Highest court cost: concern for "prisoners' rights" has turned prisons into jungles

National Review, March 16, 1992 by Eugene H. Methvin

IN TWO landmark days, first the U.S. Justice Department and then the Supreme Court jerked on the reins of federal judges, curbing their penchant for jumping into prison management. On January 14 Attorney General William Barr announced that federal lawyers will help states challenge caps on prison inmate populations negotiated under threat of a federal judge's takeover. And on January 15 the Supreme Court, in a 6 to 2 decision, ordered judges to reconsider such decrees when "a significant change in factual conditions" makes compliance "substantially more onerous"--for example, when street crime soars and more criticals need to be locked away for public safety.

Until two decades ago federal judges kept their hands off state prison systems. Then in 1969 the Warren Court held, in Johnson, v. Avery, that the Eighth Amendment's prohibition against "cruel and unusual punishments" could cover a wide array of prisoner complaints. Federal judges lost no time in jumping into this new imperial domain, babbling about "evolving standards of decency." The 1969 case involved floggings with a leather strap in the Arkansas prisons, but soon county commissioners in Crisp County, Georgia were compelled to provide prisoners with air conditioning and television under threat of having their jail held "unconstitutional." "It's gotten to the point that criminals ask us for prison time instead of probation," declares Texas Judge Michael McSpadden.

The federal judges loosed upon America's prisons a horde of lawyers, idealists, and social engineers. They ordered 41 states to reduce prison crowding. Though the Supreme Court in 1981 refused to hold that double-bunking in prison cells violates the Constitution, lower judges still declare unconstitutional cells that may be as large as eighty square feet--more than twice the size of nuclear submarine officers' quarters accommodating two or three men.

Nowhere has reform by judicial decree yielded more sobering results than in Texas. In 1981, Federal Judge William W. Justice was appalled to find that prison guards maintained order by arming older, more experienced prisoners, called "building tenders" or "BTs," with pipes and clubs to coerce others into conformity. These BTs administered rough and sometimes savage justice.

But no prison gangs were allowed to form, and the weaker inmates were protected from bullying and homosexual rape. Inmates who wanted merely to keep out of trouble and serve their time were let alone. One expert, State University of New York Professor Bruse Jackson, declared: "What looks lie gratuitous repressiveness is actually a very rational policy. Texas officials decided years ago they would not permit the kind of violence that goes on in other prison systems. If a son of mine were ever imprisoned, I would much rather he be in Texas prisons than in New York's."

To reform the Texas system, Judge Justice appointed a Toledo, Ohio, law professor, Vincent Nathan, who had had no experience in corrections before he became the favorite prison-reform expert of federal judges. "The rule of law has finally come to Texas prisons," chortled William Bennett Turner, the San Francisco lawyer who represented the prisoners. Wronger words were never spoken. Jungle law was about to arrive.

Swift Injustice

AS THE old system was uprooted and new guards hired and trained, prison gangs formed and took over. Homicides among inmates, virtually unknown previously, soared to 52 in just two years. By late 1985, homicides were occurring at the rate of one a day.

With the bodies figuratively piling high on his doorstep, Judge Justice backed off significantly. Prison authorities were given greater leeway in punishing and rewarding prisoners. Judge Justice stayed out of it when they resorted to a wholesale lockdown of 17,000 inmates, rounding up without the slightest "due process" known troublemakers and everyone suspected of gang involvement. Today Texas keeps about 20,000 prisoners in "administrative segregation," allowing them outside their cells for showers or exercise only under armed guard. But inmate murders have fallen to only one a year.

Meanwhile, the guard-to-prisoner ratio doubled, and Texas taxpayers' cost per prisoner soared more than tenfold. Legislators refused to vote higher taxes to build more prison space, and crime soared. While the nation's crime rate dropped 4 per cent in ten years, the Texas crime rate rose 29 per cent. Prisoners saw the proportion of their sentences they had to serve drop from 56 per cent to less than 14 per cent. For the first time ever, in 1986 there were more convicts on parole than behind bars. In 1980 no Texas city ranked in the top twenty in the U.S. in property-crime rates. By 1988, thirteen of the top twenty were in Texas. Legislators were shocked to discover that prison officials struggling to stay under Judge Justice's population cap were giving early releases to hundreds of convicts held in solitary confinement because they were deemed too dangerous to mix with the general prison population. Instead, they were loosed directly upon the unsuspecting public.