 1977, Safron and Kenneth Geller, who represented the United States, focused primarily on the potential dangers posed by prisoner unionization, offering grievance procedures as one way to avert disaster. Referring to the district court’s claim that not “one scintilla” of evidence proved the union threatened prison security, Safron asked the justices if they expected prison administrators to “await a catastrophic incident” before banning union activity. Geller later remarked that if the district court’s decision were upheld, “it may lead to serious breaches of prison security.” Such problems could be avoided, Safron and Geller told the Court: imprisoned people could rely solely on the state’s grievance procedures to address their problems (Oral Argument 11 April 1977).

Three months later, in June 1977, the Supreme Court announced its decision in Jones. The union had lost its case. Only Justices Thurgood Marshall and William Brennan had dissented. Worse, the Court’s ruling dramatically expanded the deference afforded prison administrators who curtailed prisoners’ First Amendment rights. Outside the prison, government officials who sought to limit individuals’ First Amendment rights had to prove such actions were absolutely necessary. The burden of proof was on the government officials. In Jones, the Court flipped those rules for First Amendment cases involving people in prison. The ruling dictated that plaintiffs had to disprove the predictions of correctional officials who claimed prisoners’ First Amendment rights would threaten prison security. Writing for the majority, Justice William Rehnquist noted that the district court’s decision was flawed because “the burden was not on appellants to show affirmatively that the union would be detrimental.” Rather, he argued that the district court should have deferred to corrections officials because the plaintiffs failed to demonstrate that the officials’ concerns were “unreasonable” (Jones v. North Carolina Prisoners Labor Union, Inc. 1977, 128). As one National Prison Project lawyer later commented, Jones in essence made “deference to prison administrators a virtual principle of decision” in imprisoned people’s First Amendment rights cases (Alexander 1981).

The Supreme Court used North Carolina’s Inmate Grievance Commission to justify its decision. Drawing on arguments made in the OSG’s amicus brief, Justice Rehnquist cited the commission in a footnote to prove the case “barely implicated” prisoners’ First Amendment speech rights. He suggested the DoC policies banning the union had “merely affected one of several ways” incarcerated people could “voice their complaints to, and seek relief from, prison officials.” Even without a union, they could secure “remedial action” through North Carolina’s “presumably effective” grievance procedures (Jones v. North Carolina Prisoners Labor Union, Inc. 1977, 130). In effect, Rehnquist suggested that the district court should not have questioned prison administrators’ decision to curtail prisoners’ First Amendment rights because, as evidenced by the grievance procedures, they were not seeking to silence people in prison. Instead, as professionals, prison administrators simply sought to dictate the best means for prisoners to voice their concerns.

In the first NCCLU board meeting following the defeat, Mailman and Smith expressed disappointment regarding the Supreme Court’s ruling. While the lawyers had anticipated that they might lose the case, they were surprised the Court had endorsed the OSG’s argument regarding the grievance procedures, given Jones’s efforts to eliminate them. When Smith and the NCCLU began collaborating on the grievance mechanism with North Carolina’s attorney general, the lawyers viewed it as a means to address imprisoned people’s complaints, especially those falling short of constitutional rights claims. Never did they imagine that the Supreme Court would later use the mechanism to help justify its decision to limit prisoners’ constitutional rights, too. Prison officials’ willingness to embrace the grievance procedure in order to defeat the union left Smith “appalled” (North Carolina Civil Liberties Union Board Minutes 1977). Since the feud between Morrison and Jones began in 1975, Jones and his staff had fought the commission, seeking its elimination and refusing to implement its recommendations. Fearing the union’s victory, however, Jones and his attorneys changed their tune, singing the commission’s praises.

Although the Court was aware of Jones’s distaste for the grievance commission, it had its own reasons for bolstering the procedures. Chief Justice Warren Burger, after all, was an early advocate of using grievance procedures to remove prisoners’ claims from the federal courts. While the Jones decision did not compel people in prison to utilize the procedures before filing lawsuits, it did encourage their adoption. The Court’s ruling essentially signaled to prison administrators that if they adopted internal grievance procedures, they could suppress imprisoned people’s organizing efforts. In his concurring opinion in Jones, Burger made his support for grievance procedures clear. He praised the “enlightened correctional administrators” who implemented procedures that allowed “prisoners to … obtain non-judicial relief.” In a footnote, Justice Burger, citing the OSG, noted that, as an added benefit, “the development of grievance procedures” had appeared to “slow the rate of growth of federal prisoner petitions filed in federal district courts” (Jones v. North Carolina Prisoners Labor Union, Inc. 1977, 137–38). In Jones, the Court made a conscious choice to defer to North Carolina’s grievance procedures based in part on its material interests.

It did not take long after Jones for the Department of Corrections to crush the Prisoners’ Labor Union. The day following the ruling’s announcement, Jones reissued the rules prohibiting imprisoned people from soliciting others to join the union, attending union meetings, and sending or receiving bulk mailings concerning the union. He also permanently banned all “known union organizers” from visiting the state’s prisons (David Jones to Staff 1977). Many union members continued to organize. Wayne Brooks, the union president, suggested prisoners charter a new organization called National Offenders Movement on Repelling Enslavement (NO MORE). The union also maintained an outside office with a staff person who worked part time on prison affairs. But by the summer of 1978, the union had fallen apart (Letter from Wayne Brooks to Alan McGregor 1978; Letter from Alan McGregor to David Lambert and Joe Ingle 1978). The limits Jones placed on imprisoned people’s First Amendment rights made organizing exponentially more difficult than it had been in the past. Without the ability to solicit others to join the union or to use the mail to send union material, prisoners struggled to organize across the state’s nearly eighty penal facilities. While people launched protests in individual prisons in the decades that followed, North Carolina never again witnessed the coordinated and widespread activism that swept its prisons in the early 1970s.

Prisoner unions in other states seem to have followed a similar path. By 1980, The Outlaw, the national journal for prisoner labor unions, stopped publication, and few prisoners’ rights advocates mentioned unionization as a possible means to implement meaningful changes behind bars. In states such as Rhode Island and Delaware, where corrections administrators once recognized imprisoned people’s unions, prisoners—either by choice or by force—modified their goals, no longer representing themselves as unions but as reform organizations (Bissonette et al. 2008, 117–19). In California, the home of the nation’s first prisoners’ union, prison officials banned all prison-based newspapers and constricted the ability of imprisoned people to engage in public debates concerning prison policy (Kohler-Hausmann 2017, 273, 285–86). Without robust First Amendment rights, prisoners’ unions simply lost power vis-à-vis prison administrators.

CONCLUSION

In his dissenting opinion in Jones, Justice Thurgood Marshall expressed shock at the Court’s willingness to take such a “giant step backwards” in its conception of prisoners’ rights. He excoriated his fellow justices for allowing fear of the unknown to shape their interpretation of the law, and he warned that their deference to prison administrators would result in the continued erosion of imprisoned people’s constitutional rights. Marshall agreed with the Court that “the realities of running a penal institution” were “complex and difficult” and that corrections officers possessed “considerably more professional expertise in prison management than [did] judges.” But for him, administrators’ expertise did not justify the deference the Court afforded them. He argued that the Court’s blind deference to prison officials in Jones was a slippery slope: “If the mode of analysis adopted in today’s decision were to be generally followed,” he wrote, “prisoners eventually would be stripped of all constitutional rights, and would retain only those privileges that prison officials, in their ‘informed discretion,’ deigned to recognize” (Jones v. North Carolina Prisoners Labor Union, Inc. 1977, 139, 141, 147).

Contrary to Marshall’s prediction, people in prison never lost their First Amendment rights after Jones. But their First Amendment rights did cease to expand. Reflecting on the trajectory of prisoners’ rights law in 1981, National Prison Project Attorney Elizabeth Alexander listed Jones as a key case marking the Supreme Court’s turn away from decisions “expanding the possibilities for prison litigators.” She noted that, after Jones, “the principal role of the Supreme Court” became “to halt the doctrinal expansion of prison law” (Alexander 8 September 1981). In the field of First Amendment law, Jones delineated the outer limits of imprisoned people’s rights. After 1977, ACLU lawyers largely stopped taking cases intended to increase prisoners’ rights to free speech and assembly. Instead, they brought suits to enforce the First Amendment rights people in prison had secured in earlier years, a decision that seemed to reflect a broader moderating shift in the National Prison Project’s goals. While many of the project’s cases prior to Jones had focused on expanding imprisoned people’s ability to advocate for themselves, later cases primarily asked judges to create and enforce new rules regulating everyday life behind bars.

When Jones signaled that the Supreme Court was less willing to question prison administrators’ decisions than it had been in the past, corrections officials in North Carolina got the message loud and clear. In the years following the ruling, Jones and the DoC staff further weakened the power of the Inmate Grievance Commission, leaving prisoners without a union or an effective grievance mechanism. As prison reformers understood, state officials’ willingness to implement grievance procedures rested in part on their fear that the federal courts would take action on imprisoned people’s claims. They had vested interest in addressing prisoners’ grievances before they reached the courts. Yet with McCray overturned and the Supreme Court slowing the expansion of prisoners’ rights, corrections administrators had fewer reasons to cooperate with the commission. In 1979, Jones succeeded in reducing the commission’s budget by half. Two years later, in 1981, Morrison resigned after Governor James Martin appointed an outspoken opponent of prisoners’ rights to the commission (Morrison 1981).

The situation only grew worse for imprisoned people in the years that followed. State officials transformed the Inmate Grievance Commission into a mechanism designed not to address prisoners’ complaints but to impede their access to the courts. In 1980, Congress passed the Civil Rights of Institutionalized Persons Act (CRIPA), which, at the insistence of then US Senator Robert Morgan and other conservative leaders, included a provision that gave state officials the opportunity to reinstate the exhaustion requirement overturned in McCray. Under CRIPA, if state prisons instituted “plain, speedy, and effective” grievance procedures, federal courts could stay a person’s lawsuit for up to ninety days or until he or she exhausted the procedures. For states’ procedures to qualify, either the US Attorney General’s Office or a district court had to “certify” them as complying with regulations promulgated by the US attorney general (Civil Rights of Institutionalized Persons Act of 1980). Invested in the procedures as a means to reduce litigation, two of North Carolina’s three US district courts interpreted those regulations liberally. In 1987, state leaders reshaped North Carolina’s grievance procedures to suppress rather than resolve prisoners’ complaints. Under the new system, the director of corrections, rather than the governor, appointed the people who served on the grievance board. The law eliminated all hearings and established new levels of review within prison facilities, forcing prisoners to file their complaints with the colleagues of their abusers. Worse yet, the new procedures allowed DoC officials to “discipline” imprisoned people who in their view “repeatedly filed frivolous complaints” (An Act to Establish A Corrections Administrative Remedy Procedure of 1987). In 1989, both the US District Courts for the Eastern and the Middle Districts of North Carolina certified the new procedures.25 Seven years later, in 1996, Congress passed the Prison Litigation Reform Act, which, among other provisions, eliminated the certification requirement and made exhaustion mandatory for all imprisoned litigants, a change that signaled to states that they could further complicate the grievance procedures to block prisoners’ suits from reaching the federal courts. Today, if a person in prison fails to comply with the grievance system’s rules, including its timeline and form, he or she is disqualified from filing a lawsuit in most cases (Schlanger 2003, 1649–54).26

It is ironic that an organization like the NCCLU helped create an institution that state attorneys later used to justify the suppression of imprisoned people’s organizing efforts. Yet that irony, like the NCCLU’s broader skepticism about prisoners’ reliance on the federal courts for redress, underscores the difficulties imprisoned men and women faced in utilizing constitutional rights litigation to improve their everyday lives. Beginning in the 1960s, prisoners filed thousands of lawsuits contesting policies and practices they believed violated their constitutional rights. Their efforts bore some fruit, especially in the field of due process and equal protection. But the federal courts lacked the legal authority or institutional capacity to respond to most prisoners’ claims. In light of this dilemma, the NCCLU worked alongside state attorneys to develop prison grievance procedures, which it viewed as a small victory in its ongoing fight for a more humane criminal justice system. Yet in Jones, state attorneys, recognizing the Supreme Court’s growing antipathy toward prisoners’ rights and its material investment in the procedures, used them to argue for limitations on imprisoned people’s First Amendment rights. By deferring to North Carolina’s Inmate Grievance Commission, despite its proven weaknesses, the Court, in turn, helped foreclose more radical transformations in American punishment practices, including the unionization of imprisoned laborers.

1. The Administrative Office of the US Courts counted 218 cases filed by state prisoners in all US district courts in 1966, the first year that state prisoners’ lawsuits were recorded as a specific category of litigation. In 1972, the Administrative Office counted 3,348 cases filed by state prisoners contesting prison practices and procedures (statistics noted in Ostrom, Hanson, and Cheesman 2003, 1530–31). Meanwhile, the number of individuals confined to state prisons decreased from 180,409 in 1966 to 174,379 in 1972 (statistics noted in Langan et al. 1988, 11).

2. In her quantitative study of prisoners’ civil rights cases, Schlanger revealed that prior to the 1996 passage of the Prison Litigation Reform Act, which made it more difficult than in the past for prisoners’ cases to succeed, defendants typically won dismissals in about eighty percent of the cases. The rest were tried, settled, or voluntarily dismissed. Imprisoned plaintiffs typically won some relief in about one percent of their federal civil rights cases. They received something worth settling for in another six to seven percent of the cases. And they gave up or decided to quit in six to eight percent of the cases (2003, 1590–97).

3. See Teles 2008; Hollis-Brusky 2015; and Decker 2016.

4. The classic study regarding the structural challenges faced by the courts is Rosenberg (2008). Other scholars have demonstrated how reformers responded to such challenges by advocating for new internal, law-based mechanisms such as grievance procedures to make institutions more accountable to the people they served (Epp 2009). Some have viewed such mechanisms with skepticism, suggesting they did little to change discriminatory practices (See Edelman 2016).

5. See especially Pateman 1988, and Williams 1991. For a study rooted in archival research that demonstrates the challenges gendered and racialized understandings of citizenship posed for the extension of rights to newly emancipated African Americans, see Edwards (2015).

6. Staszak also demonstrates how legal actors from across the political spectrum worked together to develop alternative paths to justice in response to court backlogs during the mid-twentieth century (2015, 52–76).

7. As Berger makes clear, the extension of constitutional rights was never the sole focus of the prisoners’ movement (2015, 3–11).

8. Reiter identifies legal endogeneity in the prison context, but exploring why courts defer to prison officials’ definitions of legal compliance is not the focus of her study (2016, 5).

9. Stuntz also critiques liberal reformers’ focus on proceduralism (2011, 227–36). Other scholars have suggested the prisoners’ rights movement fell short of its goals because the activism of prisoners and their allies sparked a conservative political backlash (See, in particular, Cummins 1994, 252–81; Gottschalk 2006, 165–96; Chase 2015, 84–85; and Thompson 2016, 561–71). This article differs in that it looks beyond an exclusively political framework to demonstrate how constitutional and administrative law shaped and constrained the activism of imprisoned people and their lawyers.

10. For an excellent study of Cooper’s origins, see Losier (2013).

11. On the NCCLU’s origins, see Pollitt (1968). For a broad study of the ACLU, see Walker (1990, especially 310–12).

12. For an in-depth explanation of the Prison Project’s early strategies, see National Conference on Prisoners’ Rights (November 5–7, 1971). On how the Prison Project chose its cases, see the letter from Alvin Bronstein to David Hunter (1973).

13. On prisoners’ unionizing efforts outside of North Carolina, see Cummins (1994, 187–222); Bissonette et al. 2008; Thompson (2011, 22–25); Kohler-Hausmann (2017, 211–88); and Berger (2015, 186–87).

14. See Durham Morning Herald 1974; Brooks 1974–1975a; and the letter from Robbie Purner to Norman Smith 1976.

15. On the reasons behind the dramatic uptick in civil cases filed in federal courts after 1968, see Farhang (2010, 3–19).

16. The South Carolina publication cited Edwards v. Duncan (1966) and Kochie v. Norton (1972). In both cases, the court implied it would compel exhaustion if prisons implemented a clear and procedurally fair grievance procedure.

17. See, in particular, the “steelworkers’ trilogy”: United Steelworkers of America v. American Mfg. Co. (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co. (1960); and United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960).

18. Morgan’s work on the state’s APA was part of a broader effort beginning in the late 1960s to make the administrative process more transparent and participatory (See, in particular, Schiller 2000, 1410–16, 1428–35).

19. After hearing the case, the Supreme Court decided that Maryland’s writ of certiorari had been improvidently granted so it declined to issue a ruling. Thus, the Fourth Circuit’s decision stood.

20. The mid-1970s marked the high tide of organizing efforts among public sector workers, many of which were successful (see McCartin 2008). As a result, the status of “state employees” was especially appealing to imprisoned laborers.

21. In re Prisoners’ Labor Union at Green Haven (December 18, 1972); In re Walpole Chapter of the National Prisoners’ Reform Association (September 24, 1973); In re Prisoners’ Labor Union at Marquette and Prisoners’ Labor Union at Jackson (March 22, 1974). Federal courts also remained undecided on whether prisoners, as state employees, had the right to organize. In 1974, a federal district court in Connecticut held that the right to associate did not apply to prisoners attempting to act in concert, but the plaintiff described itself as a “representative inmate council” rather than a traditional labor union, leaving the impact of the case in question (Paka v. Manson 1974, 119). In the Second Circuit, the situation looked hopeful for prisoners. In a concurring opinion in Goodwin v. Oswald, Judge James Oakes noted that there was “nothing in federal or state constitutional or statutory law . . . that forbids prison inmates from seeking to form an organization or agency or representative group of inmates” (1972, 1245). On the question of whether prisoners were considered state employees during the early 1970s, see also Keating, et al. 1975a, 24–25).

22. Note that until 1976, a panel comprised of three judges from the district and circuit courts heard all cases that challenged the constitutionality of state and federal statutes or policies. Such cases were then appealed directly to the Supreme Court.

23. As Feeley and Rubin point out, the lower courts rather than the Supreme Court led the way on prison reform (1998, 43–44).

24. See, for instance, Rizzo v. Goode (1976); On judicial deference to administrative agencies outside the field of criminal justice, see Erlandson (2017).

25. North Carolina was one of only a small number of states to certify its grievance procedures. Many states opposed the certification process because the regulations promulgated by the US Attorney General’s Office mandated the participation of imprisoned people. The two US district courts that certified North Carolina’s procedures interpreted that regulation as only requiring prison officials to post the procedures for prisoners’ comment. For other states’ responses to the exhaustion provision in CRIPA, see The Harvard Law Review Association (1991). For federal judges’ discussion of the certification process in North Carolina, see Proposal, Certification of Inmate Grievance Procedure (1987) and the letter from J. Rich Leonard to Franklin Dupree (1988).

26. For more on contemporary prison grievance practices, especially in California, see Calavita and Jenness (2014, 51–73).

REFERENCES

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Bissonette, Jamie, Hamm, Ralph, Dellelo, Robert, and Rodman, Edward. When the Prisoners Ran Walpole: A True Story in the Movement for Prison Abolition. Cambridge: South End Press, 2008.
Burger, Warren.Chief Justice Burger Issues Yearend Report.” American Bar Association Journal 62, no. 2 (1976): 189–90.
Calavita, Kitty, and Jenness, Valerie. Appealing to Justice: Prisoner Grievances, Rights, and Carceral Logic. Berkeley: CA University of California Press, 2014.
Chase, Robert T.‘We are Not Slaves’: Rethinking the Rise of the Carceral State through the Lens of the Prisoners’ Rights Movement.” Journal of American History 102, no. 1 (2015): 73–86.
Cline, Ned. “Controversy Makes Assessment of Grievance Panel Hard.” Greensboro Daily News, January 28, 1975a.
Cline, Ned.. “Jones Wants More Prisons: Morrison Concerned.” Greensboro Daily News, September 6, 1975b.
Cline, Ned.. “Prison Union No Threat to Corrections: Morrison.” Greensboro Daily News, September 9, 1975c.
Crowe, Justin. Building the Judiciary: Law, Courts, and the Politics of Institutional Development. Princeton, NJ: Princeton University Press, 2012.
Cummins, Erik. The Rise and Fall of California’s Radical Prison Movement. Stanford, CA: Stanford University Press, 1994.
Daye, Charles E.North Carolina’s New Administrative Procedure Act: An Interpretive Analysis.” North Carolina Law Review 53 (1975): 833–923.
Decker, Jefferson. The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government. Oxford: Oxford University Press, 2016.
Denenberg, R.V., and Denenberg, Tia. “Prison Grievance Procedures: A National Survey of Programs Underway.” Corrections Magazine 1, no. 3 (1975): 29–37.
Dunn, J.A.C. “Union for Prisoners? The Drive is On.” Winston-Salem Journal, July 20, 1975.
Edelman, Lauren B. Working Law: Courts, Corporations, and Symbolic Civil Rights. Chicago: University of Chicago Press, 2016.
Edwards, Laura F. A Legal History of the Civil War and Reconstruction: A Nation of Rights. Cambridge: Cambridge University Press, 2015.
Epp, Charles. Making Rights Real: Activists, Bureaucrats, and the Creation of the Legalistic State. Chicago: University of Chicago Press, 2009.
Eppinette, Chuck, Paralegal for Deborah Mailman, Interview with Author. September 25, 2014, Durham, North Carolina (interview in author’s possession).
Erlandson, Erik.A Technocratic Free Market: How Courts Paved the Way for Administered Deregulation in the American Financial Sector, 1977–1988.” Journal of Policy History 29, no. 3 (2017): 350–77.
Farhang, Sean. The Litigation State: Public Regulation and Private Lawsuits in the U.S. Princeton, NJ: Princeton University Press, 2010.
Feeley, Malcolm, and Rubin, Edward. Judicial Policymaking and the Modern State: How the Courts Reformed America’s Prisons. New York: Cambridge University Press, 1998.
Gottschalk, Marie. The Prison and the Gallows: The Politics of Mass Incarceration in America. New York: Cambridge University Press, 2006.
Hall, Ted. “Speaker Blasts Prison Policies.” Morganton News Herald, February 7, 1975.
Hollis-Brusky, Amanda. Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution. Oxford: Oxford University Press, 2015.
Hoover, Daniel C. “A Safety Valve for Prisoners.” Raleigh News and Observer, April 17, 1975a.
Hoover, Daniel C.. “Budget-Paring Aimed at Grievance Commission.” Raleigh News and Observer, July 29, 1975b.
Keating, J. Michael, McArthur, Virginia A., Lewis, Michael K., and Sebelius, Kathleen Gilliam. Grievance Mechanisms in Correctional Institutions. Law Enforcement Assistance Administration, U.S. Department of Justice. Washington DC: Government Printing Office, 1975a.
Keating, J. Michael, McArthur, Virginia A., Lewis, Michael K., and Sebelius, Kathleen Gilliam. Seen but Not Heard: A Survey of Grievance Mechanisms in Juvenile Correctional Institutions. Center for Correctional Justice. Washington DC: Government Printing Office, 1975b.
Kohler-Hausmann, Julilly. Getting Tough: Welfare and Imprisonment in 1970s America. Princeton, NJ: Princeton University Press, 2017.
Langan, Patrick A., Fundis, John, Greenfeld, Lawrence, and Schneider, Victoria. “Historical Statistics on Prisoners in State and Federal Institutions, Yearend 1925–86.” U.S. Department of Justice Bureau of Statistics. Washington DC: Government Printing Office, 1988.
Lewis, Jim. “Firing on Prisoners Defended in Report.” Raleigh News and Observer, July 7, 1968.
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Losier, Toussaint.‘…For Strictly Religious Reasons’: Cooper v. Pate and the Origins of the Prisoners’ Rights Movement.” Souls 15, nos. 1–2 (2013): 19–38.
McArthur, Virginia.Inmate Grievance Mechanisms: A Survey of 209 American Prisons.” Federal Probation 38, no. 4 (1974): 41–47.
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“Prisoners’ Labor Union Operating with a Grant of $14,000.” Durham Morning Herald, December 1, 1974.
Reiter, Keramet. 23/7: Pelican Bay Prison and the Rise of Long-Term Solitary Confinement. New Haven, CT: Yale University Press, 2016.
Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring About Social Change? 2d ed. Chicago: University of Chicago Press, 2008.
Schiller, Reuel E.Enlarging the Administrative Polity: Administrative Law and the Changing Definition of Pluralism, 1945–1970.” Vanderbilt Law Review 53 (2000):1389–1453.
Schlanger, Margo. “Inmate Litigation.” Harvard Law Review 116, no. 6 (2003): 1555–1706.
Singer, Linda, and Keating, Michael. “Prisoner Grievance Mechanisms: A Better Way than Violence, Litigation, and Unlimited Administrative Discretion.” Crime and Delinquency 19, no. 3 (1973): 366–77.
Singer, Linda R., McArthur, Virginia, and Schuman, Alan. “The Center for Correctional Justice—A Way to Resolve Prisoners’ Grievance?The Prison Journal 51, no. 2 (1972): 37–42.
South Carolina Department of Corrections. Inmate Grievance Procedures. Collective Violence Research Project. Columbus, SC: State Printing Office, 1973.
Staszak, Sarah. No Day in Court: Access to Justice and the Politics of Judicial Retrenchment. New York: Oxford University, 2015.
Stuntz, William J. The Collapse of American Criminal Justice. Cambridge, MA: Harvard University Press, 2011.
Teles, Steven. The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Princeton, NJ: Princeton University Press, 2008.
“The Argument Over Prisons.” High Point Enterprise, January 12, 1975.
The Federal Judicial Center. Report of the Study Group on the Caseload of the Supreme Court. Washington DC: Government Printing Office, 1972.
The Federal Judicial Center. Recommended Procedures for Handling Prisoners Civil Rights Complaints in Federal Court. Washington DC: Government Printing Office, 1980.
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Thompson, Heather Ann. Blood in the Water: The Attica Prison Uprising of 1971 and Its Legacy. New York: Pantheon Books, 2016.
Useem, Bert, and Kimball, Peter. States of Siege: U.S. Prison Riots, 1971–1986. New York: Oxford University Press, 1989.
Walker, Samuel. In Defense of American Liberties: The History of the ACLU. Carbondale, IL: Southern Illinois University Press, 1990.
Williams, Patricia J. The Alchemy of Race and Rights. Cambridge: Harvard University Press, 1991.

ARCHIVAL DOCUMENTS

Alexander, Elizabeth. “A Discussion Paper on the Future of Prison Litigation.” September 8, 1981. American Civil Liberties Union Papers. Box 2213, Folder “National Prison Project.” Mudd Library, Princeton University, Princeton, NJ.
Amicus Curiae Petition for the United States. December 7, 1976. American Civil Liberties Union of North Carolina Papers. Box 143, Folder “North Carolina Prisoners’ Labor Union, Inc. v. David L. Jones & Ralph Edwards.” Rubenstein Library, Duke University, Durham, NC.
Brief for the United States as Amicus Curiae. David L. Jones v. North Carolina Prisoners’ Labor Union, No. 75-1874. October Term 1976. American Civil Liberties Union Papers. Box 1464, Folder “Jones v. North Carolina Prisoners Labor Union.” Mudd Library, Princeton University, Princeton, NJ.
Bronstein, Alvin to Hunter, David. January 4, 1973. American Civil Liberties Union Papers. Box 1089, Folder 5. Mudd Library, Princeton University, Princeton, NJ.
. to Smith, Norman. “Union Case.” July 7, 1975. Box 143, Folder “North Carolina Prisoners’ Labor Union, Inc. v. David L. Jones & Ralph Edwards.” Rubenstein Library, Duke University, Durham, NC.
Brooks, Wayne, Morgan, Donald, Strader, Frank, and Rich, Vernon to Smith, Norman. “Inmate Grievance Commission.” May 23, 1974. American Civil Liberties Union of North Carolina Papers. Box 93, Folder “Inmate Grievance Commission.” Rubenstein Library, Duke University, Durham, NC.
Brooks, Wayne. “Prisoners Reorganize Union.” December–January 1974–1975a. N.C. Prisoners’ Labor Union Newsletter 1 (1). James Holshouser Papers. General Correspondence. Record Group 371. 1. Box 347, Folder “Corrections”. North Carolina State Library and Archives, Raleigh, NC.
. “Prisoners Gather Legal Information.” December–January 1974–1975b. N.C. Prisoners’ Labor Union Newsletter 1 (1). James Holshouser Papers. General Correspondence. Record Group 371. 1. Box 347, Folder “Corrections”. North Carolina State Library and Archives, Raleigh, NC.
. to Morrison, Fred. February 4, 1976a. Inmate Grievance Commission Records. Director’s Correspondence File. Record Group 128.3. Box 1. North Carolina State Library and Archives, Raleigh, NC.
. to Morrison, Fred. February 10, 1976b. Inmate Grievance Commission Records. Reading File. Record Group 128.2. Box 2. North Carolina State Library and Archives, Raleigh, NC.
. to McGregor, Alan. “National Offenders Movement on Repelling Enslavement.” August 30, 1978. Box “Archives,” Folder “Wayne Brooks.” North Carolina Justice Policy Center, Durham, NC.
Burger, Warren. Speech to the National Conference on Christians and Jews. November 18, 1972. General Records of the Department of Justice, 1790–2002. Record Group 60. Organizational Files, 1969–1984. Law Enforcement Assistance Administration 1974. Box 49, Folder “Corrections.” National Archives, College Park, MD.
Edwards, Ralph. Affidavit. April 8, 1975. American Civil Liberties Union of North Carolina Papers. Box 142, Folder “North Carolina Prisoners’ Labor Union, Inc. v. David L. Jones & Ralph Edwards.” Rubenstein Library, Duke University, Durham, NC.
Freund, Paul to Clapp, Charles. “Federal Judicial Center Report.” January 6, 1973. Charles L. Clapp Papers. Box 40, Folder “Corrections 3.” Richard Nixon Presidential Library and Archives, Yorba Linda, CA
Jones, David. Affidavit. April 8, 1975. American Civil Liberties Union of North Carolina Papers. Box 142, Folder “North Carolina Prisoners’ Labor Union, Inc. v. David L. Jones & Ralph Edwards.” Rubenstein Library, Duke University, Durham, NC.
. to Staff. “Union Activity.” March 7, 1975. North Carolina Department of Corrections Records. Secretary’s Office, Senior Administrative Assistant: Legal Correspondence File. Record Group 127.3. Box 2. North Carolina State Library and Archives, Raleigh, NC.
. Order. July 27, 1976. North Carolina Department of Corrections Records. Director’s Office. Directors’ Subject Files. Record Group 53.2. Box 19, Folder “Inmate Grievance Commission.” North Carolina State Library and Archives, Raleigh, NC.
. to Staff. “Prisoner Union.” August 20, 1977. North Carolina Department of Corrections Records. Secretary’s Office, Senior Administrative Assistant: Legal Correspondence File. Record Group 127.3. Box 2. North Carolina State Library and Archives, Raleigh, NC.
Kautzky, W.L. to Staff. “Inmate Union.” March 9, 1975. American Civil Liberties Union of North Carolina Papers. Box 142, Folder “North Carolina Prisoners’ Labor Union, Inc. v. David L. Jones & Ralph Edwards.” Rubenstein Library, Duke University, Durham, NC.
Larkins, Judge John. “Courts in Crisis.” June 12, 1974. John Larkins Papers. Box 1, Folder 6. Joyner Library Special Collections, East Carolina University, Greenville, NC.
Leonard, J. Rich to Dupree, Franklin. 12 July 1988. “North Carolina Inmate Grievance Procedure.” Franklin Dupree Papers. Box 94, Folder 1706. Rubenstein Library, Duke University, Durham, NC.
Mailman, Deborah, and Smith, Norman. “Argument.” n.d. American Civil Liberties Union of North Carolina Papers. Box 143, Folder “North Carolina Prisoners’ Labor Union, Inc. v. David L. Jones & Ralph Edwards.” Rubenstein Library, Duke University, Durham, NC.
. to Smith, Norman. May 18, 1976. Box 142, Folder “North Carolina Prisoners’ Labor Union, Inc. v. David L. Jones & Ralph Edwards.” Rubenstein Library, Duke University, Durham, NC.
McGregor, Alan to Lambert, David and Ingle, Joe. “Proposals for Use of SPDC Funds in North
Carolina.” May 8, 1978. Box “Archives,” Folder “Wayne Brooks.” North Carolina Justice Policy Center, Durham, NC.
Morgan, Donald to Smith, Norman. February 6, 1972. American Civil Liberties Union of North Carolina Papers. Box 14, Folder “Request Letters from Individuals Concerned: Prisoner Refusal.” Rubenstein Library, Duke University, Durham, NC.
Morgan, Robert to Smith, McNeill. “Inmate Grievance Commission.” February 23, 1974. McNeill Smith Papers. Box 9, Folder 226. Southern Historical Collections. University of North Carolina Chapel Hill, NC.
. to Jones, David. “Grievance Commission.” August 15, 1975. North Carolina Department of Corrections Records. Secretary’s Office, Senior Administrative Assistant: Legal Correspondence File. Record Group 127.3. Box 3. North Carolina State Library and Archives, Raleigh, NC.
Morrison, Fred. Affidavit. August 25, 1975. American Civil Liberties Union of North Carolina Papers. Box 143, Folder “North Carolina Prisoners’ Labor Union, Inc. v. David L. Jones & Ralph Edwards.” Rubenstein Library, Duke University, Durham, NC.
. to Garganus, Edgar. “Retired from Grievance Commission.” May 4, 1981. Inmate Grievance Commission Records. Scrapbook File. Record Group 128.1. Box 1. North Carolina State Library and Archives, Raleigh, NC.
. to Brooks, Wayne. March 14, 1975. Inmate Grievance Commission Records. Director’s Correspondence File. Record Group 128.3. Box 1. North Carolina State Library and Archives, Raleigh, NC.
. to Brooks, Wayne. July 29, 1976. Inmate Grievance Commission Records. Director’s Correspondence File. Record Group 128.3. Box 1. North Carolina State Library and Archives, Raleigh, NC.
. “Retired from Grievance Commission.” May 4, 1981. Inmate Grievance Commission Records. Scrapbook File. Record Group 128.1. Box 1. North Carolina State Library and Archives, Raleigh, NC.
Mullen, James. Deposition. August 25, 1975. American Civil Liberties Union of North Carolina Papers. Box 143, Folder “NC Prisoners Labor Union Briefs and Depositions.” Rubenstein Library, Duke University, Durham, NC.
National Conference on Prisoners’ Rights. November 5–7, 1971. University of Chicago. American Civil Liberties Union Papers. Box 1089, Folder 1. Mudd Library, Princeton University, Princeton, NJ.
North Carolina Civil Liberties Union Board Meeting Minutes. March 12, 1972. American Civil Liberties Union of North Carolina Papers. Box 14, Folder “Board Correspondence.” Rubenstein Library, Duke University, Durham, NC.
. October 6, 1973. American Civil Liberties Union of North Carolina Papers. Box 14, Folder “Board Correspondence.” Rubenstein Library, Duke University, Durham, NC.
. January 27, 1974. American Civil Liberties Union of North Carolina Papers. Box 93, Folder “Inmate Grievance Commission.” Rubenstein Library, Duke University, Durham, NC.
. August 6, 1977. American Civil Liberties Union of North Carolina Papers. Box 17, Folder “Board Minutes.” Rubenstein Library, Duke University, Durham, NC.
North Carolina Department of Corrections. “Program Management 5 NCAC 2B.0200.” May 5, 1976. American Civil Liberties Union of North Carolina Papers. Box 142, Folder “North Carolina Prisoners’ Labor Union, Inc. v. David L. Jones & Ralph Edwards.” Rubenstein Library, Duke University, Durham, NC.
North Carolina Prisoners’ Labor Union. “Goals of the North Carolina Prisoners’ Labor Union.” September 27, 1974. T.J. Reddy Papers. Box 1, Folder 14. J. Murrey Atkins Library, University of North Carolina Charlotte, Charlotte, NC.
Pollitt, Daniel R. “A History of the North Carolina Civil Liberties Union.” 1968. American Civil Liberties Union of North Carolina Papers. Box 1A, Folder “Historical Files.” Rubenstein Library, Duke University, Durham, NC.
Pollitt, Daniel H. to Smith, Norman. “Prison Cases.” April 3, 1974. American Civil Liberties Union of North Carolina Papers. Box 95a, Folder “Prison Abuses.” Rubenstein Library, Duke University, Durham, NC.
Proposal, Certification of Inmate Grievance Procedures. November 8, 1987. Franklin Dupree Papers. Box 94, Folder 1706. Rubenstein Library, Duke University, Durham, NC.
Purner, Robbie to Smith, Norman. June 17, 1976. American Civil Liberties Union of North Carolina Papers. Box 143, Folder “North Carolina Prisoners’ Labor Union, Inc. v. David L. Jones & Ralph Edwards.” Rubenstein Library, Duke University, Durham, NC.
Smith, Herman to State Attorney General Robert Morgan. December 5, 1973. Robert Morgan Papers. Box 56/104, Folder “Corrections”. Joyner Library Special Collections, East Carolina University, Greenville, NC.
. to Smith, McNeill. December 5, 1973. McNeill Smith Papers. Box 9, Folder 226. Southern Historical Collection, University of North Carolina Chapel Hill, NC.
. to Dupree, Franklin. December 5, 1973. Franklin Dupree Papers. Box 32, Folder 1698. Corrections. Rubenstein Library, Duke University, Durham, NC.
Smith, Norman to Smith, McNeill. “Central Prison Strike.” August 26, 1968. American Civil Liberties Union of North Carolina Papers. Box 6, Folder “Miscellaneous.” Rubenstein Library, Duke University, Durham, NC.
. to Stallings, Jack. December 16, 1968. American Civil Liberties Union of North Carolina Papers. Box 4, Folder “Prisoner Mail: Refusal.” Rubenstein Library, Duke University, Durham, NC.
. to Brooks, Wayne. “Inmate Grievance Commission.” May 27, 1974. American Civil Liberties Union of North Carolina Papers. Box 93, Folder “Inmate Grievance Commission.” Rubenstein Library, Duke University, Durham, NC.
Strader, Frank. “Inmate Grievance Commission.” February–March 1975. N.C. Prisoners’ Labor Union Newsletter 1(2). American Civil Liberties Union of North Carolina Papers. Box 143, Folder “N.C. Prisoners’ Labor Union.” Rubenstein Library, Duke University, Durham, NC.

CASES CITED

Burrell v. McCray, 516 F. 2d 357 (4th Cir. 1975).
Burrell v. McCray, 426 U.S. 471 (1976).
Cooper v. Pate, 378 U.S. 546 (1964).
Edwards v. Duncan, 355 F. 2d 993 (4th Cir. 1966).
Goodwin v. Oswald, 462 F. 2d 1237 (2d Cir. 1972).
Haines v. Kerner, 404 U.S. 519 (1972).
In re Prisoners’ Labor Union at Green Haven, Case No. C-0794 (N.Y. Empl. Rel. Board, December 18, 1972).
In re Prisoners’ Labor Union at Marquette, Case No. R72, E163 (Mich. Empl. Rel. Comm., March 22, 1974).
In re Walpole Chapter of the National Prisoners’ Reform Association, Case No. SCRX = 2 (Mass. Labor Rel. Ass., September 24, 1973).
Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977).
Kochie v. Norton, 343 F. Supp. 956 (D. Conn. 1972).
McCray v. Burrell, 367 F. Supp. 1191 (D. Md. 1973).
North Carolina Prisoners’ Labor Union, Inc. v. Jones, 409 F. Supp. 937 (E.D.N.C 1976).
Paka v. Manson, 387 F. Supp. 111 (D. Conn. 1974).
Pell et al. v. Procunier, 417 U.S. 817 (1974).
Rizzo v. Goode, 423 U.S. 362 (1976).
Rochin v. California, 342 U.S. 165 (1952).
United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).
United Steelworkers of America v. American Mfg. Co., 363 U.S. 564 (1960).
United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960).

STATUTES CITED

An Act to Amend Chapter 148 of the General Statutes to Create an Inmate Grievance Commission (1974). 148 North Carolina Code 11.
An Act to Establish A Corrections Administrative Remedy Procedure (1987). 148 North Carolina Code 11.
Civil Rights Act, The (1871). 42 United States Code 1983.
Civil Rights of Institutionalized Persons Act (1980). 42 United States Code 1997 et seq.
Prison Litigation Reform Act (1996). 42 United States Code 1997e.