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June 14, 1974

Peter BUTLER and Charles Culhane, Plaintiffs,
Peter PREISER, Commissioner of Correctional Services, and Leon Vincent, Superintendent of Green Haven Correctional Facility, Defendants

Frankel, District Judge.

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

In the wake of the "tragic experience of Attica," *fn1" a prison uprising that left 11 guards and 32 inmates dead as well as over 80 people wounded, *fn2" some 65 inmates have been indicted (with more quite possibly to be added) for serious crimes, including murder. A number of inmates and ex-inmates named in the indictments, together with others not named but choosing to participate, undertook to create a fund for the payment of defense costs, including travel for out-of-state attorneys desired as defense counsel, investigative expenses, and other expenditures deemed useful for effective representation. Solicitations for these purposes began at least as early as October 1972. In December 1972, a group of inmates, with the assistance of counsel and leadership participation by New York State Assemblyman Arthur O. Eve, formed the Attica Brothers Defense Fund ("ABDF") *fn3" to collect funds for the foregoing purposes, to coordinate defense measures, to raise bail money, and to promote prison reform generally. *fn4"

 While ABDF solicitations and pledges went on uneventfully for a while, with the knowledge and acquiescence of prison wardens and other correctional officials, the effort was blocked in February 1973 by the State Commissioner of Correctional Services. *fn5" The prohibition was justified as flowing from the Department's "present rules prohibiting transfer of money from one inmate's account to another." This in turn was explained on the grounds of "troubles we encountered in the past" -- specifically, "instances of coercion by one inmate upon another to transfer money without his initiation nor his own free volition * * *."

 This action to enjoin the prohibition was brought under 42 U.S.C. § 1983 on behalf of two classes of inmates -- those indicted and others not indicted, but all desiring for their several reasons to solicit for and/or contribute to the ABDF. The court's jurisdiction is invoked under 28 U.S.C. §§ 1331, 1343(3) and (4), and 2201. The court has jurisdiction. The case may proceed as a class action. *fn6" The court concludes, upon facts and reasons outlined more fully below, that plaintiffs must prevail because the prohibition in issue is an arbitrary and excessive intrusion upon rights protected by the Constitution of the United States. The suppression defendants have effected of rights of association and effective access to the courts denies the due process of law and the equal protection of the laws guaranteed by the Fourteenth Amendment. There were and are no applicable "rules" to justify this action. There were no "troubles" to account for the nonexistent rules. There have been no "instances of coercion" such as were reported by way of justification. Rather, in a fearful and hostile reaction against efforts at lawful resort to adversary judicial process, defendants made a hastily fashioned prohibition which has not been validated by the course of shifting explanations they have offered to support it here. *fn7"


 For many years New York prison inmates have been solicited to join and support financially a variety of organizations and causes. The solicitations have sometimes been by prison guards and officers, more often by fellow inmates. Among the organizations involved have been the National Association for the Advancement of Colored People, the Junior Chamber of Commerce, the American Civil Liberties Union, the Black Muslims, the Black Panthers, a union of prisoners, and drives to fight sickle cell anemia, as well as officer-sponsored collections to help flood victims and to send flowers for the funeral of a guard's wife. Solicitations have been conducted by use of bulletin boards, by sheets passed through cell blocks, and by personal approaches in prison yards. Activities of this nature have been conducted openly and with some frequency. Wardens and those under their command have known of and not sought to prevent them. People in the Commissioner's office, including at least some with first-hand knowledge of the prisons, have not been ignorant of such facts.

 There are no recorded instances of trouble, coercion, violence, or any disruption of discipline resulting from solicitations. This statement is not too broad, even allowing for the limits upon judicial proof. The claim of coercion, or fear of coercion, has been central in this case from the beginning. It has been the subject of pointed inquiries from the court to defendants. An able and imaginative Assistant Attorney General, with ample time for the attempt, has not produced a single example from experience to ground the alleged fear.

 To the contrary, the evidence reflects that solicitations have been peaceable and have varied in their effectiveness. Inmates have responded negatively as well as positively to appeals for support. It is not excessively naive, even for a judge, to credit the evidence that goes far to destroy defendants' thesis.

 The procedure by which prisoners make contributions from their prison accounts is of sufficient pertinence to be sketched briefly. A prisoner may not have currency in his possession. He is permitted, however, to direct by a voucher that funds go from his account to a designated payee for a designated purpose -- as for NAACP dues, a magazine subscription, etc. A prisoner or other person soliciting for a group or cause may obtain a supply of blank vouchers -- or, as was done at times in this case, may prepare sheets for a list of signatures and specified amounts -- and employ these in signing up members or subscribers. The specified funds thus go directly to the named recipient without passing from inmate to inmate.

 Starting from at least October 1972, contributions were sought inside and outside the prisons for the legal and other expenses of the Attica defendants. It was and is expected that very large amounts will be needed. Suggesting the dimensions, the State has appropriated $5,500,000 for the Attica prosecutions. On the defense side, about $100,000 has been pledged to the ABDF from non-inmate sources -- mostly in modest amounts, but sometimes in sums of as much as $500 or so from speaking fees of attorneys and others. Within the prisons, many hundreds of those solicited made pledges mounting to a total of perhaps $3,000 or so. *fn8" The contributions in numerous cases were in the amounts of 25 cents and 50 cents. Scarcely any exceeded two dollars. While the total was thus destined to be only a modest fraction of ABDF's needs, the results reflected some considerable measure of support or, as one inmate witness said, "love" for the Attica defendants. On the other hand, substantial numbers of those solicited refused to pledge anything.

 Like other solicitations, those involved here were conducted openly. Bulletin boards and the other devices described earlier were employed. Wardens and corrections officers were fully aware of all this and made no protests or moves to prevent continued solicitations. Nobody was coerced. There was no trouble. There was no hint of violence or disorder.

 In January and February 1973, an inmate and Assemblyman Eve communicated with the Commissioner about the proposed arrangements for donations to the ABDF. On February 20, 1973, the Commissioner responded as follows to the inmate:

"I am in receipt of your letters of January 25 and February 16, 1973, concerning the question of inmates donating to various causes, including the Attica Defense Committee and the families of deceased inmates.
"Our present rules prohibiting transfer of money from one inmate's account to another, one will find upon investigation, is based on troubles we encountered in the past. Instances of coercion by one inmate upon another to transfer money without his initiation nor his own free volition is the reason the rule has been adopted and adhered to.
"I am sure that in your experience in our facilities you probably have seen instances of coercion of the strong inmate over the weak, the exercise of power of one inmate over the other. Coercion of one inmate by another and the possibility that an inmate may be forced to donate to any cause without his free consent seems to me to be ample cause to not suspend the rule in any solicitation, be it the Heart Fund, the Cancer Fund or any other charitable solicitation.
"There, however, appears to be one way in which an inmate may donate to a cause of his own choosing. And that is by way of sending the money home to his family, with instructions that it be donated to the desired cause. This routine has worked effectively in past years and you may wish to explore it as a viable alternative to our regulations."

 On the same day, the Commissioner distributed a memorandum to "All Facilities," attaching a copy of the foregoing letter. The memorandum said:

"Assemblyman Eve reported to me that several prisoners in the institutions have written his office asking to donate moneys from institutional accounts to a special trust account he would set up for use in the defense of those indicted for their part in the Attica tragedy.
"We are answering Mr. Whitfield, Chairman of the Inmate Liaison Committee, Green Haven, as you see from the enclosed, since he wrote us specifically for the ...

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