Prison Reform Enhancing the Effectiveness of Incarceration, Hearing Before the Committee on the Judiciary, 1995

Prison Reform Enhancing the Effectiveness of Incarceration, Hearing Before the Committee on the Judiciary, 1995

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HR.a. 1~73

PRISON REFORM: ENHANCING THE
EFECTIVENFSS OF INCARCERATION
HEARING
BEFORE THE

COlvIMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HlJNDRED FOURTH CONGRESS

FIRST SESSION

TO CO!'.'TROL CRIME, AND FOR OTHER P"u."I.POSES
TO AME?-."D THE \10LE."1"T CRIME CONTROL AND LAW E."',"'FORCE?t{Z!\'T ACT OF lW.,
OTHER PUP.POSES

s.
s.

AJ--;:)

FOP.

400

TO PROVIDE FOR APPROPRIA'rE RE.\!EDIES FOR PRISOS COSD!TlOSS, J._,"TJ FOP. OTHER PURPOSES

866

TO REFORM PRISON lJTIGATlON, M"D FOR OTrlEP. PUP.POSES

930

TO REQUIF.E STA'r:.S RECEIVING PRISON CONSTRUCTION GRA..°"'i'S TO IMP"~"T REQu1REME?-."1'S
FOR P.-<11!.4.T"-"5 TO.r.r.RFORM WORK AND ENGAGE IN EDUCATIONAL AC'lT.'ITIES, A."-"D FOR OTHER
PURPOSES

KR. 667
TO CO~..TROL CRIME BY INCARCERATIN.; "1;10!..E~i' CPJ:MIXALS

JULY 27, 1995

Serial No. J-104-35
Printed for the use of the Committee on the Judiciary

•

U.S. GOVEPJ,'ME1''T l'RD,"TINO OFFICE
27-2SS CC

WASHING'ION : 1996

For scle by the U.S. Govc:nmcnt Printin:; Office
S:.ipcr'.nt:nd:nt of Document~. Congressional S~:s Offi:e, W:ish:n:;ton. DC 20402
- ISBN 0-16-053546•8

COMMITTEE 0~ THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STl OM THURMO:l','D, South Carolina
ALA.! K.. SIMPSON, Wyoming
CH.~ ~SE. GRASSLEY, Iowa
ARLEN S.t:-;:'"'.TER, Pennsylvania
HA.~K BROWN, Colorado
FRED THOMPSON, Tennessee
JON KYL, Arizona
~HKE DEWINE, Ohio
SPE~CER ABRA.HAM, Michigan

JOSEPH R. BIDEN, JR., Delaware
EDWARD M. KE?lc'NEDY, Massachuset~s
PATRICK J. LEAHY, Vermont
HOWELL HEFLIN, Alabama
PAUL SIMON, Illinois
HERBERT KOHL, Wisconsin
DIANNE FEINSTEIN, California
RUSSELL D. FEL~GOLD, Wisconsin

MARK R DISLER, Chief Cowisel
MA.NliS COOZ-..'EY, Staff Director ar..d Chief Co:.msd
CYN1'HIA C. HOGAN, Minority Chief Counsel
KAREN A. ROBB, Minority Staff Director
(II)

•

COl~TENTS
STATEMENTS OF COMMITI'EE MEMBERS
Pqe

•

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah ................................
r\braham, Hon. Si:>encerj U.S. Senator from the State of Michigan ....................
Biden, Hon. Joseph R, r., U.S. Senator from the State of Delaware ................

3
86

CHRONOLOGICAL LIST OF WITNESSES
Statement of Hon. Kay Bailey Hutchison, U.S. Senatc.r from the State of
Texas ............................................................. ........................................................

s~;j~~~~v~~~~~ ~~~~.. ~:~~.~~:... ~:.~~:.. ~:.~: ..~.:.~~:
Statement of Hon. Pnil Gramm, U.S. Senato: from the State of Texas .............
Panel c o ~ of William P. Barr, former Attorney General, U.S. DeJ>~
ment of Justice, Washington, DC· Paul T. Cappuccio, Kirkland and Ellis,
Washington, DC; John J.-Wulio, Jr., pro.fassor of politics and public affain,
Princeton University; Lynne Abraham, district attorney, P~:1Jhia• ?A,
on behalf of the National District Attorneys Associationi.. Mi
Gadola,
director, Office of Regulatory Reform, State of Michigan; Mbert J. Watson.
commi!Sioner of eorrection, State of Delaware; and Steve J. Martin, former
general counsel, Texas Department of Corrections ...........................................
Panel consisting of Kathleen Finnegan, executive director, Stop 'fum.ina Out
Prisoners; 0. Lane McCotter, executive director, Utah Department Corrections; Andrew Peyton Thoma!!, de_puty attorney general, State of Arizona; Timoth7 P. Cole, chairman, Wackenhut Correctio_ns Corporation;
James A. Collins, executive ~ r , Texas Department of Criminal Justice,
on behalf of the American Correctional Association; and Zee B. Lamb,
chairman, Board of County Cornrois.sioners, Pasquotank County, NC, on
behalf of the National Association of Counties ..................................................

8
9
17

104

ALPHABETICAL LIST AND MATERIALS SUBMITI'ED
Abraham, Lynne:
Testimony ......................................................................................................... .
Prepared statement ......................................................................................... .
Submitted a letter from Michael P. Barnes, president, National District
Attorneys Association to Senator Hatch dated July 25, 1995 .................. .

•

45
48

Ab::ru~~Se~~m~~~
~~~~!~.. ~~~.~:. ~:..~.~~..~~~
Barr, William P.:

102

Testimony ......................................................................................................... .
Prepared state.ment ......................................................................................... .

Cap~::::.::.=. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..
Prepared statement ......................................................................................... .
Cole, Timothy P.:
Testimony ..........................................................................................................
Prepared statement ..........................................................................................
Attachment 1: Prison Grants: Privatization Will Maxiroi:e Public
Benefits .................................................................................................. .
Attachment 2: Wackenhut Corrections 1994 Annual Report ................
Attachment 3: Full committee print of House of Repre,entatives re-

A~!!i:t
f:ulI;J:Si:.. fud;;;;~ifi;_;ti~~ ..i~;;--~~fi);r;~··~
Claim.s ..................................................................................................:··
(IlD

29
32
34

115
117
118
123

133
135

IV
Collins, James A.:
Testimony ......................................................................................................... .
Prepared statement ........................................................................................ ..
Dilulio, JohrJ J., Jr.:
Testimony ......................................................................................................... .
Prepared statement ......................................................................................... .
,Finnegan, Kathleen: Testimony ............................................................................ .
Gadola, Michael:
Testim-1ny ......................................................................................................... .
Lam~~~: statement ......................................................................................... .
Testimony ......................................................................................................... .
Prepared statement ......................................................................................... .
Martin, Steve J.:
Testimony ......................................................................................................... .
Prepared statement ......................................................................................... .
Submitted letters from:

Ral~~~i.
If-99~~.~:.. ~~~.~-~:...~~'. .. ~.. ~.~-~-~~-··~·~·~-··~~~~
Harry M. Whittington, attorney at law, Austin, TX, to Senator Hatch

138
140
37

40
104

54
57
145
147

Hatch dated July 24, 1995 ................................................................... .
Consortium for Citizens With Disabilities to the Senate Judiciary
Committee ............................................................................................. .
Various organizations, current end former correctional administrators, and other individuals to Senator Hatch dated Mar. 9, 1995 .....
J. Michael Quinlan, former di.rector of the Federal Bureau cf Prisons,
to the Senate Judiciary Committee dated Feb. 8, 1995 ................... ..
McCotter, 0. Lane:
Testimony ......................................................................................................... .
Prepared statement ......................................................................................... .
Schmidt, John R:
.
Testimony ......................................................................................................... .
. Prepared statement ......................................................................................... .
Specter, Hon. Arlen: Submitted the statement of Hon. FJchard C. Shelby,
U.S. Senator from the Stete of Alabama .............................................: ............ .
Thomas, Andrew Peyton: Testimony ..................................................................... .
Watson, Robert J.:
Testimony ......................................................................................................... .
Prepared statement ......................................................................................... .

•

~~i'~~·g;;i~gi~:··wicltl~·F~:·n~"~··s~~;~·;

Rot~d J.ullu~.

•

68
70
72

106
109
9

7
113
60
63

APPENDIX
QUESTIO!'\S A.","D A.'iS'WERS

Questions to Lynne Abrebam from Senators:
Abraham ........................................................................................................... .
Eiden ................................................................................................................. .
Questions to Michael Gadola from Senators:
Kohl .................................................................................................................. .
Eiden ................................................................................................................ .
Abraham ......................................................................................................... ..
Questions to Robert J. Watson from Senators:
Kohl .................................................................................................................. .
Eiden ................................................................................................................. .
Questions to Steve J. Martin from Senator Eiden ............................................... .
Questions to Kathleen Finnegan from Senator Kohl .......................................... ..
Questions to Andrew Peyton Thomas from Senatore:

Abraham ........................................................................................................... .
Brown ............................................................................................................... .
Kohl .................................................................................................................. .
Questions to Timothy P. Cole from Senator Abraham ....................................... ..
Questions to Zee E. Lamb from Senator Kohl ...................................................... .
Questions to the U.S. Department of Justice from Senators:
Kohl .................................................................................................................. .

Abraham ........................................................................................................... .

169
173
173
174
174
177
177
177
178
178
179
180
180
181
182
183

•

V
Pap

Questions to the U.S. Department of Justice from Senators-Continued

Hatc.h to•················································································································
Questions
William P. Barr and Paul T. Cappuccio from Senators:
Kohl •.....................................................•............................................................
Biden ..................................................................................................................
Abrah.am •.... ........... .. .. ..... .. .. .... ....... ........... .. .... .. ....... ...... .. .. ..... .. .. .. .. .. .. ... .. .. ........
Questions to John J. Dilullo, Jr. from Senators:
Kohl ...................................................................................................................
Biden ..............................;...................................................................................
Abraham............................................................................................................

185
186
186
186
188
189
189

AnomONAL SUBMISSIONS FOR THE REcoRD

Letters from:
James A. Collins, executive director, Te.,cas Department of Crimin.al Justice to Senator Hatch dated July 31, 1995 ............................................... ..
Paul S. Kenyon, M.D., P.C., board certified orthopedic surgery, Jackson,
MI, dated July 17, 1995 to Senator Abraham ........................................... .
Prepared statement of:
The American Bar Association ....................................................................... .

Ktio~if~~:.~~
..~~.~~.~~.~.~.~~~..~~~!.~~~.~~. ~~:
David Richman, attorney for plaintiff inmates in Harris v. City of Phi!.a-

delphia .......................................................................................................... .
Chase Riveland, secretary of the Washington Department of Corrections ............................................................................................................... .

•

200
200

201
206

209

214

PRISON REFORM: ENHANCING THE
EFFECTIVENESS OF INCARCERATION
THURSDAY, JULY 27, 1995

U.S. SENATE,
COMMITTEE ON THE JUDICIARY,
WASHINGTON,

DC.
The committee met, pursuant to notice, at 10:14 a.m., in room
SD-106, Dirksen Senate Office Building, Hon. Orrin G. Hatch
(chairman of the committee), presiding.
Also present: Senators Specter, DeWine, Abraham, and Biden.
OPENING STATEMENT .>F HON. ORRIN G. HATCH, A U.S.
SENATOR FROM THE STATE OF UTAH
The CHAIRMAN. We will call this hearing to order. We apologize

that we are a little late, but we had a Judiciary Committee meeting that has taken us away for more time than we had expected.
This morning, the Judiciary Committee convenes to consider the
effecti~... ness of incarceration in our Nation. This is one of the most
important issues facing the criminal justice system today, and I am
pleased that we will be assisted in our task by this very distinguished group of witnesses. I extend a warm welcome to each of
you as witnesses. In particular, we are pleased to be joined by our
colleagues, Senators Hutchison and Gramm, as well as Associate
Attorney General John Schmidt and former Attorney General William Barr.
Properly understood, prisons serve three fundamental functions-the incapacitation of criminals, the punishment and deterrence of crime, and, when possible, the rehabilitation of criminals.
Incapacitation is the linchpin on which the others depend. Punishment and rehabilitation cannot be accomplished if the criminal is
not first incapacitated. If we know nothing else, we know that the
criminal who is behind bars is not victimizing other innocent people in society at large.
Punishment is also a vital pare of our prison system. Ideally, it
instills in the criminal an understanding that breaking society's
rules has consequences and encourages, we hope, the criminal to
reform. The credible threat of serious punishment also should deter
persons from committing crimet.:. Equally important, punishment
provides closure and peace of miud to victims of crime who too
often are forgotten by the criminal justice system.
Finally, incarceration should advance rehabilitation. The inherent worth of human beings requires that we recognize their ability
to change and provide them the opportunity to do so. Yet, we must
also recognize the limits of rehabilitation. Some criminals commit

acts so depraved that society cannot risk letting them go free
again.
Our prison system today is plagued by several interrelated problems-the inappropriate utilization by Federal courts of population
caps and intrusive micromanagement on State and local prisons,
the costly effects of frivolous inmate lawsuits filed in Federal court,
and the lack of sufficient capacity.
The Federal Government has the obligation to help address all
of those issues. As of January 1994, 244 institutions in 34 jurisdictions reported being under conditions of confinement court orders,
and 24 reported having court-ordered population caps.
No one, of course, is suggesting that prison conditions thF,t actually violate the Constitution should be allowed to persist. Nevertheless, I believe that the Federal courts have gone w;;.y too far in exercising their equitable remedial powers to micromanage our Nation's prisons at the expense of the proper role of the political
branches and the States.
As Justice Thomas suggested in his concurring opinion last term
in Missouri v. Jenkins, Congress has not exercised its power to define the remedial powers of the lower Federcl courts. Perhaps unwittingly, it has allowed Federal judges to run school districts, prisons, and other public institutions, a function more !)roperly exercised by legislatures and the executive branches.
There are mt>.ny other things I would like to address at this time,
but I am just going to put the rest of my statement into ;!-le record
and tum to my colleague, Senator Abraham, who will chair most
of these hearings.
I notice that we have a vote on, and we are gcing to have probably 7 votes in a row, and so what we are going to try and do is
keep the hearing going, even if we have to use staff. Both Senator
Abraham and I will try and alternate so we can come back and
take as much of this testimony personally as we possibly can, at
least for the first while, and one or the other of us might get stuck
· over there.
[The prepared statement of Senator Hatch follows:]
Pru:PARED STATEMENT OF SENATOR ORR!!< G. HATCH

This morning t.'1e Judiciary Committee convenes to consider the effectiveness of
incarceration in our Nation. This is one of the most important issues facing the
criminal justice system today, and I am pleased that we will be assisted in our task
by this very distinguished group of witnesses. ~ <;:,<tend a warm welcome to each of
them. In particular, we are pleased to be Joined ~y our Colleagues, Senator
Hutchison and Sena~r Gramm, as well ~ by AsSOCUlte Attorney General John
Schmidt and Former ,,_t:t.,,mey General William Barr.
.
.
.
Properly understwd, prisons serve three fundament~ functions: the mcapac1tation ~f ,illninhls, the punishment and defA:n-enc:e ~f cn:ne, and ".'hen ~s1),le, the
ret.abilitation of criminals. Incapacitation 1B the linchpin on which the -0tlie~ depend-punishment and rehabilitation cannot be accomp. lished if the aiminal 1s not
firsi incapacitated. If we know nothing eae, we know that the criminal wl\o is behind ~:!T'S is not victimizing other innocent people in society at large. Punishment
is also a vital function of the 1;1riaon system.
Ideally, it instills in the criminal an ~~entandini that t-reaiw:g society's rules
has con.<equenc:es, ll.Ild encourages the criminal to refo~ .. The ~dible threa~ of serious punishment also should deter persons from co_mnuttinj: ~es. E~ally ll!lpor•
tant punishment provides closure and peace of mmd to victims of cnme, who too
ofte~ are forgotten by the criminal justice ll)'ltem.
Finally, incarcer!ltion should adva!lce re~ab~t;ation. The inherent '!"orth of
human beings nquires that we recognize their ability to change, and provide them

(1)

4
3
the opportunity to do so. Yet we must elao ~ z e the limits or rehabilitation.
Some criminals commit acta ao depraved that 900ety cannot risk letting them free
again.
Our prison system today ia 1>lairued today by several interrelated problem.--the
inappropriate utilization by federal court.a of population ca11s and Intrusive
mic:romanagement on state and local prisons, the costly effects of frivolous inmate
lawauits filed in federal court, and • lack or aufficient capac::ty.
The federal pvernment bu 11D obliption to help addrese these issue■. As January, 1994, 2« institutions in 34 junaclic:tions reported being under conditions .,r
confinement court orclen, and 24 r e ~ having court ordered population caps.
[The Corrections Yearbook 19941 Criminal Jwrtice Institute, nc.J
No one 1 of COlll"IM!, is ~ g that prison conditions tlu.t actually violate the
Constitution ■hould be allowed to persist. Nevertheless, I b,lieve that the federal
c:ourte have gone too far In eun:illing their equitable remedial powers to
micromanage our Nation's prisons, at the expense of the pro .>er roles or the political
branches and the states.
As Justice Thomas suggested in his concurring opinion last Term in Missouri v.
Jenkw, Congress has not exercised its power to define the remedial powers or the
lower federal courts. Perhaps unwittingly, it has allowed federal judges to run
school districts, prisons, and other public institutions, a function more pro_perly exercised by legislatures and the executive branches. It is time to restore to the political
branches, and to the states, control over their prisons by imposing atandanla on the
e.xercise of judicial remedial powers. Prison p. •pulation caps, which result in revolving door justice a:id the commiaeion of untold numbers of prer,entable crimes, should
be the absolute last reaort.
Frivolous lawsuits must alao be addrea■ed.· Frivolous prisoner suits are reachlna
crisis _proportiona. In aome states, th- cuea make UJI nearly 50 percent of the federal civil docket. In my State of Utah, 297 inmate st11ts were filed In federal co,,zts
during 1994. These account.eel. for 22 percent of all federal civil suite filed in Utah
that year.
I would like to cite just twC'
or Crivo!OW1 prisoner lawsuits Crom my state
of Uteh. In one caae, an inmate
tely flooded his cell, and then BUed the officers who cleaned up the m- bK&UN they got hie Pinochle carda wet. [Lane v,
Ar,ery] In another case, a prisoner sued officers after a cell search, claiming that
they failed to put his cell back In a "fashionable" condition, and mixed his clean and
di~ clothing. [Roberta v. Hopkina]
It is time to restore sanity to this system by imposins legi~te limita on the
ability of iumatea to tie the courts 11Dd priaons in knots throUgh frivolous lawsuits.
Procei:lurea must be modifi:ld to quickly Identify the viable priaoner claims and weed
out the mer!Uess chaff. The money nved by reducing litigation coats could more appropriately be used by the states to help ensure that adequate prison space ia available, and the courbl will have more time to devote to truly worthy prisoner claims
Finally, it is entirely appro~te that the federal government provide aasiatance
to the states for an emergency build-up in prison apace and to e ~ the atates
thro-~ the provision o f ~ ftmda, to adopt truth-in-sen~ laws that honestly
tell ci~llll-«Dd "!81'11 c:riminala-:-what the penalty is for breaking the law.
. Our l\'ltneseea will be commen~ on ucli ~ these matters, and ~dinl? legislati,-e propoaala addresa many
the lill:11811 raiaed. To that end, I am pleasea to welcom.:: ~.tr ·,ritneaaea and I look forward to their testimony.

u;;:m:;_

Senator HATCH. So, Senator Abraham, why don't we turn to you.
STATEM.fil..T OF HON. SPENCER ABRAHAM, A U.S. SENATOR
FROM THE STATE OF MICWGAN
. Senator ABRAHAM [presiding]. Thank you, Mr. Chairman. Let me

Just say that I am pleased to have tlie opportunity to have the
chance to preside over at least part of this hearing today and appreciate the opportunity to do so.
I am convinced that what we are doing here today is im_portant
because people of all political persuasions clearly think that our
prison syst.em is in need of a good, hard look. Americans I think
are truly committed to protecting individual rights, but w; are als~
convinced that any punishment should fit the crime. While we do
a ~ood job of P!(>tecting the rights of the accused, I think we are
doing less well m our treatment of convicted criminals .

Ri.ghtly, in my view, we presume that individuals accused of
crimes are innocent unless found guilty by proof beyond a reasonable doubt, and we provide people accused of a crime with many
other protections-the right to call witnesses, the right not i.o be
compelled to testify, the right to counsel, the right to trial by jury.
Theoe protections cost both ti.ne and money, but mo:;t Americans
strongly believe that the costs are well worth bearing because they
make our system more just.
However, once a person who !::as bee:: ;;:·:e:: :=:.ese protections is
found guilt;, ~d our justice ~yste::i l-.:?.s :-.::-. _· :; :: ·.::-3e. ::::is! ~ericans also beheve that the time has cc::-.e · ·: :. ,. '-: ..·_.=z :.:;:e:::5
and the victims of crime to stop pay:::g a:-. ----,.-.
..: :~-.-,·:-.'.age of the price of crime. At that point, ~- · _· ·
the burden should shift as much as poss:::e :.: :_-_;,
nals themselves.
This is not because most of our citizens are heart:ess c:- ;·, .:.;:: ...
In fact, to the contrary, I am confident that most Arnerica::.s d:i :-.J:
want to see prisoners subjected to genuinely cruel conditirns. A:
the same time, however, I would like to ask all of you t-0 consider
a few crimes committed in this area that have been in the paper
over the last few days.
One about the murder of a 46-year-old doctor and his 22-, 19-,
and 15-year-old daughters, most likely after the 15-year-old was
molested. The second involves a 12-year-old girl who was unspeakably tortured and ultimately killed. I won't go into the details of
that crime, but it was an unbelievably anguishing experience to
read about. A third ex.ample involves carjackers who kidnaped,
robbed, and ultimately murdered a ~::-year-old woman.
There are legitimate differences of opinion over whether those
who committed these heinous crimes should be subjected to capital
punishr.-.ent. From the newspaper, I gather that fo, various reasons
most of the individuals involv~ in thP.sc p1>.!"f.icular crimes cannot,
in fact, be executed. But I think virtually PV"!"/body believes that
a person convicted of any of these crimes shoulc! be put in prison
for a long, long time and r.ot released early on pa:-ole or otherwise.
I also think virtually e·,erybody believes that while these people
are in jail, they should IL?t be tortured., but that they should not
have all the rights and privileges the rest of us enjoy, and that
their lives should, on the whole, be describable by the old concept
known as hard time. Unfortunately, that is not what necessarily
happens.
All too often, people who have committed heinous crimes do not
face serious ar,d predictable punishment. Instead, they enjoy amenities that the hard-working taxpayers who pay for them and who
live honest lives and don't break laws could not in many cases necessarily afford for themselves. These can include unlimited access
to color TV's, law libraries, weight rooms and other athletic facilities.
In addition, the merest inconveniences and hardships resulting
from imprisonment become fodder for lawsuits. And to tc,p it all off,
many are released after serving relatively little time, either because they are paroled or because the court enters an order that
the prisons are overcrowded.

Let me give you some examples, lest anyone thinks I am exaggerating. In my State of Michigan alone, prisoner grievances and
lawsuits over prison conditions have included disputes over how
warm the food is, how bright the lights are, whether there are electrical outlets in each cell, whether windows have inspected and certified up to code, whether prisoners' hair is cut only by licensed
barbers, and whether air and water temperatures are comfortable.
Through these lawsuits in many States, prisoners, their lawyers,
and unelected judges have replaced the people and their legislatures in controlling the character of prison life. As a further insult,
the taxpayers themselves often pay for-in fact, in almost all cases,
pay for these lawsuits, mid this is completely at odds with principles 'Jf democracy and federalism.
What is more, the result of such litigation is that violent criminals are freed to prey on more victims, and that, I think, brings
all of our social institutions into disrepute. I think most people in
Michigan, and indeed most p.?cple in this country believe this is all
wrong, and I have no doubt that they are right about this because
most of us believe that if somebody is convicted of a serious crime,
that person deserves to lose some of the rights the rest of us enjoy.
We believe this for a good reason. We believe criminals have
earned punishment and deserve to be treated less well than those
who obey our laws. We believe that if criminals learn that they will
have to pay a serious price for committing c,-:imes, they will be less
likely to do it again, and we believe that people contemplating murdering an entire family or torturing and killing a 12-year-old girl
or kidnaping, robbing, and killing a young woman may be less likely to commit that awful act if they know that they will face many
years of confinement, hard work, and loss of control over their
lives. In short, potential criminals will learn that crime not only
does not pay, but may impose significant costs; most importantly,
the loss of liberty, dignity, and comfort.
Unfortunately, our system does not always send this message.
Quite the opposite. Through expansive glosses on the eighth
amendment and other rights, our legal system has managed in various instances to create the impression that prisoners' rights to
challenge the conditions of their confinement are at least on a par
with society's authority to decide to put them in jail. This message
of moral equivalence fundamentally subverts the core principle of
our criminal justice system that individuals who have committed
seri?UB crimes are the legitimate objects of society's reproof and
punishment.
How did this happen? To some extent, no doubt, it was a reaction
to genuine and serious abuses that were taking place in prisons 25,
or perhaps even 20 years ago, and indeed those abuses caution
against complacency, since prisoners are undoubtedly uniquely vulnerable to being abused. But that insight is far from the whole
story and should not make us loo,e sight of that story's central fact
that people are in prison because they have done something serio~sly wrong. An endless flood of prisoner lawsuits alleging plisoner
nghts to more handball courts for recreation or more psychiatrists
to cure them of their criminal proclivities fatally undercuts the fun.
damental purpose of incarceration .

The purpose of this hearing is to reexamine how we can serve
those fundamental purposes. I believe it is time the pendulum
swung back in the direction of law-abiding taxpayers and the victims of crime. We need to ensure that prisoners are fully protected
against cruel and unusual punishment, as our Constitution requires, but we do not need to ensure that prisons are run according
to criminals' preferences.
A number of my colleagues have introduced various proposals to
address different aspects of these problems. We will be hearing
from two of them now, or in the first panel when they get back
from voting, but I would also like to take a moment to state the
committee's appreciation for the work of two members of the committee, the Senator from Arizona, who has made some very innovative proposals about frivolous litigation, and the Senator from Colorado, who has been working along with Senator Shelby of Alabama
on proposals regarding work in prison.
In sum, I am convinced that a more balanced approach to these
issues would reduce the number of criminals released early to commit more crimes; reduce the number of criminals committing
crimes after they are released, if they are released; and help prisons function as a more effective deterrent to crime. I hope in this
hearing we will be able to explore the different ways by which we
can achieve a better balance between individual rights and society's
right to protect itseif and all of us from dangerous criminals.
At this time, I do not s•"C ~he Senators who would make up the
first panel, but perhaps what we might do is begin with Aseociate
Attorr;ey General Schmidt, if that is agreeable, and have him begin
his te1,timony. I will go to vote, and perhaps Senator Specter will
officiate until Senator Hatch gets back.
Senator SPECTER. Well, we have a block of 6 votes back to back.
This is an unusual morning. We are going to be gone, I think, for
some time, delaying the hearing, but I would like to make a very
brief com:n~nt.
I think ';hese are very, very important hearings on the ongoing
problems of-staff tells me that we are going to have shuttling Senators here to try to keep the hearing in process. That is going to
be some job, with 10-minute votes and at least 5 or 6 minutes to
and another 5 or 6 minutes from, but just a comment or two.
I think these hearings are very important on the ongoing problems of prisons in America. This is a sub~ect that_ I h_ave been deeply involved in since my days as an assistant distnct attorney m
Philadelphia many years ago when I was chief of the Appeals and
Pardons Section and would visit the_prisons_on people who had ~pplied for pardons and paroles, and m that Job had an opportumty
to visit all of Pennsylvania's prisons. The shortage of prison space
is a tremendous problem.
The first three bills I introduced in my first year in the Senate
involved first, armed career criminals; second, Federal prisons for
career criminals who moved in interstate commerce; and third, realistic rehabilitation requirements for inmates. We have had a
shortage of prison space in this country for at least the past 30
yer..rs, to my person~ knowledge,.and we hay~ had i~sufficient ~ccommodations for pnsoner education and tnumng. It 1s no surpnse
when a functional illiterate leaves prison without a trade or a skill

8
7

that that individual goes back to a life of crime, so that job training
and literacy training l:L.'"e very important.
I see Senator Hutchison has arrived to make her statement. Before I call on her, I would _like to note the p~s~nce _today of~ very
distinguished Pennsylvanian and a very distmgu1shed Philadelphian the district attorney of Philadelphia, Lynne Abraham, who
faces ~ery difficult problems as the chief law enforcement officer_ of
a major American city, a job I had for 8 years. But I had an eae1er
time of it than District Attorney Abraham does because I had Assistant District Attorney Abraham to help me with the job when
I was district attorney.
You may not have noticed much about District Attorney Ahrahi>m because she hasn't appeared on the cover of the New York
Times Magazine for almost a full week now. But she has unique
problems and one of them is prison overcrowding. She is one of a
very disting,1ished panel of witnesses, including former Attorney
General Bill Barr.
At this point, I would like to submit Senator Shelby's statement.
[Prepared statement of Senator Shelby follows:]
PREPA!'.ED STATH~E!\"l' OF Hos. RrC!V,RD C. SHELBY, A U.S. SE.'<ATOR FROM THE
STATE OF A.LABAY.A

Mr. Chairman, one of the many controversial provisions of the 1994 crime bill was
the re'l,'_li;ement that states have in place an array of dubious programs, including
social rehabilitation," "job skills," and even "post-release" programs, in order to
c;ua!ify for the prison construction grant money contained in the bill. This requirement is simply a manifestation of the criminal rights philosophy, which hae reeked
havoc on our criminal justice system. This view liolds that criminPJs are victims of
society, are not to blame for their actions, and should be "rehabilh..•ted" at the taxpayers expense. In their zeal to "rehabilitate" ,-iolent criminals, proponents of tJ,is
ideology have worked overtime to ensure that murderers, rapists, and child molesters are treated better than the victims of these acts and that these criminals have
access to perks and amenities most hard-working taxpayers cannot afford.
Award-winning journalist Robert Bidinotto has revealed a myriad of these abuses.
For example, at Mercer Regional Correctional Facility in Pennsylvania, hardened
criminals have routine acces~ to a full-sized basketball wurt, handball area, punching bags, volleyball nets, 15 sets of berbells, weightlifting machines, electronic bicycles, and stainna.sters facing a TV.
David Jirovec, a resident of Washington State hired two hit men to kill his v.-ifc
for insurance money. His "punishment" includes regular conjugal visits from his
new v.-ife.
Bidinotto also exposed abuses at Sullivan high-security prison in Fallsburg NY,
where prisoners hold regular "jam sessions" in a music room crowded with electric
guitars, amplifiers, drums, and keyboards.
In Jefferson City, MO, inmates nm an around-the-dock closed~i.rcuit TV studio
and broadcast movies filled 'l<-ith gratuitous sex and graphic violence.
Perhaps the winner fr1 t.he race for "rehabilitation" is the Massachusetts Correctional Institutio::i in Norfolk, MA. There, prisoners sentenced to life in prisonknown as the "Lifers Group"-held its annual "Lifers banquet" in t.he $2 million
visitor's center. These 33 convict&-mostly murdere.-s-and 49 of !.heir invited guests
dined on catered 1,1rime rib.
Thia is just the tip of the iceberg. These are not isolated incidents, but have beC?me commonplace in our criminal justice system. Violent criminals have by definition committed brutal acts of violence on innocent women, children, the elderly and.
other ci..ize::i.e. The.t the government continues to take money out of the pockets af
law-abiding taxpayers-man_y of whom are victims of those behind bs.rs-to create
resorta for prisoners to mull around in is incomprehensible. The rationale for this
system is liltely IIWllllled up by Larry Meachum, Commissioner of Correction in the
Et.ate of Connecticut: "We must attempt to modify criminal behavior and hopefully
not return a more damaged human being to society than we received.•
I reject this liberal roocial rehabilitation philosophy. I, along with ten of my colleagues, have introduced legislation, S. 930, which has a different message: prisons

should be places of work and organized education, not resort hotels, counseling centers or BOOal laboratories. It ensures that time •pent in prison ls not good time, but
rather devoted to hard work and education. This is a far more const •1ctive approach
to rehabilitation.
Specifically, S. 930 repeals the social program requirements of the 1994 crime bill
and instead makes the receipt of state prison construction grant money conditional
on states requiring all inmates to perform at least 48 hours of work pe-, week, and
engage in at least 16 hours of organized educational activities per week. States may
not provide to an:t pri~ner failing to_mee~ the w'?rk and education requirement any
extra privileges, 10cluding the egregious. items li:8!-8<1 above._ (Exe?lPt!~ll!I from ~e
wo=k requirement are granted for secunty conditions, medical disabilities, or disciplinary action.) .
.
.
.
. .
The critics of this legislation are likely to port.end that 1t 1s too cos+Jy or too unworkable. However, as prison reform expert and noted author John Dilclio has
pointed out, one-half of every taxdollar spent on prisons goes not to the basks of
securit-;, but to amenities and services for prisoners. However, these extra perks
would ~ severely restricted under my legislation. No cne failing to me<at the wcrk
and organized study requirements would have !lccess to them, and since the _in.:natee
would be occupied for 11 hours per day fulfillinJ;( the work and study requirement,
the opportunity for these costly privileges would be reduced. Moreover, to reduce operation costs even further prison labor could be used to replaced labor that is currently contracted out. Thu~. these programs could be implemented.
The other charge is that the federal government should not micro-manage state
prison efforts. However, this bill d""11 not micro-manage at all. Rather, states have
been micro-managed by the federal courts which have mandated that states pro,,_de
prisoners with every possible amenit)'. llil;8ginable. For !""'mple, Federal Judg~ V. illiam Wayne Justice of the Eastern District Co~.req~ ~cores of chang~ 10 the
Texas prison system, designed to improve the )h,ng conditions of Texas pnsone1:5.
These changes increased Texas's prison operating expenses ten-fold, from $91 million in 1980 to $1.84 billion in 1994-<!ven though th<: prison eopulation o~Jy do:,i•
bled. This legislation will empower state !l"d _local pnson offit1als to operate th_e:r
systems in a cost-efficient manner, and will g,.v" them the much ne,,ded protection
from the overreaching federal courts.
.
.
Moreover, this is only a requiremJnt on states wh~ choose to rece:ve f~ers.! pnson construction money. It does not affect state~ which do not ":C':'ve _thi_s money.
In closing I want to reiterate that the Amencan people are liv10g m mcreased
fear of bein'.g victimized by violent cruni,naJs. !?eople no longer feel safe on the
streets, in their neighborhoods, and even 10 their own horn':. Yet, law enforce_m~nt
officials are only able to apprehend a fraction of those 10dividuals COIIlIIlltting
crimes And only a fraction of those apprehended are ever sentenced. And whe'!
they ~ se~tenced, they only serve a fraction of ~eir time. Therefot:, we shoula
take every ste_p possible to make . sure µiat the ~e they do serve IS not spent
watching television working out with weights, playmg basketball, or any other luxurious activity. Rather, the Congress should do everythi~ _possible to ensure that
rison time is devoted to hard labor and focused on ~=ng the offender to pay
tack to victims and society the debt he or she owes: This legislation ls a first step
in that direction, and I urge its passage by the colllIIllttee.

Well Senator Hutchison is here now, a very distinguished Senator fr~m Texas who has been very active in this field. While I ~
not officially presiding, Senator Hu~son, I call on yo_u a_t this
time and I will stay for a couple of mmutes. The '!-rs~ lo mmutes
are just about up, so I will have to excuse myself ill Just a couple
of minutes.
STATEMENT OF HON. KAY BAILEY HUTCHISON, A U.S.
SENATOR FROM THE STATE OF TEXAS
Senator HUTCHISON. Thank you, Mr. Chairman. I certainly hope
that you will be able to cont~ue the h~aring. _I saw Senator Abraham at the elevator and I think he will be nght back. I have already voted, so I certainly understand when you need to leave..
Mr. Chairman, I want to tell you the story about my. fne~d,
Cecile Autry. Cecile and I were sorority sisters l!-t th~ University
of Texas. She was voted one of the 10 most beautiful girls on cam-

pus. She was the Texas Bluebonnet Queen. She got married and
moved t-0 Houston and became active in the community.
Cecile didn't come home 1 day and she was found in a field about
200 miles from Houston. She had been strangled. As the story
evolved, when her car was found and the man accused of her murder was arrested in Colorado, she had walked out to her car in a
parking lot and a man had been waiting for her to come. He strangled her, threw her in the back of the car in the trunk, threw her
out in a field on the way through Texas, and kept on driving to
Colorado.
The murderer was on '!arly release because of a case, the Ruiz
case in Texas, that requires us to release/risoners if we go above
an 11-percent vacancy rate. When aske why he strangled my
friend, Cecile, he said, I just had to have her car.
Senator SPECTER. Senator, I am going to have to excuse myself
now. We have got 4 minutes.
[Recess.]
Mr. Com,'EY. My name is Mann us Cooney. I am the staff director
of the committee. We have a problem in that there are several
back-to-back floor votes. I have been asked by the chairman of the
committee, Senator Hatch, and by Senator Abraham to at least
begin the testimony. Senator Abraham, I am told, is on his way
back and Senator Hatch will be here shortly. There will be a few
occasions where I may need to sit in in lieu of a Senator. We have
checked with Mr. Schmidt and that is fine with him.
So, Mr. Schmidt, if you will proceed with your statement? This
is John Sch".Il.idt, Associate Attorney General of the United States.
Thank you.
STATErt'!E!';'T OF JOHN SCHMIDT, ASSOC!ATE ATI'ORNEY
GE:t,,'ERAL, U.S. DEPARTJ\1El1fr OF JUSTICE, WASHINGTON, DC

Mr. Scm1mT. Thank you. I guess I should address you as "Mr.
Chairman" and address all the distinguished members of the staff
of the Senate Judiciary Committee, many of whom I do know well.
I know how important you all here, so I am not reluctant at all to
go forward.
I will be brief because I know there are some very distinguished
people, including former Attorney General Barr, who are here to
testify on this important subject. I have a written statement which
we have submitted a.'ld I will just emphasize a couple of points.
~ think the one message I would most like to convey is that we
thmk the most important thing that we at the Justice Department
can do to increase the capacity for effective incarceration in this
country at this point is to go forward as rapidly as possible with
grants to qualifying States under the prison grant provisions of the
1994 crime law.
As you know, almost ~10 billion was committed under the 1994
crime law to various forms of assistance to the States in the incarcer:1tion area. $7.9 billion of that was set aside for grants to States
~h1~h met the various conditions in the truth in sentencing area.
U_nlike some other areas of the crime law where funding was pro~'1d_ed for us to make grants immediately, in this area the funding
is 1_ntended to be ~vailable as of October 1, but it was expected, I
believe, and certamly we have gone forv.·ard on the basis that we

should use this year to be ready so that on October 1 we could really begin the grant-making process.
.
S0 in December, we put out draft regulations that requested
com~ents on some of the key technical issues in the area of truth
in sentencing and defining various catP.gories that are important in
that area. We have received comments from virtually every Statr,
on that subject. We have, in fact, met witl:1 representatives of vi;•
tually every State ar:d talked about the Pf;SOii grant program. \\e
had a conference which was attended by virtually every State. We
set up an office to administer the prison grant program under a
very well-respected corrections professional.
We are ready to go, and I think the States are ready for us to
go. There obviously is an enormous need in this area: You will h~ar
from other witnesses, but I know from my own expenence travelmg
around the country that there are literally places in this country
where parts of the criminal justice system have broken dowi:i because of the unavailability of ade,:iuate prison space, and that 1s ~
intolerable situation. The 1994 crime law was intended to rectify
it. There are, as you all kno~, some pr?posals a_r?un d to mo d'f
.
1 Y !':
various respects the truth m ~entencmg cond1t10ns t~at 2;re se,
forth in the 1994 crime law. I think that would be a maJor m1st3:1<e.
I think it would be a mistake, first of all, because. I ~on't think
there are any alternatives that I have seen that will, m fa~t, _be
more effective in inducing real reform at the State level an~ m inducing the States to move in a realistic way toward truth m sentencing.
.
.
•h· k h
I also think it would be a maJor rmstake because I , m t, e~e
an
overwhelming
interest
from
the
standpoint
of
sound
public
15
00!icv and stability in this area in allowing th~ States to go forward" on the basis of the Jaw that was passed m 1994. T~ere ru:e
already a number of States which have passed laws reforming: th~1r
sentencing proced_ures in reli:3:nce on that la~. Th_e la\~_passed with
respect to the prison area with overwhelming b1part1,,_an ~uppor1;
and so I real!y think it is a mi3take to talk about changmg tt. _Wha.
we ought to do is go forward and put those resources to use 1r, the
way that Congress intended.
.
,
With respect to the othet legislative proposals ,.which are, be~on,
vou which deal with the effort to _get at so~e. o, _the prob,em::. of
abusive prisoner litigation and the 1mpact of btigat1on that Senator
Abrah:::.m \%5 referring to earlier, we generally su~port thos~ yropo:;:11s. The written statement sets out in some detail our pos1t1~ns.
but we support the provision3 that would strengthen the r~qmrement for exhaustion of administrative procedures before prisoner"
can go to c:ourt. In fact, we would like t? see those expanded to
cover Federal prisoners as well as State pnsoners.
.
.
We support the provisions that would generally ~<:!qu'.re _that prisoners oick up the costs of litigation, which I ~~_ink is_ 1mpo~an~
given the absence of other disinducement~ t?- h,1gate m a ~nso ..
situation. We support very strongly the obJec,rve of the ~TO provisions to make absolutely certain that any cap on prison P?[ci•
lations is used by the courts only as an absclute la~t r~sort "I': en
it is \he only remedy which is available for a ccnst1tut10:rnl nolatior:.

12
11

We do have a couple of constitutional and other concerns about
particular provisions that are in the STOP proposal, and those are
set out in detail in the statement. But just in general terms, our
concern is that we not have provisions wluch would bar the use or
a cap if that is, in fact, the only way to remedy a constitutional violation. I think the problem in the legislation does not arise where
the violation is, in fact, attributable to overcrowding. In those circumstances, the provision says, yes, you can go ahead and do it.
I will interrupt and let Senator Abraham resume chairing his
hearing.
Senator ABR,\HA..\L Mr. Schmidt, I apologize. Because of the way
these votes are going and our need to try to make sure the Senators don't miss rollcall votes, Senator Hutchison, who, of course,
is the chief sponsor of this bill, is here and has asked for 5 minutes
to just outline the bill. We apologize to all witnesses, but particularly to you for the need for us to continue interrupting.
Senator Hutchison, thank you for being here, and I apologize for
the fact that earlier when you were here, we were not in a position
to hear your testimony.
Senator HL'TCHIS0N. Thank you, Mr. Chairman. Earlier, after
you left, I told the story of my friend from college who was brutally
murdered by an early-rele2.se prisoner. In fact, it highlighted the
need for doing something about this tragic situation. and my State
is just one example and it is why I introduced this bill along with
Coni;ressman Rll Archer on the House side.
In my State and others, the Federal courts haye imposed ur,\":arr2cntd a..'"ld onerous limitations on State prison systems that haw
resulted in thousands of violent criminals being released back into
societv, in some cases before thev have served e\·en half of their
origin-al sentences.
•
Earlier this year, I introduced the Stop Turning Out P:-iso:-:ers
:\ct to curb Federal court takeovers of St2.tc priso'.ls. :,1y purpose
in apper,ring today is to impress on the committee the seriousness
of the problem of Federal court takeovers and to describe the tremendous ccsts, financial and societal, that the coarts' :::;ctio;:,.s :::;re
imposing on our States.
A brief history of the problem in my State may be helpful to the
co:r,rnittee because it illustrates the absurd cirnmstances under
which the courts are intervening :>nd imposi!lg judicial control over
State prisons. Under the Rui;;: c2.se which w2.s sett 1d i:1 1992. a
Federal district i:ourt ha:; asserted control over every in~portant aspect of Texas' correctional system. To quote fro:;i the court's final
_i\:C:f;1:Jei:-t. t~.e _court's c:mtrol is in perpetuity in key areas such 2s
popub.t10n limns, restrictions on new faci!itiE:s. use cf force. acce:cs
to the co;irts, and staffing.
Included in Ruiz i3 a requiremsnt fr0:n the court th2.t on any
gi\·en day, at least 6,100 prison bec!s, 14 perc€nt of the total ~pace
in. my Sta~e•s pris0ns, must be kept vacar.t. As a result of Texas
;•,:srirrs bemg forced to maintain a large perma:r1ent \·acancy rate.
:i:erally thousands of violent criminals are released earlv after
serving fractior:s of their sentences.
At the time of the Ruiz decision, I was treasurer for the State
?f Texas, so I speak from firsthand knowledge about the financial
impact of these Federal court demands. In order to comply with the

~••<"'.-'r.._q.~4t. :11'-f't.-'.f1,.7~9• "!'fi:~- t ~.:,,:

1",~~ •"'•,

•.,

...~~1;

•_

·,

-:. •

! '

•

Ruiz decision, the State of Texas has embarked on a massive prison-building program with annual expenditures estimated to grow
from $3.75 billion to $4.4 billion over the next 2 years.
But the court has gone even further, Mr. Chairman, in imposing
conditions on how and where new prison beds may be built. The
court stepped in and prohibited building an addition on some prison ground that was used as a baseball field. The court ruled that
Texas cannot use common space or recreation space for housing
without first replacing the common space and outdoor recreation
areas, including all ball fields. !t is estimated that the court-mandated prison population caps will cost my State's taxpayers $610
million a year for the next 5 years.
This State prison population cap is also a critical problem for
local taxpayers. Texas county jails are overcrowded with prisoners
that cannot be transferred to State prisons and millions of dollai:s
in extra costs are being incurred. I would add that so far there is
no estimate of the extra costs of protecting every inch of baseball
fields.
In the court's view, the prison population cap is necessary to ensure that convicts will be comfortable. However, with thousands of
convicted murderers, rapists, muggers, and other criminals out
roaming the streets instead of serving time behind bars, no lawabiding citizen can feel safe, let alone comfortable.
Our experience in Texas. raises tw? key qu~s~ions. Firs_t, which
are more important, the nghts of v10!ent cnmmals to live comfortably or the rights of past and potential victims to live free of
fear that those criminals will be released early to roam our streets?
The second question follows directly from that. If Texans decide
that victims' rights are more important, is Texas free to set prison
standards that favor those rights?
:\iy STOP bill would prevent more Ruiz decisions. It would limit
relief in a civil action regarding prison conditions to extend no further than necessary to grant relief. My bill also provides that the
courts not impose limits or reductfon !n priso11: population unless
the plaintiff proves that overcrowdmg 1s the pnmary problem and
there is no other solution available. Furthermore, the courts would
not be able to use a single lawsuit as a springboard to take over
the administration of an entire prison system.
In order to prevent the kind of permanent Federal court control
over a State's correctional system that we have in Texas today, my
legislation would automatically terminate J:!rospe~tive rl:lief gr_anted
by a court after 2 years, and it would termmat~ 1mm~1a~ly m the
absence of a finding by the court _of a Fe_deral nghts_violation.
What has happened in Texas 1s part1cularly gallmg because the
Ruiz decision was not appealed. Although rand others have repeatedly called for an appeal to be undertaken, the responsible State
official has declined. Among the provisions of my bill is _one that
would allow other State officials and elected representatives th~t
have a reason and a cause to step in and undertake an appeal m
these cases when Federal courts have gone too far.
Mr. Chairman, we in Texas an~ those in oth~r States ~esperately
need these kinds of changes. While Federal pnsons contmu~ to operate at an average of mo~ than 160 perc~nt _of capaCity, my
State's correctional system 1s required to mamtain less than 90-

lfttft:flL
14
13

percent occupancy. We need the use of those extra beds. Our counties, whose jails are bursting with prisoners, need those beds to be
available.
Mr. Chainnan, I am encouraged that you are looking at this and
I appreciate very much the time you are spending on it. I am sorry
about the votes, and I know that has caused a problet:1·. So. I just
hope you can get the testimony so that we can movE:; tnis b:11 forward, and I hope it will be part of the crime package that you will
put forward later this year.
Thank you.
Senator ABRAHAM. Thank you very much, Senator Hutchison,
and thank you for working on this issue.
Thank you, Mr. Schmidt, for indulging a!! ~r ,,..:.r vote patterns
over here today. We may have at least c-:1e other 8enator who has
to come between votes, but please conthue your tes'.imony.
Mr. ScmnoT. Well, it is timely in '..hat I was just about t-0 comment on the STOP legislation. Let r.- ~ just repeat the one basic
point I had previously made, whicr. is the importance that we see
in Congress not doing anything foat will prevent us from going forward ancl making grants to the States that qualify under the 1994
crime Jaw for financial assistance to build r.ew prison5 because I
think nothing else, certainly, that we at the Justice Department
can do is as important as that in dealing with the problem that we
face in this area.
With respect to the legislative proposals to deal with prisoner
litigation and the impact of cert.sin kinds of litigation, as I was indicating, we support the provisions that would require exhaustion
of administrative remedies prior to going to court. We would like
to see those expanded to cover Federal prisoners as well a5 State
prisoners.
We support the provisions that would generally make it clear
that prisoners must pick up the costs of filing lawsuits, which I
think is important given that there are often no other
disinducements to litigate in a prisoner situation. With respect to
the STOP legislation, we strongly support the principle that a cap
on prison populations should be imposed only if that is the absolute
last resort and the only remedy available for a constitutional violation.
We have a couple of constitutional concerns with particular provisions that are in the legislation. The one that I was starting to
refer t-0 arises because of a concern that we not, by legislation, say
that the cap will not be available if that is, in fact, the only remedy
for a constitutional violation.
The prob:em arises not with respect to a violation where overcrowding is the principal "\iolation because the legislation says then
the cap can be used. But it is possible to have a situation where
overcrowding is a secondary rather than a primary cause of a constitutional violation, and a court might nevertheless conclude that
the cap is the only effective remedy for that \iolation. It seems to
us in that circumstance there is both a constitutional and a policy
problem in restricting the court from using the cap as the remedy.
We also have a constitutional concern with attempting to apply
these restrictions to existing decrees that have resulted from prior
adjudications of constitutional violations. I think there is a real

C'>nstitutional question whether Congress can do that with respect
to decrees that result from adjudications of constitutional violations
prior to the legislation.
Finally, we have j'1st a practical concern about a couple of the
provisions that relate to consent decrees. In particular, there is a
provision that, at least as we read it, would say that in any consent
decree there would have to be an explicit finding of a violation of
constitutional rights.
The concern we have is that that might present a significant impediment to settling cases in circumstances where the State is prepared to accept all of the mnditions of the decree, but is unwilling
to make what would amount to an admission of liability which
could have other consequences.
It seems to us that the problem that we are trying to get at
there, which, as I understand it, is the concern that State officials
would sort of collusively settle cases for their own reasons and not
take into account the interests of the law enforcement community,
is really dealt with by the other provisions of the bill that give to
any local prosecutor or other criminal justice official who has a jurisdiction that will be affected the right to intervene in that proceeding and participate in any consideration of relief.
If you actually had a situation where all of those people, including all those intervenor&, were prepared to sign off on a consent decree, but for whatever reason the State was unwilling to have that
admission of a violation of the Constitution, it &eems to us that in
the interests of avoiding litigation, which is something we generally
try to do in the Justice Department, that that really doesn't make
sense.
The other somewhat similar concern we have is with the provision for automatic termination of all decrees after 2 years. The current law, as you know, now has a provision that gives the defendant a right to go in and seek a review of any decree after 2 years.
It seems to us if you have a situation where at the end of 2 yecrs
there is still an unremedied constitutional violation, the effect of
the automatic termination is going to be to force a new round of
litigation, and that, from the standpoint of judicial and litigation
economy, doesn't make sense.
It seems to us that an alternative approach there might be to
give that same group of people who are given the right to intervene
under the bill in the initial proceeding the right themselves to invoke the 2-year review of any decree. So there would be an assurance that the review would take place if there was any significant
public interest at stake or that would warrant it, but you would not
have an automatic termination that would force new litigation if,
in fact, it is clear that there is ~- continuing constitutional violation.
With those qualifications-and I have to say I think those are issues that can be dealt with in the drafting- we think that that is
an area where Congress should legislate. We would like to see it
and we would like to work with the members of the committee to
achieve something that would be both constitutional and sound
from a policy standpoint.
With that, I will stop, and I will be happy to respond to questions.

16
15

Senator ABRAHAM. The preponderance of the questions may have
to be in writing since the other panel members are still at the
hearing.
Mr. SCIL',HDT. That il'I fine.
Senator ABRAHAl\'L I am hopeful that Senator Hatch will, after
casting what is now our fourth vote, will be able to be back, and
I think he may have some questions as well.
I would just like to maybe focus a little bit, because there are
other panels here, on a matter a little closer to home for me, which
is our situation in Michigan. AI, I am sure you know, we have been
under a longstanding consent decree that affects our prison system.
In 1992, we believed, I think, that things had been worked out.
There was a stipulation agreed to between the Department of Jusdce and our State corrections officials that we had solved the problems which had caused the initial issue to be raised, and so we felt
we were on the way to essentially ending this judicial supervision.
But despite the fact that both parties had agreed to the stipulation, the court overseeing the consent decree refused to cede its
power over these prisons, and when it rejected the parti€s' stipulation and we sought to appeal the court's ruling, as you lmow, DOJ
refused to argue for support of the stipulation that it had itself entered into. I guess I really would like to understand the Department's position on that a little more clearly because it is a very ('.1sruptive situation, certainly, in our State.
Mr. SCIDHDT. Well, I know about the case. It happened before I
was there, but I understand about it.
Senator ABRAHAM. And I would certainly stipulate that-Mr. SCIDHDT. Let me tell you my understanding of it. It is certainly correct that the Justice Department had agreed to stipulate
to a dismissal of the bulk of the consent decree. I think the provisions relating to mental health were going to remain in place.
Senator ABRAHAM. That is right.
Mr. SCHMIDT. But the rest was to be stipulated to be dismissed.
'.fhe court refused to accept that stipulation. AI, I understand it, the
issue on appeal was whether the court lacked jurisdiction to refuse
to a~cept the stipulation, and on that legal question the view of the
Justice Department was that the district court was correct that it
did have the jurisdiction to refuse to accept the stipulation, although we had urged the district court in good faith and were prepared to accept the stipulation.
So on that legal question of whether the district court had the
jurisdiction to refuse to accept the stipulation, the Justice Departrr.cnt took that position in the court of appeals and the court of appeals agreed with that. So the district court retained jurisdiction.
Senator AB:r<.AHAM. Right.
Mr. SCHMIDT. My understanding is the district court when it re~ecte? the stipulation, set up an alternative procedure ~nder which
it sa_1d t~e decree could, in fact, be dismissed in sort of a piecemeal
fashion 1~ there were a demonstration of compliance in various
areas. It 1s my understanding that that process is, in fact, going
forward, and to the extent that there are continuing issues under
the de_cree, 1;ubstantive issues, they result almost entirely from concerns m the mental health area.

But there is, in fact, I think, a mediator process that was established by the court of appeals which is going forward in an effort
to embody under the new procedure that the district court set up
the sort of substantive result that would have been reached immediately had the stipulation been accepted.
Senator ABRAHAM. But there is nothing in your Department that
has changed insofar as its acceptance of the conditions that
prompted the stip~lation; that is, there has n?t bee~ a reversal of
position at least with regard to the areas not mcludmg the mental
health area?
Mr. ScHMIDT. Well, my understanding of what the district court
said was that we needed to look at them area by area and make
a demonstration to the satisfaction of the district court that there
was no continuing constitutional violation. What I said is, I think,
a correct statement of where we are that we think that is going forward and that it is only in the mental health area that we see
major continuing problems.
Senator ABRAHAM. But you would say that in the other areas,
your position remains cons~ste~t w~th the earlier view that Michigan prisons were no longer m violation of the Federal law?
Mr. SCHMIDT. Well, I think our position is that we need to look
at each of those areas and make the appropriate demonstration to
the satisfaction of the district court. The district court refused to
accept the flat dismissal, so I think our vi~w of it _is that it is not
. appropriate for us then to say, well, not withstanding your refusal
to accept our stipulation, we are effectively dismissing the case.
But substantively, it is my understanding that we are working
through the other areas in an effort to go to the district court .and
say that we believe that, apart from the mental health area, there
is no need for continuing jurisdiction by the district court.
Senator ABRAHAM. All right. What I am trying to, I guess, establish is this. Clearly, the district court has reached _a_ different conclusion which you have accep~d, but has your po~1tion or t~e Department's position changed msofar as your earher _conclusion? I
mean there is some difference there between your actions and your
asses~ment of the circumstances and I just wonder-Mr SCHMIDT. Well I am not trying to be evasive. I guess what
I am saying is that I think given that the district court rejected the
stipulation and said that we should look area by area and mak~
a demonstration and an evaluation of 'Yhether ther~ was compl_1ance, we are doing that. My u_nders~an1mg, thou~h, 1s t_hat_that 1s
going positively and that the sixth c1rcu1t or the eighth c1rcu1t.
The sixth, icposed a mediati?n process, s~ there is actually a
mediator with whom the parties are working . to tr.r to work
through the question of: Has there been comphance . m each of
these areas?
. • d b
h
Senator ABRAHAM. I see that we have been Jome
y anot _er
member of the Senate who is in between rollcall votes here. Agam,
if you would indulge us, Mr. Schmidt, I would now ask Senator
Phil Gramm to join us at the table. He,_ too,. I ~ow, has some
strong opinions on some of the current legislative issues before us.
In order that you might get back for the next vote, Senator
Gramm, we appreciate your joining us today and welcome you.
0

prior to 1929 when we started making it a crime to make prisoners

STATEMENT OF HON. PHIL GRAMM, A U.S. SENATOR FROM
THE STATE OF I'EXAS
Senator GRAMM. Mr. Chairman, let me thank you for continuing
the hearing during these votes because this is important business,
and given the number of votes we have on the floor, many people
would be precluded from having the opportunity to speak.
Let me begin by saying that I am a cosponsor with my dear colleague from Texas, Kay Bailey Hutchison, of her bill S. 400. That
bill is very important. I want to urge the committee to adopt it as
part of an omnibus crime bill. We took an initial step last year to
try to limit Federal courts fri:m setting arbitrary caps on prison
populations. We took a first st.:::;; toward setting a higher standard.
This is the next logical step and we need to take it.
Mr. Chairman, you might get a lot of suggestions about how to
figure out who ought to be in prison, not just on the basis of who
committed a crime but by using some other for:nula or suggestion
because we don't have the capacity. I want to take a totally different tack. People who ar~ convicted and sent to prison ought to
serve their full terms.
Let me tell you some things that need to be changed. First of all,
we have at least three Federal statutes that ought to be repealed.
The Hawes-Coop~r Act of 1929, the Ashurst-Si..;mners Act of 1935,
and certain provisions of the Walsh-Healy Act of 1936 should be repealed. Now, these are three laws that have one objective, and that
objective is to criminrlize prison labor in America.
One bill restricts the commerce of goods produced in prisons. The
second bill prohibits the interstate transport of most goods produced by prisoners for sale in the private sector of the economy.
The third bill basically has the objective of banning prison labo·r
with certain exceptions.
'
~ow, it seems to me that with the number of people we have in
pnson in America, nothing is more logical than putting these peole !o work. I believe the statutes I mentioned should be repealed.
think we can work out a compromise to satisfy the concerns that
have been expressed. Every year, my dear friend, Jesse Helms, offers an amendment banning trade with countries that have prison
labor, and I wonder every year why we can't be one of them. So
I think it is very important that we go back and reoeal these laws
and that we put prisoners to work. I think Federal ·prison inmates
ought to work 10 hours a day, 6 days a week, and I think they
ought to go to school at night.
~
tell )'.OU as Chairman of Commerce, State, Justice Appropnations, which funds the prison system in this country, that last
year we spent $22,000 per Federal prisoner, and that doesn't count
the cost of building prisons. We should include in our next crime
bill a goal of cutting that amoll?t in half over the next 8 years, and
w~ ought to set a :oal of paying for half that amount by having
pnsoners work.
We should change the standards for prison constructi:m. We
should stop building prisons like Holiday Inns. We should take out
col?r televisi_ons and w~i&~t roo~ and air conditioning. We should
build our pnsons as 1runundustnal parks where people go to prison,_ they wor~, they go ~ school at night. They pay for their cost
of mcarcerabon by working, something that used to be common

work.

Finally, we need to change the whole approach we have in terms
of the criminal justice system. I believe if we change the standards
for prison construction, if we make prisoners work, we can afford
to incarcerate violent criminals in America. I think that is the approach we should follow and I strongly urge this co=ittee to do
that.
Thank you very much.
Senator ABRAHAM. Senator Gramm, thank you very much for
being with us today.
Mr. Schmidt, I asked you to stay here because I thought maybe
some of the others would come back. I just heard a beep, so I think
I am going to have to go back and vote, as well, fairly soon. So I
would like to thank you for being here.
Mr. ScHMIDT. Thank you.
Senator ABRAHAM. We in our office are going to submit some additional questions, and I suspect so!Ile o_ther members will want to
as well, and we appreciate your taking time. Than~ you very mu_ch.
[The questions of Senator Abraham are located m the appendix.]
Mr. ScHMIDT. Thank you.
[The prepared statement of Mr. Schmidt follows:]
PREPARED STATEMDo"T OF JOHN R. 5cHMIDr
MR. CHAIRMAN AND MEMBERS OF THE COMMrrTEE: Thank you for giving me the
o_pportunity to appear before you today to discuss the progress the Depar:an~nt of
Juatice has made and some of what we have learned over the past year in unplementing The Vtolent Offender Incarceration and Truth in Sentencing 1ncentive
Grants programs and related .Provisions of the Violent Crime Control and Law Enforcement Act of 1994. Please include m;r full written statement in the record.
Al, you know last Fall the Attorney General aaked me to assume overall responsibility for coordinating the Department's efforts to implem~nt the 1?94 CrlJ:ne Act.
I am proud or the Department's strong record of accomP.liahment in meeting the
many related challenges it has faced in the past year. ~ the Attorney ~neral,
I am confident that with your help, we can ~ ~ t ~ely federal assistance
gets to the states that need it to help end revolving door Justice.
. .
.
Al, you know Mr Chairman, the Crime Act authonzee a total of $9.7 billion in
rieon related ~ rrrer six ~ • including $1.8 billion to reimbun,e states
for the costs or incarcerating criminal aliens ancf $7.9 billion to help adclresa the
critical need to assist States in expanding correctional facility capacity to eil8Ure
adequate space for confinement of violent offenders. The aim of The Violent <?£fender Incarceration and Truth in Sentencing Incentive Grants is to e ~ that VlOlent offenders are not re!ea.sed early because of a la~ of secure ~ o n a l space
and that thef remain incarcerated for substantial penods through the unplementetion of truth in aentencing laws.
.
. .
.
The Juatice Department already has made conB1derable progress in unplementing
the Violent Offender Incarceration and Truth in Sentencing IncentiV! Grants. We
stand ready to provide immediate assiatance to state and local correctional ~-ma
where facilities are bumting at the eeams. The grant program under this ~
law ia designed to aaaiat state.-«nd a.uist them quickly.-to assure that convictea
predatory criminala remain incarcerated and incapacitated.
.
Becauae implementation of theee grant programs ia a high priority (01 the Juatice
De artment, we created a new Correctiorui Program Office within the 9ffice of JuatiJ Programa tc develop and administer these programs. ,The ofli?' 1.1 head«;d by
a Directer I.any Meaclium, who has more than 30 years com!Ctional expenen~
and has led state correctional agencies in Maaaachuaette, Oklahoma, and Connecticut. The Deputy Director Stephen Amos, is former Directer o f ~ and Eval'!19-tion for the Oregon Department of Corrections. Director Meachum r e ~ to Assistant Attorney General Laurie Robin.son, who heads the Office of Justice Programs
and in turn, reports to me.

c:m

19
Soon eft.er the Crime Act's enact:?ed, Lite De;>ertment began meeting w:th representatives from national criminal justice organizations, state and local criminal
justice agencies, and othcrs to determine how best to implement the new law so that
pmi;rams were respo115ive to the needs of state and local comm uni ties. Our goal in
1:r.plementing these pr.son grant programg is to forge a productive federal, state,
and local partnership to strengthen the nation's c,r;.minaJ Justice system's ability to
effectively deal with career criminal,, and serious violent offenders.
Some states have made important progress in rejecting and reversing the antiincarcerative policies that have contributed so heavily to the gro;,,1:h of crime i:l the
pa.st. Few states, howe~-er, have gone a.s far as the federal system in adopting nee•
ess2..y reforms, and it is clear that nation.,.ide much more needs to be done. The
prison grants programs of the 1994 Crime Act provide the essential incentives and
e.s£istance for edoption at the state level of these urgently r.eeded measures to protect the public from violent criminals. In fact, "'e are encoc·r2.ged □ any s~ates have
!!!reedy teke=i steps to n>fonn their sentencing laws a!read; in expectation of q:iali(Ying for grants under the 1994 Act.
BOOT CA.¥.!' ISIT!ATIVE

On ~farc:i 1, the Office of Justice Programs issued pro;;ram guidelines and applicc.tion materials for the Boot Camp Initiative. Fer those r:ct familiar v.ith the boot
ca~p concent. a boot camp is a residential c-Jrrect.ional program fer adult or juvenile
c::'errdcrs. axt camps provide short-term coclinc:nen! {or non\.'iolent offenders. Boot
c":?FS cre r;e:-,ez-a!ly styled after their military namesakes, and require in.-nates to
c.c:..,e:-e to a re,:'--:,enteil schedule that involves strict discipline, physical training,
and work. Education, ~b training, and substance abu_~ coun..sclir:g or treatment also
are prmided to help ollenders prepare for a productive life in the co=unity.
Re3earch has Ehown that boot ca!np programs can red:.i('c institutional crowdir.,.,.
ar.d costs, while ~proving offenders' educational level, employment pros;,ects, en~
access to commurnty programs. Evaluations of boot camps i:1 ~ew York and Louisiar::1 have fo=d til,ct L'ie programs resulted in reduced costs and reduced recidi,ism.
Oar Boot Cru::ip Ini~e.th~e is ha._~ o:i tl;.e rc~u.Its of the::e E?·.-2ch1!.lt:c:1s. ~A-p9licar:ts
we!"e encoura~ed to 1ncorpomte into their progrru:ns stratcgi<23 t..'1--:.at were found t'.}
be successful m existing boot camp3.
We're currently revie"'ing a total of 83 applicetio= received from 42 state;;!tcrritones and L'ie District of Col=bia. Thirty-nir 'lpplicatic:1s are for boot camp con~!.I"".1~tio!l, _32 nre for planning g:-an~. and ~~ ~(;, for ~und.s t:J r-cr::.v:.:t:::! cr-.isti.:g boct
~2::ip.s to increase bed space. More ths.u hall the- eppltc!:t~c.:-~s !l:'\.> f,:r bo::;!. c.:.:r.ps fr!'
JU\·enile offenders.
We expect to awru:d_app~:rimately 25 p!cnning "'ants cf u;, to ~50,000; ab~:it 5
grants of up to 51 million will be awarded to j~d1cticn.s to renovate eris ting focili~rc~ for 1..:5e as boot campg, end another 5 grants or s~ c-f up to $2 r:1iEio;1 each v;ill
oe awa!"ded for construction of new boot erunp fecilities.
0

\lO!...E.~"1" CFITS"UEf-':..-'Ti:.L'TH e,; SE...'\'TEX::"r~'-; rr-:(1(.jfL~~L;_-;

\\1--ile we·ve t?e.:cr1 ffiovi!'~ forv..·a..-d vrith the boGt C!l!Ilp Q".:nt p:-cr;rQI'.1, we've n!:'.)
m;de progress m_ de,-elop1~ the more complc:,: Truth in Scn\cncing and \"io,cr.t OZfe~~der Incarceration Grant ~ s - These progrez::s u:-e sc:-,edu!ed tQ l:c;-.~ !:-, Octobn, •1,iL'i fr.e start of Fiscel 'rear 1996.
The stat:ite dhides funding equally between the Tr-"t..'1 in Srntcncir:g bccntivc
l?ro~a,n and the Violent Offender Incarce::ation p:c;;,-~='- Ef1:y-,>crccr.t cf the,c
!i.!pas 1.1.!"e !.o_ be &r.xa~ for Tr..ith in Sentendng Fc::::-.:1J. GrantS for states that
:u1opt trut..li 1::i ser:tc:icrng lav.-g ass-..lr...ng that seco!ld t:::'.e \-io!ent offer..ders scr'\·e at
~eaH 85 rercent of the:r sente:ices. State ru.locs.tions &!'{; b2.scd C:1 the.'..r L·cR rates
Part v:iclent _offe:ises. The ot..lier 50 pe!"Ccnt are to b.~ n~!oc:ited for Viole:1.t Of~ender Incarceration Grants to ell states. To be e:igi:}'c f0::- !'·.::.:ii!;.g, str.te.s ::it:s:
m~t s!ve;al ass~_nces. Bo~h. p~grams requ.i!"e LruU! in se~:c:-_:dn,...i ~u~ .the \'iol.er:t
O.. e:id ... r 1:c.c~erab.on ProV"fil!l lS soz:i.ewha.t less .sLringc~.t rn. ~~-J r:~1g:b~lltv reqt.Urc--

!:::-

!'!!ents.

. Sye;_ifically, ~nder the Violent Ofia;der Incarceration Pro[;":'~. £~t.e~ must shov..·
lf~t ;.-~e~h::;e 1r:ip?e:nen~d or W:,¥ i!!:ple~e.ut L~~ in sent.e:icing la.;,:s that e!lS:J.re
\ .o.e •.,. ... Ca..e .. :,-,e:-s ~ene a s:ibstantial portio:i of the~ sentcr..ccs; prov1c:c su..ff:.c1cr::lv
~~\-ere ~uri.s~e~t for ,.iole!l.t offenders; er:d iw:.·a.rcErnt.e ,~o!c~t cffen:iers fer a pc'no:i of tune neoesssry to protect the public.
'-~tats rr:u:t ap-ee to -:o,:k with lxcl governmen~. They also r::ust demo,:strate
~.~;~ u.e ::~}:.:s ~t ~!""Lille victuns &.~ 1:rc:ecte:i. ~f~.1ch like the Byrne .Jle:!loricl Grc.~ts
~-...h !°e'-i~......... ~ ..5:te end loeal p~ng, s!.atc5 cre also ta C~Gn.ge 1n cc:::.~rehens1ve
CC!te~t1c~cl ~.:.~r..~r..g that includes local governr:1.ents. \\·e think tbs ki~d of cc.rr:-

prehensive planninlt is essential to implementing an effective program and wisely
spending federal dollars, Certainly, this is one lesson-the need for planning-that
we learned from LEAA.
To :i,e eligible for. Truth in ,Sentencing grants, states must also show that they
have in effect truth in sentencmg laW11 that ensure that offenden convicted of a second violen~ crime serve not less than. 85 perce.,t of the sentence imposed or meet
other reqw.rements that ensure that v10lent offenden, and especially repeat violent
ofl'enden, remain incarcerated for substantially greater percentages of their imposed
sentenCCI!· We beli""." that this is a workable and meaningful goal that states can
meet which appropnately targets dangerous career offenders and will measurably
improve public safety.
These requirements were outlined in the Interim Final Rule published in the Federal Register last December. Since then, we've been working wtth state and local officials to solicit suggestions on how to best implement key elements of these programs,
\'t'.ritten ~po.uses have been recei.~ from governors' ofli':t'8, deP_artments of correction, sheriffs' departments, local Jaile, prosecutors and criminal Justice organizations. Additionally, to help in formulating these programs we've held workshops
with state and local corrections officials. We've also met to diacuss related issues
with, among others, representatives from offices of prosecutors, state attorneys ~neral and governors, the National Governors Association and the National Criminal
Justice Association.
The Department of Justice is committed to ensuring a realistic and workable response to ,iolent crime and truth in sentencing that can provide states the prison
beds they need to help assure that violent and predatory offenders are put awayand put away for a long time. That's what the public wants, that's what the public
deserves and we are moving rapicly ahead to deliver that through this program.
REFOR.>.!S RELATING TO PRISONER UTIGAT.OS

The Department also supports improv-ement of the criminal justice system
through the implementation of other reforms. Several pending bills under consideration by the Senate contain three sets of reforms that are intended to curb abuses
or perceived e:,:cesses in prisoner litigation or prison conditions suits.
The first set of provisions appears in title II of H.R 667 as passed by the House
of Representatives, and in ~ 103 of S, 3. These provisions strengthen the requirement of eJ:baustion of administrative remedies under the Civil Rights of Institutionalized Persons Act (CRIPA) for state prisoner suits, and adopt other safeguards
against abusive prisoner litigation. We have endorsed these reform3 in an earlier
communication to Congress, 1 We also recommend that parallel provisions be adopted to require federal prisoners to exhaust administrative remedies prior to commencing litigation.
._
The secona set of provisions ap_pears in a new bill, S. 866, which we have not previously commented on. The proVlsions in thill bill have some overlap with those in
§ 103 of S. 3 and title II of H.R 667, but also incorporate a n=ber of new proposals. We bUpport the objectives of S, 866 and many of the specific provisions in the
bill. In some instances, we have recommendations for alternative formulations that
could realiz.e the bill's objectives more effectively,
The third set of provisions appears in S, 400, and in title III of H.R 667 as passed
by the House of Representatives, the "Stop Turning Out Prisoners" (STOP) proPOSal.
The Violent Crime Control and Law Enforcement Act of 1994 enacted 18 0.S.C.
3626, which limits remedies in prison conditions litigation. The STOP proposal
would amend this section to impose various additional conditions and restrictions,
We support the basic objective of this legislation, including particularly the principle
that judicial caps on prison populations must be used only as a last resort when
no other remedy is available for a constitutional violation, although we have constitutional or policy concerns about a few of its specific provisions.
A The provisions in § 103 of S. 3 and H.R. 667 title II
AB noted above, we support the enactment of this set of provisions.
The Civil Rights of Institutionalized Persons Act (42 U.S.C, § 1997e) currently authorizes federal courts to susrend § 1983 suits by prisoners for up to 180 days in
order to require exhaustion o aclministi-ative remedies. Section 103(a}-{b), (e) of S.
3 strengthens the administrative eJ:baustion rule in this context-and brings it
more into line with administrative e:,:haustion rules that apply in other contexts-1 Letter of AssiJ;tant Attcrney Gene.-al Sheila F. Anthony to Honorable Henry J. Hyde con::eming H.R 3, et 17-19 (Js.nuary 26, 1995).

r:mwrtMrttte1i:titft:tj:fM:&Wdt1:1e:w·e,tevrearw

22
21
by generally prohibiting prisoner § 1983 suits until administrative remedies are exhausted.
As noted above; we recommend that this proposal also incorporate a rule requirir.g federal prisoners to exhaust administrative remedies prior to commencing litij:a·
tion. A reform of this type is as desirable for federal prisoners as the corresponding
strengthening of the exhaustion provision for state prisoners that now appears in
section 103 of S. 3. We would be pleased to work with interested me,nbers of Congress in formulati;:,.g such a provision.
Section 103!c) orS. 3 directs a court to dismiss a prisoner Tl§ 1983 suit if the
court is satisfied that the action fails to state a claim upon which :-elief can be
granted or is frivolous or malicious. A rule of this type is desirable to minimize the
burden on states of responding unnecessarily to prisoner suits that lack merit and
are sometimes brought for purposes of harassment or recreation.
Section 103(d) of S. 3 deletes from the minimum standards for prison grievance
sys~ms in 42 U.S.C. 1997e(bX2) the requirement of en advisory role for employees
and mmates (at the most dec-antralized level as is reasonably possible) in the formulaticn, implementation, and ope:-ation of the system. This removes the condition
that has been the greatest imp.,diment in the past to the willingness of state and
local j~sdictions to P.eek certification for their grievance systems.
~tion 103(0 of S. 3 strengthens safeguards against and sanctions for false alJegaticns of poverty by prisoners who seek to proceed in forma pauperis. Subsection
(dl of 2S U.S.C. 1915 currently reads as follows: "The court may re<;uest an attorney
to repreSCAt !'-DY s.1ch person unable to employ counsel and may dismiss the case
,f t~e. alliwauo~ of poverty is untrue, or if satisfied that the action is frivolous or
mauc10l!s. Section 103(0(1) of S. 3 amends that 1mbsection to read as follows: "The
co;1rt may req:iest an !3-tto~ey ~ represent _any such pe':"'n unable to ':mploy coun~e. a.t:d shall &t any ~e ~ the case if the allegation of poverty 1s untrue, or
if s:1t1s~ed that the action fails to state a claim upon which relief may be granued
or '" fnvolou,; or malicious even if partial filing fees have been i:nposed by the
C:Y..:rt."

Section 103(0(2) of S. 3 adds a new subsection (0 to 28 U.S.C. 1915 which states
faat a? affidavit of indii?ency by a prisoner shall include a st.auement of all assets
the pnso!ler ~sses.,ses. :r'n': ne'!" sub~on fur!1,er directs the raurt to make inquiry
of t!'e correctional mstitt..tion m which the pnsoner is inrarceraW for information
e,·n1!ab!e to that i~tution relating to th': extent of the prisoner's assets. This is
reasonabJe precaution.. The new sub!!CC?on concludes by stating that the court
shall '!'qw.re full or partial payment of filing fees according to the prisoner's ability
to pay.. We would not und~d ~ language as limiting the rourt's authority
to reqw.re payment by the pnsoner :.n installments up to the full amount cf filinr,
foes s.nd other applicable costs, where the prison.; lacks L'ie means to make fltll
p,syment at c:::::e.
~

B. S. 866

Sec~on 2 in S. 866 amends the in forma pauper'..s statute, 28 U.S.C. 1915, in Llw
follo\\-,ng manner:
(1) The_authority_to all~ a suit without prepaymc,t of fees-r:s o~poscd
to costs-m subsection (a) LS deleted.
(2) A prisoner bringing a suit would h.e.ve to subrr-.it a statement cf his
pnson account balance for the Prececlinil: siI months.
. (3) A Pri5?n~: would_be liabfe in all
to pay the full amount of a fil.
mg fee. An 1D1tial partial fee of_ 20 pen,e_nt of the average monthly deposits
to or average monthly balan::e m the pnsoner's account would be required
and thereafter the prisone~ would hi; ~ to make monthly paymeni,;
of 20 percent o~ the preoedini? months mcome credited to the account, with
~e agency ha~ cw;t,dy otthe prisoner forwarding such payments whene~er the amo:u:t ~ th_e account exceeds $10. However, a prisoner would not
be b ~ from bnngmg any action because of inability to pay the initiel
partial fee.
(4) If a judgment against a pru,oner includes the payment of costs, the
pnsoner would be ~ to P"Y the full amount of costs ordered, in the
same manner pr<Wlded for the payment of filing fees by the amendments.

cases

Ii ~ f,seflli;,!:1e point of theee amendments ia to insure that prisoners will be fully
a e or
fees ~d costa in all C&lle!I, subject to the proVlSO that prisoners will
be barred from ~ ~ o f this liability if they are actually unable to pay.
d h p ~ this :"form 1D light of the frequency with which prisoners file frivolous
an nrassmg BU1ts, and the general absence of other disincentives to doing so.

However, the complicated standards and detailed numerical prescriptions in this
section are not necessary to achieve this objective. It would be adequate to provide
simply that prisoners are fully liable for fees and eoeta, that their applicatio11.11 must
be accompanied by certified prison account information, and that funds froI?. their
accounts are to be forwarded periodically when the balance exceeds a speofied
amount (such as $10) until the liability is discharged. We would be pleased to work
with the ~nsora to refine this propoaal.
In addition to these amendments relating to fees and costa, §2 or S. 866 stre~~ns 28 U.S.~. 1915(d) to p~de that ~e court ~ ~ the caae at any time
if the allegation of poverty is untrue or if the action is frivolous or maliciou.s or fails
to state a claim. This is substantially the same aa provisions included in § 103 of
S. 3 and title II of H.R. 667, which we BUpport.
Section 3 of S. 866 essentially direct.a courts to review aa promptly aa possible
suits by prisoners against governmental entities or their officers or employees, end
to dismiss such suits if the complaint fails to state a claim or seeks monetary relief
from en immune defendant. This is a desirable provision that could avoid some of
the burden on states and local governments of responding to non-meritorious prisoner suits.
Section 6 provides that a court may order revocation of good time credits for federal prisoners if:
(1) The court finds that the prisoner filen a malicious or harassing civil
claim or testified falsely or otherwise knowingly presented false evidence or
information to the court, or
(2) the Attorney General determines that one of these circumstances has
occurred and recommends revocation of good time credit to the court.
We support this reform in principle. Engaging in malicious and harassing litigation, end committing perjury or its equivalent, are common forms of misconduct l>y
prisoners. Like other prisoner misconduct, this misconduct can appropriately be
punished by denial of l100d time credits.
However, the proceoures specified in section 6 are inconsistent with the normal
approach to denial of good time credits under 18 U.S.C. 3624. Singling out one form
of misconduct for discretio~ judicial decisions concerning denial of good time
credits-where all other decisions of this ~ are made by the Justice Department--would work against consistency in pnson disciplinary policies, and would
make it diflicult or impossible to coordinate sanctions imposed for this type of misconduct with those imposed for .other disciplinary violations by a prisoner.
We accordingly recommend that § 6 of S. 866 be revised to pnmde that:
(1) A court may, and on motion of an adverse party shall, make a determination whether a circumstance specified in the section has occurred (i.e.,
a malicious or harassing claim or knowing falsehood),
(2) the court's determination that such a circumstance occurred shall be
forwarded to the Attorney General, and
(3) on receipt of 8Uch a determination, the Attorney General shall have
the authority to deny good time credits to th-e prisoner. We would be
pleased to work with the sponsors to refine this proposal
Section 7 of S. 866 strengthens the requirement of exhaustion of administrative
remedies under CRIPA in prisoner suits. It is substantially the same as part of
§ 103 of S. 3, which we BUpport. 2
C. The STOP provisici118
AB noted above, we support the basic objective of the STOP proposal, including
2articularly the principle that population ca_ps must be only a "last resort" measure.
Responses to unconstitutional pnaon conditions must be desillned and implemented
in the manner that is most consistent with public safety. Incarcerated criminals
should not e,tjoy opportunities for early release, and the system's seneraI capacity
to provide adequate detention and correctional space should not be rmpaired, where
any feamble means exist for avoiding such a result.
It is not necessary that prisons be comfortable or pleasant; the normal distresses
and hardships of incarceration are the just coDBeqUences of the off,mders' own conduct. However, it is necessary to recognize that there is neverthele81!1 a need for effective safeguards !'-l{ainst inhuman conditions in prisons and other facilities. The
constitutional provimon enforeed most frequently in prison cases is the ~ t h
Amendment's prohibition of cruel and un11SU&l puniahment. Among the conditions
• Howner, there ia a typographic error in line 22 of pap 8 of the' bill. The ..wda "and a:hauated" in thia line lhould be "are a:bauated.•

Skitiei(tf

ziirfffr .: ·

24
23
t!int have been found to violate the Eight..'1 luncndment are excessive violence,

whether inflicted by ,;uards or by inmates under the supervision of indifferent
g,,r.rds, preventable rape, deliberate indifference to serious medical needs, a1_1d !!!ck
of sanitation that jeo~ardiz"'! h~th. Prison crowding may also be a ~ntributing
element in a constitutional ,~elation. For example, when the number of inmates at
a prison becomes so large that sick inmates cannot be treated by a physician in a
timelv manner or when cro'OOded conditions lead to a breakdown in security and
contnbute to violence against inmates, the crowding can be addressed as a contributing cause of a constitutional violation. See generolly Wilson v. Seiwr, 501 U.S. 294
11991); Rhodes v. Chaprruut, 452 U.S. 337 (1981).
In consider-in~ reforms, it is essential to remember that inmates do suffer unconstitutional conditions of confinement, and ultimately must retain access to meaningful redres, when such violations occur. "While Congress may validly enact legislative
cii:-c-ctions and guidance concerning the nature and extent of prison conditions remedies, it must also take care to ensure that any measures adopted do not deprive
prisoners of effective remedies for real constitutional wrongs.
With this much background, I "ill now turn to the specific provisions of the STOP
lc.:tislnt:'..on.
'The STOP l'rovisions of S. 400 and title III cf H.R 66,-in proposed 18 U.S.C.
3626(a}-pro-,de that prospective relief in prison conditions SU1ts shall extend no
further than necessary to remove the conditions causing the deprivation of federal
rights of individual plaintiffs, that such relief must be narrowly drawn and the least
cntr~s:w means of remed:,ing the deprivation, and that substantial weight must be
r;i..-cn to any adverse impact on public safety or crimfrial justice system operations
1n determining intrusiveness. They further provide that relief reducing or limiting
prison population is not allowed unlesa crowding is the primary cause of the deprivation of 11 federal right and no other relief will remedy that aeprivation.
Proposed 18 U.S.C. 3626(b) in the STOP provisions provides that any prospective
relief in a prison conditions action shall automatically terminate after t,;•o years
!running from the time the federal right vio!atio::i is found or enactment of the
STOP legis!atio::i), and that such relief shall be immediately terminated if it was appro,·ed or l,l"anted in the absence of a judicial finding that prison conditions ,io!ated
a federal nght.
Proposed 18 U.S.C. 3626(c) in the STOP provisions requires pro□pt judicial decisions of motiong to modify or terminate prospective relief h:1 pnson conditions suits,
,nth automatic stays of such relief 30 daya a.ft.er a □otio:1 is filed under 18 U.S.C.
362G(b), and after 180 days in any other case.
Proposed 18 U.S.C. 3626(d) in the STOP provisions confers standing to oppose relief that reduces or limits prison population on any fodercl, state, or lo:cl official
er unit of government whose jurisdiction or function includes the proseeution or cust,Jdy of persons in a ~1rison E""...ll:ject to such re.lief, or who otherwise may be affected
bv E'-.:.ch relief.
· Proposed 18 U.S.C. 3626(c) in the STOP provisions prohibits the use of masters
in prison conditio!lS suits in federal court, except for use of magistrates to me.kc proposed findings concerning complicated factual issues. Proposed. 18 U.S.C. 362Gd) in
the STOP provisions imposes certain limitations on awards of attorney's fees in priso:i conditions suits under federal civil rights laws.
Fmally, the STOP provisions provide that tlw new version of 18 U.S.C. 3626 shall
r.pply ~ all relief regc. rcilCS3 of whe!.her it w~s orig-.ill111.ly granted or approved befo:-e,
on, or &fter its enactment.
Th~ bills leave unresolved certa:n interpretive questio:os. While t.'le revised section
contains some references to deprivation of federal rights, se,·eral parts of the section
ere not explicitly limited in this manner, and might be understood as limiting relief
b~sed on state Jaw claims in pri.<>0n conditio!lS s;u.its in state co-.irts. The intent of
:ho ;:rcposal, however, is mo,:-e plausibly limited to setting standards for relief which
1s bsse~ on ~ain:;ed violatio!l.9 of fed~ rights or imposed by feders..l court orders.
If so, this po1nt should be made clearly m relation to all parts of the pra::>oscl.
A second interpretive question is whether the proposed revision o, 18·u.s.c. 3626
affects prison conditio!lB suits in both federal and state court, or just suits in federal
court. In contrast to the current version of 18 U.S.C. 3626, the proposed revisionexcept for the new provision restricting the use of masters-is not, by its terms, llin:ted_ to federal court procredillg!!. Hence, most parts of the revision appear to be in!?.:oc:cd to apply to bo:.h federal and state court suits, and would probably be so construed by the courts. To a,-nid extensive litigation over an issue that goes to tl1e
basic scope of the proposal, this question should be clearly resolved one way or the
other by the t:ext ~f the pro~ .
.
.
.
The anelys1s o, co:IBtitutional 1SSUes raised by this propos.cl must be m1ndful of
ccr'..nm funda.ment,;J principles. Congress possesses significant authority over the

remedies available in the lower federal courts, subject to the limitations of Article
III, and can eliminate the jurisdiction of those cot.l.rt$ altogether. In the latter circumstance, state courts (and the U.S. Supreme Court on review) would remain
available to provide any necessary constitutional ~medies excludd from the jurisdiction of the inferior federal courts. Congress also haa authority to impose requirements that govern state courts when they exercise concurrent jurisdiction over federal claims, see Field.er v. Caaey, 487 U.S. 131, 141 (1988), but if Congress purports
to bar both federal and state courts from issuing remedies ner..essary to redress
colorable constitutional violations, such legislation may violate due process. See, •·$.·,
Webswr v. Doe, 486 U.S. 592, 603 (1988); Bowen v. Michigan Academy of Famzly
Physicians, 476 U.S. 667, 681 n.12 (1986\; Bartlett v. Bowen, 816 F.2d 695, 70307 (D.C. Cir. 1987). We therefore examine the proposal's various remedial restrictions from that _J>erspective.
Proposed ~8 U.S.C. 3626(a_Xl) in the J?rOpoS&.l goes ~ e r than the ~n~ statute in ensunng that any relief ordered 1s narmwly tailored. However, smce 1t permits a court to orde: the "relief • • • nCC;e5Sat;' ~ remove the conditions that are
causing the deprivation of • • • Federal nghts, this aspect of the proposal appears
to be constitutionally unobjectionable, even if it constrains both state and federal
courts.
Proposed 18 U.S.C. 3626(aX2) bars relief that re_duces or I.in-its prise!! population
unless crowding is the primary cause of the depnvation of a federal nght and no
other relief will remedy the deprivation. We strongly ·support the principle that
measures limitin!l prison population should be the last resort in prison conditions
remedies. Remedies must be carefully tailored so as to avoid or keep to an absolute
minimum any resulting costs to pu~lic s~fety. Measill;s that result in_ the early _release of incarcerated criminals, or impair the systems general capacity to provide
adequate detention and correcti'?nal_ space,_ m~t be avoided when any other feasible
means exist for remedying constitutional -,olations.
Certain features of the formulation of proposed 18 U.S.C. 3626(aX2), however,
raise constitutional concerns. In certain circumstances, prison overcrowding may result in a violation of the Eighth_ Amen':ll:lent, see ~ "· Chapman, 452 U.S. 337
(1981). Hence, assuming that thi~ provunon constrains both_state and federal courts,
it would be exposed to constitutional. challenge as p,.-,cluding adequate remedy for
a constitutional violation in certain crcumstances. For example, severe safety hazards or lack of basic sanitation might be the primacy- cause of unconstitutional conditions in a facility, yet extreme overc~_wding might \>e a su_b~tantial and independent, but secondary, cause of su~h conditiolll!· Thus, this P~"':s1on ?Jul? foreclose any
relief that reduces or limits pnson popula!'ion through a
action 1n_ ".'lch a case,
even if no other form of relief would rectify the unconstitutional condition of overcrowding.
·
f
This problem might be avoid~ throull"h an interyretai;ion of the notion o a covered "civil action" under the re-.sed section as not mcluding habeas corpus proceedings in state or federal court which are broull"ht to oblml;t relief from ~nstitutional conditions of confinement. See, e.g., Preiser v. Rodriguez, 411 U.S. 415, 499
( 1973). However, this depends on an uncert.ai"! co~truction of the propo~ statute,
and the proposal's objectives could ~ undernuned 1f th!: extent of remedi~ aul;liorig depended on the form of the action (ha~as J?~ng vs. regular crvi,J action).
Smee the relief available in habeas proceedin&5 1n this context could be linuted to
release from custody, reliance on. su<;h p~dings as_ ~n of limiting t.'1e release of
prisoners as a remedy for unconstitutional pnson conditions.
A more satisfactory and certain resolution of the proble:" would be to dele?! the
requirement in proposed 18 U.S.C. 3?26(aX2/ that crowclj.ng m~ be the . P ~
cause of the deprivation of a federal right. This wou:1d av01d potential C?nstitutional
infirmity while preserving the requirement that pnson caps and the like can only
be used where no other remedy would work.
Proposed 18 U.S.C. 3626(b}-whicJi au~maticall,: tez:nunates pros~ve_ relief
after two years, and provides f?r the ~ec!iate tenrunation~_f ~ v e reJ.!e! approved without a judicial findilll{ of VIOiation of a federal
t - ~ ad_ditional
constitutional concerns. It is possible that prison conditions h d unconstitu~on~ by
a court may persist for more th~ two ye""! aft.er_thf! ~ has foun_d the violatioi:iand while the court order directing prospective relief 18 still outstanding. Hence, tl_,.is
provision might be challenged on. cof!stituti~nal _grounds as foreclosing adequate Judicial relief for a continuing CO!lJ!titutio~ VIo_lation. . .
.
.
However we believe that this proV1S1on 18 constitutionally sustainabl~ agamst
such a challenge. Importantly, this provision would not cut off all alternati".e forms
of judicial relief even if it applies both to state court and federal court 51llte. The
possibility of c o ~ g the statute as not precluding relief through habeas CO'J?USd
proceedings has been noted above (as has the possibility that habeas may proVl e

_a,~

ow,,.,,...c·r·1

,.,._.rE? r·-·ufitCt-cre:rn ?tcZiiffiif'ilfiitrfflW,"",..

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26
25
on.!,· lir:lited relief). Finally, the sec::ion does not appear to forec!ose an aggrieved
pisoncr from instituting a r.ew and sep!'fflte <:!"ii ~ction based.on constitutional ,io1at:ons the.t persisted ~er ~e automatic tennmation of the pnor relief .
.
A more pointed constitutional concern anses fro~ the potential applicat10n. of the
restrictions of pro;:,osed 18 U.S.C. 362&.'b) to temunate uncompleted prospective reiicf ocdered in judgments that became final prfor to the l~gislal,ion's enactment. The
Epplication of t.'iese restrictions to such rehef raises constitutional concerns under
t::e S:10reme Co•1.•·t's recent decision in Plaut v. Spendthrift Farm, lr.c., 115 S.Ct.
144, (i9951_ T!1e Court held in that case that legislation which retroactively interferes '1-ith fina.l judgments can constitute en unconstitutional encrcachment on judic:el aut..'iority. !t is uncertain whether Plaut's holding applies v.ith full force to the
prospective, long-term relief that is involved in prison conditions cases. However, if
:l:e cecision d:ies. fully apply in Llus context, the application of proposed 18 lI.S.C.
3626'bl to orders in pre-,;nactment final judgments would raise serious constitutio!:el orvblems.
While we believe that most features of the STOP proposal are constitutionally
S'.lstcinable, at least in prospective effect, we find two aspects of the legislation to
be particularly problematic for policy reasons.
First, the propose.I apparently li:nits prospective relief to cases involving a judicial
f:,d.ing cf a ~iofation of a federal righL This could create a very substantial impedime!lt to the se:tlement of prison conditiong suits--<!ve:1 if all interested parties are
folly satisfied with L'ie proposed resolutfon-because the defendants might effectiw!y have to concede that they have caused er tolerated unconstitutional conditions
in their facilities in order to secure judicial approval of the settlement. This would
result in litigation that no one wants, if the defendants were un.,,,illing to make S'1ch
a c!amaging ad.!!liss:o!l, and c,:mld require judicial resolution ::;f ll!s.tters th.s.t would
ot..l-iEn;-ise be more pro:r:1pt!y resolved by the parties in a mutually agreeable manner.
Second, we ere concerned about Llie provision that "·ould automatically terminate
e.ny pros;,ective relief after two years. In some cases the unconstitutional conditions
en which relief is pre:rised "-ill not be corrected "'ithin this timefram,. resulting
in a need for farther prison conditions litigation. The Justice Department and other
p,afrltiffs would have to refile cases in order to achieve the objectives of the original
oder, a,id defe,idants would ha¥e the burden of responding to these new suits. Both
fer reasons of judicial economy, and for the effective protection of constitutional
rights, we should aim at the resolution of disputes v.ithout unnecessary litigatio,i
,md periodic disruptions of ongoing remedial efforts. This point applies w1th particulcr force where the new litigation will revisit matters that have already been udjudicated and resolved in an earlier judgment_
Existini: law, in 18 U.S.C. 3626(c), already requires t.'iat any order or ccnsent decree seeking to remedy an Eil?hth Amendment ,in!a.tion be reopened at the behest
of a defendant for recommended modification st a m.iriimt.:.m of two veG.r intervals.
This provision could be strengthened to give eligible intervenors under the STOP
proposal, inc\:,ding prosecutors, the same right to periodic reconsideration of plison
condition,, o!'ders and consent decrees. This would be a more reasonable approach
to gu~c.ing against _thfi: unn_~ss.e.ry continuation _of orders than impos:t:~:i cf r.n
un:;_ua.hfied, a.uto:natic time limit on all orders of this type.

Senator ABRAJOOI. At this time, I would call the next panel forward-Mr. Barr, :Mr. Cappuccio, .Mr. Diiulio, _Di~trict Attorney
Abraham, Mr. Gadola, Mr. Watson, and Mr. Martin.
Thank you all for coming here today, with the same caveat that
the whole morning, I think, we will unfortunately have to operate
under, that we may have ~vta that cause me to have to leave.
Hopefully, Senator Hatch and I will be able, between us, or the
staff, to continue this hearing without interruption at this point,
but I do ask ahead of time for your indulgence.
Our panel consists of former Attorney General William Barr; Mr.
Paul Cappuccio, an attorney at the law firm of Kirkland and Ellis;
P:ofE;ssor John Diiulio, of Princeton University; Lynne Abraham,
distnct attorney for Philadelphia, PA; Mr. Michael Gadola, who is
th~ ~irector of the Office of Regulatory Reform of the State of
l\'hchig~; !\'Ir. B:ib Watson, who is director of the Department of
Corrections for the State of Delaware; and Dr. Steve Martin, who

is the former general counsel of the Texas Department of Corrections.
Wbat I would propose is that in the order of introduction each
of you make your opening statements, and then we will pro~d to
questions at the end of the panel and hopefully have other members here by then when the votes probably will be over.
So we will start with Attorney General Barr. Thank you for
being here today.
PANEL CONSISTING OF WILLIAM P. BARR, FORMER ATIORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC; PAUL T. CAPPUCCIO, KIRKLAND AND ELLIS, WASHINGTON, DC; JOHN J. DiIULIO, JR., PROFESSOR OF POLITICS
AND PUBLIC AFFAIRS, PRINCETON UNIVERSITY; LTh"'NE
ABRAHAM, DISTRICT ATIORNEY, PHILADELPHIA. PA, ON BEHALF OF THE NATIONAL DISTRICT ATIORNEYS ASSOCIATION; MICHAEL GADOLA, DIRECTOR, OFFICE OF REGULATORY REFORM, STATE OF MICHIGAN; ROBERT J. WATSON,
COMMISSIONER OF CORRECTION, STATE OF DELAWARE;
AND STEVE J. MARTIN, FORMER GENERAL COUNSEL, TEXAS
DEPARTMENT OF CORRECTIONS
STATEMENT OF WILLIAM P. BARR

Mr. BARR. Thank you. It is a pleasure to be here, Mr. Chairman
on this important topic. I have a prepared statement which I ask
to be entered in the record, and I will try to be brief with just some
overview remarks.
Senator ABRAHAM. Without objection, it will be entered.
Mr. BARR. Part of my central program as Attorney General was
f-? stress the esseJ?tial need for prison capacity in any crimin8;\ justice system. I believe that the key addressable element of violent
crime in our society is the violent crime committed by chronic habitual offenders. I believe this is the largest part of predatory violence and it is the most preventable part of the problem, and that
we have to have adequate prison capacity to incapacitate these violent offenders.
As I tried to get this message out and worked with State and
local officials on this issue, I constantly heard that one of the
central problems that was faced at the State and local level was
the Department of Justice itself and the fact that the Department
had been a key player in hamstringing State and local officials in
operating and managing their prison resources.
So I started to look into the problem, and Mr. Cappuccio, who is
here with me today, was spearheading that effort at the Department of Justice when I was there. We found that in the 1970's and
1980's, really, durin~ the heyday of judicial activism and sort of
soft-headed constitutional law in many areas of the law, there was
a flood of litigation under the eighth amendment challenging prison
conditions.
In many of those cases, the litigation was appropriate. Conditions were unconstitutional and the beginning of that litigation was
fully justified. But in many cases, we al.so found that the Federal
courts, assisted by the Department of Justice, had applied incorrect
standards in determining an alleged deviation from the Constitu-

: rares · 159s51 w-z

27
tion, overall circumstances or totality of circumstances tests, and
had really not been rigorous in determining whether there was indeed a Federal constitutional Yiolation.
In other cases, we found that courts sort of confused what the
eighth amendment required with what was sort of sound penological practice at the time, or what the best practice was thought to
be in correctional circles, and attempted to run prisons according
to those standards.
We found tl- ,t in remedy;ng eighth amendment Yiolations, or alleged violations, many of the courts went far beyond what the Constitution required. They started specifying diets and exercise programs. I think the Ruiz case down in Texas is probably the best
example of judicial overreaching. I personally visited the Texas
prison system where the judge was specifying the materials that
had to be used for tables and chairs, the length of shelving that
was required in the prisoners' cells, and so forth.
Most pernicious of all, many courts were actually capping prison
populations and forcing the turning-out violent predators back out
onto the streets without any real analysis of whether this was essential to alleviate an unconstitutional condition.
This judicial micromanagement of the prison system had substantially raised the costs of prison construction and precluded the
use of existing space. For example, many courts had prohibited
double-bunking, as if double-bunking was per se unconstitutional.
We now know it isn't. They specified the size of cells. In many situations, the required size of cells was much bigger than what we
currently had in the Federal prison system, which during my tenure was operated at about 165 percent capacity.
I also believe that there was an overly aggressive use during the
1970's and 1980's of consent decrees in prison litigation, and I
thought the Department had misused consent decrees in two ways;
one, in putting into those consent decrees conditions and standards
that were plainly in excess of constitutional requirements. I think
that some of your examples in your opening statement, Senator
Abraham, are good examples of the kinds of things that the Justice
Department was putting in consent decrees and cleariy are not
manda~d by the Constitution. They may be good or bad practice
as a policy matter, but they are not mandated one way or the other
by the eighth amendment.
The other way I thought the Department was misusing consent
dec~es was really using these suits as sort of an occasion, a triggenng event that was used to take control and impose on prisons
so~ cf perpetual obligations and perpetual supervision, rather than
u~mg a ~e for what it should be, which is resolving a particular

dispute, eliminating the unconstitutional violation and then terminating the case. Rather, they were using consent decrees as a regulatory tool for keeping perpetual supervision over the systems.
I took a number of actions in early 1992 when I became Attorney
General, and some of the details are set forth in my testimony and
Mr. Cappuccio's testimony. Basically, I directed that the Department should not initiate or continue priso:::i. litigation unless it was
necessary to remedy a specific deprivation of a prisoner's basic
human needs, the standard set forth in the Seiter case.

Second, I directed that the Department should not seek remedies
that go beyond remedying the discreet constitutional ,;olation.
Third, I d\rected tha~ t_he Departm~nt should not encourage or support ongomg supervis10n of a pnson system unless plainly necessary.
Let me say-and I don't hold me exactly to this, but I think
when I took office, prison systems or part of prison systems in 43
States were being run under judicial decrees. My view was that
State officials can be trusted to run the prison system and that we
should not encourage ongoing supervision or micromanagement by
the judiciary.
Fourth, I directed that once a violation was cured, then the decree should be terminated and the litigation should be ended. Let
me just say in the Michigan case, I think the Department was
wrong in not appealing. If the parties to a suit agree that there is
no longer a controversy, there is no controversy. There is no article
Ill basis for a continued Federal court role. If someone wanted to
then make a claim and invoke the power of the court and point to
a violation, they are free to do so, but that case should have been
settled on the basis that was agreed to by the Department when
I was there as Attorney General.
Fifth, I took the position that the Department should now actively support States in modifying their consent decrees under the
Rufo case and that we should come to the aid of the States who
wanted to reopen their decrees. Two States and one city took me
up on that. Texas and Michigan were the States and Philadelphia
was the city, and I know you will be hearing more about the situation in Philadelphia from Lynne Abraham, the District Attarney.
The courts fought us tooth and nail on each of these cases, and
obviously when we left the Department this effort petered out, to
put it charitably. Our experience, though, suggests to me that the::-e
is need for clear legislative standards and this cannot be left to tht:
c,)mings and goings of administrations and the peccadillo5 of parti::ular Federal judges, but we do need a clear, uniform standard
on this.
I generally support the proposals in the STOP legislation. I think
that the Department has pointed to two concerns. I think they are
easily addressable. One concern is the requirement that the overcrowding be a primary cause in order to justify a cap. I think that
the word "primary" there is ambiguous, and it is almost metaphysical whether overcrowding or unsanitary conditions, for example, er
lack of plumbing are the primary cause. What is the primary
cause?
I think that could be more artfully drafted, and basically I think
everyone knows what we are saying, which is that unless there isyou have to show there is no other way of remedying the violation-for example, putting in new plumbing-before you can resort
to something like caps.
The second problem with the STOP legislation that the Department refers to is the automatic retroactive termination of existing
decrees; that is, decrees that are in effect today and the fact that
that might run afoul of the Plaut case. I think. that that, again, we
can address relatively easily in the legislation·. I agree that the way

it is drafted now does raise constitutional problems, but I do think
it is possible to require the courts to revisit at a certain date.
If the decree has been, for example, in existence for 2 years-the
existing decrees I am talking about, not prospectively-revisit
those decrees and terminate those decrees unless it can point then
to an ongoing constitutional violation. I think that that would be
constitutional because I think you must be able to point to a violation. It is OK to say to a court you have to point to a ,.iolation
today to keep a decree in effect because if they can't point to a violation, if there is no ongoing violation, then I think essentially the
article III basis for use of the Federal power has evaporated.
So, in conclusion, I think this is a critical part of i.olving the violent crime problem in the United States, bringing some rationality
to the judicial microma.T12.gement of the prison system. I think
there is a need for statutory standards and I think a lot of the proposals that are before this committee deserve urgent attention.
Tb.ank you.
[The prepared statG:nent of Mr. Barr follows:]
PREPARED STATE~!E~T OF WILL!,~,! P. BARR
Thank you, !\fr. Chairman. I am pleased to be here todey to testify in support of
fr.::, c~::::rJt~~-:·s i~pcrt.ent efforts to help t.1le· Justice Department end the Stet.cs
D ;,-::c:t c·..:.,, ,,::c~y by ir,c'°sc~t::,r, l:ebitue.l ,~c.'c;:t crimincls.
1 :..110:1gLt -.,,-:,c.t I might c;o to:i~y 1s describe for yo:i what, during my tenure as
Attorney G<,noral, I saw as the challenge facing the Federal Government and the
States in pro,~ding adcq,uate prison capacity in this country, and then to discuss
briefly so:r.e of the princ,p!es that I believe should guide legislative reforms in this
area.
i::tudy efier study shows that there is a smell segment of our population who are
repeat ,~ole::t offenders end who commit much, if not most, of the predatcry ,1ole1,t
er.me in our society-you know the profil-these offenders l>:Picruly start com!T'Jttin!J crimes when they are ji.veniles, o.nd they kee;, on committing mace, end more
senous crimes through their edult yenrs.
:,\'"'!1en ":"ested and released b€fore trial, these habitual o!icnders i;o right on comIrutting cnmcs.
V.'hen given probation, ir:s'.cd of n prii,on tc:-::1, they go right on committing

c::-ir:i.cs.

~\'"'r.c:1 le: c.:~ ::.f prison en parole and early rc}cc.s.e, they go :-ict!. c~ co:nrnitting
cnmes.
In fact, the only time we ere sure that these chronic offenders are not comr.Jtting
crimes is when they arc locked up i:i prlso!l.
We can debate a lot of tr.ings ebc,ut pris~:-1~: Ce.n Lliey rcl!abilitete cr'.1".innls? Do
they deter offenders? But, L'iere is one thing thet is beyond ~cr:,::s dcbe.tc: lmpris•
o;-n-~~t z~:;.p:;zci~atrs chronic violent criminals. For every ycr_r r.;1 1:s.bitl.!cl offender
Elta 1n h~~ pnson cdl, the:.e ere scores, perhc.ps l:'..1!1d;-c-tls, cf ii:\-s,.·L :- .._,-:::--!L =-~t cr~znc:;
committed on our streets.
N!3w, it i,s obvious thnt, in order to pursue a successful strategy of incepacitating
habitual no_lent offende!'I', t~,e FederaJ Go,·ernment and the States must provide
dequate pnson spa~ to in:~...cra:e the~e caree~ criminals. That was a centrel part
of my mess,s;::e,_pe.rticularly to state offiao.ls, dunng r.o;; tenure ae Attorney General.
As I ~ve!Jej_ t!1e countcy: ~'?Lli this message, I he:.:-~i c::,mdst.cr.t rc:r~::1 :!"'C::'I. State
co~ons officials: The ab±ty of Hie States, to opc,a.:e \.hc,r ,ris::.s dfo:ti\"c'.;; a.nd
efficiently has been hamstrung by the involvement of the Justice Department and
the Fcqeral courts in the day-to-day operation of Stste facilities. After hearing these
complaints_ enough times, I asked my staff ta bck into t.'iem and to develop recommendatio!'e for alleviating inappropriate b-.rrc.e::is on the States.
I believe t:.ct b8th t.he ;,roble:r.s the.t we identified and the solutions that we ettc!:lpf:ed to :r:,p_!e:nent internally et t.'1e Justice Department in 1992 provide en cpPl'!);>:-:e.te s~ng point for this committee's consideration of legislative reform in
~li ~a, particulerlr reform of the Department of Justice's and Fedel'tl.l courts' role
in ,..tigation chellengi.1111: the co:u:!itions of confinement in State prisor.s.
n'hat we fo,:,::d wns tbs:

first, the 1970s and 1980s saw a flood of litigation in the Federal courts b State
p_nsom•rs challenging poison conditions as violatin~ the eighth amendment's { h 'b ·
t!on o~ "cruel and _unusual punishment.• .I? sol'l!e instances, Federal court in~-~~:
lion was approJ>n~te beca.'lll!'! I.he conditions in State prisons genuinely did fall
below the constitutional DllDllDWD--ilmounting to acruel and unusual punishm t."
In many Cll!M!B, ~owev~,. the lCIWe;I' F!l<1eral courts applied incorrect constituti~~
stand&r?s to Justify t;?ierr ~ntervention -~ eome cases, courts applied a ,·ague "totality
of the cm:umstances or 'overall conditions" standard to find that the State - - te
was i? violation of the ~gh~.a.ml!?dment. I,:i other cases, courts impro rl e)'1~ted
the e1ghµt amen<ll?ent ~ mm1rnahst protection against "cruel and unJ>:..Ji ~nishment" ~th a re<(l.llrement that States follow what was thought to be cun-ent so:ind
penological practices.
Second, we found that, in remedying alleged eighth amendment violations man
lower Fe~eral courts often went far beyond what the ronstitution requires-lssui Y
orders w1th respect to the particulara of prisoners' diets, exercise, visitation righnJ
and health ~ - Most burde~me of all, man;r courts imposed limitations or cap•
on the populations of state pnsons and local jails. ·
'
-,
.(\5 a result of ~ese extra-cons?tu~o:ia.J. requirements, we saw that the cost of a
pnson ~ space m m!'ny_State ~tutioilJ! was for above whnt was~ -.cs-,rv to
comply with th_e Constitution, and m some instances, was even higher -i. . -· _,t in
the Federal i:nson sy~tem. But even more troublesome was the effect of the arbitrary population cal.'s rmposed by some court,,., In 1991, while I was Attorner Gene~, the Fed~ral p,:ison sys~m OJlC!1lted at approximately 140 percent of design capacity, and did so m compliance with the Constitution. Many States however are
required by judicial order or c!ecree to openite at, or even below d~ign cap~city
At the time, we calcul~ted that if the States could c;,erate at le,·els at or ne2.r th~
leveJ _of th~ Federal P":9"n system, ~e State.~ ~ou!C: have room for nearly 300,000
ad_ditional mma~s, which ~slates mto a sa~'.!ng& · f approximately $13 billion in
pnson construction costs. Whi)e not every State may )8 able to operate at the same
level as th~ Federal sy~tem, it seems <:Jee.r tha~ the potential for sa,fogs from rer.icvrng 11:b1trary court-imposed population caps lS cn:-,,-mous.
Tne th,rd, and perhaps m?st disturbing, problem -:1at we found was •.:he Justice
Department's overly aggresmve uae of consent decrc 3 in the prison litigatio::i con~xt. 111 let Mr. Cappuccio. speak to this pro!'lem i: :oore depth, as I understand
it to be the focus of his testimony. But let me JUSt br.. :y outline the problem:
In my view, in the past, the Justice Department h: ; used consent decrees in two
ways that, in the context of prison litigation, are inap· :-opriate:
Fii:st, in the past, !,he De_partment has insisted o: _ including in consent decrees
reqm:ements that qwte plainly J(O well beyond the ; :-otections of the Constitution.
I!) fairness to the Department, in many cases thos, decrees were negotiated at a
tirne_,!'hen, some lower courts thought that the eigl·_-h amendment required more
!""b,..:ous lDlprovements b:y the States than the Su: :eme Court has subsequently
nc~d that ame~dme,:it reqwi:e5- But the fact remains. :hat Federal court decrees in
this area are nfe with reqwrements that go well beJ.;nd the minimum protections
provided by the eighth amendment.
. Second,. in the past the DepartJ:nent. has use:! the occasion of a lawsuit alleging
discrete eighth amendment violations lIIlpose nearly perpetual obligations on and
supervision of, S~te prison systems. By and large, the Department and t.':e Federal
courts ha,·e lost eight of the fact that Federal interference with the authorii.:; of the
States to run their own corrections system may legitimately last onl:y so long as is
necessary to remedy the specific eighth amendment violation alleged in the Govemrnent"a or 1;1risoner's complaint. Such a lawsuit should not, however be used as an
excuse to impose continuing supervision of the Stet~ system bey~nd the time it
takes the State to remedy the discrete constitutional ·:elations alleged in the comp:aint.
Perhaps most troublesorne and burdensome of all :. the combined effect of these
two missteps. By first insisting on decree provision,: that require more than the
e_ighth ame!1~ent guarantees, and _then, a~p):ing t,•~ _enfo~ those extra-ronstitutional provi11ons after the underlyu,g constitutional •.,olation has been remedied,
the Defiartment and the courts have, in some cues, ,:-u.xeeded in imposing on the
States in near l)l!rpetuity burdensome and expensive ~ments that the Federal
Government had no authority to impose on the States to begin with.
. To remedy th~ pn_>ble!-119, in early 1992, I set. forth the followinJ general principles and sl!ecific gwdelines to govern the Justice Department's involvement in
prison litigetion. I believe these principles, which I imposed as a matte!' of the Department's prosecutorial discretion, are also appropriate guideposts for any legislative reform in this area.

32
31
First, es the Supreme Court has recently made clear :n cases rud1 as Wilson v.
Seiter, the Federal courts have no authority to hold that prison conditions are unconstitutional unless it isJroven that prison officials have acted with "delibera~ indifference" to "the minim civilized mea,,ure of life's necessities." It is not an eighth
amendment violation merely because the overall conditions in a prison are bad or
substandard where no specific deprivation of a human need is de □ onstrated.
Accordingly, I directed that the De!'artment should not initiate poison litigation,
or intervene in on-going !'rison litigation, unless necessary to rerr:edy specific deprivation of a prisoner's basic human needs-<!eprivations that rise to the level of cruel
and unusual punishment,
Second, in remedying constitutional violations, the courts are not free to order
~rison officials to improve conditicns beyond the basic necessities reauired by the
Constitution. As the Supreme Court has recognized, the Constitution "does not mandate comfortable prisons," and t.'ie courts may not require priso,i officials to follow
what some may think are sound correctional pre.ctices.
Accordingl;i-, I directed that the .!ustice Department should seek to remedy constitutional ,~o!ations, but should not seek to unpose on the States-through litigation or consent decrees-additional burd,•ns not required by t.'ie e:ghth amendment
or other applicable Federal law.
Third, the business of running prisor..s belong to the a!'propriate State officials,
not to Federal judges, Justice Der,art.-nent officials, or speaal master,a. The fact that
a court finds a constitutione.l ,io.ation does not justify court or Justice Department
super.ision of prisons either direct or through the appointment cf n special master.
The duty to ,indicate inmates' constitutional rights does not cor~cr on the courts
or the Justice Department the power to manage prisons. Where e. court finds a constitutional ,io!ation, it should give the State an appropriate opportunity to remedy
the viole.t:cn v.i.t..11o'..1t o:--dering rr.o;-e specific nclief end v.1thc~t r.::empting to teke
control of t.'"ie S~te pr:.Son system.
Therefore, I directed that the Dcpart:ncr,t of Justice should not c:1courege or support court super.ision of State prisons, either directly or by the cppointment of a
special master, exce_pt e..s a last resort where it was plainly necccc J.ry to remedy a
continuing constitutional ,iolation that a state failed to remedy.
Fourth, once a State he.s cured a specific constitutional ,iolat:c:o identified by a
court, .ongoing remedial decrees should be terminated. Court dec:-ecs should not operate m perpetuity once t.'1e State has come into compliance v.ith the requirements
of th? 0>n~tution, neither. continuing court supervision nor per.:::,c.nent conditions
s.nd limitations !l.re appropne.te. Mo:-eover, many States are cperati~.g under decrees
that were negotiated at a time when some courts L'iought the e:.;:oth amendment
re~ires m0re t.'ie.n it does. Under the Supreme Court's decis'on in Ruro v. Jn,e--o/cs
of Suffolk County Jail, courts must ~tand ready to reopen, modify end/or vcci:t<> decrees where a State seeks modification based on the change of the underl)ing constitutional law.
To effectu.ate these fundamental lir:"Jts on consent decrees, I directed that t.'ie Depcrtment shc:tld su_pport terrn.inet:on of a consent decree as soon as a State has
remedied past constitutional ,~o!ations and there is no indicntion ,:,:t the Stnte will
revert to prier unconstitutional pre.c>..ices. In addition, I directed th:t, where a consent decree or o~'1er judicial order rerr-,ains in effect, t.'1e Dc:p!!rtment should consider
whether t? support Stete's reque_st for 1:10:Ufice.tion of rnch decree cit.'1er because of
a change m t.'ie govenung const:t-Jtione.l law er to the extent necessary to remow
restrainte o,i the State not reqllired by the Sup:-err.e Court's rece.:t inu:,rpretations
of eighth amendment.
After announcing these new guidelines, I offered States and localities living under
Federal-<'Ourt consent decrees o;,;,orturuty to have the Department review their case
to determine whether they we:-e entitled to relief. Tu·o States (Tc,cas and Michigan)
and one major city (P):iiladelphia) took me up on the offer. OYer t.'1e next several
mon_ths, after staff re,~ewed f:h.ese cases, we began to make significant progress in
freemg these States and localities from unwarranted Federal-G<ivernment intrusion
m the management of their prisons "-""1d jails.
_
. The task, however, was more challenging than I thought, and more difficult than
it E~ould have ~n. E':'en with the support of the Department-which was a plain?-ff m f.!1e Mich1gan action and a long-standing intervenor in L'1e action-the Federal
Judges m tho!>" cases resis!ed our attempts to return complete control to the States'
e".en ~hough 1t was clear that bot.¾ States were in compliance v.ith the Federal Constitution. Before the task wes completed, administration turned over and we left the
Deftartment.
.t ~ems to me tha~ th<: dif!icult:r we faced in implementing these co=on sense
gu,ide_lines _makes le;p.s!ation m fr~ area ~ the more important. Codifying these
pnnciples m leg:slat10n woa.id achieve two unportant goals: First, it would ensure

a. more consistent application of the _fun?an:i:ental (rinciple,; governing prison litigation that would not depend on the mclinations o the purticulsr administration in
power. Second, many of these limitations can, and ahould, be imposed not merely
on the Executive Branch, but also on the courts. Since nothing in these principles
would in any way undermine the ability of the Federal courts to remedy genuine
constitutional ,iolations, it would be entirely within the power of Congress to impose these common sense limits on the courts.

Senator ABRAHAM. Thank you very much.
Mr. Cappuccio?
STATEMENT OF PAUL T. CAPPUCCJO

Mr. CAPPUCCIO. Thank you, Mr. Chairman. I also have extended
written testimony that I have submitted to the committee and if
you would, I would like it to be made part of the record and I v'.-m
just briefly summarize that testimony now.
Senator ABRAHAM. !+. will be.
Mr. CAPPUCCIO. I hat' the privilege of working for Attorney Gene:a_l _B_arr at the Jus!ice. Depart~ent and o~e of my primary respons!b11It1es wa~ to assist ,n. ~ re.:ew of ongo~ng Federal court litigation concermng the cr,ndit1~ns m Sta_~ pnsons and local jails. As
part of that task, Mr. Chairman, I visited a number of prisons, a
number of jails, vel} many from your State. I think I took the entir~ ~~ur of the M_i~~ g~ facil~ties. I h.ave also been through Texas
fac1ht1es and fac1hm·s m Philadelphia, and some of these trips
were actually inspection tours that the Civil Rights Di,ision was
c0nducting.
Based on that experience and some of my other work with the
Department, I left with some serious concerns about how the Department was conducting prison litigation and, in particular, concerns about the use of consent decrees in prison litigation. I would
like to address those problems briefly and then talk about some
commonsense solutions.
Mr. Chairman, I start from the proposition that, at least in theory, consent decrees are good things. They avoid the enormous expense of litigation which could last for years and they allow the
parties to agree on relief and to avoid potentially much more intrusive court orders. So I begin with the bias that we should continue
to encourage the use of consent decrees, provided, however, we can
control some of the adverse consequences that have sort of come up
in practice. That is what I would like to talk about today, is some
of the practical problems with them and ways to fix them.
I identify a number of problems with the Government's use of
consent decrees in my written testimony, but I want to focus on
just three this morning. First, and perhaps one of the more serious
ones, is under the current law there is little or no limitation on the
scope of relief or the scope of requirements that can be imposed on
a State in a consent decree. That is a consequence of a case decided
by the Supreme Court called Local 93 v. Cleveland which says that
the parties to a consent decree can agree to relief that is broader
than necessary to remedy a Federal violation. In fact, the Supreme
Court has held that the parties can agree to relief that the court
itself could not impose after full litigation.
In large part, as a result of this rule, I saw a repeated pattern
in many of these negotiated decrees of going well beyond what I
think a fair court would rule the eighth amendment requires, and

····.-..

. - - - - - = = = =......- - - - - - - - - - - - - - - - - - -

34
33

you see this in at least three different respects. Some of theoe decrees went into specifying all manners of prison life-the diets of
prisoners, their exercise rights, health care, visitation rights, all
sorts of other things.
I think some of the examples, Senator Abraham, that you gave
in your statement today are good examples of decrees getting into
specifics that go well beyond what the eighth amendment minimally requires. Even more troublesome, as Attorney General Barr
pointed out, is many decrees impose quite arbitrary population
caps and space requirements, and those levels generally are much
lower than the levels that the Federal Bureau of Prisons has been
operating with successfully for many years.
Still other decrees, I think, go beyond the Constitution by, in effect, replacing the narrow constitutional standard, whether the
State is depriving a prisoner of the minimal necessities of life, and
replace that narrow constitutional standard with more openended
and vague standards, like the State of Michigan shall provide
sound care; the State of Michigan shall provide adequate recreational facilities =d sc.fe canditions. These broader standards
and more openended siancb.rds end up replacing the constitutional
standards, and the State ends up agreeing to do much more than
it v,;ould have had to do if the court was ordering it to fix a ,iolation.
A second problem relates to the duration of these decrees, and
it sort of dowtails v.ith the first. Sorr:e of these decrees have been
going on for many, many, many years. Again, the problem is the
parties will agree and the court will approve quite broad and openended relief, such as sound co:1ditions and adequate recre::ition, and
then for the next decade or so the Justice Dep::rtment will monitor
whether, in its view, the State is Jiving up to those rather openended obligations.
The result is situatioP.s like :!\fichigan where, by my c;:,!culation,
the Justice Department has been in thGe soc:1.:,~hing like 11 years,
r:1.aybe more, even though-and this is based on my own personal
experience-even though if you walked through those prisons, y;iu
would be hard-pressed to see anything that yo'--1 would call a systemic constitutional violation. There may be incidents of guards
doing things wrnng, but I dc:i't think a fair person could wclk
through the Michigan prisons and say they are not proYiding prisoners with the bare necessities for life.
Nevertheless, because these consent decrees impose these openended obligations, the Ju~fa:e Department rontinues to enforce the
de.:~~e and hasn't let i;<>. In fact, I think we need to give a Jot of
cre~1t to the career people at the Justice Departm0nt for their tenacity and hard work and :tll that, but if I would criticize them i:J.
one area, it is for hanging in there too long. I mean, I think we
have to keep in mind the notion of a lawsuit. The notion of a lawsuit in Federal court ought to be the Federal Governmel!t gets in,
fixes a problem, and then leaves. We have lost sight of that.
A _fin~ p_roblem, I tl:ink, is sc;t of democratic process problems.
I think It I~ ~ad, ~art1cularly given the duration of these things,
for one admm1stratlon to be able to bind successor administrations
m a consent decree. I think that is the problem that Philadelphia

;:,~,.

~~~

-~~

has, and Ms. Abraham will be talking about that. That, I think is
unhealthy.
'
There are also sort of collusive budgetary problems. When I went
a:ound the country, I n~ticf:d that, oddly, while senior State officials often opposed contmumg consent decrees the local correctional people didn't mind them so much and the reason for that
was it was guaranteeing their budget. That seems to me to be an
evasion of the democratic process.
Well, then, quite briefly, how do we fix all this? How do we save
consent decree~, while ~t t~e ~ame time fixing these problems, and
at the same time not mfnngmg on the constitutional role of the
courts?
. I ~ess I w?uld begin b:y saying it would be enormous progress
m this area 1f the c_om~uttee could get the Justice Department
1'.1-erely to agree that It will adhere to the five commonsense guideImes that_ Attorney _General Barr announced in January of 1992.
~hey are m my testimony and they are _in his. I have the originals
nght here. If anyone reads those and thinks they are controversial
I don't think they are being serious about reform in this area. If
the Department would agree to those guidelines and enforce them
interna\ly seriously, w_e would come a l~ng_ way. I think legislative
reform IS also appropnate here, and I will Just end by saying I also
support most of what is in the STOP legislation with the few
tinkerings that the Attorney General talked about. '
Thank you.
[The prepared statement of Mr. Cappuccio follows:]
PREPAH.ED STATEMENT OF PAUL

CAPPUCC!O

Thank yo'-!, ~fr. Chairman and Members of the Committee, for imiting me to testifv today.
! serv<,d as en Associate Deputy Attorney General at the Justice Department
under Attorney C.,neral Barr. Shortly after he become Attorney General General
Barr offered State ad localities that were involved in Federal court litig~tion concerning t~e conc!f tions in their p~ns and jails the opl?"rtunity _to have tne Depart•
ment rc,.,ew their cases to determine whether Federal intervention should be terntinated ?r mo?-ified. A number of Stat.es an~ <:!ties took Gene:81 Barr up on that
offer-including the States of Texas and Michigan, and the city of Philade!phiaund I was assigned the job of assisting in that review.
. /n c~~ng ou~ tr.is task, I had the chance to see first hand how pri,;on co:iditions
lit1gat10n 1s _earned out at the Federal level. I came away from that experience v.ith
decidedly rruxed feelings. On the one hand, I could not help but admire the dedicntior:i and tenacity of the career staJf at L'1e Civil Rights Division in doing what they
beheved was right. On the other hand, I came away cominced that in several instances over the last 20 years, the Depa.rtment of Justice had overreached in pursuing, er continuing to pursue, prison conditions litigation, and improperly intruded
into the le¢timat.e domain of the States and localities to manage their own correctional facilities.
In my testimony today, I would like to focus, very briefly, on just one area of prison conditions litigation that, based on my experience, I believe needs reform. Specificaiiy, I would like to focus the committee's attention on some of the problems v.ith
the use of consent decrees in prison litigation.
Of ell the things that need fixing, why complain about c,,nsent decrees? After e.ll,
the theory of the use of consent decrees in institutional litigation is that they are
decidedly good things. Consent decrees allow the parties to agree to remedy an alleged violation of law v.it.hout the crushing expense of litigation, und, when properly
used, they allow Llie defendant institution to agree to a remedy that it has some
role in shaping a::d implementir,g, rather than be subjected to more intrusiw court
orders.
But there is of>.en a difference between theory and practice. Ba.;ed on my experience, in practice the use of consent decrees in the prison litigation context has often

~-:~;:~~~~~~~
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:tWtttiftrrN'. .•

35
turned out to be more burdensome for States and localities than full-blown litigation
would have been. Indeed, just the other day, I was speaking with one State official
who told me that, based on that State's experience v.ith a Justice Department consent decree, the State would have been better off if it had fought the lawsuit in
court to the end.
I. PROBLEMS WITH THE CSE OF COSSE!'., DECREES

l1s I see it, the problems that have arisen from the use of consent decrees in prison litigation lie in several different areas. These problems can, in my view, be cor-

rected 1,y a combination of responsible Executive Bra..'lch conduct and sensible legislation fo11t is respectful of the constitutional functions of the Federal courts.
(1) One problem with t.'ie \\idespread use of consent decrees in t.hi3 area is that,
in practice, they give the Government some incenth-e to pursue cases that it likely
c~·.1!d not (and should not) v.fo in a full-blo1>,n court proceeding under the governing constitutional standard.
As the conunittee is awe.re, over the last severnl years, the Supreme Court has
clarified that the eighth amendment is not violated unless prison officicls have
acted with "deliber11.te indifference" to "the minimal civilized measure of life's necessities." see Wilson v. Seiter, 501 U.S. 294 (1991}. Based on my experience, some
of the cases that the Government pursued and resolved by consent decree nay
well have been cases in which the Government could not have established this difficult standard in court.
The device of the consent decree, howe,-er, allows the Government to force the
States 11.nd locelities to agree to take action in marginal or weak cases. The threat
of expensive and time-conru.."'llng litiisation, the unequal resources of Justice Department versus the States and localities, and the possibility drawing an activist judge .ire too much for most States and cities to stand up to, so they end up
agreei~ to ::onsent decrees in some cases that most likely do not rise to the level
of gen111ne eighth amendment violations.
W!ille such overenforcement may be i;ood in some other areas, in the context of
P":S(!D li~11ation, it has costly implications for States' rights and the rights of !aw
abiding citizens.
(2) A seccnd problem with the use of consent decrees in prison litigation concerns
the sco_pe. of t..'ie relief that m';'-Y be included in a consent decree, Under Supreme
Court Junsprudence, the parties to a consent decree can agree to "broader relief
than the court cculd have awarded after a trim." L<x:al No. 93, lnt'l .4ss'n of Fire•
(il!hte_rs v. City of Cleveland., 478 U.S. 501, 525 (1986). In many consent decrees
m this area, the relief contained in the decree goes well beyond either the minimum requirements of the eighth amendment, or even whet a Federal court could
hsve ordered after a trial on the merits.
A n~ber of the ~ecrees that I reviewed while at !,he Justice Department specifi~, either by thelJ' terms or through mandatory unplelI!entation plans, the details of all manners of prisoners' diet!I, health care, exercise and recreation and
the like. In several instances, the particulars of what these decrees required
seemed ~te plainly to exceed what could reasonably be thought to be required
by t.'1e eighth _amendment; Perhaps ev!n more troublesome, however, severe.I or
these decrees imDOSed arbitrary numencal e&l>S on the number of prisoners that
the State or locality could incarcerate in it.a facilities that were well below the
level a; which ~e F'ederal bureau of prisons has been succell8fully operating.
Thll8, m many instances, the burden on a State or locality impOBed by a consent
decree has ~e:d out to be greater t.'1an what a court could have ordered after
fullth blown litigation because the tern:s of the decree go beyond strictly remedying
e constitutional ,iolation alleged.
\3) A _third,_ ~d !II my view more serious, problem with the use of consent decrees
10 pnson litigation concerns th~ dural;ion. In many instances, the Justice Department an~ the courts have, in my \'lew, not kno..,-n when to let go. Instead
;!1ey have. Z!l!llDtained intrusi\'e supervision and micromanagement of state correc~
uo~ fa?lities. ~ beyond the time when the Stata has cured the underlying
coll8titutional violation.
~': vast IDl!Jority of consent decrees in this area contain no explic!t durational
limit. Accordinr)y, ~natipn of the d~ee _i.'! governed by Federal rule of civil
procedure ~~Y. v.:hlch provides for tenrunation of a court decree v.·hen the pur~ses. of t!ie litigation have been fully achieved.
eJ:lO!,nal;ion ~der _rul~ 60(b) ~hould be su:rug_ht-fo~ard wh~n the underljing
consti!'lltional ~clatio1;1 1B _remedied by &.'l easily-identifiable, obJective event. How~ve~ ~ the pnson litigatian context, the determination of when conditions cease
cruel and unusual" is somewhat me.. , subjective, and this difficulty is

compounded by the fact that the Government often includes in ronsent decrees
sorne~hat ~ague and ~pen;ended_ !""luirements, su:h as the provision of "adequate medical care or safe conditions. As a result, m cost instances the Federal
courta have not usually terminated prison consent decrees when they sho-:tldwhen t;Jie specific and p~cular constitutional violation alleged in the original
complaint has been remedied.
As a consequence, it is entirely unsurprising to see States and localities bcu::id
up by consent decrees (and the intrusive court or government super\isbn they en•
tail) for longer than a decade, and well past the point that a ree.sc.n:tb!e person
would conclude that the!'!! was any_genuine ongoing eighth amendr.lent ,iotatio::i.
Thus, for example, Michigan has lived under a consent decree with the Justice
Department for over 11 years, and Texas has lived under some form of negotiated
decree even longer. And based on the review that I was involved in I do not beli2ve t!iat ei~er State was currently in violation of the eighth amendment on system-wide b&SlS, or even close to that line.
(4) A fourth, and perhaps the most serious, problem "ith the use cf consent de•
crees in this area relates to the inappropriate ceding of State and local governrn.ent power. Precisely because of the uncertain and nearly perpetual duration ~f
many of these consent decrees, the effect oi pressuring (or even allo\\ing) St.ate
or local officials to enter into a consent decree governing the management and oe•
eration of their correctional facilities is to cede for the indefinite future a signi::icant espect of local governmental power to the Federal Government the cour.~
and/or even to private plaintiffs.
'
-,
This strikes me as decidedly unhealthy in a couple different respects: First the
practical consequence of the u.oe of consent decrees in this area is that one a~n1stration of a St.ate of local government can bind successor administrations to remedies (and exp~~s) !,hat go beyond the minimum that the Constitution requires.
That necessarily infringes upon the essence of local democracy the right of the
voters to change their minds and elect officials who will do things differently. Second, consent decrees can encourage semi-collusive arrangements between the
plaintiffs and tho~ correctional offi<;iaJs . who (understa~dably) want a larger
share of the States budget. By agreemg, 1n near perpetuity, to spe::ific and detailed requirements in a consent decree, corrections officie.ls can er.sure thst the
State will fund their agency fully for the fo.~eeable future. Such arrange:::ents
evade the democratic budgetary process.
II. COMMO); SESSE REFOP~¼i

In c,y \icw, these prcblems v.ith co::,sent decrees arc se:-ious end mus~ be a::•
dressed. But to say that there are pro:ilems v.ith consent decrees in t.'81 area is not
to say that their use s.'1ould be (or e-.en c:ntld be) prohibited a!toget.'1er. Ratlier, in\
my view, there are some obvious an:! C<Jmmon sen..-.e reforms that can and shc:.tld
be implemented in this area that would allow all involved to enjoy the benefits of
consent decrees "ithout mueh of their current pitfalls.
(1) Mc.ny of the problems with consent decrees can be avoided by responsible Executive Branch conduct. Shortly after bc=min!!' Attorney General, General Barr
announced new guidelines to govern the Justice Department's participatio::i in
pr,son conditions litigation. Those five simple guidelines were:
(a) The Department should not initiate or intervene in prison litigationincludinf by entering into a consent decree-unless necessary to a specific
deprivation of a prisoner's basic human needs, i.e., unless necessary to remedy a _genuine eighth amendment violation.
(b) In resolving prison litigation-by consent decree or otherwise-the Department should seek to remedy the constitutional \iolation, but should not
seek to impose on the States or localities additional burdens not required
by the Constitution or other applicable Federal law.
.
(c) Vvbere an existing consent decree or other judicial order remains in
effect, t.'1e DeJ.!artment should consider 111pporting a State's or locality's request to modify the decree to the ext.ent necessary to remo\·e restraints on
the State or locality not required by the Constitution.
(d) The Department should not encourage continuing court supervision of
State prisons or local iaiis, either directly or by a special master, unless
such supervision is plainly required as a last resort to remedy a continuing
constit,.itional violation.
(e) And finally, as soon as a State or locality had remedied past constitutional violations (and there is no specific indication that the State or locality will revert to such unlawful practices) , the Department should support

~~~~~1'1.-...-'

-:;-

37
:en:-inction in a timeh· man:1er cf ell liti,;etic:o and consent decrees that
Emit the ability of the tit.ate er locality to run its own prisons and jails.
If Ll1ese 5 common sense, and I believe uncontroversial, guidelines were strictly
adhered to by the Deps.rtmcnt, many of the C\ils associated with prison litigation
and consent decrees in which the United States is a party would be substantially
clle,iated. Of course, such reforms would not necessarily cure the problems ,.,;th
consent decrees resohing prison litigation initiated and controlled by private
plaintiffs.
<2) Legislative reform is also called for in this area. indeed, in my view, three different types of let.slative reform ure worth considering in more depth:
(a) First, I see no reason "'hy the Congress should not impose some presumption of a durational limit on prison condition ronsent decrees that are
enforceable in the Federal courts. It seems to me entirely justified to put
a limit on the duration of relief (pro,ided, however, that tJ-1e consent decree
can be extended if the constitutional violation has not been substantially
remedied); or, at a minimum, to require the courts to consider periodically
over the life of a decree whether partial or full ter:nination is warranted
under rule 60(b).
(b) Second, I believe that it would be entirely appropriate for the Congress to specify that, in approving consent decrees, a Federal court must
determine that the relief contained in the decree is narrowly tailored to
remedy the constitutional (or other Federal) ,iolation alleged, and does not
contain broader requirements that unnecesse.rily intrude upon the legitimate l(Ovemmental functions of St.ates and localities. In my view, such a
provision would present no serious separation of powers concerns, provided
:t -..·as carefully crafted, because it would not in any w2.y prevent a Federcl
~urt from doing what was necessary t.o re:r.cdy a ge::wne constitutior:'.:.]
,~elation. Indeed, such a pro,ision would not be different in kind from the
requirement in the Tunney Act that requires a Federcl court to determine
th&t a consent decree is in L'1e public interest before approving it.
(c) Finally, the Congi-ess may want to consider reaffirming and making
rr:ore explicit what I believe the law already requires-that as soon a State
er locality can demonstrate to a Federal court that it has remedic-d the co::istitutional ,iolation alleged in the underlying complaint, and there is no
imminent risk of that ,iolation recurring, a conse,ot decree should be terll'i':ated. That is so even if the consent d_ccree cc?tains ndditional provisions
:c,c.t may go beyond whnt the C-0nst1tut10n req::.1res. A Federal court. unnot
enforce a decree when the underlying Federal ,iolntion hes been fully re:;,edied, and the parties have no right to attempt to confer upon the court the
jurisdiction to enforce their o"m agreement "iL'1 the contempt power of the
court.
A.'.l cf these reforms can be accomplished "ithout intruding on the responsibiUy
cf the federal co"1ts to remedy constitutional ,iolations. In tJ,is re,;ard, I note the.t
the draft bill that the committee staff sent to me addresses a n:.::::bor of these reforms. Although L'1e lang-Jage of tb bill mav neccl so:::oc :.:c,l:cri:::g bo::i (.o be effectve B.?d t~ ensure 8.!)- ~;;:;;~prfr:.~ respe:::t lar the cm:rt.s. it seems tJ me ths.t the
c,,::-.:::1ttee 1s headed in L'le nght direction.

Senatcr ABRA..'-IA!,L Thank you very much.
~fr. Dilulio?
STATEM::ENr OF JOIL'l' J. DiR'LIO, JR.
!\fr. DirGLIO. _Thank you, _Mr. Chairr.um. With your permission,
l_ ·,rnuld like to Just summ2.n2e portions of my 11-page written testimony.
Senator ABFJJfA!,l. Please, and we will submit your full testimony for the record.
Mr. D1J-c.;-:,10. Thank you.
Make no mistake, revolving-door justice is a reality. The facts
a~d the figures on the public record support the American public's
cnme fe!ll"s. The testimony you will hear today from Ms. Finnegan,
the testimo;;y you heard earlier from Senator Hutchison, and the

38
testimony that could be given by literally millions of crime victims
'.3-Ild thei; famili~s, including my own, is not merely anecdotal, as
is sometimes claimed. Nor are these tales of criminals who are released from cu:5tody and who maim and kill merely sensational.
Rather, as I ~11 at_t~mpt to show very briefly, they are reflective
of th~ systemic reahti6~ of revolving-door justice in America today.
~~ s take a look at Just some of the hard facts, just the tip of
this iceberg. In 1992, there were over 10 million violent crimes
CO?"J-mitted in America, but only about 641,000 of these violent
cnmes led to arrests, barely 165,000 to convictions and only about
100,0~0 _to prison sentences which, on average, .....:ould end before
the cnmmal served even half his sentence behind bars.
Indeed, fully 60 percent of convicted criminals with one ,io!ent
felony conviction, 45 percent with two, and 41 percent with three
are not even sentenced to prison. Even those convicted of homicide
and released from prison in 1992 had served, on average, only
about 6 years on sentences of about 12.5 years. Of the 4.9 million
persons under correctional supervision in America in 1993 about
72 percent were not incarcerated.
'
What I would like to stress here and beg for understanding is
that while some prisons may indeed be overcrowded, and while
overcrowding may create in some conditions a need for judicial action, the Nation's streets are now overloaded v..ith serious comicted
cri~i?als wh? are out on probation and parole. This is not a myth.
This 1s a reality.
In 1991, for example, recent research shows that of those persons
convicted of a violent crime and presently under correctional supervision, 372,000 were in prison while nearly 600,000 violent convicted criminals were out at that point on probation or parole.
What happens on probation or parole? We all know the statistics
about 33-percent recidivism rates, about only a fifth of probation
violators who are ever sentenced ro jail for their failure to comply.
We know about over 90 percent of all convicted criminals who do
go to prison get paroled after serving only 35 to 40 percent of their
sentenced time behind bars.
Nearly a third of parolees who are in prison for a violent crime
and nearly a fifth who are in prison for a property crime are
rearrested within 3 years for a violent crime. Too often, that ,iolent
crime is murder. Of death row prisoners in 1993, 68 percent had
a history of felony convictions, including 9 percent with at least one
previous homicide conviction. Moreover, 42 percent were in custody, mostly on parole, at the time they murdered.
Indeed, ongoing research reveals that up to a third of those convicted of murder over the last many years were in custody on probation, parole, pretrial release, at the very time they did the murder or murders for which they were convicted. For example, between 1990 and 1993, Virginia convicted some 1,411 persons of
murder, 33.5 percent of whom had an active legal status at the
time they did the crime. Likewise, between 1987 and 1991, prisoners released early from Florida's prisons committed well ov-er
15,000 crimes, including 346 murders. Indeed, about a third of all
violent crime is committed by persons who are technically in custody when they find their latest victims.

Once and for all, let us lay to rest the fatally false notion that
most prisoners are mere drug offenders or technical parole violators. Based on a scientific survey representing 711,000 State prisoners in 1991, the U.S. Bureau of Justice Statistics found that fully
94 percent of State prisoners were violent or repeat crh.ninals. This
same analysis, by the way, h~s been run with data representing
three previous data sets stretching back to the 1970's. In every
case, the figure was 90 percent or more.
Studies I have done with Harvard economist Ann Piehl likewise
document that in the year prior to their incarceration, State prisoners commit an average of a dozen serious crimes, excluding all
drug crimes. Likewise, a recent National Bureau of Economic Research study reported that incarcerating each State prisoner reduces the number of crimes by approximately 13 a year, and a recent analysis published in the Journal of Quantitative Criminology,
which is good for insomnia, I suppose, suggests that prisoners commit between 17 and 21 indexed crimes a year when they are on the
loose.
Parolees do not return to prison for nothing. This is a popular
myth. a m:;th that has been promulgated especially with regard to
the increase in the California prison population, the Nation's largest, over the last 5 or 6 years.
In three separate blue-ribbon commission reports in California, it
was asserted that the Eain factor fueling the grov-;th of that State's
prison population was the return to prison of mere technical parole
,-iolators. That, we now know from recent research, is totally and
demonstrably false.
In California, in 1991, some 84,194 persons were admitted to
prison, but only 3,116 of them, 3. 7 percent of total admissions,
were technical parole violators. The other 42,834 parole violators,
representing 51 percent of total admissions and 96 percent of all
parole violator admissions, had been convicted of thousands upon
thousands of new crimes, including 255 newly convicted of murder.
In sum, Mr. Chairman, it is absolutely and abundantly clear from
all the empirical data on this subject, from all the real studies and
research, that America does have a world-class problem of revolving-door justice.
I have no comparative advantage here in discussing the ccmstitutional or legal issues involved with the STOP provisions. I am not
a la"'-yer; I do not want to be, I do not pretend to be. But I would
urge this Congress to avoid getting lost in what most Americans,
~ think, would consider to be rather empty legalisms on this subJect, especially with regard to such issues as prison crowding.
As I s~mmarize on pages 9 and 10 and 11, I believe, of my written testimony, as all the best studies indicate, and I cite several
there, such inmate housing practices as double-celling and openbay dormitories are neither constitutionally impermissible nor
automatically dangerous to institutional order and well-being.
In conclusion, the rise of judicial intervention has had precisely
the _adverse_ pu~lic safety and othe_r ~nsequences detailed by the
Nation~ D1stnct Attorneys Association, lamented by legions of
local police, and testified to by countless crime victims.
The responsi_bility to act on this stretches, obviously, to.both ends
of Pennsylvania Avenue. At a recent White House dinner I at-

tended, President Clinton participated in a 3-hour discussion of
crime and violence in America. It is clear that both President Clinton and leaders in this Congress care deeply about America's crime
problem and are concerned about the demographic time bombs that
are waiting to go off in just a few years.
What remains unsettled, however, is whether our institutions
beginning with this Congress, can work to protect decent law-abid:
ing citizens from violent and repeat criminals released early because of prison caps. With these hearings, Mr. Chairman I am
heartened that that might happen, and I thank you for inviting me
to testify.
[The prepared statement of Mr. Diiulio follows:]
PREPARED STATEMENT OF JOHN J, DIIULIO, JR.

'?e

These Senate hearings on crime could proye to
among the most importar:t that
Congress has ever held. If Congress acts ..,,,sely, 1t can help to end the insanity of
revolving-door justice in America. Moreover, it can help to restore public trust and
confidence in the criminal-justice system, and, in turn, in the moral authority of
govei_nment itself.. At s~e. in your deliberations is n_ot only the fate of proposals
to reinforce or reVlSI! prov1S1ons of the 1994 federal cnme bill. At stake is the very
cap_acity of our repre~ntative instituti~ns. to honor the will of a persistent p3pular
maJonty of the Amencan people, a ma,Jonty that encompasses Americans of eve!":
race and region, and of every demographic description and socio-economic status. •
I believe that your deliberations should be guided by three sets of principles.
First, America does have a deep, documentable, and morally disastrous prob!em
of crime without punishment.
Second, the problem of revolving-door j11Stice is due largely to the influence over
the criminal-justice system ezen:ised by activist judges, as ,,,ell as by the disproportionate influence o_ve,: criminal-justice policy eurted by those who insist (and, in
some cases, have mststed for decades) that many or most incarcerated criminals
should be released from custody or placed on probation or parole.
Third, this Congress does have the constitutional writ, the moral responsibility,
and the policymaking capacity with which to bei?in to set America's crimmal-justice
system straight, enhancing public safety while bolstering public confidence in our
political process.
THE REALITY OF REVOLVING-DOOR JUSTICE

Revolving-door justice is a reality. The facts and figures support the American
public's crime fears. Ms. Finnegan's testimony here today, the testimony offered in
the House last February by the father of slain Philadelphia police officer Daniel
Boyle, indeed, the testimony that could be given by literally millions of crime victims and their families, including m'l own, is not merelr anecdotal. Nor are the tales
of released criminals who maim an kill merely sensational. Rather, they are reflective of the systemic realities of revolving-door justice in America today.
Earlier this year, the U.S. Bureau of JuStice Statistics CB.JS) released what is the
first fully reliable data set on criminal victimization in America in a gi~-en calendar
year. The product of BJS's outatanding 10-year eft'ort to perfect ita National Crime
Victimization Survey (NCVS), the data revealed that in 1993 Americana suffered
some 43.6 million criminal victimizations, 11 million of them violent crimes. Thus,
fully a quarter of all crimes committed in America in 1993 were violent crimes.
Given that American citizens are now suffering well over 10 million violent crimes
each year, how many predators really do go to prison for violent crimes, how lolll?
do they actually remam behind bars, and what is their complete criminal profile"?
In 1992 about 3.3 million violent crimes were reported to the police. About
641,000 led to arresta, barely 165,000 to mnvictiona (over 90 percent of them the
result of plea baniains), and only 100,000 or so to prison sentences, which on average ended before the convict had served e,,-en half liis time behind bars. Indeed BJS
data show that fully 60 percent of convicted criminals with one violent felony com-iction offense, 45 percent with two felony conviction offenses, and 41 percent with
three felony conviction offenses are not sentenced to prison. Even those convicted
of homicide and released from prison in 1992 had served, on average, only 5.9 years
on sentences of 12.4 years.

41
And of the 4.9 million persons under correctional supervision in America in 1993,
about 72 percent were not incarcerated. Between 19S0 and 1992 the nation's incarceration rate per 100 000 residents increased fro:n 139 to 344. But over the same
period the number of penons sent to prison per 1,000 crimes increased from 128
to only 148.
Llkev.-i.se, from 1980 to 1993 the nation's _prison population increased by 184 percent but its parole po_pulation increased by 205 percent. A recent study by Professor
Joan Petersilia of U.C. at Irvine, formerly research director of R.Al-<"D's criminal justice program, found that in 1991 of those persons convicted of a violent crime and
presently under correctional supervision, 372,000 were in prison while nearly
600,000 were on probation or parole.
Re,.-ol\ing-door justice in corrections begins with revolving-door justice at the time
of arrest. In 1992, 63 percent of the 51,000 felony defendants in the nation's 75 largest counties were released before trial. Among the released defendant!!, 27 percent
had one or more prior felony comictions. About a third of those released were
rearrested on a new charge, failed to appear in court as scheduled, or committed
some other violation that resulted in the revocation of their pretrial release.
Within three years of sentencing, nearly half of ail probationers are convicted of
a new crime or abscond. Among probationers v.ith new felony arrests, 54 percent
are arrested unce, 24 percent are arrested twice, and 22 percent are arrested three
times 01 mo~.
The popil.lar helicf that the nation's 4 million community-based convicted criminals can get a<-·s.y v.-ith murder is true both figuratively and literally.
As a recent article in Scumce by Dr. Patrick Langan revealed, about 90 percent
of probationers are required to do one or more things es a condition of their commun:ty-basd st.atus-pa:y restitution to victims, stay under house arrest, perform commuI'.ity se,..,,ice, participate in substance abuse counseling, end so on. But about he.If
of them never comply v.ith the terms of their sentences, and only a fifth of the violators ever i::o to jail for failure to ccmply.
Similar,y, over 90 percent of all convicted criminals who do go to prison are paroled after serving only 35 to 40 percent of their sentenced time behind bars. Nearly
a third of parolees wlio were in prison for a violent crime, and r:early a fifth who
w~re in pnson for a property er.me, are rearrested within t.'u-ec yecrs for a violent
cnme.
Between 1977 and 1993 about a third of a m:lli0e1 A.-'ncrice.ns were murdered.
Over the same period, however, 225 persons were e,:ccuted for murder while 1,789
persons convicted of murder had their death sentence lifted ts a result cf
ccm~ut&t.io~s. higher court decision~, or other reasons.
At the end of 1993, some 2,716 persons were on death row. Available criminal history records reveal that 68 percent had a history cf felony comictio!l!!, including O
percent -..it.l-i at lee.st one previous homicide conviction. ~foreover, nmon" c:rath row
mmates w~_ose legal status at 0e time of the cap:tel offense was reported, 42 percent we:-e m custody" at the tune t.l-iey murdered. About half of them were on parole. The other. half _were on pretrial _release, probation, or had escaped from prison.
In many Junsdictions, about a third of those cor:,-icted of murccr over the lart
many years were ""in custody" at the time they did the murder er r:1::rders for which
they were co:,victed. For example, between 1990 aEd 1933, Virginia convicted 1,411
persons of murder, 33.5 percent of whom had an active legal status r..t the time they
did tr.~ c;"ime. More broadly, since 1986 in Virginia, over half of all mur.:!ers, 76 perc;::,t of eil aggrav.:ted assault!!, and 81 percent of all robberies have been the work
of repe:at offenders. The data on other states are much the same. For f!Y.smple betw~n 19~? a,1d 1991 so:ne 127,000 prison~rs we,ce released early from Florida's
pnsons. W1fr..i~ a few vears cf t.1:eir p1role, t..liev c::i~z1r:--.itted over 15 OJO Yio!cnt c.nd
property crimes, inc!uaing 3~6 n,c:,dcrs.
•
'
In~eed, ~bout 12 percent of e.U ;x:-sons arrested for all ,iolcnt crimes are out on
pretnal re.ee.se for a previous charge, 7 percent are c,i parole and 16 percent arc
on pro?s.~o:.. T~us, about a third of all violent crime is committed by i:ersons who
are tecnr'1cal.ly 'in c-.1Stody" when they rmd their latest ,ictims.
In f.lID,. we have reached th~ point i_n th!s cou":t.'Y where the cr'.minal penalties
fo~ cnme m general, e.nd for \"lolent cru:,e m pertic-.ilar, are neither S\\ift, nor certain, nor seve'"«:, and where m:>re is invested in fin:iir~ out how many convicted sex
o!fe!lders g~t w.1at t~-pe of inf::e-:tive treatment behlna be.rs than in how many rape
,~c~s, ass.:.·Jt nctims, and murder \ictims could be spared by ending or at least
pumping the brB;kes on revolving-door policies and pr&ctices.
And yet, despite all the data. I've just summarized, despite the mountains more
that document th_e same revolvmg-door reality, e:.d despite the pub!ic's justifiable
outrage,_ one cm:tinues to hear e.nd see reported as fact t.l-ie fatally false notion thnt
most pr.s:>:::e:--s ,:..., "mere" d."Ug offenden, "te::hnicnl" pa.""Ole violators, ,md other un-

fortunate souls who did µtt1e_ criminal harm to society when they were free, and
would do n_o_ harm to !)OC!ety _if they were released from prison tomorrow morning.
Such _anti-m<:9-1'1:!!ra?~n notions ~ ~ t no~nae at best, nnd do not merit the
academ1c, media,_1udiaal, !l'ld legislative attention that they continue against all
reason and morality to rec:e,.ve,
Based on a scientific survey representing 711,000 state prisoners in 1991 BJS
found that full:y 94 percent of•~ pri-B?ners were viou?nl or repeat criminals.:- 49 percent w~re servi!'i time for a violent cnme, 62 percent had been convicted of one or
more 1:1olent ~runes m !,he past, and all but 6 ~ n t had a previoua sentence to
probation or incarceration. Nearly a quarter of vtolent prisoners had victimized
more than one person, and 20_percent had victinuzed a minor.
Studies I have done with Harvard economist Anne Piehl and published in The
Brookings Re11iew document that, in the year prior to their incarceration state prisoners commit an average of a dozen serious crimes, acluding all drug crim,,s. Likewise, a recent study by Dr. Steven Levitt of the National Bureau of Economic Research reported that incarcerating each prisoner reduces the number of crimes by
a_pproxima!,el:y 13 a year. And a recent nnal)'."is published in the Journal of Qu,mlltatwe Cnm1Mwgy-not exactly beach reading, but quite relevant here--suggests
that prisoners commit between 17 and 21 indez crimes a year when on the loose.
By the same token, a recent study of "mere" federal drug-law violators revealed
that the average quantity of chugs mvolved in their cases was 183 pounds for cocaine traffickers and 3.5 tons for marijuana. In 1991, only 2 percent of those admitted to federal prisons were convicted of simple drug possession. In the states most
drng-Jaw violators, like most prisoners generally, are recidivists who have dc'1e a
mix of property and other crimes.
•
Likewise, a recent study by Professor Petersilia examined the oft-repeated claim
that the growth in California's prison population has been driven bji tbe return to
prison of "technical" parole \iolators who had done no more thnn failed to phone
their pe.role officer or failed a urine test. She found that i!l 1991 55 percent cf the
84,194 persons admitted to California prisons w!'": indeed parole ',i?lators. But only
3,116 of them-3.7 percent of total pnson admissions-were technical parole violators. The other 42,834 of them-61 pen:ent of total admissions, 96 percent of all parole violator admissions-were returned to prison because they had committed and
bee!l con\icted of thousands upon thousands of new crimes, including 255 newlyconvicted of murder.
In sum, the Pope is. Catholic, Crop do not have wings, and America has a worldclass problem of revolving-door justice.
COURTS A.'-"'D CRIMINALS

But why? ~y does this _pro~lem persist against all public concern, lill evidence,
and all laws mtended to bnng 1t undr,r control? For example, in the 1970's and SO's
many states passed wave upon wave of mandatory sentencing e.nd truth-in-sentencing-st;,le reforms. Yet by 1988, most prisoners still served a third or less of their
time m confinement, and violent offenders were released aft.er se?\-ing 43 percent
of their time behind bars. By 1992, that number had moved in the right directionup!-but only to 48 percent of time sentenced, time served. Why?
A huge part of the ansv.-e~ concerns the role that activist judges, mainly but not
exdusivel;v at the federal level, have co:ne to play in America's criminal-justice system. Earlier this year, a Florida felon who had 13 previous comictions for robberies,
burglaries, theft and drug crimes waa indicted for killing s.n aspiring major-league
pitcher and father on a West Palm beach street. Because of a judicial order to relieve "overcrowding" in Florida's prisons, the felon was on his fourth so-called conditional release when he was booked for the cold-blooded murder.
Since the first filing of prison overcrowding litigation on the grounds of cruel and
unusual punishment in 1965, similar lawsuits nave been brought in at least 47
states. Twenty-five years later, 1,207 state correctional facilities were under court
order or consent decree, 264 of them ordered to limit their populations, and hundreds of others under specific ordera governing staffing, food services, recreation,
counseling p ~ , and other matters. In its own January 1993 prison proje~t
"status report,' the ACLU trumpeted the overwhelming auccess of prisoner-plantiffs
in 64 out of 70 l!lajor overcrowding cases. By late 1994 some 39 states and 300 of
the nation's large~t jails operated under some form of federal court direction. Indeed, the entire prison system was under court ordera in nine states, and overcrowding litigation was pend.i.nir in many more.
In 1990 I edited a book entitled Courts, Corrections, and the Constitutwn (Oxford
University Press), which examined the impact of court intervention on _Prisons and
jails. I believed then, and I believe now, that some instances of court intervention

43
are both constitutionally required and '!'orally, ill_lperative. Most federal judges e~t
responsibly to balance public safety, pnsoners nghts, and other important public
values.
.
But in far, far too many cases over the last th:-ee _decades, federal Judges have
issued reckless orders that unduly jeopardized public safety and imposed great
human and financial costs on citizens.
In December of 1994 the National Dis!.rict Attorneys Association <NDAA) passed
a resolution that took 4ea~ aim at the u:1due influence exercis:'d by judl'es who impose prison ca_ps that mVJte released cnminals to do murder and maynem on the
streets. The NDAA resolved that "federal court orders in prison litigation often have
severe adverse effects on public safety, law enforcement and local criminal justice
systems." Last February, the House strengthened relevant provisions of the 1994
federal crime bill by adopting Title III of the Violent Criminal Incarceration Act.
The Stop Tomin~ Out Prisoners or STOP provision cuts to the heart of what's
v.Tong here by making prison caps a remedy of last resort. In essence, STOP would
sto;, federal judges from issuing sweeping orders, as they do now, and releasing dangerous criminals "ithout ruling on constitutional claims or holding a tnal on the
allei;ations.
Those who opposed th,, kindred pro,ision of the 1994 crime bill, and who are rall;ing now to step RTOr', would like us to accept the entirely disingenuous argument
that the judges in question aren't imposin~ anything en anyone. They attempt to
hide behind the fact that many such court mterventicns occur via so-called consent
decrees, which are signed by mayors or other du!y-,,lected 11ublic officials.
But the process by which acti--;st federal judges have gamed control of substantial
portions of the nation's justice systeCT is hardly the disinterested, thoroughly opo!itical, arms•1e:1g"1...~, iudiciaily-tc□ pcred process conjured up by the o.nti-STOP coalition. Got.·err.mcr.t /.y federal co.-,scr;t clecrce is not government u·ith the consent of the
goccrr.cd. ..\n;cne who doubts this should take a look r.t rc>Cc:it bocks end articles
on the subject, most pointedly the essay in the Summer 1995 issue cf Policy Raicw
by PhiladelP.hia Assistant District Attorney Sarah Vandenbraak.
Better still, Ll-iey should read Federalist Paper No. 78, wherein Alexander Hamilton tried to assuage the fears of those earl,Y Americans who wo:Tied about an imperial federal judiciary. The judiciary, prorrused Hamilton, would have "no influence
O\'er either the sword or the purse," and could "take no active resolution whatsoever." If Hamilton could return to Philadelphia today nnd talk to Mayor Rendell,
District Attorney Abra.ham, or other city officials who for years have been battling
the jail cap imposed by Federal District Court Judge Nonna Shapiro, he would have
to concede that the Anti-Federalists were on!v too right to worry. Likev.ise, Senator
Hutchison and o:.hers who have witnessed Fedcrs.l District Court Judge Willi!lm
Justice·s control of the Texas prison syst.em know thr.t judges in these cases ha,·e
GJr.e way beyor.:l rcmed:,ing specific, documentable ,iolations and exercised enorrc.ous b.fbe:.ce ever both prison populations and public expenditures. In Texas,
smce 1950 the prison population has about doubled, but inflation-adjusted per prisoner spending has increased ten-fold. As a result of court orders and consent decrees," in many state9 today half or more of every .=:r-;~.;::i. dcEr..r r,0cs to prisoner
ser.--ices, amenities, and things ot...11.er tha!1 s~urity br..si::J.
Tl:e ar.'.i-STO? coalition would like nothing better Lliun to have tbs Congress
fo:;_,, en side issues and get lost in emP.tY le1:alisms. And from prison crowding t;,
p~ru!e, the anti-STOP coalition would hke this Congress to believe that the plural
of anecdote is data. But it is not. The empirical evidence on the relationship be~ween prison population densities and levels of ,iclence end otter pro!ole:ns behind
D£;.rs 1s 2.~bigi..1o'J3 or non--existe~t. To c:te just four exer:iples:
l. A 1955 BJS study of over 180,000 housing units at 694 state prisons found that
the most crowded prisons had a rate of horrJcidc lower than that of less crowded
prisons, and concluded that there was no clear evidence that crowding levels were
directly related to the incidence of homicide, assault, or mojcr disorders. (C. Innes,
Population Density in State Prisons (BJS, December 1986)
2. A 1939 survey of the empirical literature on prison crowding concluded that,
:·dup,te familiar claims that crowded prisons have produced dramatic increases
m Prise:, ,iolence, illness, and hostility, "1odern resei:::rch has failed to establish
an_v conclusive link between current prison spatial and social densities and these
problems." (J. Bleich, The Politics of Prison Crowding, CA Law Review, 79, 19S91
3. _A 1990 re,iew of the empirical literature on crowding and other "pains of impnsonment"-produced, incidentally, by scholars whose other work some STOP
oppcner:.~ hav~. ~ited in sup~rt of prisone~ rehabilitati:m _programs-flatly challenged L'1e vau'1!ty of the View that unpnaonment is uruvcrsclly painful," end
added that fro::::. "a physical health standpoint, inmates appear more healthy than

· counte arts" (J Bonta and P. Genreau, Reexamining the Cruel
th ·
';i""ucomm~~shme~ of Prisa;, Life, Law and Human Beha,io_r, 14, 1990)
:nAn ~ u tive 1994 review of the empirical literature on ~wrung, one ti-"i'~ revised
.
th austhor's
own much-cited 1985 research on the subJect, concluded p,ainly
8
e °!!
• th
aili
sentiments about the harmful effects of crowd!'-8 follows: . ~pite e _prev nl'd nre supporting the contention that short- or
g, :ere . 18~=e~n:r'i~~t!:ise attributable to prison density.• (G. Gees, Prisongrmdiun
·ned , The Prison Journal, 74, September 1994).. .
on
Crow
ng
.

Oltl!Sl~=~

h
·
ti
as double-celling and open-bay donrutones are ne1Such inn_iate_
pra~~ble nor automatically dangerous to institutio""1
ther constitution. Y
den;hi and management are among the cruo~e~ and w~ll-bem~. ~jtiJ:~0 dalte,ea_ne ho~. if at all, crowding affects condition,e.
cial mterverung_ vane es a
e i:m' ored the empirical e~idence and used false,
But
too many
totally ~about crowding to justify sweeping intervenunproven,
and Judges.
unpro,ahba1ve
e argumen
tions.

. ,

CONGRESS IS CONSTIT{;TIONALLY RESPONSIBLE

·
·
f · di · a] 1· tervention has had precisely the adverse public
In conclusion,
nse O JU Cld e tail
?~d by. ctim
the NOAA• lamented by legions of local
safety
and otherthe
consequences
police, and testified to by jdntl~s =nro;ipret..:'~d to be Nor do I specialize in conO n_o wan consent decree <h-aft.smanship er prisoners'
I am not a lawyer, and
stitutional theo_ry or suhch 7ToP as ould prevent any real ~iolation of federal law
rights. But I fail to see ow_ . .
w fli red b 8 articular prisoner in e particular
or any unconst;itution~ der,nva~~n 8 ~ddres.J a/necessary by federal judgef..
place at a particular time rom
m& t like most Americans I place ,ictirns nghts
J will rea<!Jly co~ce_de, however, _a eafet . conce~s ahead c,f legel abstract!oru.
ahead of pnsoners nght.sed a ndd pub~ed at\ow so seemingly simple and straightI remain, by run:s, amaz
an . app_ -anti-crime laws passed by duly-<>lected offiforward an exercise
democ[~~c
and again by irresponsible judges and a wellcialir-<:an and
be v.:eaken
. orbgud
organized
influential
~n of polic;y elites who dismiss pub!ic concerns about re-

°!i

valving-door justice as reactionary. th
ublic's concerns are rational, not reactionBut ~s I have ~ttempted to "sho~u h"ppolitics. It's not about "judge-bas1'Jng." It'.s
~ onsibility of Congress to respond to the -;.ill
about
the moralpopular
and consti_tu!-ion
check
and balance federal courts that L'"1.fle
of a persistent
maJonty, an .
.
with public safety and_drain the pu~~~t;Ji"aw scholar Edward Corv.in argued, the
O • dicial
As the late great Princeton con 5 1i
wer ;n "such inferior Courts" as
Congress and _the Co".gress al<:>ne vd,;:J,blish." the explicit lar,,page of Article
it "may from time to time !)rda~!;"hes Congress "'ith more than enough authonty
Section 2 of the ConS\ituti_on
.:, . ns into federal law.
to But
enact
STOP
and STOP-liulkde
protvld-i·~k
its responsibility to act, neither ce.n it act
while
Congress
sho
no
'-'

ary. This debate 1s not abo_ut _ge~

alone.
.
tte ded President Clinton participated i?
At a \\'ltite House dinner I recendtl)'. j ~ in America It'a clear that both PreSIa three-hour discussion of crime an ,w~ces in C~ngres's care ·deeply about Amerident Clinton and many leaders of
Pbout the demographic crime bombs that are
ca's crime problem, and are concern
a
.

bo.;;i'

set to explode in only a few years.
. whether our representative political instituWhat
~~ Wlth
l!11cle9.!,
however, IS
tions,
begmmng
this Congress,
can work to protect decent, law-abiding citizens
from violent and repeat felons. bli . titution received lower ratings from the P?b·
In 1993 and 1994, only on_e pu c ms 1 the criminal-justice system. By passing
lie than did the Conll:Css itself, name Y, assi
other measures that help t? _lock
STOP without any m~Jor changes, andt!~~ to :ve innocent lives and rehabilitate
tl1e revohi~-door, this Congress can
public trust m government.
.
I thank you for inviting me to testify·

ABRAHAM Thank you very much.
Senator
·
1 have just been informed that anDistrict Attorney Abraham\ that there are no other members
other vote has start1;d, and 1 somebody with the same name as
here, what I would ~ke to. astes to run o..-er cast what will be 2
me
is and
to give
votes,
thenmewea WI~lwl smtartmuagain ' because i think every panelist

The member, of the National District Attorneys Association and .I look fo,-,.·ard
to continuing to work with you in our mutual efforts to make this country a safe
and decent place to live and raise our families.
Sincerely,

deserves the opportunity t-0 address at least one member of this
committee and convey their testimony.
Ms. ABRAHA.>J . .My pleasure.
Senator ABRAHAM. So I will be back soon and the hearing will
stand in recess for a few minutes. Thank you.
[Recess.]
Senator ABRAHAM. The committee will come to order, please. For
the benefit of the panelists and the audience, we have 2 votes left
and we will continue now with District Attorney Abraham's testimony. I will probably have to leaYe at the end of it and cast those
final 2 votes, but I think we will be able to get those 2 done a little
quicker.
So at this point, if you would continue.

MICHAEL P. BAM"ES,
PRESIDENT, NATIOSAL DISTRICT A'!TOR.>;EYS ...SSOCIATIOS,

Prosecuting Attorney, South Ber.a, IN.

Ms. ABRAHAM. Since I am going to digress from the previous
notes that I submitted on behalf of my testimony, I would ask that
the Chair also admit my testimony in_ whole so that I may speak
to some of the issues that perhaps some of the other speakers have
not touched.
I also wanted to thank publicly former Attorney G<:!neral Bill
Barr who, during his tenure, Yery graciously and wholeheartedly
entered into Philadelphia's problems with the prison cap and was
of significant assistance to us.
I think that all of the peo{>le who have appeared before me have
talked about several of the things that are of interest to them, and
I thought I would put a little more human face on it. This past Saturday, I took 25 of my 1st-year assistant district attorneys across
the city to see how what they are doing impacts upon Philadelphia,
and also to get them familiar with what they are going to deal with
as assistant district attorneys.
One of the places that we visited was a shooting gallery and
crack house in a drug-infested, crime-ridden neighborhood whera
the house that we entered was without any kind of heat, light, or
electricity. It was the flop house fer 30 or 40 drug addicts. It is
filled with bugs and garbage and lice, some of which wc.e carried
off on my assistants. We met 4 drug addicts there, one of whom
was very close to needing to be carried to the hospital because he
was losing his leg because of sepsis caused by drug injections.
I couldn't help but think that if any o::: all of the people that we
saw in that house were arrested, two things would happen. Number one, they would join the prison suit complaining about the inhumane conditions of the prison, even though they lived in such
conditions. The second thing is that they would be released right
back to that house to live that night because they would be part
of the prison cap problem.
Since I have become district attorney in Philadelphia, I have
been waging a very hard campai!Pl to rid Philadelphia, and indeed
with the STOP Act I hope every Jurisdiction, of the kinds or prison
caps that we have been suffering. In 1970 in this country, there
were no prisons or jails under sweeping court orders, but bJ: 1990,
508 municipalities and over 1,200 State P:isons w~re s~bJect to
court orders or consent decrees, many of which contain pnson population caps.
·
.
In our case, in particular, the Federal judge sitting on ou! pnson
cap issue and our consent decrees has never mad~ a findm& of a
constitutional violation. There has never been a tnal on the issue.
There has been nothing determined that would violate any constitutional right, but what has happe!led is that at l,east 600 prisoners a week are released from our pnsons. They don t have to post
bail. They frequently don't appear.
.
As a matter of fact, as a running feature in the Philadelphia
Daily News there is a series called "Back on the Street," and what

STATEME!'lt'T OF LYNJ,,'E ABRAHAM

Ms. ~RAHA.\L Thank you, Mr. Chairman and Senator Biden. My
r.arn~ 1s L~~ne Abraham: I ':-m District Attorney of Philadelphia,
and m add1t10n to appeanng m my own right, I am appearing also
on behalf of the National District Attorneys Association.
I would appreciate it if the Chair would move into the record a
letter sent to the Honorable Orrin Hatch from Michael Barnes now
the new President of the NDAA, and make that a part of the
record.
[The letter referred to follows:)
!,/ATIO:S:AL D!STil.lCT ATI'OR.'-EYS ASSOCL~T,0:-(,
OF!'!CE OF THE PF.ES.DEST,

Ale,::ir.dn-a, VA, Jr.;ly 25, 1995.
The He:,. ORR!.'. G. HATCH
Chairman, Ser..a.!e C,mrnittee or. the J~dicic.ry
Dirksen Senate Offic.: Buildir.g
'
\\'asi:ir.gton, DC.
'
DE.~.R.CHA.."m!A.', HATCH: As the new President of the Natiorutl District At:o~nevs
Assocm..:on I want to express our 1!-Pl'reciation for your continual e!Tnrts in explorir:g
ne9: an,d enJ1anc~ methods of assisti~ !ocal law enforeement in fij:hting crime and
pro~ng the c1_tuens of_ our communities. The work you Pre embarking upon, in
ai~r,::ding_ ~e :Violent 9nme Co?,?"?l and Law Enforeement Act of 1994, can ody
re_ ocus /"bu<: in~t m the abi!ities, and needs, of local cc=unities i::, fighting
cnme. n rev:ewmg what we believe needs to be done to remove obstacles to our
efforts, one area f~r Co~onal effort ie readily apJ>arent.
'J'.he almo~t contmual intervention and interference by federal courts in prison litig&tion ":as h9:d 81: adverse effect on our. abilit;Y to protect. our communities. Court
o~er, s:emnun~ !J'Om the U?,w~ted 1nL-us1on by federal judges has resulted in
t e relea_se of Clru:lgerous cr.nur.cls be.ck to our city streets; has resulted in t!lc
squandenng of scarce resource, to meet the whims of self-designated monitors· a,·d
has usurped _th~ authority and responsibilities of locally elected officials.
-, ·•
~~SOCl,!'-tion stre,n~ousl,- ~ the Congress to adopt legislaticn that would
es
\lnll?rm pro,-,l!lo.ns ~t;ing federal court order, and consent decrees that
Pli!'180 ns and Jail fe.dlities; that would limit any permissible iajunctive or
eqw
e re. ef to th~ that are least intrusive and burdensome to local govern~e::i~ a~~ v.-,th the weight to doubt being given to the needs of public safetv; that
local prosecutor, and other law cnforeement officials standing to c"alen~ e ,fntervention of federal cour.s; that would pro,ide for the modific tic~· c•
v~ca on _o coury orders where unconstitutione..1 conditions ha,·e been co~ted 0 ;
"'. hft: ~orb~dings are no lon.,,""':r v>:lld; and pi::o~ide measures to protect prisoners
::'-gnality fo ~n promp~ determinations of legitimate challenges to the constitucio
o pnson conditions.
t? As a ~ r p~secutor, and spe~g on behalf of my peers from across the counth ere 19 ,no~ mol'I! frll;9trating le? a_ local l&w enfcrcement official then to end
~Y ~.mal mvestigatio:' ~? cnr::tinal. trial only to see a ccnvic'.ed felon essen~ Y walk free. ~use of JUdicial o,-erreaching. Our criminal. justice system is
8 m
ery when pnsonere rights and comforts imperil the lsw-r.t>iding citizen

an:~~t'F

1° J:~~

a1.c

47
it does every week is it features a person, and sometimes more
than one person, who has been released under the cap. It lists the
500 or 600 people who. have been released, and it gives you the
n~e of the person and 1t tells you how many cases this person has
failed to appear from before.
We have people with 6, 7, and 8 cases open· 11 12 15 and
sometime~ 20 people who fit inl? this category 'or havin'g 10, 11,
and 12 failures to appear. One, m particular-a defendant has 8
open felony cases,. inc!u_ding robbery, burglary, and criminal trespass. He had 7 pnor failures to af pear last year. He is a fagitive
from ot~er States. He has _5 Socia ~ecurity numbers, 5 addresses,
and 6 different na1;1es. This m_an_ will _never show up in our court.
Th~ only way he will show up 1s 1f he 1s arrested and incarcerated
This group of people is similar to the many many hundreds wh~
have gon_e _through our prison system and bee'n released.
In add1t1on to the wholesale release of prisoners the issue of how
you can be r~leas~ is really quite simple. Inste;d of considering
th~ ~efendant s failure to app~ar, what his charge is, his history of
cnmmal conduct, the only thing that we worry about is a chargeb3:se~ system. I1; other ~ords! the only qt!estion th:,.t the bail comm1ss10ner asks 1s what 1s this defendant charged with today, not
'.1!1Y of those other factors that are traditionally considered by
Judges.
If the defendant is charged with what the Federal iudge has
de~med to be_ 3: nonviolent crime, that person cannot
held for
bail or go to Jail, no matter how many times he has failed to appea_r. ~ome of these so-called nonviolent offenses are stalking
CaJJacking, robbery, . burglary, drug-dealing, vehicular homicide'.
mansla1;1ghter, te1;0nsm threats, and gun-dealing. A person cannot
be_ detamed pretnal, n? ma~ter how many time he has previoudv
f:1led to appe~r! and m this absurd situation drug dealers who
carry_ loaded Uz1s on a street corner cannot and will not be sent
~/nson under our ~resent pri~on cap because carrying a loaded
Jhby 'l. druii: dealer 1s not considered a violent offense. Therefore
we ave that issue.
'
d ¼n ~he 18-month period that we tracked, and of the thousands of
e.en ants who were released onto the street because of the prison
ca_p, so1;1e of. these people have been arrested for a variety of
~n~esl 1?cludmg 79 murders. 9n~ of the people who has been wi~h
s \n ,his ~ght throughout this issue on the STOP bill is Pa•rick
oy e, _who 1s here today right in the front row in the tan suit· Mr
Boyl\1s the father of young Danny Boyle, a 2i-year-old police· ~ffi~
cef w ~ stopped a defe~dant who had been in a stolen car who was
hlite~hi un~er th e pnson cap. ~e defendant shot his son and
d
b m nght 0 ~ the street and nght through the stolen car winow
hi: did nat want to be arrested and he did not want
to go becakuse
ac to pnson.
mJ:1hs i! not the only case of that kind. In Atlanta just a few
d killelo, a peroon released under a prison cap in Atlanta shot
b an Atlanta Braves replacement ball player during spring
of~hmg . ecause he was released from ~he Atlanta prison because
addit!o~nt'.'oon cap even though he was himself a career criminal. In
ca
h th e 79 murders of people who are released under the
P, we ad o.11other almost 1,000 robbers, almost 2,500 new drug-

f1 . .

dealing charges, almost 750 burglaries, 3,000 thefts, 90 rapes, and
several thousand assaults.
.
The STOP Act, it seems to me, Mr. Chairman and members of
the committee, is an important Act for our citizenry. The STOP Act
does several things. It properly prevents consent decrees, which are
nothing more than hammers imposed upon us by unfortunately too
frequently activist Federal judges who intrude themselves unnecessarily, and sometimes, unfortunately, in perpetuity, into State matters.
Full compliance with these mandates is impossible. The decrees
underestimate the sheer magnitude of, the problem. They don't anticipate changing conditions. Political support is certainly lacking
and, of course, it binds one administration aft.er another, each one
pointing the finger at the previous administration that it wasn't his
or her fault, that the cap or consent decree was there before. Of
course, the cost not only in monetary terms, bl.!t in human terms
is absolutely astronomical.
It seems to me that STOP is an appropriate way to address the
issues. There may be some tinkering with some of the language, as
suggested by Attorney General Barr, that we :night wish to look at,
but STOP is not a violation of the separation of powers since we
can change in Congress the substanti.ve underpinnings of how the
courts will adjudicate matters because the laws will change. It certainly won't deny access to the courts, but it certainly does limit
remedies and the length of time for those remedies.
Since my light is red, I would be happy to answer any additional
questions at such time as the C!-iair wishes to ask me, and I appreciate the opportunity to be here.
[The prepared statement of Ms. Abraham follows:]
PREPARED STATEMENT OF LYNJ,"'E ABRAHAM

Good Day, I am Lynne Abraham, the District Attorney of Philadelphia. I am also
a member of the Board of Direct-Ors of the National District Attorneys Association.
I am delighted that the Senate Judicfo.ry Committee has invited me to speak today
about prosecutors' concerns.
While Congress has before it a number of federal issues that are critically impor•
tant to prosecutors, I would like to focus on the question of what the federal government can do to help states run their own criminal justice systems in order to ensure
justice for be.th, for the victims of crime and those who commit crimes.
Over the last 25 years, we in law enforcement have seen a dramatic change in
prisoner release practices. In 1970, there were no prisons or jails under sweeping
court orders. By 1990, 508 municipalities and over 1,200 state prison were subject
to court orders or consent decrees, many of which contained frison population caps.
Unfortunately, the federal courts, often with the intention o improving prison conditions, have intruded unnecessarily into the state criminal justice systems and
completely undercut their ability to dispense justice and protect the public.
A Justice Department study of 79,000 felony probationers found that 49 percent
of them were rearrested for another felony within their state while on probation.
Half of these arrests were for a violent crime or a drug crime. Another study shows
that 35 pen,ent of all persons arreste_d for violent crimes were, at the tim!' of_ the~
arrest, on parole, probation or pre-ma! release. All too olu!n these chrome violen.
offenders are on the street becatllle of ~ressure from the federal courts.
From the day I took office as District Attorney over four years ago, I have been
trying to rid the City of Philadelphia of a prison cap ~ t has gutted. the Philad!!-1phia criminal justice system and has convmced our re&1dents that cnme pays b1gtime. After inmates in our local prisons filed a l!!wsuit complai~g a!>mtt th!' pri_son
conditions, a federal judge, who made no fipding of any constitutional ,"lolation,
began overseeing what has now become an eight-year-old program of wholesale re-

50
49
leases cf up to 600 crir:lincl defendants per week to keep :.he prison population down
to what she considers
"apero;,riate level".
b this same federal lawsmt there has never even bean a trial. In fact, a different
federal judge recently found that the conditions in even P!-,iladelphia's very oldest
and most decrepit facility-Holmesburg Prison-were still constitutional. Unfortunately, the prior r.rnyoral edministration di:l not even put up a defense to this lawsuit-it simply folded its cards and agreed, under pressure from the federal judge
to cr.:er two consent decrees pro,idir.g for the ongoing release of huge numbers of
in.mates.
These two consent decrees mandate federally ordered releases of criminal defendants awaiting trial. lnstcd of individualized bail review, where Philadelphia judges
wodd consider all of the factors relating to a defendant's dangerousness and nsk
cf fli~ht, :-·e have a "che.rgcd-based" system for determir,Jng who may enter the prisc~s. ,n oL>-ier words, the only question asked is "what is the defendant charged v.ith
today"? lf the defendant is charged with what the federal judge calls "non-violent
crir.-,_es'.', he cannot-~ t.c jail no matter how dan&erot:5 he is and no matter how ob,iC'1s it 1s that he v.ill flee and not show up for his trial. Some of these so-called non\10ler,t offense~ are stal_k!ng, carjacking, rcbbery ""1~ a baseball bat, burglary, dnig
dcalir,g, veh,cular hon:uc::de, manslaughter, t.crronstic three.ts and gun charges. A
pcrso:, carmot be detained pretrial no matter how many times he has failed to appe~ 1n court. In t}ij9 absurd system a dru.g Ccclcr ccrry-jng- n loeded Uti is r:eemed
"r,:::-:--.-:o}e::t". The dcfe:-i:Je.~fs prio! cor.,;.iction:, his b~kiry of fciHng to a(---pcar for
c2:ir1., b; 2~ntal health fl..1~tcry, lus lack of ties to the corr..rnunity, even i he is in
t..e coun,ry illegally, and his drug or alcohol dependency are deemed completely irre!cy2;-:t under L'i.ese federal decrees.
. Cr:for.ur.ately, crimincl defe!1c!e.nts know the system and know that Philc.delphia
_;,1~ges r.o longer have any power to compel a defendant to appear for his trial. The
f(:c~-r.:1 i-:tc:rference ~."1th o~- stste bcil system has been cntastrophic:

• Before the federu.1 prison cep be,;c.n, Philadelphia had eror:,:vi:r.s.,dy 18,000
r,:,tstand.ins bench warre.nts (that is, arrest warrants issued ,.·hc:, a defendant
f2ils to show up for trial and becomes a fugitive). Now, we have elrriost 50,000
be;,ch \\·cu:ants c.nd virtually n:1 o:1e o~t on the EL'"ffts looking for these: fugi•
tivc.:;. V,]1y h0~e,r-if r..rrcs:.ed, t:lcy ½i!l r.ll be rek~sed again to tl:.Q Etrects f:cc::1se 01 tbe cz.p.
• In 2::1 cighteD:i month period, t.l-iousends of defondents who were on t..1-rc ~trcct
~2-e.aus:_ of the p~scn ca~ have been_ arrest.c:i for new cri'=lcs, inc~uiing 79 murc.::--.:, 9o9 :obbenes, 2,:21n <lrt:g dc:::..I.i::~ ch.c.rbC-3, 701 barglo.ries, 2,7~8 thet'ts, 90
rc.p:2:-, C..;:d 1113 C.Ss.£.Ults.
• I:1 1993 a:1.d 199-4, o~·er :3.7,0:XJ new bcn.~.h Z:.\:zrre;r.:s Cot r:-~:sdc8es.n:ir i::r.d fclonv

u:a:-r,.::s were issued for defondants released under Lhe prisan cuo. This rePr':";n;:d 63 pe:i:ent of all. new bench warrants issued :in 1993 and 7,: percent
new bench warrants is.sued for the first six monLlis 01 1994.
r~te of failure to appear in court.!9_ higher fer prison C:"P dcfendarots than
~::"1 £~•e_:1dan_ts rele~.se:3 ~\Ind~ om: t:-acit::-.f!c.1 ~tntc c:::·.~ b~1l p~gre.::ns. A 1992
:'"""~~; e::~Clished the foL~:;h;.ng: failure ta c.p;K~c.r rr.tc~: ur..:G de1br:g 76 percent·
::~,;w.ry 14 percent; the~ 69 ?=':t. By contrast, Llie fo.ilu."e t~ appear rat,, fo~
ac:::,-a, ated assaul~ cnme for whidt defendants cannot be released under the
Pi.S0:1 _ce?;-:-w~s ;u.....«-t 3_ pe=::-c:it. The fugitive rat.e n.s..tio:rn.11y for defendants
c',crfc:1 ,·.:L'l C-"Uf, ceiling ts 26 p<m:ent in a yccr. In Philcdc!phia hav;c-,·cr
o:;.r l"TA rate of 76 percent is three times the Ill'.tio::u:.l rate.
'
'
01 ,:;]

• 'Jhe

b B'.1~ t~es~ stdtistics do not reflect tee incs..lculab!e 1o!:i£.eS to our cmnmun.ity causci
Y 1::c..r;~=u_~e.,.s c~?').fident in their beiief ~t. t.'1e ~riminal_ justice eystem fa powerles!-1
t~, •. •."? t:.e~_- \he murder of even one citizen IS too high a price for these ill-conc,.;, d
ae::rees bat ~•e have seen _over 100 Jl:'rB0!1S in Philadelphia killed by
~Lmmals
.ree by the pnson ~P- Nationally, vnth well over 3 million probationrs E;nd paroa.ees, many states will not seek to retu.i n violato!'"S to prison be::ause cf

c2:JS::-~

s.-,

t~~ l!TI~act parole or prob":tiO!l revoca:io::is have on t.11e prisa~ population. Even
"~ ~n parole or p,:obe.ticn violators are sent back to prison, they are often released
w1,:-li a federally-ordered prison .:,,p--a real Catch 22.
-~., "c··"•-lY, tl,e P!'S"n caps also cause n~ess financial losses to a.a- citizens
3
sme~ <ls. B = ~ B"J.ffer tJi!'fts, l<r..>Ses not covered by insurance
". _u.~ !es, _increased secunty and B".zrveiJ!.ance _costs, and increased insurance premiw:,s, Ho" can we h~ to attract retail busm""-Ses to u.rbc.n areas when sto•e
0 v.;:s,rs k;ow ~~et pro,easi?nal thieves and burglars have a "get-out-of-je.il-f~
~;:'-~ 1; 1 Pr..,on ""rs ere no~ 6Unplf _a law enforcement issue-they are, in turn, inex.... •---.:.. .... y tied to t.'1e f:n.ancirJ v1ab:1ty of a c:ity. Fear cf crime anrl Ll--ie be]jef that law
8 ef!;\~~';_mp,:Y

d"J J';16

enforcement is ineffective are the synergies behind citizens arming themselves in
record numbers. The notion is widespread, firmly fixed and accurate that federallyordered prison caps create nothing more than recycling programs for criminals.
Philadelphia is, by most accounts, an extremely attractive terminus in the drug
trade. The Philadelphia International Airport is now a favored location to send outof-state couriers. Under the prison cap, we cannot hold a drug smuggler in prison
unless he is caught with more than 50 paunds of marijuana or more than 50 gra.....-is
of cocaine. So the drug cartels and their minions need not even have to suffer the
inconvenience of putting up any money to bail out the courier-none is required.
One case involving a drug dealer out of jail because of the prison cap. Cndercover
detectives from Montgomery County, which is adjacent to Philadelphia, B.l'TB.nged a
drug deal in a parking lot along the road that forms the border between Philadelphia and neighboring Montgomery County. Before the deal took place, the defendant
tried repeatedly to move the deal to the Philadelphia side of tr e street because, L'i.e
defendant explained to the undercover detecth·es, he could go to jail in Montgomery
County but not in Philadelphia. The defendant nevertheless completed the deal on
the Montgomery County side of the street and, yes, he did go to jail out there. He
would not if he had completed his drug deal on the Philadelphia side of the street.
While the prison cap has encouraged defendants to commit more crimes and to
thumb their noses at our court system, one must keep in mind that individualized
bail review-as opposed to ~e _cap'~ "c~arge-be.sed" system-is essential for reducing the overall costs to the cnmmal ;ustice system.
The consent decrees in this case raise extremely disturbing questions about
whether eny federal court ought to intrude
unnecessarily into one of the most
basic functions of state government-its crunjn:al justice srstem. The federal jud,;c,
of whom I am speaking, has controlled 224 million dollars m bond funds for the construction of a new state prison and the new state court..'louse, even though there is
not a single prison b...->d in the rourthouse. The federal judge even insisted tlu!t the
Bond Indenture contain language requiring her approval of routine construction
matters. Every single construction change order has required federal court approval.
Recently, for example, the Philadelphia court syst,:,m wanted to expand one roo:n
in the courthouse for rourt interpreters. This chan 6e, if done during the construction
phase, would have cost $5,000. But the federal judge did not like the proposal, so
she rejected it. This change will now be complet.,d post-construction-at a cost to
Philadelphia taxpayers of $30,000.
The federal court has micro-managed the Philadelphia criminal justice agencies
to a fare-thee-well-there have been debates over the placement of flag poles on our
prisons whether the state judges' new chairs should be scotch-guarded, the candle
watt p~wer of the light fixtures, and the choice of art work at the prisons. Even if
some of these issues are important, the fundamental ,;iestion is who should be in
ch~ of the debate-the federal judge or state officials.
This raises a most disturbing aspect of federal consent decrees in prison conditions lawsuits. With a consent decree, one state political ad,ninistration can arrogate unto itself powe:9 it does not have under state law. I~ can make politi~ decisions embody them m the federal court order, and then insulate that policy from
by the next duly elected mayor. Indeed, as it stands now, prison caps cen
be--i,,nd have been-forced upon states for as long aa twenty years, with no power
vested in the state to be relieved of the burdensome weight oi the decrees.
We, the current mayor, other Jaw enforcement officials and_ I are attempting to
rid ourselves of the prison cap, even though I have no standing to challenge any
of the issues I have spoken about toda)'.. 1?ut "!'e cannot ~e the !1aive view that
this step alone will solve the problem. Elimination of the pnson cap IS only t.lie most
immediate action that can be taken to increase the effectiveness of law enforcement.
Law enforcement in a large urb!'.Il area is tcugh enough; federally-i!nforced prison
caps undermine our efforts. Restricting federal court interference v.-:ith individualized bail review the state judges' power to punish those defendants who willfully
refuse to appea,: for their court hearings
':"ho ~:iol'!te probation or p~le, is !in
essential step in returning to our state crurunal Justice system the ability to dispense justice.
.
In Philadelphia, we are committed to devoting adequate reso~es to ensure appropriate prison conditions for inmates and safety for our correctional officers. Humane conditions are essential not only because they prevent a federal takeover of
our prisons but more importantly, because we are morally required to regard the
rights of all m~mbers of our society, even those who break the law. But we must
also recognize that resources d~v?ted
prisoners come at the expense of other p_rograms essential for our law-abiding citizens. None of us has the luxury of housmg
prisoners in conditions that far exceed the standards of humane treatment when we

"°

change

~o:

.lf:WflffffJief:ifi'tfflf
52
51
do so at the cost of depriving needy, law-abiding citi::ens of essential and fundamente.l government services.
In Philadelphia, a new 2,000 bed prison is _about ro open. 1?ecause Holmes~urg
Prison, our oldest facility, will be closmg, we will have a net ga.m of only 400 pnson
beds. These beds, which will be filled in a matter of days, are too costly to be squandered by rigid adherence to outdated and ill-ad,ised consent decrees that preclude
the full use of available prison space.
For these reasons, the National District Attorneys A.s50?ation, a bi-partisan organization of prosecutors from across the country, has ~mousl.i: ':'ndo~ a_resolution recognizing the severe, ad,-erse effects off"'!~ pnson conditions_litiga~on_ and
strongly urging Congress to strengthen the pro,'1S10ns of l~t year's Cnme Bill li011ting remedies in prison litigati?~ On February 10th of _this year, !,he House passed
H.R. 667 which included prov,s1ons that ..-ouJd accomplish the maJor goals endorsed
by the !-:;,tional District Attorneys Association. Senator Hutchison's Senate Bill 400
contains these same pl'O\isions. I strongly urge the Judiciary committee to include
in the 1995 Crime Bill these pro"isions establishing reasonable and necessary limits
on prison court orders.
I r.er.uine!v appreciate the in,itation to speak here wday. I ent.-eat you to help
cl.i of us in faw enforcement with t.liis 0\-erwhe!ming problem. With Congr,:·ss' help
we may finally ha,·e e.n effecth-e criminal justice system in Philadelphia that ccr
citizens l:sve the right to expect but long ago ga,-e up hope of ever seeing.
Thank y~~:-iATIOXAL DISTF.lCT ATl'OF..,.-EYS ASSOCL\TIOS
RESOL!-'TIOX

WP.EREAS, federal court o::-ders in prison litigetio,i often have severe adverse affects on local criminal justice systems because of t.'ie premature release of dani;crous
pretrial detainees or sentenced prisoners;
WHEREAS, such federal court orders are often ente.,-,,d pursuant to 6. ccusent decree i,i the absence of a finding that detainees or prisoners have been subje<:ted to
unconstitutional conditions:
,vHEREAS, such federal court orders often result in s'.lbstantial federn..l court supenision of local and state prisoil9 and jails exceeding that necessary to ensure constitutional prison conditions;
"WHEREAS, such federal supervision often results in an inordinate percentage cf
state and local funds being diverted to impro~-e prison conditions et !.!le expense of
law enforcement programs designed u, protect the public:
WHEREAS, federal iqjunctive relief often remains in effect even after prison c0n<i.iticns clearly meet constitutional standards:
WHEREAS, such supenision often results from federal consent decrees whereb;,·
one pn!it:cal admi,,Jstration attempts to bind future politic.al ad.ministrations to pohcie~ concerning prison and criminal justice administration:
\",tiEREAS. such consent decrees are contrary to one of the most fundamental
principles of our nation t.'1.at the electorate is free u, compel political c~anges when
it disagrees with the policies cf elected officials:
".\'HEREAS, on September 13, 1994 President Clinto:1 signed in:o law the Violent
Cnme Control end Law enforcement Act of 1994 (hereinafter the 1994 Crime Bill):
WHEREAS, Section 20499 of the 1994 Crime Bill amended Title 18 cf the l"dte:l
St.ates Coo_e by eddin_g a new ~on. f ~6 entitled _"Appro;,riate remedies with res;,~ct to pnson crowdmg" \heremafter Prison Remedies Pronsion "):
WHEREAS the Prison Remedies Provision of the 1994 Crime Bill. pre vi des ! 11
thst e ~ederal court shall not hold that P.r'.son crowding causes sn EighL'1 Amend:□ ent. v1o!atio::i unless a particuler idcnufied inmate proves L'iet he has been sub.1e::.ed to cruel and unusual punishment: (2) that a federal court shall not order a
prison pcpuletion ceiling unless it is necessary to remedy a constitutional violation:
and 13) that state and local governments are entitled to pericx:i.ie reopenings of outstanding pris,m orders end consent decrees:
WHEREAS, attorneys o_pposillJ local crimincl justice officfals hav~ attempted to
prevent en_forcement of this pro,"lsion on a wide ,'llriety of grounds, seizing upon a].
1e1,ed ambi,r.iities in the language of the Prison Remedies Provision to assert that
t!us le_gislati~~ _,iolates the separation of po...-ers doctrine, doe~ not apply to local
detention facilities, does not apply to consent decrees entered pnor to its enactment,
does not re:;:.i.:ro the roopec.ing of consent decrees, and, at most, codifies existing
!aw;

V.'HEREAS, the Congressional sponsors of the Prison Remedies Pro,,ision clearly
intended that this legislation would place substantial restrictiong on a federal
court's ability to enter excessive injunctive relief in prison cases, intended that it
apply to local detention facilities, intended that it apply to all outstanding consent
decrees in prison cases, and intended for local jurisdictions to have the immediate
risht to vacate prison cap orders in cases where there had been no finding of a constitutional violation:
WHEREAS, at least one federal judge has expressed the opinion that the Prison
Crowding Remedies provision should not be interpreted as the Congressional Sponsors intended it to be· and
WHEREAS, there has been a historical reluctance of the federal courts to disturb
federal injunctive relief in institutional prison litigation or modify federal injunctive
relief on an expeditious basis.
BE IT NOW RESOLVED, that the National District Atrorneys Association urges
Congress to ensure comprehensh·e relief for local and state governments who ha,·e
been adverselr affected by federal court orders entered in institutional prison litigation. The National District At1.orneys Association urges that this comprehensive legislation accomplish the following goals:
(1) establish a uniform provision limitin~ federal court orders and consent decrees
affecting all state and local prisons or Jails including those facilities that house
pretrial detainees, sentenced prisoners, or a combination of prisoners:
(2) establish these limitations in those federal proceedings, such as chi! actions
filed pursuant u, ~2 U.~.C. § 19~. where Congress clU:lY retains the ,:ight tc
limit federal remedies ... th out raising an arguable separation of powers claim:
(3) limit the federal cou.--ts injunctive and equitable remedies to those that are the
least intrusive means to remedy a constitutional violation, -..;th subst.antiel
weight being given ~ a':'y a_dverse affect on the public safety or the operation c:
a state or local cnmmal Justice system:
(4) provide for the prompt modification or vacation of orders where the inmate,;
are not currently subject to unconstitutional conditions, or where the prior findings or orders for iqjunctive relief are no longer current:
(5) permit law enforcem~nt officials whose duties m_ay be e_c:versely affected b:
prison population reduction measures to have standing to cnaller,.ge such measures:
(6) establish time limits for court M;llings on s1:1c.\":'ctions: an_d .
. .
(7) protect prisoners rij:h~ to o_btain p,:ompt JUd!"!al determmattons of legitimate
challenges to the constitutionality of pnson_ conditlons and conttnued enforcerner.:
of any measure necessary to protect those nghts.
BE IT FURTHER RESOLVED, that the attached proposed amendments to 13
U.S.C. §3626 ...-ould accomplish the foregoing goals endorsed this day by the :--ational District Attorneys Association.
.
BE IT FURTHER RESOLVED, that the National District Attorneys Associaticc.
strongly urges Congress to enact legislation in accordance y,;th this ResoJution. .
Adopted by the Board of Di.rectors, December 3, 1994 m Longboat Key, Flonda

Senator BIDEN. Mr. Chairman, the light has been red for 5 mi!:.utes, but I have never known you to stop for a red light, Lynne
It is "OOd to have you here.
Ms~ ABRAHAM. I learned at the feet of a master, Senator Biden.
so thank you.
Senator BIDEN. I know you did. It is good to see you, Lynne_
Thanks for being here.
Ms. ABRAHM>L My pleasure.
.
Senator ABRAHA.\f. Just to inform the panel, h11.pp1ly, one of the
votes has now been voice-voted, so we only have one left. There are
about 5 minutes left and I think perhaps, before we go ll:1iead or.
the balance of the panel, it might be better for every~ody if we recess temporarily, go vote, and then we can at that pomt have clear
sailing.
• h
Senator BIDEN. And then hopefully at that point ave no more
interruptions.
Senator ABRAHAM. Thank you all very much. We stand in recess
again.

mt s:r
53
[Recess.]
Senator ABRAHAM. The committee will come to order again, and
I thank witnesses and I thank the audience and the huge press
corps that continues to join us over here on this vital topic for their
indulgence. [Laughter.]
I think Senator Biden will be joining us. I passed him on the way
coming up here, but we had had from the outset known that Attorney General Barr would have to leave at about 1 p.m., and I had
at least one question that I wanted to ask you before you left and
the panelists who have not yet testified have agreed to hold until
we get through with any questions for him. Then I gather everybody else can stick around for a bit and we will go through the normal question format.
Mr. Barr, I would like to ask your opinion, having now witnessed
both from inside the Justice Department as well as from a distance
~ere the CRI1:'A statute and ~ow it has come into play, how it
m~errelates _with the normal nghts that prisoners might have to
b:mg laws1:nts under any conditions. I would just like to get your
~t"J.ew as to its efficacy and worth at this point, if you think we need

Mr. BARR. I think, on balance, Senator, we do need a statute like
c_~IPA. I ~hink it is_ im_portant, however, that it be accompanied
with t~e kinds of guidelines that are being discussed here so that
we don-t_ have Fede_ral agencies like the Department using it really
as a vehicle for taking over the functions of State officials and a'so
some rigor in determining when a Federal constitutional' violati~n
rea~ly d~es «;xi_st. I ~hink if we get some ground rules in that area,
I still thmk 1t 1s an important protection for prisoners.
Senator ABRAHAM. Thank you.
Se1;1ator Biden, as I indicated, Mr. Barr has to leave at 1 p.m.
a!ld If you had questions for him, I thought maybe we would do
that now.
Se'.1,P-t0r BIDEN. Well, I do, and I will be brief.
It 1s good to see you, General.
Mr. BARR. It is good to see you, sir.
Senator BI~EN. As I ~ow you know, but others should know,
too, I truly enJoyed working ~th you when you were Attorney Genera!. 'You were one of the best I have ever worked with, and there
ha\e been a ~ot of Attorneys General since I have been here and
I mean that smcerely.
'
Mr. BAmi.. Thank you, sir.
Senator ~IDE~.. I have a '.1-umber of questions. I will send a couple to you m wntmg. I won·t overburden you. I know you arc busy
a_s can be, _but let ll'l;e ask you two constitutionally related quesb_ons, and 1f_you don·t have a..'1 answer off the top of your head I
v. au.Id b:! delighted to have it in writing.
'
. I am mtrigued by this legislation. I think Lynne Abraham is the
smr;:e b~st district attorney in t_he country. I mean, I really me~
t~~t. Sh\ pro~ecutes more cases m one year than the entire Federal
stte~ c.~;-s. m a ,re~, and that is not to suggest that other big
ies on • ~a rn s~mil.ar caseloads. The fact that both of you are
. ere surpo:r;: __ :: this gives me reason to take a much closer look at
it, but have a rnuple of questions. I have an open mind about it
and I would be cc:. ::ms to know what your view is.
·

54
As I understand it, the STOP legislation terminates currently existing consent decrees; not just future consent decrees, but currently existing consent decrees. These are contracts between two
parties, contracts between the Federal Government and the State
or the locality. Is there any constitutional impediment, as has been
suggested by U.S. District Court Judge Milton Schader to Senator
Hatch? He says potential constitutional problems involving the impairment of contracts exist.
Do you see any potential constitutional problems protecting
against government actions which impair the right to contract
here? In fact, in some contexts, government action interfering with
contracts could be construed as a taking under the takings clause.
Do we have any of that problem, or is that an unreasonable concern or a concern that is so distant that it is not worth us spending
much time thinking about?
Mr. BARR. Well, recognizing this is off the top of the head, as I
said in my opening extemporaneous remarks, I do have some concerns over the provision of the STOP proposal that would terminate existing decrees almost automatically and retroactively, but
that is really under the Plaut decision relating to the legislative
power's ability to upset final judgments of courts.
Senator EIDEN. That was my second question. I have a similar
concern on separation of powers.
Mr. BARR. I guess I haven't thought about the cuntract provision,
although my view of a consent decree is that it is not a contract.
It is a consent decree which implicates the article III power of the
court. It has some attributes of a contract, but ultimately you are
asking a Federal court to enforce it. That means th~re shoul~ be
an underlying Federal case or controversy. So I think the nght
analysis is to look at the Plaut case and what burden that puts on
retroactively upsetting a consent decree rather than the contracts
clause.
My proposed solution to the Plaut problem would be to say that
when these things are revisited on a 2-year basis, or what have
you, a judge still must make a determinat~on t:tiat there is an underlying violation still there because my view 1_s once the Federal
violation goes away, I don't ca1;e what the p:31"11es h~ve a~eed to.
There is no longer a proper article III remedial function bemg performed by the court and I think the case should then be terminated.
Senator EIDEN. I have several more questions, but I know the
General has to leave by 1 p.m. and I will refrain. Thanks an awful
lot.
Mr BARR. Thank you, Senator.
Se~ator ABRAHAM. Thank you very much for being here today. I
apprech1te it very much.
.
.
.
At this time we will contmue with the panel and their testimony, p.:;d it is'Mr. Gadola's turn. Thank you for being here .
STATEMENT OF MICHAEL GADOLA

Mr. GAD0LA. Thank you, Mr. Chairman. Mr. Chairman, I would
ask that my written testimony be made a part of the record as
well.
Senator ABRAHAM. Without objection.

55
Mr. GADOLA. Mr. Chairman, I appreciate this opportunity to convey the State of :Michigan's perspective on the topic of prison reform. In my previous incarnation, I was deputy counsel for the governor in the State of Michigan and had some fair involvement with
prison litigation in that capacity.
The Michigan perspective is necessarily colored by Michigan's experience, wMch is unfortunately not unique, with the Civil Rights
of Institutionalized Persons Act, or CRIPA, as it is enforced by the
Civil Rights Division of the U.S. Department of Justice. That experience began in 1982 when the Justice Department launched an investigation of the conditions in various Michigan prisons. This investigation culminated, or should I say led to, the Justice Department's simultaneously filing in 1984 a CRIPA action against the
State and various State officials, an entry of a consent decree and
an accompanying State plan for compliance that were designed to
address the Civil Rights Division's myriad concerns about Michigan's penal institutions.
The consent decree and State plan permit the Civil Rights Division attorneys and the Federal district court in Michigan to deh-e
into such constitutional enormities as whether food being served to
prisoners in segregation is scraping the top of the meal slot when
being delivered to whether food debris has adequately been cleaned
from an electric can opener in a prison mess hall.
I brought with me a series of compliance reports tha·: the State
has prepared during the tortuous course of this litigatio~J that outline the unbridled extent to which the Federal judicial and executive branches have delved into thL minutest details of the administration of Michigan's prisons.
The bill of particulars that is the State plan for compliance ::.nd
attendant court ordera allow for a situation in which the State of
Michigan advances the ball down the field to satisfy the demand
of the moment, only to have the court and/or the Justice Department move the goal posts further away by an equal distance. The
State thus negotiates with itself in its futile efforts to bring an end
to this enormously costly litigation.
But my primary purpose in speaking to you today is not to delve
~nto the minutia that is the U.S.A. v. Michigan consent decree. It
1s rather to ask that you tl~ink about what message the Michigan
o:pericnce with CRIPA, the Civil Rights Division, and the Federal
court sends to all States. To understand this, it is important that
you understand where Michigan found itself in January of 1991
when my boss, John Engler, became governor of the State of Michigan.
The Fe_deral district court had found !'\fichigan in contempt of
court for its failure to comply with the ;,arious requirements of the
decree and had imposed Sl0,000-per-day fines on the State. The
new administration's response to the state of affairs was to purge
!he C:>~tempt and to seek compliance with the terms of the decree
m an_ honest effort to terminate the need for further litigation.
This approach met with initial success when the Justice Departm~nt! after conducting its own investigation of the conditions in
M1chiga.':'s consent-~eci:ee institutions, concluded that Michigan
had attamed the obJect1ves of the decree in the areas of medical

56
care, fire safety, sanitation, and others, with the exception of mental health.
In April of 1992, the parties stipulated to the dismissal of all consent decree issues, with the exception of mental health care. It appeared that Michigan's vigorous and expensive efforts at compliance had resulted in the hoped for outcome. The Federal district
court however refused to dismiss the most onerous decree requirement-~. Michig~ thus found itself in the anomalous situation of not
being able to dismiss a lawsuit that the parties themselves agreed
should be dismissed.
Michigan appealed the court's refusal _to take the parties at their
word hoping against hope that the Justice Department would rally
to th~ defense of the stipulation that it had entered into less than
a year previous. In fact, not only did_ the Justic~ DeJ?artment. fail
to support the stipulation on appeal, 1t filed a bnef with the Sixth
Circuit Court of Appeals supporting the district court's ability to
refuse acceptance of its own stipulation with Michigan. Following
this Justice Department flip-flop, the sixth circuit upheld the district court's ruling.
Allow me to share two further indignities that Michigan has suffered that demonstrate the counterproductive message that the
Michigan experience sends to the States. In its effort to purge contempt in early 1991, the State entere~ into a stipulation that included, at the court's insistence, a requirement that the S!ate operate mental health bed space equivalent to 3.2 pe:cent of its pnson
population, with 1 percent of that total cons1stmg of acute care
beds.
h
d
·
To attain complia~ce with this and ot er consent ecree requirements the State converted a former prison facility into a 400-bed,
state-~f-the-art mental health hospital, at a cost of appro?tlmately
$30 million. The State also institute~~ new_treat~ent :eg1me and,
in a revolutionary move turned admm1strabon of its pnson mental
health program over to'_the St1;1te'~ Department of Mental Health.
Given current/opulabon proJections, the !-percent a~ute care requirement woul force Michigan to fully staff approximat~ly 4~0
acute care beds by the end of this year. The on!,)' P1:oblem "'.1th t~s
requirement is that patient caseloads do not Jus~ify openmg this
number of beds. The current acute care caseload 1s below 300 patients, in part due to the ~tate's ~uccess in treatin~ inmates. T_he
State's motion to modify this requirement were deme_d, and earlier
this week the sixth circuit denied the State's motions for stay,
which now forces the State to open and fully staff acute care beds
for patients that do not exist. .
.
.
. .
.
The patent absurdity of this s1tuat1on faces M1ch1~an V:It_h a
choice between defying a Federal court order or spending null_1ons
of scarce taxpayer dollars treating imaginary prisoners. I put it to
you that the taxpayers of Michigan or any other State w?u_ld demand that any elected policymaker who m~de such a. de<:1s1on be
promptly examined by one of the newly hired psy~at:ists, and
enscotced in one of the newly create~ beds. Agam, ~1chigan s efforts at compliance have been met_ wi~h an unrel~ntip.g 17fusal to
give the State any credit for managing its o~ ~airs 1:11 t!tls arena.
What has been Michigan's latest reward m its co!1b~umg struggle to hit the moving target that is the U.S.A v. Michigan consent

•@~t•. .

decree? It was announced to State officials in 1994 that the Civil
Rights Division would be launching yet another CRIPA investigation, this time of the State's women's prisons. Thus far, I am happy
to report the State has successfully resisted the Justice Department's heavy-handed efforts to pry its way into our facilities on the
basis of generalized prisoner complaints. In fact, two Federal district judges in :Michigan have denied the Civil Rights Division's efforts to tour these facilities prior to filing suit.
To help demonstrate the absurdity of the allegations the Civil
Rights Division is making in its investigation of the State's women's prisons, the Federal Bureau of Prisons periodically houses female inmates at one of the facilities subject to the investigation. As
recently as last fall, the Bureau gave the facility a glowing report
on all measures of performance.
The Civil Rights Division alleges that the prisoner grievance system denies female inmates their constitutional rights, but the Justice Department recently certified that system pursuant to the proccd;.;rcs set forth in CRIPA itself. It would appear that the left
hand does not know what the right hand is doing at the Justice
Department with respect to Michigan's prisons housing female inmates, which I believe calls into question the true motivation of the
D;vision in this investigation.
Now, I would ask you, raembers of the c:ir:-imittee, v:hat does the
:,1ichigan experience say to States involved i!l CRIPA litigation','
:,1ichigan's sincere efforts at compliance and the attendant expenditure of r:,.illions of t3xpayer dollars h3ve left it in no better position
t!1~.n it :ou.nd itself in in January of 1991 y;hen the court was im!,'.J3ing $10,000-per-day fines upon the St2.tc>. If the ,-.·2,rcs cf compli:::r:;.;e are the same c.s those one v;ould presume for continued
unrepentencC'--namely, Justice Dep~ment flip-flops, court orders
bs;::r-in::: :10 basis in reality, and £ecmingly vindictive :J.tt0n,pts to
i~:-:p0se: 2.:1other consent de:ree on the St2tG'-t!1cn ~.-;hy ~:h·::t1id ~-l-.cS:2.tG b2 T:1otiY2.ted to co~.rlv?
' "i""lhe me.ssag8 to th2 St::ite.; se>ems to be that there is no benefit
t:J be derived from ccmplying with the demands of the Justice Dep_c.rtment and Federal courts and CRIPA litigation. I su[!r;cst to ycu
tnat tl1is particular consent decree has outlived its u.,.cfulness and
t!12.t the CRIPA statute as a whole deserves serious reform.
Thank you very much.
[The prepared statement of ]\fr. Gdola follows:]
I)!XFA.P..I:D STATL,u::""T OF 1\1ICI{Af:.L, GAIX.lL.\

~~r. __ Ch~i=e.!1 e.rd distinguished Judicic.ry Co,:mrjtu,e members, the.nk you fo:
p_:,ma.:ng rr.0 tl-.e oppcrtunity to tt=urJci::\e the ,:;rei::t Sti:te of Michir;c.n's pe~s;,<.'ct!ve on the issue of overhculing t.lie nation's prisons. For better or v,orse, prisons
ere pcrt:cule.rly big business in :1,iichigan. We i.ncarrerat.e more people p<'r er.pit::,
?~E'.:; £~.y ?Llier_ northern., ~dust.rial state. The current bud:;et for our Depart.mcr:t
,. Gorrect1cns 1s $1.3 billion dollars. In Washington terms, thct is probably not
J?.ucl:i_. bu_t 1:1 .Mi&J;;r.,-, it is extremely sig-n.ifice.nt. In point of fact, M.ichir;an new
spenc.s b P<;rcent of 11:5 generel revenue funding to o;,emte its prison system. In
1980, corrections spen_ding rep:-esent.ed only 3 percent oft.lie general revenue fund.
Why, t.lie tre:ne::idous increase in resolL.'"Ces committed to corrections? The re!!.Son is
s:mp.e: o,:r prison population !1as skyrocketed over t.'ie past 15 yee.rs-from 15,1.:S
r,_nsoners m 19S() to 38,815 pnsoners as of July 21st t.lus vear. During that 15 vccr
tl.!!1e fr=.e, Michigan has spent in excess of one billion dollars on net prism, ·conEtru.ct.:o~,

"";.

"''

. ,,_,._,,..., ..,~~,.,..... ,,.,,," .
.

58
Because of t.lie explosive growth in our prisoner population and in prison ,;pe:::ding, Michigan has: in part ou~ of fiscal ~ecessity, become a national leader in prison
reform. The States Commuruty Corrections_ and Boot Camp programs are just n,.· 0
of the innovate, reasonable and cost-effective alternatives to traditional incarceration which have been independently implemented by the state. lVJchigan is also
proud of its efforts to run a hi,:h 9uality, humane and constitutional priscn system.
Nearly all of our correctional facilities a.re fully accr-edited by the American Corrections Association. We have what may be the most extensive training program in the
nation for corrections officers. Our rate of prison violence is among the lowest of any
state. Michigan spends an average of $4000 per year, per prisoner for health care,
including nearly $1700 for mental health sen~ces.
Despite these and other pertinent facts (several of which I v.ill note below), several federal laws, whether by their plain words or thrcugh judicial interpretaticn,
have enabled both the Civil Rights Dhision of the Jus:ice Department and federal
iudges to mkro-manage the day-to-day operations of innumerable Michigan prisc:is.
·such federal micro-management of a pu.--ely state f=ction has resulted in mo:-e
than a decade of protracted litigation which has cost Midtlgan taxpayers 1:und.re:ls
of millions of dollars since 1984. The Committee now has the unique and irnporta::;t
opportunity to remedy the abuses caused by certain federal laws, while ,:reserving
tl:e level of constitutional rights to w},jch a prisoner is entitled.
The federal statute which has been most frequently utilized to ::-Jcro-mane.i.;e
:\1ic},jgan's priser-~ is tr.e Civil Right.s cf Institutionalized Persons Act of 19eO
(CRIPA). A!i you are aware, CRIPA as v.'ritten pro,ides limited power to, and one
would have thought, fairly clear directions as to the role of the Attorney Ger.era!:
the Attorney General may only initiate suit against n state if t.lie Atuirney General
personally verifies that he/she •• • • has reasonable cause to believe that any state
• • • is subjecting [prisoners] to egregious or flagrant conditions which deprive persons of any rights • • • secured-or prote<:ted by the Constitution • • • causing ruch
persons to suffer grievous harm, and is pursuant u, a pattern or practice of resistance to the full enjoyment of such rights • • •• This is n very high threshold. Congress also placed clear requirements upon the Attorney General with respect to prefiling disclosures and the offering of federal assistance to stat.es, as a rr.earu of l.irr-..iting federal intrusion into state matters and to reduce, to the extent possible, adversarial litigation.
Moreover, Congress proper-ly attem_pted to. limit the _remedies_ which the Attorney
General could seek in any CRIPA action to: • • • eqwtab!e relief as may be apl?ropriate to insure the minimum corrective measures necessary to in..«ure the full enJOY·
ment of those rights • • •• As Michigan's unfortunate history "'ith the Justice Department's Civil Rights Division and federal court interpretation of-CRIPA reveals,
the Congressional limitations initially pl.aced within tne statute are not being adhered to by either of these n1;0 branches of the f<:deral government. I:15tead, CRIPA
is being used by federal ofliaals ~ a ve~cle to insure ths.t state pnso":5 are Cl(erated in a manner w1?Jch ~ese o!fi~'!-1s believe they sh~u!d be ope~ted. disrei:";l"iling
the Congressioncl directive of limiting fed_eral authonty to. ezu:orang _the IIUillrnum
corrective measures necessary for the e11Joyment of constitutional nghts. To taxpayers and to all law-abiding citizens, the abuse of CRIPA is a crime.
In 1982, the Justice Department's Civil fygh~ Divisio,:,. im·estipted seve,:-al
Michigan prisons and concluded that unconstitutional conditions e:nsted. In July
1984 and on the same day that federal court litiiation had been instituted by the
Attoz'.ney General, a Consent Decree _wa!! entered !nlo by the parties to remedy the
concerns raised by Justice. As the District Cour:t ,~If had noted, the Consent_ Decree was entered into as a means to end the litzgatwn (see Un:.ted States v. Mich,g::ir~ 680 F.Supp. 928 (WD Mi0. ~987)) ~d alle~ate certai;' ~ _consti._tutional
co.:icerns raised by Justice. This 10 cons,st.ent with CRIPAs onginal mtentio:i that
the Attorney General safeguard prisone:rs' threshold constitutional rights through
minim um corrective measures.
Since 1984, however, the Attorney General and the Federal District Court have
strayed far from the limited constitution.al purposes of CRIPA and the Consent Decree. The Consent Decree, rather lhan settling the CRIP~ ~t. as in~nded, has J?ro,ided Civil Rights -..ith a vehicle to pursue a course of litigation (-..,th the adm.ira·
tion and full support of the Federal District Court) to micro-manage the Con.sent
Decree prisons. What has resulted in _the USA v. _M_ichigan case is the_ fedl:~ ~veroment (more specifically the Executiye and J"l!diaal branches) plll"S'.ung li_tigatlon
to insure that food served to prisoners L!l a certain temperature, that a certain number of light fixtures and electrical outlets are in each cell, and th&t food loaf_ not
be served to prisoners under certain circumstances. These patently absurd rulings
with which Michigan has had to comply or appeal are all ver!.fia_ble and reported
in the volumes of the Federal Supplement. See USA v. Mu:higan, supra,, 680

.,,.,,,,.i
60
59
F.Supp. at p. 1004· USA v. Michigi..l, 650 F.Supp._ 270,_ 277 (WD Mic~. 1987). What
is lost in all this litigation is one simple facL Prison 1s r.ot n vacation, and not a
home away from home. Prison is punishment.
Of course the Consent Decree was agreed to by the state, and has proven successful in certain areas specifically pl"O\ided for in the Decree. The probl',m lies in ~e
Court and Chi! Riidits Division's _continu',d pursuit of prison ii:tervention by delvm11
into the mi11utia oC prison operations all m the name of enfo.-cmg Llie general prov1sioll!I of the Decree.
·
During the eleven years of its continuing jurisdiction over the CRIPA Consent [?cc...,.,, the Court has ordered the hiri.,;g of num1:ro~ independent <;xpert.s ~ administer compliance "'ith the Consent Decree. Unlimited access to pnsons, pnson perso::mel and documents are granted to these experts, eac.'1 of whom are paid excessive
hourly or daily rates at the expen.."l! of Michigan t.B:<Paye~. The~ experts, w~o ~ave
a significant financial incentive if the ~ourt ~ntinces mon;tonll;g 0ese Mic!:tig_an
prisons, have assisted t.lie Court in making mimic on S'.:ch cons~1tution_ally s,gruficant decisions es the handling of laundry and t .. e freq_-,ency v.-:th which laundry
must be done. See USA. su;:,ra.
.
. .
I state the obvious when I say L'iat what was lost upon the Ex~tive end Judic1&l
branches is L'ie Congressfonel pronounceme:it. that CRIPA reme_dies are U? \>C _r.arrou:/y tailored to rcmedy, in the least restrict1ve manner, cons/1/utwnal v10.ations.
Issues like whether a prfaoner's die! in:ludes f~ loe.f, or w~e~er f~ s~rved to
prisoners is et a certain temperature, do not rru:"' ~ co~titutional s1gnjp.ca:1ce;
rat.'ier, they pro,~de clear exsmpl"'! of the federal Judie~ 1n:ip~perly del':'Ilg mto
the state's exclusive role of managing the day to day a>;rurs in w, o,vn pnsons. In
fact, in Sandin v. Connor, 1995 U.S.L.W. 4601, the U.S. Supreme Court recently
cited the UaA
as an example of impermissible federal micro-management of
prison operc.tio!".s which occurs under the ll'llse of enforcing constitutional rights.
I am sorry to report that the trh-:ialization and abuses of CRIPA continue to this
day. Most recently, the Court in USA has granted the Civil Rights _Dhi~ion request
fo~ eccess to a_prison not co,·ered by the Consent~':"• i,nd whi_ch ~d not even
ex,st in 1984. Furthermore, over the past year, the Civil Rights Divunon has been
conducting an investigation of two Michigan women's prisons, allegin~ the existence
oi unconstitutional conditions. This investigation is epparer..tly continuing despite
the fact that one of the prisoll!I has been approved by the Jcstice Department's ou.:n
Federal Bureau of Prisons to ho"5e federal women prisoners, O..'ld both ere fully accredited by the American Correctional Association. The Civil Rights Division has
also alleged that Michigan's grievance procedure violates Due Process; at the same
time this allegation was made, this same Justice Depnrt:ment awarded full certification of the procedure under CRIPA.
On July 28, 1994, the Justice Department filed &Uit a~ainst Y.ichii;an, s,:,ekir.g unlimited access to these women's prisons for purp<>ses of its investigation, a tactic employed in other states as well. In a letter dated May 9, 1995, Governor John Engler
asked Attorney General Janet Reno to prevail upon her staff to •• • • follow the
CRIPA statute and provide the requisite notice of the specific concerns involving the
Michigan facilities prior to issuing a complainL • The Go,-ernor went on in the letter
to remind the Attorney General that •• • • the CRIPA em-:isions coo~retion
through reciprocal exchange of information." Michigan has always been willin!, to
cooperate with federal officie.ls re~ardi~ legitimate con:erru, related to ita pnson
operations, but we have Eteadfastlv i.-is,st.ed that those officials comply v.-iL'i the
s,>'rit and iLtent of CRIPA before the state would consider going to the rather extraordinary step of facilitating a free-ranging inspection of any of ita correctional fa.
cilities. Arid indeed, two Federal District Judges have concurred wiLli Michigan's decision to deny Justice Department access to the women's prisons in question. Beth
~trict Judges held that CRIPA does not provide pre-litigation access to a state fa.
cility without state consenL Ho,.·,"-er, even this principle, seemingly made clear by
Congress in the statute and its legislative hist.J,:y, has been subject to differing interpretatioll!I across the country.
Costa for compliance with the requirements of the USA Consent Decree, as inter~reted by the Court and Justice, are staggering. Since 1934 Michigan has spent over
~225 million to comply with the initial terms of the Consent Decree as well as the
st:pplernental requirements ordered by the Court. The Michii:an Department of Correctioll!I hss hired innumerable staff whose sole respa::ISibility is to ensure compliance ,.ith the Consent Decree.' These excessive costs and t.l1e micro-management

=.,

1 Tho Depart,:,.e::t has been orde.-ed t:> E"Jb::::lit t:, the Court end its expert:, bi-e= ucl and
c;.u~~ly C:O:::?p!i&!l~ :-e;x,:'t.!I C?:.t t:tiz:1tcl l::.ecl!h iS$".1es, n-:?::1-me?:.ts.l health iS&Ue!I, and out..of-ecll
L""tivttiea. I have bw.ight cop:ea c;f ~e:-cl E"".!~ :-C?C,~...s far the Co:n:n.ittee to u.c.::tine, as the
Contin:.ied

of Mic!ugan prisons are the direct but unforeseen_ ~ t of !h.e. misinterpre:ation
and mieuse of CRIPA by the federal courts and Civil Rights DiVlSlon. The best suited remedy to alleviate these serious abuses is to amend--CRIPA, to make explicit
what was initially intended by Congress, and to limit the statutory power of the Attorney General in pursuing CRIPA actions.
For example, an amendment making it explicit that the Attorn,<,y General does
not have a pre-litigation right of access to a state facility in the absence of st.ate
consent. Such an amendment will not only preserve the law as intended by Congress in 1980, but will also preserve state sovereignty, another important issue reco~ed by CRIPA but ignored by Justice an~ th_e courts.'!- CRIPA amendment providing that the Attorney General shall not mstitute a SUlt unless he/she has dear
and convincing cause to believe a violation of the statute exists should be adopted
to protect states against frivolous suits brought at federal taxpayer expense. Currentlv, the Attorney General only needs reasonable cause to believe a violation exists.·
Other amendments which I believe would remedy the abuses spav,med by CRIPA
can be found within the Contract With America's "Ta~ Back Our Streets" proposal, which includes: continuing the requirement of dismissing a suit for 180 days
when the prisoner has not exhausted available remedies, but eliminate the judicial
discretion in ordering the dismissal; adding a provision allowing a judge to dismiss
sua sponte a prisoner complaint which fails to state a claim; and, with respect to
pre-litigation issues, amendments requir.ng (1) the Attorney General to provide a
state with the specific facts which allegedll constitute unconstitutional misconduct-induding the names of prisoners subJect to the alleged misconductr--and
(2) enabling a judge to review the substance of an Attorney General certification,
which would reduce the number of federal suits by providing the full disclosure of
facts neceSdary to make a preliminary determination as to the validity of any allega•
tioll!I and whether there is a need for voluntary compliance to remedy uctual constitutional ,,iolatioll!I.
With respect to Consent Decree cases, an amendment placing specific time limits
on the duration in which the Attorney General may litigate CRIPA consent decree
cB.Ses-i!Uch as three years unless specific uncoll!ltitutional conditions are proven to
exist-would ensure that the Attorney General and the courts no longer lure states
into voluntary compliance plans o_n!Y t? turn around and_ create decades of cos_tly
and constitutionally unnecessary litigation. While federal Judgea may serve for life,
consent decrees should not be a lifelong burden on states. Given the history of consent decree litigation in this country, most especially in Mic:hiKan, only with ,;,.1th
an amendment will states have any incentive to enter into voluntary agreements
which save costs for everyone and expeditiously alleviate the unconstitutional oonditions which Congress has sought to remedy through CRIPA. Under current law, no
state would enter into a consent decree when doing so inevitably continues and expands litigation and reduces resources otherwise available for the prison system.
Thank you for allowing me to express Michigan's strong concerns on these important topics. If we can be of further assistance in your efforts, we would be pleased
to help.

Senator ABRAHA.'.f. Th:mk you, Mr. Gadola, and thanks for your
patience in waiting.
Mr. Watson, thank you also for your patience and waiting here.
Senator BIDEN. Mr. Chairman, if I may interrupt, Mr. Watson is
from Delaware and I am glad he is here, but his patience is legendary. Thanks for waiting.
STATEMENT OF ROBERT J. WATSON
Mr. WATSON. Mr. Chairman, I would request that my written

statement be entered in the record, also.
Senator ABRAHAM. It will, without objection.
Mr. WATSON. Let me depart a moment from my prepared testimony just to say that with regard to control of crime, Delaware,
being a small State, has taken considerable action in this area. We
reporta evidence the abaurd detail In which Jwrtice _and tho Court have bemme involved in prison operationa. These reporta just aa clearly. e,rtab~ the amount of_ taicpayer supJ;X>rted work
which is required of Michigan to prove oomplian<:e w,th these extraordinary ordeno.

abolished parole and we have enacted truth in sentencing. I think
we are one of the few States that complies with the 85-percent requirement of the crime law. We have had a three-strikes-and-youare-out bill for 17 years that has been in use.
We have 5 levels of sentencing, really, to protect the public by
allowing judges to craft sentences th11i: are more responsive to what
they see in the defendant, and they generally combine them-some
prison time, somfl halfway house time, then some intensive supervision and on back to the community. So I just say that as a preliminary comment because there are some other distinguished colleagues in the room you v.ill hear from later who will speak about
other matters before the committee. So I will defer to them to talk
about those issues.
I am here to speak about the matters before you that relate to
STOP. I think as one of the p1for panelists said, he has found corrections commissioners generally see those vvith some favor because
of the consequence on our budgets, and I think that is true. That
has been my experience.
I also think that by 2.boiishing the 2.ccess to consent decrees as
an initial move or a preliminary move, the States really lose the
right to get in and to resolve things when we consider that to be
appropriate. It does not take away the option of the State to take
a matter to trial if that is how we see the matter should go. It also,
I think, adds costs to local government.
STOP requires that almost all lawsuits involving conditions of
confinement in prisons, jails, and detention facilities would have to
go to trial, and that just means that local governments can't settle
these suits without admitting liability and opening themselves -to
coantless other actions.
I was in the Oregon Department of Corrections for approximately
30 years, and in that time was the head of the department for 10.
Seven of those 10 years, we were in Federal court on a lawsuit that
dealt with the totality of conditions in the prisons. That was overturned. Then we had to go back to trial on every single condition,
and in the end we lost and had a long order entered by the court,
which in subsequent years I have seen very closely resembled what
could have happened had we entered into a consent decree and
dealt with those matters.
The ironic thing is th2,t in the case and in matters th2.t have occurred since, the strongest evidence the attorneys for the inmate3
have is our ov.n requests for improvements to the prison system
that we document for them year after year, improvements that
need to be made. AB you know, legislatures have limited funds and
tend to defer to other matters in many instances of a much higher
priority, and I would agree with that. But nevertheless, when these
lawsuits come forward, it is not unusual to have subpoenaed your
budget requests for the last several years, or matters that go to accreditation and what those circumstances find.
So, in hindsight, it looked as if we would have been far better
off than spending 7 years and wasting the court's time and ending
up !it the end of that time with something that could have been negotiated and probably was a mistake. So in subsequent lawsuits
there, we did settle some others by consent decree, and in others

we went to trial. We felt that we were right and, for the most part,
won those.
·
But I think where we go after a settlement wit!J. no chance of
winning, we ire the courts. We brinff _about increased attorney's
fees. Our attorneys don't work for anything either, plus all tne time
1t takes from our staff, and they are always key staff, to appear in
court.
Under the provisions of STOP, as you have heard, th"!y self-destruct every 2 years, and I can tell you after 42 years ia corrections
and 18 heading State departments, you don't get things corrected
in 2 years. It ta.lees several years, usually, to deal with the matters
that get brought before the Federal courts.
We have a consent agreement in Delaware that is not before the
Federal courts, but it has been around since 1988. We had hearings
over the last 2 days, again, ab;mt a number of issues that for the
most part I would generally agree need attention. We don't think
we are in contempt of court. We don't think they are unconstitutional, and that is the argument with the judge.
But those things take time to resolve, and to have these things
self-destruct every 2 years--and perhaps the suggestion earlier of
a review would be a way to deal with that, but I think it will interfere with measured efforts to move forward. Quite often, we will go
the legislature and we have to go with a 3-year plan, and sometimes it is a 5-year plan so they can allocate money over a longer
interval of time. Judges have found those acceptable. The 2-year
self-destruct, I think, is a problem and it increases our expenses.
It does require a commitment on behalf of the legislature to
make these things work, and quite often we can't ~ ~~heir attention without some action by the court. So, again, I t 1· the provisions of automatically terminating are afroblem.
So how do we deal with this thing? think our best approach,
of course, is to have professional stsir so they can do the job that
has to be done in the prisons, and to do it in a way that we all
want done. Professionals in corrections would then avoid having to
deal v.ith unconstitutional prisons. Again, it is a money problem,
and quite often it is a training iBSue that has to be gone over and
over and over again. The professional standards of the field require
individuals to be trained every year. So it requires ongoing monitoring and if you miss, then it could be an issue that would have
to go back to trial again, which I think is probably again a mistake.
An inordinate portion of our budget, I think, would be shifted to
defending these suits and I think it would delay improvement if we
did that. I think it stops courts from having access to more information in a timely way. I just have to say that when these issues
have arisen, as a corrections person I have more to say about the
court orders and the consent decrees than I do when it goes to
trial. That is really an issue that gets up in the air.
.
\\'hen it is a consent decree, I go personally and c>ur key staff sit
down and say here is what is possible to do and here is the time
schedule it would take to do it, contingent upon funding. If you go
to trial, it is the lawyers taking over, and they argue legalities and
they argue forever and it takes a long time to get these matters
settled. I much prefer a consent order that I have had substantial
say in what it looks like, when it happens, and how we are going

63
· to do it. So I think that is a serious consideration that is lost by
the STOP legislation.
li ·
These cases are complex. They are burdensome, they are po tlcaliy sensitive. You read about them in the paper. They gene~ite
ail kinds of mail going to the courts and to my office and to le~s ators and to everyone. I haven't found a jud!fe yet t~at. really likes
them. I know the judge that we got so acquamted with m Portland,
OR-after the hearing, we would often go to _speak at the bar association or some organization and I would be mt!oduced as ~he head
of the department of corrections and he wo:1ld mtroduce himself as
really the head of the department of corrections.
That was really the way it was. Hi~ role be~~e so involved.
After hearing every detail of all those pnson condit10ns and the testimony that was brought forth and the issues that were brought by
experts from both sides, I think he was really an expert after the
end of that trial after all those years.
.
I would close by sa:,,ing that prisons are not a bastille anymore.
At prisons all over the country, volunteers come by the h~ndreds.
In our small State, about 500 volunteer~ ~ month ~ome m. They
help with t!->jngs like education and rel~gious se~ce~ _and vocational training, and on and on, and I thmk those m<;tividuals are
entitled to assurance that the prisons are safe. ~ think. they are
safer with a ready access to consent decree~ than if that issue was
abolished, and again, good staff, a g~d gnev_ance system, and finally access to the courts, if all else fails. _I think p~ssage of STOP
wou.ld complicate this process and make it more difficult to settle
legitimate claims.
.
I would just close by saying that prisons are not ideal places to
live. They will always be subject to c~allenge. _As a person who has
spent 42 years in the field, I urge this committee to 1:ot _make my
job more difficult by taking away from the S_tates this important
tool. It is cost-effective and humane, and I thm~ our goal to m~age safe prisons and the right to settle these things o.~ cl.fr option
and go to trial when we have to and settle when we aon t should
be left alone.
Thank you.
[The prep2rd d.:.te,:-:cnt of !,fr. Watson foUov:d
Pm:?ARED SrATEME~'T OF RoBERT

WATSON

Gc.~:i Morning. Thank you for giving me the opp~:-Mnity. to te~tify befo:ee this

ec~-;H~ regarding legislation that is c-.:.rrently =cicr cc:.-,.sidcraton by

this Con•

g,-~~- = e is Be,:, v:r.teo~. I 8.In the Co~ssioner of Correction of the State of

Delaware, a po,::.:o::i I brn held for over eight years. I have worked, m the field
of corrections for 42 years, ~ in Oregon in 1~53 as a Correctional Officer
in the State's maximum security pnson. After working my way ~p ~ugh the
ranks, I was appointed head of the Orego_n Department of Corrections m 1976, a
position that I held for 10 ,rears before moving to Delaware.
.
I have also been an active member of a number of national corrections orgamzationa, hsvi~ served es President of the Association of State ~orrectional ~dministrators, ChB.lr of the Commission on Correctional Accre-'--;itation, and. Chair of t.!ie
Con~ of Correction. I am also a recipient of the Amencan Correctional Aseoaa•
tion s E.R Cass Correctional Achievement Award.
My purpose in being here today is to offer y_c,u m,1 views regarding the "Stop
Turning Chit Prisoners Act," a bill known as "STOP.. This proposed leg!.slation is
of serious concern to rn~ far a n-.unber of reasons. First and foremost, 1t has the
practic.e.1 effect of dcpri-,ir::.g s:ste edm.itis::.....,.to:-s cf t.lie right to settle pr.son ccnil•

tions litigation by whatever means the:y ronsider mom appropriate under the circumstances. This significantly rompronusee states' rights and creates an enormous
potential fisc.e.1 impact on the states.
Bx prohi~iti~ rourts from approving and enfo~ on!ers that do not include a
fincling of lia_bili~, ~ P . ~ ~ t almost _all ;a~ts involving conditions of
confinement Ill pruiona, jails and ]U-.enile detention facilities will have to go to trial.
This means that local guvernment defendants cannot settle suits-even when they
deem it to be in their best interests-without admitting liability and opening themselves up to countless actions far damages that they would be unable to defend.
Tf,e Oregon ~partment of CorTections was sued in the late 1 nO's regarding a
vanetY. of conditio"'! '?f a,nfinement. We spent nearly seven ,l'.~ in Federal O:r.ut
defending the conditions that were alleged to be unconstit-J.tional, givii::g many
hours of testimony on each of the issues raised. We lost that lawsuit in part because
the conditions were clearly unacceptable and in part because our own document&for example bu~t requests, aocreditation applicati,>ns and our own professional attempts to make llllJ.lrovements---revealed. ~ ; we were _aware of the existing problems. Our state leiti.slature has ~ y pnor:,ties and l'':""ns and detention cei:ters
are not always at the top of the l•· For this reason, 1t 18 not unco=on for impor•
tant requests for funding to be repeated year after year, underscori~ our knowled!(e of th& need for improvement. In that case, we spent tax dollars 1n defense of
a situation that was not defensible and, in the end, the court entered an order that
:-equired necessa,y improvements to be made over ti.me-a ,;ituation that in hindsight could have been achieved far less experutlvely and far more etfectivelv through
the negotiation of a consent decree.
•
In subsequent lawsuits that were filed during m_y ten years as head of corrections
in the State of Oregon, we settled some issues and cases, and went to trial on those
issues that the parties were unable to resolve by agreement. We settled when in
our assessment we had no chance of winning, and by negotiating a set'Jement we
avoided a finding of liability and minimued the financial burden on the Sts'.e t.'w.t
would have resulted from trial, as well as from the countless damages actions that
would have been filed by individual prisoners on the basis of a court fin~ of liability. The decision to litw,te or to settle out of court without admitting liability
should be left to state and local officials to make, not imposed on states by the federal government.
Under the provisions of STOP, judicial findings of liability "'ill self-destruct every
two years, !:!"I.wring repeated full-blown trials on the merits. Thus, STOP will interfere with officials' measured efforts to eliminate unconstitutional conditions and will
result in huge expenditures of money and judicial resources. Many of the impro,·ements that are required to bri.!ig conditions up to constitutional standards take
years to implement. The, a.l!!o require a commitment on behalf of legislators to provide the necessary funding. A two-year limit on court ordered relief will create a
tendency to delay necesaary improvements, adopt only temporary fixes, and.'or devote all of the Department's resources to litigating the same issues over and over
every two years.
By way of illustration, federal lawsuits often challenge a prison's staffing component by claiming, for example, that there are insufficient correctional staff to safeguard prisoners from violence at the hands of other prisoners. However, if a court
orders a remedy for this problem, and the state elects to hire additional staff, b:1t
does not require the staff to undergo an adequate training program, we can make
a temporary fix, which will do nothing to solve the underlying problems. In the
short term this may appear to save money. In the long term it will lead to mrre
litigation and far greater expense. Tax dollars that would have to be spent o:i the
repeated defense of prison conditions suits that would result from temporary fu.es
would be much more effectively spent on implementing long-term, well-planned improvements.
Professional corrections staff do not want to run unconstitutional prisons. They
want to impro,-e conditions where necesaaty but will be undermined in their attempts to do so if their state legislators and Department of Corrections are required
to di,·ert a silltlificant portion of the Department's budget to_ defending cases that
should be settled.
Various of the STOP bill's other el!"'isions are equall:y misguided. As a result of
the intervention provisions in this bill, corrections official!!, state and local executives. and State Attorneys General will loee control of litigation. Local sheriffs, district attorneys, or individual legislators who intervene as defendants can tum good
faith, coordinated efforts to meet constitutional requirements into political circuses.
STOP a.l!!o deprives courta of the benefit of court monitors appointed to monitor
compliance and serve as mediators during the remedial stage. Magistrates are not
permitted to perform these functions and, as a result, courts and states' attorneys

Senator ABRAHAM. Thank you very much, Mr. Watson.
Last but not least, Mr. Martin, and thank you for your indulgence and patience here today.

,,.-;!J be re u.ired to concuct repeated compliance hearings._ Most monitors_ th~t are

e.~;r'nted iy L'ie c<>urta haYe significant corrections expe..,ence or expertise m L'ie
• ~ c areas co,·ered by the co-art order-for exrunp!e m"'!lca! ca.--e:-and can "'.ork
"-ith corrections officials du...jJ:,g the ~edial ~ e •. offenng PM:ctica! "'!'ggestio~
a:::d working out prob!et::1s based on their. expertise _m tJ:ie area '.n questions. This
,~:.cl role of co-art-ap;,?inte'.1. moni1!'rs w<T.:id ~ lost if this prov1.s1on ?f
were
c=cted. The attorneys fee pro,-i.sion of the ~ill would ~<:Crb~te this prob.em by
E,:nting plaintiffs' attorneys'. role int!'~ rem~al ,Phase of litiga;,on-a loss, of exper1::se at a crucial stage in pru,on conditions_ li_~non and a significant eros,on of the
nation's commitment to safeguarding the a,-il ng?ts. o_f all pe':'?ns.
STOP would also seriously im;,ede the federcl_;udiaar;'sability ~ enforce the constitt.ticnal end statutory rights of adulte and ~~eniles by reJ?O\-i.ng t!;e power to
i.s..<ue emergency :-.,lief. Federal courta do not v.-illingly become 1m:olved 1n the opere.tion.s of prisons e.nd jail_s--t.'iese ~ ere ~mplex, burdensome, poli~cally sensiti,·e, generate a lot of pnsoner mail, 9:'1d continue f~r a much longer penod of time
the.n m<ist litigation. In ell my years m the correctional field, I have yet to co':"e
e:ross a judge who likes t}iese ~•- Noneth~ess. the courts i>erform. an essential
rc!e in p;-otecting the rights of pns<>ners. ~1e llllportance cf this ;°le 1s e".en more
pronounced in the context of emergency life and health-threatemng condinon.s_. A
co:lrt must be ab!e to respond to a proYen emergency, such as a TB cutb~, w1thc1.:t holding a fuli-blov,m ttuU; The _pow_er of the co;;..~ to act qmck!y "~_thout the
ce!ay of a trial, when t.l1ere 1• an immment ~ger, ,s one _of the most 1:r.pcrtant
-safo;;-.os...-ds c!'fered by our legal system. Restricting the ability of the courts to_ reE?():id to suc...'1 e.ri:ergencies ra.Lctes not on!,:- ch:U liberties c~ncerns 1 but also senot:s
c:e.nage::1ent problems for tl,.ose of us working m the correctio?S fie.d.
A priso:i is cct £..."l i.5o!a!.e::i b!lst~-1!,e po,tt.:!nted so!~:y _by pnBOner:9 and staff. Due
to l::!tl!ed funding. a:::.d cfc~ to_bnr..g tJle cc~~"J.:-..:ty L'1to corrections, me~bers of
t!::e local cot:1munity ,-i,;,t prisons on a daily besis to a5sist v.ith church scrv1ces. the
p::-c,~..s,o:i cf educational and vocational programs, e.!:ld e.n array of other programs.
I:i Delav.a.re, more then 500 volt!ntee..~ \isit oar prisons ee_ch mon!.h. In la.rg~r
s~!.es \\.ith similar policies, the number of"·oI:in~ers coald_ be i!l the tJ1ousacd.s. \\e
c:.-.·e !!le prote~o:i cf ~11.e cv..1.i.-..s to all t..liose lllSJ.de cw pnso:is and to the commur.i:ies to whic..'1 they retur:i.
v:e c.:-e s.lso respon.~ib!e for t..lie safety and sectL-ity cf ti.~ese Yc~ar-.teers, e:.s \\-CU
t.s !..½.::! cf s!s.ff and priscn~rs. STOP ~JI mtle Oti!" j~~ mo:-e difficult in this area
c.s ,;eJ. Good prLson rr:an~e:::e!:lt requires e.n effect;,-~ e.!:ld respe<;ted p·ocess for L'ic
:-e~::::.:..t!o:i cf priso!lers~ c!alt:ls. N:l o~er!y process fer ±e resoluticn cf cl3!?1S helps
!".J :-t:=e.:e the f:-u.~::a:i:-:i 2::d c.r:.p::~ cf i:r=.sc::~:--s w::'J feel they have ge::~ne ~roble!I:.S t..}iat require resc!\!.t:o:i. \Ve.:1-tn:..in.ed staff .e.re ~1-..c fiI"St step in respo::cifng to
!egiti:nate J!ri5oner cla!~; a fomal ~e:,.-~ce systc~ rs t..'1_e ~o~d ste;,. gvcr~o.1~ed
ste.te e!ld .ederal CJUrts e.re itlready 1ns~~ng t!'.s.t s~ete~ 1mp!~::::.ent ,cert:fled P;e:.£:..:e F,·stems th.fit reduce L~e courts worK.1.oad by res~!vu:.g pnso:J.e:rs cla:.I:".S o:r~-c.co::..-t. 11:e fi!:.cl r:.e:>, \;-~e:i sl.l else feil8, is far the p::-isoce:- to s-..:e tl-.e govc:-r..cr ~nd
cc:-re=:::-:-.s f:-2~ L, C:~:-:. Pu!':.be cf STOP \r,;~:!.Id c..::.::::;licet~ th.is process by :::eking
it ~:::-e difficult to set+Je iegitir=.ate cTc+;..,~ out-o:'-w:.:.rt ar:d by dive:-tir..g sce..."'l:e t.e.x
C:::~ars from L~e impcrtant areas cf ste..'T
•. training and prison ncinten.a:ice to lit:.ga:.::::i, thereby .edcir:g to t..11e i=e-..'itab!e tensio:is of i:ris:::::1 life.
TI"i5 proposed Ieg=.i.5letio!l i~ extremely costly a.TI.d cc:r.es at a tir:-.e w~c:1 ~:.x Cc2~-s
e--e c:1-rt!cularly scarce. rr.e Jurl:cial ln!pact Office cf L~e A'.:-:-.:::z-:::c::-~~\-e Oi:i.:e cf
L~e t'-~- C-0:r..."1:5 he.s eEtin:£!ed tb.r.t tbe po~::tiel ~=·-1d re~J-.:.:~e costs of STOP
c,:·..:.~:l t-c ?::'~:::-e L~~:1 ~223 ::-~~~:~:1 E!:d ~.035 ~~~:ti:::-~::, cf which at least 280 would
be iudiciel offiocrs. ,".t least S95 mil!io:i could be ir.c--1rred if just 50 percent cf exis:inj prison cnnmtions ca,:-..se::.t ce:rees ,end co:a-t crde::-s were refiled in federal court
S-~!>scquent to their tem::~t:o:::i under t.."tls ~:IL ?\!::.::..,. mc!'e r:iillions cf dollars in
resnurce costs cou!d be ir:~'Ted by the j:..diciary if r:lJ. t!-:.e plc.i::.t::f rr.e:r-bc:-s cf a
class -..·e:e rec;ui.>-ed to tesS'y e.s to haw L'ie alleged !'risen co::.ditior,s &fe<:ted L'!e:n
~;,c:.'..5cclly. 0.::1 t=; cf Ll c:" ~~::: =-..-:: !.:.~c co-i.~t!ess CoL.ars that st.ates ~..:Jl b~ reqU:red.
to e~-s.:-~d. t:' coa:1u:t a t::d ~:.1. t..~.'.>~!. e;·ery case, and every two years t.r.-s!'e.:ftc:.
The ,·est majority of these e>.-;>end:t"t!.-es would be fer no good p:u-pose ar:d cocld be
se.ved by leaving
eno"!,h aloz:e.
Prisons ere not ideal p'.a::es to live, ru,d they s'oo:.tld not be. However, ccr:ditions
»-:.cl always be c!:-.ailenged, so:netimes v.ith good cause. As & person wh'.l he.s s;,ent
-'.2 ye2..-,i in the fe!:l cf e<>:crecticns, eighteen of which have been s;,e::it heading
depertme:i!.s b twJc E:Z.te!. I urge tris Committee not to make rny job more cliffic'..l.1t
by taking &way frc□ the s:.ates e.n impo~t tool in the cost-effective, humar.e, and
safe manage!Ile:1t of o~ p:-=~n.3--fre right to set:.:'? Eti&c.tio=i when we determine
it tt, be in o~ o~-n best in!erests.

STATEMENT OF STEVE J. MARTIN
Mr. :MARTIN. Good afternoon, Mr. Chairman and Senator Eiden.
A housekeeping matter. May I likewise move my written statement
to be part of the record?
Senator ABRAHAM. It will be so included.
Mr. l\.fA.RTIN. Then one additional request, if it doesn't \iolate
protocol. I have some correspondence from colleagues in Texas,
former board members and a former director of the Texas prison
system, that I think would be relevant and helpful to the committee. If I could also move that?
Senator ABRAHAM. Without objection, they will be entered into
the record.
[The correspondence referred to follows:]

STOf

RA YY.O~D K PRocL-:-.!ER,

Gardnervill.e, f,Y, Apr'J 19, 1935.
Hon. QR.Hr, G. HATCH,
U.S. Senate,
Washington, DC.
DEAR SE:-.ATOR HATCH: I urge you to read this letter with care as it is based on
my more than 40 years of experience in the field of corrections. l served ns D:..-ect<,r
of Corrections in California from 1967 to 1~75 under then-Governor Ronald Reaga!:l.
I also have served as Director of Corrections in Utah, V1.qpnia, and Tel<llS. ln Te"""
and California. I managed the two largest state prison systems in the United States.
I e.m not soft on crime and I am not soft on corrections conditions. I sup;,ort the
death penalty, for exaniple, and ha,.-e presided over executions in \-u-ginia and
Texas.
I e.m writing about two pieces of critically imr,rtant legislation that are pendir.g
before the United States Senate and that are o enormous importance ro Americ.s.n
correctional professionals.
.
One of these is section 103 of S. 3, introduced by Senator Dole and others. Section
103 corresponds to Title II (*Stopping Abusive Prisoners Lawsuits") of H.R 66i,
which the House of Repreeentatives has p ~ Section 103 would red1:1ce fri_Yolous
or malicious individu~ la~ts. filed _by pnsoners. Based. on my expenen~ m corrections, passage of this legislation _will redu°': the ~ a a l resoll!""5 dedicate<:! to
unnecessary litigation, reduce the time corrections ofliciala waste m court, and Im·
prove the operation of inmate grievance systems. Therefore, I sL"Ongly urge you to
vote in favor of section 103.
.
. .
.
Just as strongly, however, I urge you to vote acaznst S. 400, which JS pending_ be'""' the Senate Judiciary Committee and which has not yet been mcorporated mto
3. S. 400 ("Stop Turning Out Prisoners") is identical to Title III of H.R 667,
which the House of Representatives has passed. Unlike section 103 of S. 3, howewr,
S. 400, if passed, will be harmful to corrections.
S. 400 would:
.
• deprive federal and sta~ co~ of_~ction to _e,:,foree ~ting or futu...., consent decrees in class actions mvolvmg pnson and Jail conditions;
• cause t.1-ie court's remedial decrees to automatically self-destruct e,·er-y two
years, requiring class actions to be re-litigated every two years;
permit any federal state, or. local o~c!al who_ "is or may be affected" by c!ass
s.ctio:i litigation involving pnson conditions to mten-ene a.s a defendant;
• prohibit any state or federal court_ ~m ~ P':"liminary relief (e./l'·• a temporary restraining order or a preli!lllna.ry IIlJUDction) lliltil a full tnal on the
r::1e1-it.s of the action has been completed; and
eliminate, for all practicnl PllrJ>OOe'!, ~e- court's authoi:ity to appoir:t !' special
master or court monitor to engage m l!ll.:>rmal moruronng and mediation proc·
esses even when State officials determine t.t e appointment of such a court moni-:Or in the State's best interests.

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67
I believe t.l'mt good prison ac!mir.istrators avoid litigation by "!nning lav.~ end
professional corrcctioual institutions cl_ld system~. If they do this! the;, a,·01d the
need to enter into consent decrees. Indeed, as Direc½>r of Corrections m four systems, I ha,·e r-ot been required to negotiate and enter into a consent decree to settle
class action litigation.
.
On the ot..'ler ho.nd, I have served in syste:ns (Texa5 bemg th~ best exemp!e) that
had fallen below ronstitutioncl standards ~fore. ~ ~ e Director. I also have
ser\•ed in svstcms that had settled class action litigation through consent decrees
before my appointment.
.
.
.
. .
I c!o not argue that all class action law5ll!ts af:unst pnson o!'ficials are me;1tonou.s. I also ha"·e seen some consent dec:-ees 1n Wu!Ch State offic~cls agree~ to ~rms
they should have refused. Unfortunately, powe,·er, many lawsuits ~ "?1d. I ho.ve
testified in some !aw~ui~ on ~half of pnso1:ei:9, _and for_ the state m olhe~. M?5t

imp::>rtant, when mcntor..o~ s1.1:-!s are ~cd, _1t 1s 1mpera.ti~e ~~ S~te officie.ls, in•

cluc.i::i; the Dir!.'ct<lr of Co?Tections, mru:1tam control of lhe lltigstion. When they
ceem ,t nppro;,riate to do !O, these offic1als must be penn1tted to settle a case by
entering into n consent dec.-ee.
TJ'"~k ,·ou 'or re2.ding Lltis letter and co:1.s:dering my ,~ews. The issues I have
c.i~~ed ·i.re ~f vii.cl import.anoo to the A.:nerican c.orrecticr~s profession.
I urge you to support section 103 (If S. 3.
I urre you to oppose S. 400, whether it be::o:ncs part of S. 3 er is offered as an
acendment during floor c!ebate on S. 3.
Sincerely yours,

liAR.•ff M. WHITTINGTOX,
A'!TOR.'-:EY AT LAW,

TX. July 19, 1995.
Hon. ORRIN l:-'~TCH,
Chairmen, Senau Judiciary Cor,;r.-.it:cc,
U.S. Senate, Washington, DC.
DE:a SEXATOR HATCH: From 1979 t,, 1985, during the ten-year Ruiz litigation,
I ser\·ed as a mecber of the Texas Board of Corrections, and I was the liaison between the Board, the State Att.orney General and the Special Master appointed by
t.'ie Federal Court. In this role I participated in extensive negotiatiom which led to
the settlement of the class action suit brought by inmates to enforce their constitutional rights against the State of Texas.
Though my lel?al practice in Austin, Texas, since 1950 had not included any_ ci':"J
rights matters, f soon learned that the State of Texas was exposed to senous liability for the manner in which it had been operating its prisoll!!. Much of the information I obtained came from my own investigation of the treatment inmates were recei,ing, and I was astounded to learn that so many state officials were either unaware of the prison conditions or unwilling to recognke the obligation of TeXll.9
under the U.S. Con..<1:itution.
In recent years I have observed that most political candidstes in Texas are basing
L'1eir campaigns on •Jaw and order" and attempting t,, discredit all or us who had
any part m the settlement of the Ruiz litigation. Most of the politiciam have foiled
t,, understand the complex issues which were involved and also hsve very limited
l,nowledge of the operational aspects of correctional institution•. Anyone who was
familiar wifa Te:as priaons and wanted to see them operated in a safe humane and
tonstitutione.l manner would agree that the needed reform would not l,;ve occurred
without the inten·ention of the Federal Court.
As I read Title III of House Resolution 667, I em concerned t.liet such legisletion
is no r:,ore than e.n et'.e!:'.lpt to ellow states to flaunt t.'ie U.S. Constitution under
the guise of preventing t..'ie early release of convicted felons. Moreover, Lltis legislation would seriously impede the progress which correctional institutiom have alreed}' made throughout the nation. I am disappointed that my two friend, and fellow RerubEeans from Texas are supportfr.g L'ie b'11 wJ:,Jch has been incorrectly titled
as the Stop Turning Ot!t Prisoners• Act.
The last time we met in Austin you helped us elect Chief Justice Tom Phillip!
to L':e S:.:;,re::ne Court of Texas. He is rur.n.ing for re-election end so far does not
he.,·e an opl)Onent.
I hope to have tlie op;,ortuctity to ser, ya-.1 "-be.in soon when I c.m at Snowbird.
!:lest regards.
Yours very truly,
HARRY M. WliTI'TING'I'ON.
Austin,

RoBERT D. GL'1''N,
PET!loL&UM GEOL()GISI",

TX. July 24, 1995.
Hon. ORRIN HATCH,
Chairman, Senau Judiciary Co""1U#tt,
U.S. Senate, Washington, IJC.
DEA~ SESATOR HATCH: I am a longstanding, acti':'e supporter of the Republican
party m the State of Texas. In 1981, Governor William Clements appointed me to
serve on the Texas Board of Corrections, the go,-erning agency of the Texas Department of Corrections. I was a member of the Board for five years and served e.s
Chairman from 1983 thru 1985.
'
It is from these perspectives that I e.m writing to ur;" you and the other members
of the Senate Judiciary Committee to oppose S. 400, popularly known as the Stop
Turning Out Prisoners Act (STOP). In brief, this proposed legislation if enaeted.
will create chaoa in state correctional syatems that are attempting to ~perate law'.
fully while discharging their duties to protect the public.
As you may know, Teua waa the site of a priaDn=ndition class action called Ruiz
v. Estelle. Until I became a member of the Board or Corrections, I did not realize
the depth of the problems in the CC?Tectional system in Texas. To = e a few inmates performed the function of guards, three or four prisoners lived together hi 45
square feet cells, prisonera were brutalized by other inmates and by staff, and living
conditions-by any standard of meuurement-were generally intolerable. What is
most important is that TDC officiala, having misled the Board and the Attorney
General for a time, attempted to defend these conditions and surely would not have
corrected them but for the intervention of the federal court.
Following a finding of unconstitutionality (after a trail of more than 150 daya),
the federal court appointed a special muter. One or the prima,y functiona of the
special master was to help the Board and agency officials negotiate, rather than litigate, remedial plans that were aa:eptable to the State. Through this informal process, t.'1e State ofTexaa gained much more than it would have through continued litigation.
Without questions, the efforts of the Board and the Governor would have been adversely aft'ected had county sheriffs, troubled by TDC's necessary steps to control its
population, been permitted to intervene u defendanta in the lawsuit. We end the
Attorney General of Texas woulri have lost all control over the litii:stion.
Finally, nothing of value could have '-n accompliahed in Ruu if the State had
been required to go hack to court every two yean. Altha~ one can argue that we
could simply have repeated admissions of liability to avmd this problem, concerns
about the extend of the State's 11!1!81 ~ . as well as the realities of practical
politics, would have forced renewed conflicts in c:,u,rt.
Rui.z was a painful ezperience for the State of Texas. We emerged from that lawsuit, however, ,.ith a constitutional and better muu,ged Department of Corre..-t:iom.
In the last analysis. the court and the apec:uil master were not our adversaries, and
their cooperation and patience with our efforts redounded to the benefit cf our state.
I hope that you and :,our fellow committee members will take thl!3e views into
acCO',mt as you consider this uninformed legislation. Fnmkly, I would not have expected a bill of this kind to be supported by any senator or congressman truly committed to leaving state concema in the han.ds of appropriate state offi::ials, subject
only-of course-t,o the rule o1' the Constitution we all n,,."ere.
Sincerely,
WicAita Fc.lls,

RoBERT D. Gm,x

CoNSOR'llUM FOR CmzENs Wrra DlsAB!L!TIF.S
Dear Senate Judiciary Committee Member, On behalf of America's peop.le with
disabilities, we urre the members of Congress to atop the ~ e d STOP bill ("Stop
Turning Out Prisonen "), S. 40Q/Title III. H.B. 667.
The bill would drastically undermine protection of the rights of many people v.ith
disabilities, both physical and mental; limit the discretion of responsilile officials;
and overload the courts.
[t would •stop• reaaonabk prot«tion of the rig/au of peopk with disabilities in instances such as the following, all of wbich illustrate actual conditions cases brought
under federal law:
• Pro,ision of minimally adequate medical and mental health l!el'\ices, including
suicide prevention, in )\M,nile facilities, jaila and prisons.

March 9, 1995.

• ?rc,isio:i of specie.] ed:ication for young people with developmental disabilities
\'-:ho crc ron..ti.ned in juvenile facilities, js.ils and prisons.
• Protection of the rii;hts of people who are deaf to fair treatment and equal access to rehabilitation in juvenile facilities, jails and prisons.
• Promoting effective access to such basic facilities as to_ilets and _ba1!1ing,_ and access to rehabilitation programs by confined people with mobility irnpaumcnts.
• F:-o,ision oi adequate protec'Jon against the spread of tuberculosis, which is
easily transmitted in the ir...stitutions and poses a particularly deadly threat to
t..'lose \l.-:ith comprorni5ed iinmu::ie systems.
The bill u·ould undermine the foUo:..cir..g protertior.s:
• The courts ability to grant emergency remedies when warranted by such urgent
conditions as epidemics.
• Consent decrees resulting from settlement agreements regarding alleged subEUindnrd concliions in juvenile facilities, prisons, and jails. Settlement agreements deliberately avoid admissions of a ,1olation of law. Hence, government
officials are more willing to enter into s~ttleraent agreements to avoid exposing
tJ-,ernsclves to clleged v:iolations. 'i'hey would rat.her improve conditions than be
n,quired to pay money damages. To date, hundreds of cases have been settled
vdt.hout having to be tried.
• The i::bility to discover ,~olstions, making future enforceable settlements imposs-ible to achieve.
• Co::.--t orders would be liil'ited to two yes.rs, even after tricl, reauiring retriel
cf cases that ~.1.r..ve bcrn resolvrd if rr::::,:-e thc:i tv~·o years .c.rc- needed to !:chieve
comp!.iance v.i.th the law. Two yes.rs is o:"L(;n not lo:ig enc:igh to achieve compliance in institutonal cases.
• The role of court-app~inted me.st.era in enforcing orders in conditions ce.£es,
grossly ti,ing up the time of courts which rely on masters as their monitors.
This bill wo:i]d ha,·e the effect of placing people in juvenile facilities, jails and
r-"i.sc:-..s further octside the protection of the law than they £.re today. It would vi.rh1clly abolish the ability of responsible o,1icie.Js-fedecz.l, state e.nd local-to settle
conci.itions casea when they ieel it is "ise to do so. It wcu!d multiply t.lie work102.d
of the courts.
We e..---e joined in other letters o;,posini "STOP" by a long list of people nnd organi:stio::s not e.mong the "usual suspects on prisoners' rights matters. They include
)1'.ichael Quinlan, who headed the feders.J Bureau of Prisons under Presidents
Reagan and Bue!i; present a11d former correc'Jon ccm,:r.issioners of Idaho, Minnesota, Oklahoma, Wrushingtcn end Wiscoru,in; the American Bar Association; the
American Frieucls Service Comi:rittee; the Asian Law Caucus; the Bishop of the
Episcopel Diocese cf New Jersey; the Lutheran Office for Governmental Affairs,
ELCA; the National Black Police Association; The National Cente,· for Lesbian
Rights; the National Conference cf Bleck Lawyers; the Nationei Commission on Correctional Healthcare; the Nationcl Muslim Po!iticel Action Co:nmittee; the Union of
American Hebrew Congregations; end the United ~1etho::ist Church, Ger:eral Bcru-d
of Church and So:iety.
We uri:;e YG'-' to c,;,ose the "Step Turning Out Pris-,r:e:-s Act." Thank ycu for conEidcring ou: \'leh·s en this cr~:t..:::J ::::::c.
St-Op STOP!
Sincerely,
Bazelon Center for Mentel Health Law,
National Parent Netwock on Disebilitv,
Fetle.:-a.tio:1 cf Behavioral Fsychologiccl and C~;;nitive Sdcncc.9,
Nationcl Association of School Psychclogist.s,
Natio!lH-1 Associf!-ti~n of Protection & Advo::ecy Sys:c=,
American Aesociation on Me:otal Retardation,
Justice for All,
Paralyzed Vetuans of America,
National Association of De\·e!o;imentcl D:£ab:lltics Co:rnc:1$,
The Learning Disability Association,
Nationcl Mental Health Associe.tion,
Ne.tione.l Heed Injury Foundation,
A.me:-iean Psychiatric Association,
Ne.tional Association of Socia.I Workers,
American Ptychological Asroci!.tion.

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DEAR SENATO!\,

We urge you to oppose the "Stop Turning Out Prisoners Act" ("STOP ") (S. 400·
Title III of H.R 667). The STOP bill violates the guiding principle of this country
that all people, even the least deserving, are protected by the Constitution. This !egislation would create a dangerousre:.recedent l"or stripping constitutional rights from
groups of individuals who are in
lie disfavor.
'.fhe_ bill seeks to deprive_ the_ ederal ~ of the ~ t<? remedy proven constitutional and statutory violations. It requires the termination of judgments two
ye~ ~ r issuance, ~ e s s of whether ~e_underlying violation is ongoing. This
provision would prohibit a court from continumg to enforce a court order even in
the face of an ongoing tuberculOBis epidemic that threatens staff and prisoners.
Similarly, the legislation deprives the courts of their power to issue temporary emergency orders in appropriate circwnsta.nces.. Equally unwise is the provision that
usurps the traditional power of the courts to appoint special masters.
Furthermore, the bill calls for the immediate termination of all settlecent agreements, known as "Consent Decrees; i n ~ and .iuvenile conditions cases and prevents parties from entering into such
in the future by requiring a court to
make constitutional findings before approving agreements. Since the purpose of settlement is to remove the need for such fi.ndino, the bill essentially prevents settlements in these cases. This would necemdtate tlie re -.ening of final orders in nurner·
ous cases around the country and would force st.at... and municipalities to litigate
cases that they would prefer to settle, thereby ine:reuing their expenses and exposure to a fee award. States and municipalities are entitled to determine their own
best interests. Similarly1 the provision that amends 42 U.S.C. § 1988 to limit the
fees that can be awardoo to plaintiffir" attorneys fmbids a atate or municipality from
entering into a settlement agreement that includes a fee provision. States and municipalities are entitled to conclude that such an agreement is preferable to the expos'-1..'""C to a far greater fee av.-ard af'-..er trial The bill would also significantly increase the burden on the federal courts by necessitating a lengthy trial in each and
every case.
We urge you to oppose the "Stop Turning O-.it Prisoners Act." Thank you for co,isidering_ our ,~ews on this critical IS8Ue.
Sincerely,

THE

UNDERS!G)>C:D ORG-"-"-ll.~TIOXS k'-"D

Th"D IVIDUALS:

Organizations
Alabama Prison Project,
PJliance for Justice,
American Civil Llberties Union,
American Friends Service Committee, Pacific Mountain Chap!er,
Asian Law Caucus,
Berkeley Constitutional Law Center,
California Lawyers for Civil Rights,
Center for Community Alternatives,
Citizen's Unite.I fort.lie Rehabilitation of Errants (CURE),
Come Into the Sun,
The Correctional Association of New York,
Criminal and Juvenile Justice International,
Criminal Justice Consortium,
Criminal Justice Policy Foundation.,
D.C. Prisoners' Legal Services Project, lne.,
Delaware Council on Crime and Justice,
Families Against Mands.tary .Minim=,
Florida Academy of Public Interest Lawyers.
Florida Justice Institute,
Fortune Society, Inc.,
Justice Services Program, Tnnellers' Aid Society of Rhode Island,
Juvenile Justice Center,
Koinonia Prison and Jail Prqject,
Kolodinsk),, Berg, Seitz & Treeber, Da:,tollB Beach, F1orida,
Legal .Aid Society of the Cit,, of New York,
Legal Services of Louisville,
Legal Services for Prisoners, Inc.,
Legal Servic;e., for Prisoner& ,,rith Children,
Lewisblll'i Priaon Project,
Louisiana C r i s i s ~ C.enter,

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71
Lutheran Office for Go~-ernmental Affairs, ELCA,
~ ~ t t , Hackney & Sullh'llll, Bo~. Idaho,
ll!letts Correctional Legal Services,
Middle Ground Prisa:>. Re:orm,
National Auociation of Criminal Ddense Lawyers,
National Black Police Association,
National Center for Institutions and Alternatives,
Natfonal Center for Lesbian Right.s,
Ne...:.>nal Conference of Black La,,.-yers (NACDL),
National Council on Crime and Delinquency (NCCD),
National Islamic Prison Foundation,
National Lawyers Guild, PA Chapter, . .
National Legal Aid and Defender's Association (!','LADA),
Natio:>.al Mu.slim Political Action Committee,
National Prison Project of the American CMJ Liberties Un.ion Founds·
tion,
National Network for Women in Prison,
National Rainbow Coalition,
National Women's Law Center, ·
Nevin, Kofoed & Herzfeld, Boi!!e, Idaho,
New Jersey Association on Correction,
New Jersey Prisoner Self-Help Clinic,
Patterson, McHugh & Cautz,
Pelican Bay Information Project,
PefillEYkania Legal Services, Institutional Law Project,
Pri.o:iners' Legal Services of New York,
Prison Lew Office, Ss.n Quentin, CA,
Project COPE (Congregation Offender Parne.'"Ship E:otcrprisc),
Public Advocates,
Robinson & Quintero, New Mexico,
Rosenthal &. Drimer, S)TBcuse, New York,
The Sentencing Project,
Southeast Mississippi Legel Sen-ice,,,
Southern Center for Human Rii;hts,
Southern Poverty Law Centu,
Spriggs & Johnson, Tallahassee, Florida,
Union of American Hebrew C-0ngregations,
The United Methodist Chur::!>, Gener..J Bc,::rd cf Ch·.:.c-ch c:o:! Society,
The Women's Prison Association,
Yo-.1th Law Center,
Cur.er.: c:u1 FaTTT'..cr Corredior..al Administrotc:--5

Benjamin Currence, Attonw,y, U.S. Virgin Isl.ands
Michelle Deitch, Attorney, Austilly Texas,
'
Mark ponatelli, Attorney in ~ - Meri~ priBon litigation,
The Right Reverend Joemoms Does, Biahop of the Epis.:o;,al Diocese cf
New Jersey,
Dan Foley, Attorney and Hawaii Corrections Expert
Yale T. Freeman, Attorney, Miami, F1orida.
'
Stacy Gillman, Attorney, Sarasota., Florida.
Da,id Glantz, Al-torney, Miami, Florida,
Ralph Goldberg, Attorney, Atlanta, Georgia,
:\fi~hael _Keating, Attorney and Conections Expert,
Enc Latinsky, Attorney, Da,Ytona Beach, F1orida
Douglas Laycock. University of T<=UI School of Law
Dan ~fomil!e, Attorney, Detroit, Michigan,
'
John B. Morris, Jr., Attorney, Wa.shincton, D.C.,
Richa.'"CI Rosenstnck, Attorney, Santa Fe, New Mexico
Scott Rudnick, Attorney, Sw,quehanna Legal Se:,,ices', Pe~sy!va:-..:s,
The Reverend Theodore Schroeder, Evangelical Lutheran Ci:crc.'l ;::,
America, St. Louis, Missouri,
Joseph Schuman, Leader, Ethical Culture Society, Bergen Co., ~ • .,,. Jersey,
Kim Scouller, Attorney, Louisville. Kentucky,
Jeffrey Segell, SE Regional Vice President, !'<atio:ial Cr.;;a.::nca::c:1 a:
Legal Services, Workera. Local 2320, UAW,
Brend3 Be..-n.stein Shapiro, Attorney, Miami, Florida,
Robert Smith, Attorney, Orlando, Florida,
Thomas M. West, Attorney, .Atlanta, Georgia.
February 8, 1995.
DEAR CH!\,IR.\I.'..', HATCH A.',D MEMBERS OF TI£B JL"J)!CIARY Co!,D,ITlTEE OF THE

Warren Benton, former Cc.,..,TP;ssfoner cf Correct:io::s for Ll-i.e Stc.te cf
Oklahoma,
Allen B.eed, former Director of the National Instituw on Corrections of
the Dc;,artment of Justice and criminal justice consultant,
P..o!:>ert L. Cohen, M.D., former Medical Directer of the New York Detentio::i Facility, Rikers Island,
Walter Dickey, former Cc,c:::issioner cf Corrections for t.'tc St.e.te 0i \Vis•
con.sin,

Dr. Steven S. Spencer, fonner Medical Director oft.he Correctic~s ne~•rtment for the State of New Mesko
- ~ ~Richard Vernon, former Dizector o f ~ o n s for the State of Idaho
Other Jr.diuiduala
Douglas Reed Ammon, Pe.LSaCO!a., Florida.
Michael Barnhart, Attmney, Detroit, Michigan.
Lynn Blais, University of Texas School of Law,'
Jeffrey 0. Bramlett, Attorney, Atlanta, Georgia,
Marf~ Brown, Stetaon University Co:lege of Law, St. Petersb::rg, Flor-

Michael Hennessey, S!leriff cf the City and County cf San Francisco,
Patrick Mc.V.s.nus, former Secretary {Commissioner) of Corrections for the
State of Kan!!ae and Allsistant Commissioner of Corrections for the
State of Minnesota,
Dr. Jeffrey Metzner, former Chief of Psychology, Colorado State Peniten•
tiary Etyll!ne Miller, prison and jail aec:urity expert, former Dfrector
of Jail Operations Project for the National Sheriffs' Administration
£lld former corrections facilities administrator for Alaska Division of
Corrections,
.
J. Michael Quinlan, former Direc:tor, Federal Bureau of Prisons,
Chase Riveland, Secretary (Commissioner) of the Department of Corrections for the State of' Waabingt(,n,
Steven M. Safyer, M.D., former lii:edical ~ . o r of Montefiore-Rikers Is•
land Haalth Services, New York City,
Ellen Schall, former Deputy Commiaaioner of New York City Department
of Con-ec:tions, and former Commissioner of New York City Depart•
ment of Juvenile Justice,

l"SITED STATES SESATE: I am writing to express opposition to the "Sto;, Turning
Out Prisoners Act," Title ill of H.R. 667. In my capacity as the director of the Federal Bureau of Prisons from 1987 to 1992, I have been intimately im·olved in p:i.<on
conditior.s U~gation. Ko a<lm½'ic ~- . '!"ants to operate an unconstitutional facility.
The commuruty, staff and pnsoners alike are better ,oerved when we assure Jnici.
mally decent conditions in our cation's prisons. My experience, as well as the experience of correctional administrators aroand the country, is that prison conditio:::.s liti•
gation has often helped administrators °iropn'9'1! conditions in their facilities.
I believe that the bill is extremely misguided for two rea90ns. First, by requiring
a court to make factual findings before appl"D'Ving a Consent Decree, the bill essentially prevents federal, state, and other governmental entities from entering into
settlement agreements in prison conditions litigation. These entities are entitled to
determine that settlement is in their best interests. Requiring them to go to trial,
and thereby exposing them to a much greater attorney fee award, encroaches on
their autonomy. Preventing stat.ea from aettliDg, once they have determined it to be
in their best interests, is bad policy.
Second, the provision that requires f"ederal couna to use Magistrates instead of
special masters or monitors in prison condit:io.118 litigation is enremely imprsctieal.
Masters and monitors serve an e:r.tremely important role in prison litigation; their
duties are complez and time consuming. Tbeee individuals have cypicalfy worked in
the correctional field for aeveral ~ and haw dineloped ezpertise in correctional
ma.'lagement. Replacing them ,nth Magistrates who are a.lread;r overworked and
have no special ezperti.se in prieon ~ t ww.ld create mordinate delays,
mieguided correctional policy, and an onslaught aCf'urther litigation.

I w;;e you to oppose this bill or, at a minimum, to hold hearings at which the
,ie"-s of correctional administrators and others can be heard. Thank you for consideration of my ,iews.
Sincerely,

So what I would ask the committee is to visit the history of this
issue, when the prisons were insulated from judicial review recause it is my view that the practical effects of some if not ~l of
t~e~ p~._~11 serve to insulate sys~ms and jafls from judicial scru~Ow, tha~a}" be the very mtent. It is my impression, at least to some extent, that that is the precise intent of this
legislation.
I would just urge a great deal of caution before you adopt-and
I will speak to specific provisions momentarily-wholesale provisions across the board, regardless of the merit of a particular case.
Let me just go into one quick example because it is fresh-the
auto~atic termination ~f _existing consent decrees. That provision,
as wntten, treats all eXIsting consent decrees alike.
I have !:-een involved in corrections not nearly as long as the
Commission";- from Delaware, but almost a quarter of a century.
I have never seen two consent decrees or two sets of prisoner jail
~onditio1;s ali_ke. How in th~ world would you pass something that,
m my view, 1s almost foll~hat says we are going to go and find
every consent decree that exists in America in prison and jail operation and terminate them?
A lot of what has been said today has been couched in terms of
population caps. Now, if this provision is directed at that, it is
much too broad. It is going to catch up a lot of conditions that exist
in prisons and jails that don't have anything to· do with population
caps. The point here is that a number of the prm,;siJns impress me
as being overly sweeping, as being arbitrary.
For instance, I would urge the committee to demand or request
why the 2-year period was selected for the consent decree revisit.
I mean, where did that 2 years come from? Again, I would agree
with our colleague, Mr. Watson, that 2 years in the life of a large
bureaucracy like a prison or a jail system is a very brief span of
time.
These consent decrees and institutional reforms-I believe,
again, most commentators would agree it is complex, it is methodical, and it is slow. So, at best, what you are going to be doingif you have a commitment and you are moving forward with a compliance agenda, you are going to have need.less interruptions that
will slow that process down by its very nature.
Let me move quickly through some of the provisions to make my
point on the insulation. The removal of special masters-again,
Professor Dilulio out of his book recognized that in complex litigation of this type, they provide the eyes and ears of the court, ancl
their on-site presence to assist the court, report to the court, et
cetera. If you remove that on-site presence of the Federal court, you
insulate that defendant go•, ~ ... mental entity from possibly accurate
reporting, possibly reports that are disguised. A number of things
could happen, but the effect is an insulating effect.
The provision that prohibits the award of attorney's fees for
plaintiffs' attorneys during the remedial phase of the litigationagain, plaintiffs' attorneys have a tremendous stake in the remedial effect. That is the essence of tl::ieir case. They tend to be very
diligent and very aggressive in providing direction and oversight.
If you pass a provision wherein they will not be able to get attorney's fees, you have, in effect, made it very, very difficult for them

~fICHAEL Qtma.AN.

Mr. MARTIN. I really appreciate the opportunity to make this appearance because I think that what is under consideration before
you in terms of the STOP Act really puts us on the edge of a very
seminal point in the history of American corrections, certainly, in
the last half century.
I say that because of this. The honorable D.A. from Philadelphia
made reference to there were no prison system cases before 1970.
I believe she said there were no systems under court jurisdictio;:i.
A very ready answer for that, a very plausible answer for thatthat is because of a case that was handed doV\,-n by the tenth circuit
in 1954, styled Banning v. Looney, which basically stood for the
proposition that Federal courts were not e"1powered to intervene in
the affairs of prison matters, and that became known as the handsoff doctrine. The hanC:s-off doctrine remained firmly in place
through about the 1970's.
Now, what is interesting, and I believe very notable for this committee, and I would urge you revisit or to acquaint yourselves with
it, is what happened when the insulating effect of the hands-off
doctrine was removed. It subjected prisons across this country to
judicial scrutiny. What, in turn, did that judicial scrutiny produce?
Well, it produced a litany of horrific conditions that anyone that is
involved in this area under consideration of this act £1-10uld become
acquainted with.
We have had a number of horrific statistics set out before us. \Ve
have had the horrible tragedy of Mr. Boyle, and my he· .. rt certainly
goes out to you, as I think any right-minded person would. But I
woul~. remind this committee that there w2.s a litany of horrific
cond1t10ns that emerged from conditions litigation in the 1970's and
19S0's.
Just a few_ bz-!ef examples, but hopefully they are colorful enough
that they will illustrate that ::;erious and horrific c:mditions likewise existed whe!1 these syst€:'7'.s were insulated from scrutiny. You
had the Tucker telephone in Arkansas. You haj inmates in Mississippi that routinely carried arid wielc!ed shotguns with !h-c
r~unds, and freq1;1ently fired t~at lethal weaponry at other inmates.
\\e had the bat m Texas, which was a huge piece of oak that officers _used. Corpor21 punishments were the rule of the day. Inmates
roc::::::e!y died from inadequate health care. Condition., were such
that infectious disease was routine.
The spate of litigation during that time-I believe most of the
commentators and scholars familiar with this area of law would
agree that the judicial btervention brought about the reform to a
large extent of American prisons across this country, and that is
why there was some reference made that 43 States had active
cases.? Well, you have to ask yourself why? How did that come
about. You cann.ot_put it all in terms of renegade activist judges.
You cannot put 1t in terms of renegade irresponsible plaintiffs' attorneys. There had to be a basis in fact; factual findings had to be
entered.

76
75

I
j
L

an attorney and corrections consultant on J,>risoo and je.il litigation involving hundreds of confinement facilities across the Uruted States.
My primary purp06e here today is to urge you not to pass the Stop Turning Out
Prisoners Act, otherwise known as "STOP." If passed, the bill "ill wreak havoc in
states, COW?ties, and _Correctional _s~~ a ~ the Country. Af' a preliminary
matte,:, unlike the '.'frh,:olous lawswtl!I bill that ~ 8™? und~r cons1de:8_tion by this
Collllillttee, STOP 1s directed at all adult and Juvenile pnson and Jail litigation
even litigation that raises meritorious constitutional and f!tatutory claims. No mat:
ter how egregious the conditions, no matter how valid the claim, the provisions of
STOP will prevent states from settlinl( litigation, will call for court orders to selfdestruct every two years, and will disallow the use by Courts of special masters or
monitors with expertise in prison operations.
In m>' capacity 88 General Counsel for the Texas Department of Corrections I assisted m the defense of a longstandin~ piece of litigation known 88 Ruiz v. Estelle.
I do not wish to devote the valuable time that I have been given here today to the
details of the Ruiz litigation, but a brief descri_ption of the case will allow me to illustrate the grave JlroblellUI with the STOP legislation. Ruiz bege.n in 1972 with the
filing of a civil rights action by eight prisoners detailing a wide variety of constitutional claims in a pro se pleading. At the time, the system was beset by high levels
of prisoner-on-prisoner v10lence and staff brutality, inhumane medical care, and
overcrowding so extensive that, et one time, prisoners were housed three and four
to a 45-square-foot cell.
After a 1980 trial that took 159 day,a, Judge William Wayne Justice of the Ee.stern
District of Texas issued a 248-page opinion finding that Conditions in the system
were Unconstitutional. The Texas Department of Corrections appealed the rulin1r
and, in 1982, the United States Circuit Court of Appeals for the Fift':i Circuit affirmed in toto the court's factual findings but held in abeyance certain court-ordered
remedies and affirmed others. The primary remedial framework in Ruiz was the result of a court-imposed decn."e. The much discussed consent decrees entered in the
case were for the most part simply compliance plans to implement the court's remedial decree. After the 5th Circuit :ruling, the plaintiffs moved for further relief, s:eeking to impose a single-cell requirement on the prison system, a requirement the appellate Court had held in abeyance. This prompted the parties to negotiate a ma)or
consent decree in which the system was allowed to double cell its general population
inmates. In return for the double ceiling, the prison board agreed on pre-detenr..i.ned
capacities et these particular prisons. Those critics of the caps in the Texas case
often fo~et that a court imposed single-celling require,,-,ent, which we avoided by
entering mto a consent decree, would have reduced our capacity by half.
Norn~thstanding this long and complicated history, I ce.n say st.'"<lngiy and unequivocalJy that but for the sustained inteivention of the federal court in the unconstitutional operation of the Texas prisons, the system would have continued to operate in the disturbing manner that I described Previously. Admittedly. in hindsight,
there were many points along the pa th of the litigation at which the parties, and
even the Court, might have conducted themselves differently. Most sigruficently the
department could have elected to settle the litigation et the outset, rather than defending a system that was unlikely to pass constitutional muster. Instead, the St.ste
spent millions of dollars defending against the litigation, end was ultimately required to undertake measures that were similar to those proposed by i: 'aintiffs et
the outset.
This brings me to the fln!t of my several concerns about this legislation-that it
usurps what have heretofore been the prerogatives of state end local jurisdictions
to determine that settling litigation is in their best Interests. If the State of Texas
were to find itself in the same circumstance today that it was in at the time the
Ruiz litigation was filed, the STOP bill would hnve required the State to expend millio11!3 of dollars on legal costs; the Tex.as Department of Corrections would not even
have had the option of resolving the litigation by negotiating an agreement. The
consequences of this are made worse by the fact that negotiated settlements, in my
view, are better tailored ro achieve remediation than court-imposed remedial
schemes.
. .
It Is equally indefell!lible for Congress to legislate the termination of alJ ensting
settlement agreements-known as consent decrees-in frison conditions cases. I
know all too well that consent decrees are the product o endless hours of negotiations between the parties, carefu.lly tailored ro a particuluized set of actual circumstances. Simply terminating these decreea arbitrarily by legislative fiat will
und, all of that work, and immediately require departments of co!Tections around
the country ro prepare for trial in each case that is affected.
The decision ro settle a case by a consent decree must be left t-0 correctional officials and State Attorney Generals who are familiar with the conditions in the sys-

to maintain that activity during the remedial phase. Again, the effect of that is to insulate the defendant governmental entity from
that appropriate direction and oversight.
The last provision that I would like to specifically commen~on
is the prohibition of preliminary or emergency relief absent a fi~-ing, which would obviously require a full-blown hearing. I have
been in institutions in which conditions were so severe that I believed that death was imminent. In one particular case, I observed
a very, very crowded holding cell that I described later in court as
a human carpet. A week after I made that observation, 4 inmates
died, were taken to the hospital and died from an infectious disease
outbreak. This provision, as I understand it, the way it is written
would have made it very, very difficult to have gone in and gotte~
a TRO or a preliminary injunction to have remedied that condition
immediately.
So let me conclude my remarks by just simply urging that you
not adopt provisions t~t are arbitrary and have an across-theboard, wholesale application. Number one, that will send, I think,
the wrong mef!sage to many correctional administrators because I
ha:·e got a suspicion here that we are at least on the edge of legislat!ng to t~e extreme. We are hearing these cases of Michigan and
Philadelphia, and I am not intimately involved with those and I
have heard some things that I find ,cry both£:rsa::nc th2.t the D.A.
!ias said, _and the gentleman from Michigan. But I have also been
mvolved m hundreds of cases, like cases, over the past 15 years
and those cases sound out of the norm to me.
I know there ha,e been some represent<iticns mo.de about the
Texas case here today, but I don't know of 2.n 2.[C::icy official from
the governor to the lieutenant governor to the speaker of the 'house
to the board chairm_an to the director of prisons, sitting behind me>,
that has moved to nd themselves of the consent decrees in the Ruiz
case. They are elected officials. They have not done so.
So my last point is that there are things th:::t c;:n be done in
terms of expediti11g and eliminating scme biz:::.rrc situations, but
across-the-board, wholesale, arbitrary provisions, such as autom2.tic
~rop-dead date after 2 years of a consent decree I think are verv
Ill-advised and will be in the long term very co~nterproductive, ff
not set the-stage for us to return to that time of the mid-century
of the ha!":.C:s-off cbctr'.ne, which I would f:Uggest was in r,2,rt res_!)ons1b!e !er a lot of the extreme conditions we saw in the 12.tcr
decades of the 1960's and 1970's.
Thank you, sir.
[The prepared statement of Mr. Mart:n follows:)
PF.£~1-~:!.:!> S-:.\1::1n:~.;-r CP Sr&:;·t:

J. !w~A.r:::~

,?'>od ~forning. My _name is S ~ Martin. Thank you ~:., much for im"itnc me to

i:%

s.,.r~d w,t.~ you1
\"lewa regarding !.lie legislatfon that t.ltis Committee hes under
bration.
gan my career in corrections in 1972 as a prison guard for the
thexDe epartmel!t of ~rrectio~ After going to law school, I begau working with
o;';.ee1l"1:Jient0 1n VBnlJWI JIOID?Ons, a.mong them C-nief of Sta.ff to the Executh·c
. r O
e. epartment I ultimately 1-ame General Counsel to the department
~pd I tsf,_overrung board. I left in 1985 and joined the visiting faculty at the Univcr001 of I.w, where I taught a seminar in institutional reform litigaty 0
3::i..• . e at e lew acbool, I Ill.so worked as a S;,eciel Assis:.t.nt Attorney Ckneral
e. \"lsmg that offioo on Correctional litigation matters. Since i9S7, I ha\"e worked as

Tzw

ti {\"hilxas 8£

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78
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tem or facility at issue. It is indefensible for Congress to simply strip the states of
this option. To 5Uggest that Congress would be doing tht> states a fo vor by passing
this legislation is ~ d e d . If a state wishes to go to trial rather than to settle
a case, it has that option under current law. And if a state wishes to settle a case
rather than to go to trial, it has that option too. I urge you to leave it this way.
I have been told that this legislation has been ad,'OCB.ted for by the District Attorney in Philadelphia becaUlle a consent decree that applies to the Philadelphia jails
l:es, she alleges. resulted in the release of some persons who would not ha\'e been
released if the decree was not in plaoe. I would like to inform the Committee that
no court order or consent decree m the States of Texas, W a.shlngt,,n, Colorado, or
Wisconsin, that has capped populations in one or more institutions, has required
that inmates be releasea earlier than the normal release at the conclusion of their
sentence. Instead, the Legislature& in all four states responsibly pro,ided additional
capacity. This is true in most jurisdictions across the country. Those few jurisdictio;:,s scffering court-imposed early release conditions :<re generally those in which
the funding bodies have refused to prmide sufficient resources to meet constitutio:oal minima. Indeed, it is my experience that Governors and Legislatures in states
that have experienced prison dL"1:Urbances or been subject to major prison litigation
are oore likely to be responsive to prmiding adequate resources.
The second of my cone&"'..s, re!nted to the first, is the enormous fiscal impect that
L'ie bill would ha,-e on state and local governments. On its face, this bill
rcislead.i~ly a;,pears to relieve states and local jurisdictions cf litigation; b fact,
it v.·ou!d sigtifieantly increase. rat.her than decrease, fae litigation e>.-pend.iturcs that
states "ill be required to incur. This is "" because states and lc,c,,!ities v.il] be rec;:uired to go t<l tr'.al in every case, even in those cases tbat they be'.ieve they w:i!l
lo~e.
It is i;;;:,.;,crt.ant to rc:±=e t):,::t Departments of Cc=-.io:is elect to settle 0.oso
cases that t'.1q have dc:e:-:,--,1.-,ed they are likely to lose at trial. They do so because,
if L'iey ga to trial and, £S expected., the court finds th£t Llie pleintiffs' rights ha\'e
bee:i vio!a~d, that finding opens the d::,or to numerous deme.ge3 actions b..,. ind.ividucl priso:,c:-s, and precludes the system from mounting a defense. This bill would
re<;_ai...>e a s'..:!!e to go to trial in alm05t evi,;-y ca.."", even t.'io,xe L'ist the state knows
it v.ill lose, and consequentl,r exposes the system to Cou!ltless d=ages sv.-s.rc!s. The
Costs to t.',.e states tlu,.t will result from those damage awards would far outpccc
the costs they presenCy in-cur bJ settling such litigation.
,:he~ are_ only two "'."Y" n=er this bill tbE.t a t:icl C3cld be e.vo:c:cd, neither of
whic.'i 1s sa~sfactory. First. a state could e ~ to a findi~ of liability Lliet Wns incorporated 1r.to the court order granting relief to the plaintiffs. Such a findin~ would
crea_te the ~~': probletM that I _mentioned previo-.isly v.ith reg"1"d to a post-tricJ
findilljl' of liability, namel1, that ,t v.-ould expose the e-'..de to co;cntless incli ,-:,be..!
lawsu,ts by prisoners for <lam.ages, and L',.e adrr:.ission of lis.bility would prevent the
st.etc fro::, asserting a defense. Fer this reason, pris::in co!lditior.s settlement egrecment do not include admissions of liability and, inste.::d, typical.!y include a pro"ision
to the c:mtrerv.
The other manner: in whicli trial couid be a,-oided wocld be if the parties 2[;recd
to settle the case with a non-enfo::-reeble settle,:nent. The House cf Rcprescntc:i,,cs
pas~d a...r1 amendment .t'l the STO? b:!l t..~~t r~-1fically er.empts Il':!n-cn:c:-.:c::~:e
.-:€.t~c:ncr..!.s f:--:--.:::i Ci(.'. t::TI·s CJ\-Z..--.:1,be. Th(! &::.r;.te v;:;rsic;:i of the bill does not include
f:.l:!1 t:.:i £.::::!:J;::::-_c:t but, e'\"'ea. if one were pas...~. frJs C?tioo is proO!c:::ctic for sc\·eral re&so;:,s. First, plaintiffs' attorneys are unlikely to a.-:rce to o r:on-ed"orcecb!o
se~emen! !'~ment_precisely because it is non-,,nforce&6!e. Fer cxe:::,ple, in a ju,,mile facilities ca,;e m Colorado, the plaintiffs' attorn~ys n:cc::t:y t-.r:-c1d down a
se~tlem!'nt offe_r from the state because cf the threat of L'ie passage of STOP. &cc::d, this solution only delay:i the manifestatioo. of the problems v.ith the bill. If a
:1;.n-<enforceabl«: settlr.me::i,t ~ e n t i• not s;1::cessful ~ reso!\':ing the disputes be,... een the :,a.rties! t!-:e s,.i.:t wili em:ply be nr,-,,·ed er reinstated by plainW'fa' Counsel, thereby creating the very same problems that discussed pre\'iously. Finally, a
non-enforceable settlement is aimply not a viable option ill D".Xt cases, po.rticuJnrly
where the defendants are resistant to remediation.
For: ~ese ~~ns. the ¥11 will result in a trial being held in almost evr,ry prison
&.1;d ~ C!)!lClltlcns lawswt around the countey-. And rurer the stato co:,ducts the
tr'.al, it v.ill have to d~ 11'? e;am. and BGain. an:f agein, every two yee.rs until the
problflml! are fized. This is DecaWJe of the pnmsion that calls for court orders to
automat;icelly self-destruct every two ,ears. Institutional remediations by its \'ery
na~. ~ a £low p ~ The Tesas pn80n system had literally institutions.l.ized uncons~tutional praeti~! 110!1:le of wliich had been occurring for generations. Such
practices e..--e not eliminated without t.!ie enfo=ment of v.·ell designed remedial
plans for a S'.istained period of time. At the very least, the Committee should require

an explanation as to why two years was selected, a f i ~ that to me 5ee,ns quite
arbitrary. Having been involved for the last 15 years 1D pr:i5on and jail litigation,
I can categorically state that I have never Been two cases alike. To apply a hardand-fast two year rule to every case is, at best, cmmter productive and, at worst,
purelrecogruze
folly. ·
th e coo.cern L.,.,
-hi~ •u.=
~' - bill th a t some pnson
·
·
Ii tigatioo.
·
·
au
co ndi tions

seems to go on terminally. So that there is no confusion, I -..'OU.Id like to let the Co::nmittee know the current law on con.sent decree modification and termir.atio!l--!aw
that I think should adequately address any reasonable concerns. The Supreme
Court established in Rufo v. Inmates of Suffolk County, decided in 1992, that a consent decree can be mocfified if a change in circumstances warrants a revision. The
year before, in Boe.rd of Education of DklaAoma City v. Dowell, the Supreme Court
held that a court should dissolve a decree once a syr..em has achieved compliance
with the court's orders and is likely to remain in compliance. Thia body of law has
resulted in the termination of many prison consent decrees; that others have re-

mained in place for a long period oft.am~ is no ~ n !o ~ this law.
This is so because the !ongevit;:r of pnson conditions cases ,s by no means due to
federal court resistance to releasi.ng defendants; rather, the longevity of these cases
depends on the extent to which a prison system resists the implementation of remediation. The Texas case offers a classic example of this phenomenon. The Texas prison officials for a time vigorously resisted implementation of the court's orders. In
my view had these officials known that the remedial decrees would terminate after
two yean, the reforms v.-ould have never been institutionalized or, at a rnirumum,
the implementation would have been even more protracted and expensi-.e than it
was because the Department's resources would ha,-e bee!l significantly i.t!,paired by
the requirement thnt ther '.itigate the issues in Court every two years. these resources are much more wisely and effectively spent C!l re:nedyi;: t.'ie irJirrr...itie,, of
a system.
I would like to briefly address some of the oL'ier problems -..ith this bill Section
(aXl) of the bill ia extremely ,·ague an~ 1 at a minimum, should be clarified. In its
current form, it suggests that a court will h~ve to hear from every ~le clas:s member before the court will be able t,o issue relief that affects the class. ,f that "' what
is intended by the legisl~tion, ita a~surd}-ty cannot be overstated. 1'.he c!ass action
devioe was designed precisely to avoid this consequence, not to mention the am<rJ.nt
of time and resources that a state would need to devote to even a single case. It
is beyond dispute that there are fecilities in this country that are beset with un.-onstitutional conditions that affect ell prisoners housed in the facility. Indeed, the
class action rule under which these cases a.-e typically brought-Federal Rule cf
Civil Procedure 23(bX2)-alresdy req:cires, as a prerequisite to ce.--tification of the
class, that the ~urt find that "the party opposing the class rui,s acted or ~fused to
ac~ on _groun~ generally appli_cable to the class, _then;by making appropnate final
iDJunctive relief or corresponding declaratory relief with respect t? _the ~ass ~as a
whole." In such circumstances, that purposes will be served by reqwnng the de.endanta, and a federal court, to hear t..estinlony from every sinide inmate?_
.
This same section section (aXi). would also prevent a Ccu.rt from lSSlllng any relief until aft.er it finds a violation of law, thereby pre,-enting a court fro:n entering
any form of emergency re1:ief, 51.!c.h _as a _temporary _restraining or:<1er or n preliminary injunction. Emergences ans-e ,n pnson operauons, and ternble co:i.sequences
could result if the federal courts were stripped of the ability to respo:i~ appropriately for exam;,le to an imminent tuberculosis outbreak. I have been 1m-olved
1D litig,{tion in which no emergency relief was granted and i=atc, literally c!ied
from infectioUB disease. I have been in cellblocks in which crowding ,,.-,u so ext:-eoe
that inmates formed a human carpet. Conditions such as these do not abate "'ith
the passage of time.
.
_ _
.
.
The provision that for all pra<:?-~ purposes ~ t e s a CO\L~ • _aut.ho:-,_ty t.> appoint a court mo'litor to engage u:a mfor:nal momtonng and mediatio::i of Ille re::iedial process would likewise severely reta.--d implementation of the court's re::iedial
orders. It is important to remember tli;8~ P~•<m conditiona cases _are oft.e'! pa:i:ioularly complex. Again, using the Te:icas litigation as an exs.mJ?I•, pNOO. offi0aJ5 early
on during the remedial phase, repeatedly concoc:ted superficial remedial plan!, 110a:e
oi which were intended to cootin11e the very practices that the Court liad ordered
to be ceased. The Court monitor, -wh<> ~ actua:lly on-site to m~nitor th~ pl8:19,
was able to accurately report on remediation l!Dd to detect those inr.llllces ID w~ch
iacially valid J?IBDI were Inadequate. The on-a,te presence of a court representati,-ee
was clearly cntical in the Tesaa litigation, especially during timee when pruon offlc:iala were defiant of the Court'■ ordera.
.
.
. .
Admittedly some court mollitors and special masters 1D pnaon condition.s ca.NS,
u in other
of cues, may b.ave abiaecl their position. But legi.slate against

types

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t.½.ose ebus.es; don't legislete ~~ the

t!.Se

cf masters end rno~tcrs a!togeLlier. For

CT..£:.r::p!e. this Co~ttee cay "°'i.sh to considEr passing kgis!aticn tr.at reguires the

fo~e,:i courts to issue an Order of Reference for each eppoin:ment that limits the
r:ion.iuor·s duties e.nd compensation e.nd requires t.lie men.it.or to s~bmit periodic repor.s, at inter,.-cls established by fr.e court, regarding his or her fees and expendir.ices for apl'roval by the =.i..--t; end the Co:n'!llttee may ~ish to con~ider passing
legislation t!-st re(f.:.tres the fedentl e<r.nts to i;,.ve the p:u-tics en oppor.uruty to object to the findini;s, reco=cndations, fees or expenses of a ccurt-eppointed monitor.
Si:n~ly forbidding the use of mocit.ors altogether would deprive the courts of the
,i;J essist,rnce Frovided in t!,ese casea by in<li\iduals v.ith special expertise in prison cperntic,:,s. Tr>.is provisic,i brin.,"3 to mmd the old ndage of "throv.fr-., out the baby
h-ith d1e bs.th-watcr."
A-»other prmision of the STOP bill t.liet would clee.rly have adversely affected the
Texa;; litigation is thnt whlc.'1 prohibits amrt-awarded attorneys' fees for work done
c<lring the remedial phe.se. As I h1l\·e often said in v,riting e.nd speeches over the
years, ir..stitutiorutl priso:i reform roses are not won or lost in the courtroom, but
rather, in the remedial phase. Compla: remediatio:i requires vi!;ilar.t e.nd sustained
c:irec::cn. Such direction can best be provided by attorneys representing Llie plaintiff
cless. Had the plcintiffs' attorneys been effectively prevented frc::n pro,iding directicn, due u, their inability ro re<:<n-er fees for their work, the re::nedial framework
that we.s ultimately implemented wo-.tld h:,.ve been significantly c.ompror:iised.
Fi:o"1ly, t.lie provision that s.ll:=s wholesale intervention by ony party potentially
effected by eny relief limit;ng a/rison's population will clee.rly cause litigation of
t.b.:~ ~ ! : ~ to be mo~ cos"...!y .e.n pro'!rectcd. More i:nporta.ntly, it v.'1.ll i"equire fedcrcl co'-!..-ts to beco::ne immersed in the entire spe<:trum of local criminal justice sffe.:rs, a result thet even t.lie prooonenta of STOP would te.l:o issC1e s;iLli.
i we::!~ :-:c! re?re~nt W}-""SE"-ff £..S il. c::::~..s!it:rticncl s~h~!Q~, b:.:.t I know from the
:-c-:.~~-: t!":.:.t I l:ev~ d:?:le t!J.t!.9 f:::.r, C.1!:..t 6c:-~ e.re Ieg:ifu.c.::.:e c!ci::-.E cf uncc!"..stitution~
r..E:y tf2t would be fertile ground for litigation for maf!.y \'€2...'-s ta c;:::-::0. Atbcht?d
to "'Y testimony is a le::ter ~ed by 250 constitutio:1al !aw professors csserting
that t.lie STOP bill raises senO'.l!I C'lnstitutforutl coacerns, e.s well e.s e.n analysis
done bv a !occl law finn called Co-,ington & Burling t..lic.t reaches L':e same conclus:c:1. T!:e U!!certe.inty thttt v.ill result v.-hile the constitutioru:.lity cf the legislation
is being lit.:gated v.-iil czcse a gre.1t dd of cocr'\Z!ilon rcgc..rC:.:~-J, for example, v;hcthcr a co::se:it dc-cree will be honored, v.-hether n coi""t cr-der rc::1.~:15 in cffo::t, end
h·1':e!her ft.ates will have to dev-ote the mejority cf thd.r Dcpu-trr::e::t of Corrections'
h:.!c.;;ets to litigation enorls.
I=>;_s~u. P-:-z-, it_ie my opicio:i t..liet this _bill unfci~.f nc.d l!~v.isel1, Et.rips.sU!.tcs e.nd
lo-~~~es cf t.!.e r...g:ht to re_.=poi'ld c~propnetely to htigc.tic:1 IT'f;!J.....'''Cllng t.hctr O?.Tl c-orre~tio:-utl _f:ystcms. The o:tly optio!l that this bill Ieo.ve3 ta the s:.st.C.3----GC:na to tr~c.1
m :nost, 1f not ell, ca_..,,..._.,, an extremely expensive c::ie. And by depr,,ing fae fedeccl cour".s of the traditional tools they hi:,-e used tD ensure co:nplicnce v,ith their
o::dc~s-.1.c..l-t cs fr~e appointment o f ~ mes~ ~ith Epecicl o:pcrtis~ i:i r-ris?:-.i
cr1erat:.cr;_s; L1'1e c:uo:-ce::::ie~t of a tt"'..uts orders until t.ltcy r..:-e C:J::lp~1cd w1L}i; t11Q 1s-

Sla!.~re cf temporery res~-cining orde..:-s £nd prelici:u:ry injunCijons to respond to
proven el!lergencies; end the ability u, &ward et+..omcy's fees for work done by flaint:!is' at•crneys in the remedial p ~ of litige.tio:i-v,e "·cu!d b,cvc incdvertenUy set
~e sU15e for the return cf our priso:19 to fr.2 ho:T£c c~:1ditio~,.s cf t.½e pact.
_ P:-:or tD ilie I960_s, judgi,s rezct.cd u, pcis.onccs' c.'1:,llc:,g<es by ec...':lcnn;: to tho idrn
t~:~: c:.-:1?1.s wer~ v,::t.brJ:t power to interfere in prisa::i e....'l''c.irs. This rule of IG.w y;c.s
c:-~e:-:. ~fe~d to ::5 t.:--m ,.1:..a._;;ds off doctrine.• I v.·01lld invite the Cornmitte-2 to c:c.,.1:1ine L~e history of America's pris~:is-t.he conditio:19 t...1-u~t crir!.e:! when th~ •~r:~ds
~~, .. rlo~~ne ~·e.s in pl~; and Llie c.'1.e.n.g~ thet took r;!ec2 c·;cr the c:.:1:-ce cf L';c
ru~~a:7.tlir,g_ of ths.t d::,,ctrke_ P~"C cf thi3 ect v.ill cre~te o. se!ting in v..·hich WC'
w1!1 be destined to repeEt ~ failu.-cs of thc past.
r':.lso, I would like to share ~=e brief tluraSL'1!.s C!l L·.c "c.~'..!!:::vc icv,c~it"' t.fJ. I
,.?:~~ the r::~'"-'='-r.l Ll-._ct r=.p~m to h.avc e~-endered this frivub~s lin~:s:tiU3 legi.s!nti::i, e.!th:i;.i~h I be!i::.-e C--llt t.!ie co-..r'.a ue already cqwp;:,d ta respond b L'1osc concerns. In 19S9, ! "-rco!.:l a law re,-i~w article deteiling the error.a of the Fifih Ci!"C'.J.it
Co:..-rt cf Appe&.ls to respond to frh·ola-.1!1 lawsuits. While I favor re,isonablc ple3ding
standard!', sereening mechen:srn!I~ and e\"1!:t the im_pogition cf Mnctions for abuc~,
! u..-;:e L"-e Committee to 6trike 11 balan::cd approach thet does not elnglo out prisoners as n cla!IS to be suh;ected to greater obstacles in seeking re:!ress than till o•-'lcr
pcno:is _wh:i file lawsuita. Th<i Com.mit+..ec should kee;, in !!'.ind that le;;it:mnte p?faoner ~!a.im.3 and di!P:utc!i ~ to be addressed in en ap;::,,pric:C ro~rn, and s::> lo:-:':
1tS ~:s exists, J be!ie,-e thnt unlcwful cei:ns c.f l)rote!it, tu~h as pruo:1 riots en~
~.--::: .! t!o;,p~cc~, c.:.-c IC!l:l l~y to oe::-s.
1".r:c.nk you fer i;lvlng me the op;,ort-.u:.ity to shc..-e ,zy o;:,inio~..s v.-it..'1 ycu .

......

.. ....... -- - -.

·- ··~ ---'\-~.!,T=.-(;:rr-;.·

. - ~;,

-;;.~i-~f·•:;;-~~;,¢_•-•

Senator ABP-,U.,.A..'\L Thank you all very much. I think ,vhat we
might d_o i:' this. I will start on: here,_ and maybe since it appears
there will JUSt be two of us dunng this question phase, maybe we
will just alternate until we have each either exhausted our questions or exhausted you, maybe at about 10 minutes apiece.
Let me just begin asking generally this. I thitk one issue that
several of my colleagues who aren't able to be here today bi;t who
are concerned about this issue have raised-and it was sort of
touched on, I guess, by Mr. Watson-·,vas the whole notion of giving
States or communitiEs flexibility; that the STOP legislation would
somehow be in contravention of the whole notion of federalism because we would be u:5urping a !ot of_the autI:-ority that States ought
to have and the latLtu<le to enter mto ch01ces regarding whether
they get into a conseEt decree or litigate a matter to its fullest.
But it is my impression from getting into some of the allusions
made by the initial panelists that there are circumstances that
have prompted States ta enter into consent decrees where, in fact,
there wasn't a tremendous zeal to do so on the part of the State,
but rather other factors that sort of forced their hand. It kind of
touches on the issue that Senator Eiden raised about the contract.
I mean, in a sense, a contr2.ct is an importa.,t do:ument if it was
entered into willingly by both parties, but if it was a contract made
under duress, as has been suggested, then that is a different story.
So I wondered if maybe Mr- Cappuccio could begin commenting
on circumstances that might cause people to enter into consent decrees where, in fact, that wasn't the desire necessarily, but it was
coerced in some way or another.
Mr. CA..0 PUCC!O. Sare, Senator. Let me start by making clear, I
think, what my posil:ion is here, and I think also, if I ca..11 speak
for Attorney C,{,neral B2.rr, what he thinks. I don't think it is necessarily a good thing to prohibit States from entering into consent
decrees unless there i s a violation shown first.
I think I agree wit.b. some of the panelists at the end that it takes
away a fot of discretion from the State and a lot of discretion to
avoid expensive litigation if you say, if there has been no finding,
a consent decree sh.ould automatically be terminated. I think.
therefore, I would op pose that provision, but I think you can put
other safeguards in ?lace. \Vhy do you need the other safeguards,
which is really the point of your question?
I wouldn't say that these are situations where we have collusive
lawsuits, but you do have situations where you don't necessarily
have true adversity on both sides of the case. The reason for that
is that corrections ofiicials quite naturally and quite understandably want a larger piece of th.e budget. So what I have seen in my
experience, while I certainly would not characterize any of it as collusion, I see that oftentimes the interests of the corrections officials
are not so different fr-om the mterests of the plaintiffs. They want
to get a piece of the budgetary pie.
Now, what do you do to protect against that going to far, and
how can it go too fa:r? Well,. look, no one is suggesting th.at we
shouldn't remedy con..sti tutional violations. You have to do that.
The Constitution requ.ires it. The Justice Department is very serious about it. But wha.t you want to make sure does not happen is

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81

that the corrections officials agree to a lot more and to broader
things because they want a piece of the State's budget.
What can you do to ensure that doesn't happen? I think the provision in STOP, which I very much support, that says that before
a court approves a consent decree, it needs to determine that it is
narrowly tailored to the alleged ,iolation-that is a very important
safeguard against this problem of not enough adversity.
I think, really, the situation we see now is virtually indistinguishable from the theory of the Tunney Act. Now, you and I are
probably too young to remember when the Tunney Act came
around.
--,
_
Senator EIDEN. Whoa, whoa, wait a minute now. Let's ease up
here a little bit, all right? I mean, I was with you up to that point.
[Laughter.]
Mr. C..\FPT..:CCIO. Surely, Senator Eiden is too young.
Senator EIDEN. Thank you. Please proceed. [Laughter.]
Mr. CAPPUCCIO. The idea of the_Tunney Act was this. The Congress said, look, in antitrust cases we are afraid about the Government entering into consent decrees thz.t are too soft with compan:cs. Think of Microsoft for an exa..--nple, the big flack about
Microsoft. So what the Government said in the Tunney Act was before a court v.ill approve a consent decree and enforce it with the
contempt p:iwer of the court, we are going to make the court make
a finding, 3.Ild that finding sho;.:ld be that the consent decree is in
the public interest-a very general finding.
I think an important safeguard here which is included in the
STOP Act is before a court approves a consent decree between carrectio::is officials and plaintiffs, it ensures that it is narrowlv tailored, or you can pick another word, reasonably tailored, to remedy
a constitutional violation, or at least the constitutior.al ,iolation alleged, and that it is not doing all sorts of other things.
Senator BIDE!-/. Is the phrueology "to remedy a constitution21
violation" part of your recommend2.tion, sr is that 2.lreadv in the
STOP Act? To be honest, I don't know.
•
Ms. ABRAHA..\f. I think they use the words "Federal right."
Mr. CAPPUCCIO. I am not an expert on this. I just received the
Acts a couple of days ago. I think the House bill differs from lbs
Senate bill. I tPi~ the House bill says "to remedy a Federal right,"
cend the Sen&t':. b:11 says "to rerr:edy a Federal right claimed."
Senator BIDEX. And what are you rc::ammending?
Mr. CAPPUCCIO. "Federal right claimed."
. Senator EIDEN. It seems to me the precise language i:, rcL:,tiYely
important.
Mr. CAP?UCCIO. Correct.
Sen2tor BIDL:J. S:, \t;h;:t i: y::.:ir spec::~: r-c::::::.:.-:endation?
Mr. CAPPUCCIO. Narrowly tailored-well, I am not sure I can ::,1s1\;;r the question specifically. I can tell you what I wo.nt to do.
:::2n2tor EIDEN. OK
Mr. CAPPL'CC!0. I w.mt to make it narrowly tailored to what the
court finds would be a constitutio::ial \iolatio::i if the facts are as
alleged.
Senator EIDEN. Thz.nk you. That is what I thought you meant.
Se;:;.ator ABRAHAM. Thank you. Let me just move ahead here and
ask Ms. Abraham if she would also comment on the question I

originally posed, whether ~here were circumstances that might
cause local officials to enter mto these consent decrees even though
they weren't necessarily desirous of doing so.
Ms. ABRAHA.'d. There are certain things, and some of them are
politically motivated_ It is more expeditious to enter into a consent
decree than to fight it out in court, and sometimes rather than look
like you are bad guy-"Prisoner Files Lawsuit"-and I have never
had this; I am just telli~g you what I perceive to be one of the issues that is brought up.
Rather than have the local governmental body look like they are
the bad guys, wanting to deny the rights of oppressed people in
prison and be recalcitrant in their desire to make changes, and look
as they are forward-thinking and reform-minded as part of a total
political package, it seems as though it saves money up front, it
saves political capital, and you just sort of agree that you won't
fight it and you will just enter into some consent decree.
The problem with entering into the consent decree is that it
doesn't anticipate changes. For example, when Philadelphia entered into its consent decree 8 or 9 years ago, we didn't have the
scourge of crack. We couldn't anticipate what effect that would
have on our prison system. So, number one, we can't anticipate future events. Number two, the person who enters into the consent
decree-it is behind him or her. He or she can go on to the next
item on his agenda and leave to the next person in office the problem of trying to fix it.
I think also what happens is that when we allow Federal courts,
absent findings of constitutional violations, to put a hammer to the
heads of succeeding generations of office-holders and limit access to
intervenors who have a legitimate claims, like prosecutors, to intervene to show that there are changed circumstances, I think you
have a problem.
Finally I think also the issue of the master that was brought up
by Mr. Martin---<>ne of the great problems about prison maste"'. is
that they are the eyes and the ears of the court, to the exclusion
of everybody else_ They hold private, secret discussions with prisoners. There is no record kept. There is no ?-ttempt or allowance
on the part of the pa_rties to come in and ~ake their statements.
The master is appomted by the <:ourt as his or her o~ personal
watch dog at public expense, without any accountability, any
record, any access to th~ records by the complaining people, such
as the mayors of the cities, and so forth, and then makes the recommendations to the judge and the judge makes a fmding b~ed
on something that you have no information on. So this is really like
a star chamber proceeding.
. .
.
We believe that an important provIS1on of the STOP Act 1s that
a master-first of all, a Federal magistrate should do it, not a master. We don't want anybody being the foot soldier of the judge. The
second thing is that even if it _is a master, that _that m_aster, as a
last resort if it is not a magistrate, hold public heanngs where
there is a ~cord a proceeding, and an attempt made, at least, to
have access to the record by people outside of the prison, such_ as
judges D A's mayors and other intervening or interested parties.
Sen~to; ABRAHAM. Would any of the other panelists like to comment on the pressures that might cause somebody to get into one

of these against maybe their preference? Anybody can answer, really. Mr. Watson?
Mr. WATSO~. Yes, Mr. Chairman. I think that the comment that
there were politicians who wanted to look as if they wanted to settle, I think, is not a representation of my experience now. I think
that probably was true in the 1960's when, as many panelists have
said, these things started to unfold. There was an interest in, you
know, what is this thing about civil rights for prisoners. That was
a new ball game for everyone, and I think a lot of mistakes were
made and we are living with those mistakes.
My contention is, however, that I don't s~ many politicians now
certainly not in our State, who want to do anything but get pretty
tough on crime and are, as a matter of fact, very much opposed to
looking as if they are wanting to settle things and look good that
way. It is the opposite.
Senator ABRAHAM. Anybody else? Mr. Gadola?
~fr. GADOLA. Senator, I would say in answer to your initial question, if the current system is the model of federalism, as has been
alluded to, I guess I am ready ar,d the State of Michigan is probably ready for the alternative.
I think I would agree with Ms. Abraham when she said that
there 1;re prob!lbly political motivations, and in Michigan's case I
am qmte certa.m there were certain political motivations for entering into that decree. The problem becomes that at least in Michigan's case, and I am sure with a lot of other States and localities
t~e d~cree is so openended and not related to specific constitutionai
\'IOlabon_s that we find ourselves caught in this morass of detail
from which we are not able to escape. That is where Michigan currently finds itself.
Senator ABRAHAM. Mr. Diiulio, do you want to respond?
~~r. DIIULIO. All I would add is I can't speak to the politicai rnotiv_a_t10~s or lack there?f, although there is a _fair amount of descriptn_e v.ork on the subJect. I mean, the practical effect in every case
gorng b,::ck t:i, 1965: the fi~t maj~r o~ercrowding litigation, the 64
of_th~ ,o 11:aJ~r m;ercrowding litigat10ns that have been won bv
pnsoner plaintiffs-the practical effect in every case at the end
the d8:y, whatever peopl1:'s motivations or calculations may have
been, 1s that the corrections department ends up with more res~ll:rces, mor1: money, and more staff to deal with fewer inmates
w::ir:h ci::r~c~:cmal officer ur.ions, and so f<;rth, tend ;o like.
'
'i ou ··"'' e seen that to some extent in the Philadelphia case
whe~e. one ~f t;,1e groups_ that is not happy with STOP or STOP-Eke
provis10ns 1s L.e correctional officer unions, for ob,;ous reasons. No
one be~dges them that preference, but I think that is the obvious
bottor.i Im~ ,nd has been for the last 3 deec.dcs in these cases.
Ms. ABRAHAM. I begrudge them that. [Laughter.]
_Senator ABF:AHA.\f. In this round, and then we will go to Senator
Bide~, I Just have sort of a broader question just to put this in per•
spect1ve._ One of the things I think we always have to ask when we
are looking at legislation of this type is exactly how many of these
problems are out there, and the one thing that none of the testimony has at !east focused for me is this. How many of these conse~t .decrees .!re currently operational, and how many cases thatlets Just take, for example, the Michigan case and the Philadelphia
0

case, which maybe are the extremes, but how many 01.1t there, you
know, have fallen into this kind of pattern?
I think in trying to piece together a bill here that is a sensible
response, it is sort of important, I think, to get a feel for what we
are cont~nding with. Does anybody have-Ms. ABRAHAM. Senator, I think in my prepared testimony, I-and
there was a typographical error in my prepared testimony, but I
said, "By 1995, 108 municipalities and over 1,200 State prisons,"
it should read, not "prisoners," "were subject to court orders or consent decrees."
Senator BIDEN. Federal court orders?
Ms. ABRAHAM. Well, some were Federal, some were not, but
many of them were Federal.
Senator BIDEN. Well, it is a big deal, though.
Ms. ABRAHAM. Oh, indeed.
Senator BIDEN. All we have the authority to do is affect Federal.
Ms. ABRAHAM. Of course.
Stmator BIDEN. So I think the question we need to know is how
many affect Federal-how ?1~Y would be affected by this legislation, is another way of puttmg 1t.
Ms. ABRAHAM. I can't answer that question, and I can try to find
out the answer for the committee if you would like me to. I am not
prepared to answer that right at this moment. .
Senator ABRAHAM. We would submit that in written form.
Ms. ABRAHA.'\f. Would you?
Senator ABRAHA...'\f. Of course.
[The questions referred to 1;re locat;ed in the appendix.]
Senator AllRAHAJd. I am Just trymg to get a handle on those
numbers. Mr. Diiulio?
Mr. DIIULIO. If you look at what the B_ureau of Just_ict: Sfatistics
puts out in its ann.ual counts of these thmg:s, _the statistic -~at_ t~e
district attorney ju.st cited was a 1990 statistic, the same s.at1st1c
that I have in my testimony as well. At that time, 264 of the 1,207
P.rison facilities that she mentioned were under specific orders to
;lmit their populations.
As to the question of what number is under Federal court order,
if you look at some of the ACLU's status reports on the su1>ject and
you look at some of the other data, it is sort of like the problem
that Attorney General Barr raised this morning with the metaohysics of defining what represents an order and what takes effect
u!lder what circumstances.
The statistic is that by October of 1994, 39 States and 300 of th_e
~ation's largest jails operated under some fo~ of Federal court direction. I do not have here with me the precise break~o"'.'n of how
many were oven:rowding, and so forth, ~ut that stat1st1c I have.
The entire system was under such orders m 8 or 9 States and overcrowding litigation pending in many others.
.
.
Senator ABRAHAM. The last part of my question was this. I~ was
earlier suggested that no judge likes to have t~ese under !hell' domain, although I P.m not sure that I ~ecessanly ~ with that.
It is my impression some judges may like to have this. But be ~h9:t
as it may, the instances that we have heard abo1:1t here f~m Michigan and Philadelphia-are these totally aberrational or 1s ~ere at
least a significant number of similar kinds of problems of this type

where we have "'idespread early releases, and so on? Does anybody
have an ability to answer that?
Mr. Martin?
Mr. l\1ARTIN. Mr. Chairman, I W)uld like to at least take a stab
at it. I think in answering that, it clepends on who you ask. I am
just totally blank.
Senator ABRAHA..'d. I realize it is obviously tough. I am just trying
to get a feel, though. Again, it goes back to the question of how serious the problem is. Obviously, we have now got a sense that quite
a few States in some way or another are operating in response to
court orders and consent decrees. But my quesi;ion is, are these two
aberrational or are there other similar instances where the remits
of these have led to widespread ear~y release or other sorts of responses that-Mr. Cappuccio, do you want to answer that?
Mr. CAPPt.:CCIO. My knowledge is a bit out of date because I have
been out of government now for almost 3 years. But my sense was,
while there were a lot of States involved, we have pretty much
talked about the worst States, end I don't know if I would call th::.t
aberrational, but it is not the nor:n either.
TI.ere is one theory, though, which would broaden this out even
more, and that is I am not sure the problems we have talked about
today are necessarily limited to prisons. You know, if you h2.d
AT&T and the telephone companies in here today, they would have
some "iew 6n consent decrees, too.
One of the things that the committee may want to consider is
whether there isn't another sort of broader bill in here somewhere
where we generally think about, when Federcl courts get im·oh-ej
in remed;ing any Federal violations, how far thecy ;;o and when you
reopen them.
Senator BIDEN'. We couldjut busing into that category as well.
Mr. CAPPCCCIO. You coul . In fact, I guess the Supreme Cot.:rt
has had a couple of cases on tlu!t recently.
Senator ABRAHA..\!. Any others? Mr. Gadola?
Mr. GADOLA. Senator, I don't think th2y are aberrational at ail.
I can cite two examples from the State of Michigan, neither of
which is a CRIPA lawsuit, but I think they both demonstrate the
longstanding nature of these lawsuits and the inability of the St£:te
to get o:.:;; from under the aegis of judicial control.
We have a class action lawsuit brought on behalf of female inmates in the State of Michigan, the G1ouer case, which has been
extant since 1978; a companion to the U.SA v. Michigan lawsuit,
Haddix v. Johnson. That lawsuit, in fro;:it of a different Federal
court in Michigan, has been around, as U.S.A has, since 1984, and
the judge presiding over that particular Iawrnit recently indicated
that he would expect that case to continue into the year 2000. So
I think this is not aberrational, at least not in the case of Michigan.
Ms. ABRAHAM. I think also, if I may, Senator, there are a couple
of other States, I think, that feature-besides Michigan and Pennsylvania, Florida and Massachusetts. I think there is a court order
now that applies to a jail that has been closed in Boston. If vou
would like me also to submit some information about the fact
that-obviously, we wouldn't come to the Federal Government to
ask the Senate to act on a bill that would apply only to State issues. Some States have limited the effect of consent decrees. Some

86
of them have outlawed them because they don't want them. They
want other kinds of ways to fix this problem, or at least address
it.
I know that if we didn't think this was an important issue-if
this was just an aberration for Pennsylvania and Michigan, we
wouldn't have been working for over 4 years to get something done
in the Congress. This is something that I think this whole country
is going to feel the pinch of, ~d it is ~ither because of some per1:eption on the part of prisoners mterpretmg Supreme Court cases like,
you know, Monroe v. Pape in the 1960's or the Civil Rights Act, and
so forth.
Anything that you are going to allow prisoners to take advantage
of is going to necessarily involve the Federal process becau~e I
think their ch.ances of success in the Federal process are much likely of success than the State process, and I think that is where people look to go. I think after we give you some information, you will
find that we wouldn't be sitting here today if we felt that-I can't
speak for Michigan, but I think I get the drift of what Mr. Gadola
was saying. We wouldn't be here if we were the only two States,
and neither would all these people behind us be here.
Senator ABRAHAM. Well, we are just going to alternate rounds
here and I have had more than my share for a while, so let me
turn it over. Senator, did you want to make an opening statement?
Senator BIDEN". No. I would like permission to put my opening
statement in the record, if I may, Mr. Chairman.
Senator ABRA.HA.\-f. Without objection.
[The prepared statement of Senator Eiden follows:]
PREPARED STATEMENT OF SENATOR JOSEPH R. BIDE.'1, JR.

Today, the Judiciary Committee co_nvenes this hearing to dis:":'" a r.:irnber cf issues relating to our Nation's State pnsons and co:inty and local Jails.
.
As I have stated at every judiciary committee heariI:g we _have convened this year
relating to the crime issue, it is my hope that we will build on the achieve:nent.!
of the 1994 crime Jaw.
.
It is counterproduc-tive to retreat on 1~ year's p~ss--o~ at'.ci:tion now 1I_1ust
focus first on achie,-ing full implementation of the cnme Jaw-mduding_ t.'1e vano\19
prison provisions--and on identifying addi!'ional _areas, not addressed m that !aw,
where action can be helpful to the fight agS1nst =e.
The 1994 crime Jaw conwined the first-ever direct Federal grant p ~ to help
States and localities build and operate prisoll.!1-prn-iding $9.7 billion over s:x years,
all fully paid for by eliminating 272,000 Federal bu..--eaue..-nt.s.
.
The overriding goal of the prison grant progran ,.-as to help State~ take t-:o/.en:
offenders off the streets and l<eep them behind ba,-s for as umg as posstb:e.
The Jaw prorr.ot.es this goal in several ways:
• First, almost $4 billion is oet asi,fo in a progrru:i designed to encourage St.ates
to move to a "truth-in-sentencing" system modeled 0:1 the Federal system many
of us worked on years ago. The program would require that States _keep all second-time violent offenders in prison for at least 85 percent of theJJ" se_ntences.
Intimately, I hope the States will move to k~p all ,-iolent_ offenders behind bars
for at leut 85 percent of their sentences, Just as we do in the Federal system.
But right now, States are keeping offenders behind bars on average for only 48
percent of their sentences.
f .
•
d
But the cost to the States of nearly doubling the amount o time p~ners spen
behind ban is to put it m.ildly, mggering. I am told that requmng States to
k~p all violen't offenders in prison for 85 percent of th~ ~ntences would add
approximately $6() billion over the n~ five years to ~',~ P,nson ~:tsbilli., fro
It makes no ae1Ue t.o think that States will ■pend $60 billion i.O get .,..
on . m
the Federal GQvernment. For this reason, we aet a more modest-but attain•

eble--goal in t.'ie 1994 crime law. we reesoned that it would be better to offer
help States could afford to accept, instead of an empty promise.

• Sc_'"'!~d, the law i;ives t.'ie States t.'ie flexib:lity to b:tild eit.lier secure prisons or
military-style boot crunp prisons for non-,iolent offenders as a cost-<!ffective
me.ans to free-up expellSlve prison cells for violent criminals.
Based on t.'ie most.recent data availeb!e {1992), we know that al.most 30,0C0 dolent offenders ~o not spend a day !n prison because there is no space for them.
At the same time, 160,000 non-rr.o!er.t offenders are taking up secure prison
Ep.eces.
The flexibility prmidad by the 1994 crime law allows States to maximize their
prison dollars by mo,ing these non-,iolent offenders to cheaper space-making
room for more ,iolent offenders.
• Th_ird, t~e _Ia~ giv"'! States _the flexibility to support t.'ie operational costs of
pnson5--t.J1.is IS part!cu!arly rmport&nt bec.suse so;:.:ie States have prisons built
tmt no fur:ds to open them.
'
• Fourth, the law also requires consu!ta!.ion between the State and counties and
local _governm~~ts--because the Nation's jails are run almost exclusively by
counties end cities;
• Finaf!y, the _law ~ ass-.L.-an::es that States develop correctional plans
~~-!--,:::il :e=c~~e ~e righ~ and needs of c.ri..oe wi::t.ir1s, trrin co::-rections officers
m dealin~ ""1th "!olent pr!SOners, put prisoners to work, educate prisoners, treat
drug-addicted pnsoners, and l!SSCS3 the danger p>isoners may pose to society
befot.! they are released;
Earlier this year, the House passed a bill-H.R. 667-which would chanr;e many
of these features.
·
·
Most notably, it added a new "truth-in-sentencing" standard the effect of which
"·ould be, t.'iat few Staf:es would qualify for any of the dollars. J{i,,t how few is made
star~y c,eu by a Justice Department report released this week.
This report, "Violent Offenders in State Prison: Sentences and Time Served • is
based so!ell. on data pro,ided by the States themselves. The report indicates that
only 1 cf t!.e 27_ States that proyided data ,,,1n,ld meet the new standard propo;ed
by !louse republicans-and that IS my home State of Delaware.
New, ~haps other States which did not report information could clear the new
hurdle. ut, based on the da~ from the 2~ States-whia reports ths.t violent crimi~s serve. 4!! percent _of theu- B<:Dtence-i.t does not seem likely that many of the
noc.-repcrting States will meet this new test.
?~~ hetrwg will also ~ddress some key issues relating to litigation by prisoners.
;;tt o. us _want to_ ~i> _~"lolent offenders behind bars for as long as possible. And
ofus want to_~t_fri~-olous and abusive prisoncr lawsuits.
f In fnct, a prn-"lSI!)n m last year's crime law gave States eddoo authority to dispose
0 pnso!'er complaints before they could be filed in Federal court This year we ar•
:"h~d";;tseaverall
ddik"tiotnalth
proposals to limit prisoner litigation, and ·1 believe
~i ,......,.__.
.. ~.,;;::
c ose a1oo
a
em_

One of ~ese is a ne'I? pro;,osd designed to lli:lit t.h soo-• of Federal court ·
v~!y~~ent in prison conditions ~~...it.a, al::,o--Jt whid1 I hnvel-'~rio"J.B aue,:;"-;n~,. LT1hneeignu, amendm t to th
· ·
···'·• 0 • •
me;,t, de"hent
diti': constitution, which prohibi:.s cruel acd unus:ucJ p:.:r.ishu.aes w a con
lllllJ are unao::ej>table.
The "'?~-~ve the responsibilio/ o f ~ ~ in ~fie cases whether that
~tu~F'
L - '.-t. Anthd, where there ts a Violation ofihe eighth amendment our Con~- ...o::i re<.mres e courts to fashion a remedy.
'
·
0

s t i t ; ~ J ~ J ~ ' f 0 :17.tld ~ thethisco-:irta' tradi~oncl role in correcting conI am also conce::· ~~es o:1 w ': e,:
IS appropnate.
_ 21 !.!>.at this ~ l i o n wo-.tld appear to tcrn-Jnate cris:.ing co:ian future ~ ; ~ e e n litigants Rud the State!>-£,nd would severely limit

.acnt decree

on¥ys~ "'lut help S:'te:; ;:::i'::0"" the effectiv1:n~. and efficiency of the:r !'ri~thceaten u_;_
o us wnn. to see Vlolent offenders m Jeil where they can no !·.,ngcr
I look forward to disc
·
h
-....~
·
today. Thank you a n d ~ ~ ow .,.,,,. to meet these r;oa!.s w.th our v.-i:nesses

h Se~ator BIDEN. Let me c:>mpliment you on conducting these
. e~-g~- you have only been in the Senat.e a little while now and
J?a "he impre~ed everyone, including me, with what is not always t e case with us who come here, your thoughtfulness and

Mlta!ii

your insight on a number of these problems. I compliment you on
that and the way you are conducting this hearing.
As I said, I am sympathetic to this legislation. My staff will be
checking out-Lynne, you have enough problems without having to
do our work for us and figure out what the rest of the Nation is
doing. Anything you have would be helpful, but we can find out -the
answers to the questions that were just asked.
I would make the point that Mr. Watson made about the change
in tone of politics today. In my State, there is a majority of the
members of the Stat.e senate who have petitioned and introduced
legislation and cosponsored it to bring back the whipping post. So
if anybody thinks that in my State-by the way, we had the whipping post, where you actually got strung up to the post and got
whipped in the courtyard in front of everyone else, until the year
1968. I think the last whipping was in 1964, and there is a call to
bring it back. So, if anything, a kinder, gentler, more prisoner-oriented mood does not prevail hi my State.
So I have clean hands here, I want to talk about two things here.
One is how the STOP legislation fits with truth in sentencing, because they do relate in terms of impact. They don't relate in terms
of the law, but they relate in erms of impact.
I want to make it clear I a, : a little like Brere Rabbit on the idea
of the Republican proposal fc truth in sentencing. You know, don't
throw me in the brambles, ut if you do, Delaware ~ets all the
money. So I want to be real :ear about it. We do our Job in Delaware and we do meet the s· -percent requirement. \'te don't have
to build any more prisons to ·et the money, and if you make it an
85-percent requirement, I p: mise you we are going to get your
money and we are going to tr - very hard to get it.
I want to be up front abo:· : that. I make no apologies for it, so
no one later says, well, Bide . didn't fight; even though his cri:me
bill didn't have the truth i sentencing, Biden didn't fight this
change, and it looks like the eason he didn't fight it was because
Delaware benefits. The answ;- - is right, arid right, and right.
So, having said that, let : e ask in a less parochial vein, J.l,,fs.
Abraham, your main problerr ·,vith the effect of the consent decree
is the caps, right? I mean, U .t is the beginning, middle, and end
for you. You helped me write 1at crime bill. I use the example you
gave me years ago where yo:: ?Ointed out, and I use it constantly,
I think it is almost every Fri: :y, or almost every Friday, the court
of common pleas judges or s: ::ieone sits down there and they decide, you know, who do they f: ·e, Barabbas or J,esus.
I mean, they get a list of r-:·ople and they are told they have to
go down-I am not being facc:ious. I mean, that is the essence of
the problem. They have to r ~t out on the street people who are
hardened criminals who are r. ~idivists who end up getting arrested
again, but they have no choice bec_au~e of the exi~tence of the co~rt
order. So I think I have an ap;:,reciation, and having adopted Philadelphia as my second city, I · '-link I have a sense of the proble:m,
but it relates to the prison car . right?
Ms. ABRAHAM. It not only : lates to the prison caps for new <>ffendera who are, of course, I- 2sumed innocent, but t}iat cap also
affects probation violations
:i who gets sent to pnson even at
sentencing.

89
Senator BIDEN. It is Rcross the board.
Ms. ABAAHAM. rt is across the board. It impinges and impacts on
crime and the perception of crime in major American cities the
prison cap does.
'
Senator BIDEN. Now, let me ask you a question. I am not suggesting that I wc.nt t:J make this change in the legislation, but let
me just ask it to you. T'ne question was raised by Mr. Martin about
all consent decrees. There are consent decrees in here that relate
to conditions tha~ nobody in the world, nobody in the civilized
world, would consider should be abandoned, and that is relate to
things like no heat in prisan cells, like guards that smash the
heads of prisoners routinely against walls. I mean, there are consent _decrees relating to training for prison guards, consent decrees
rel':tin~ to_ length of hours they work, consent decrees pertaining
to hghtmg m prisons and the effect dungeons in effect.
I( _we altered this _legislation to say only those consent decrees
wh~ch re)ated _to l?nson caps would be automatically reopened,
which this legislat10n calls for, would you have a problem with
that?
Ms. ABRAHAM. I think the STOP Act is muc...11 broader than just
consent decrees or caps.
Senator BIDEN. It is. That is why I am asking.
Ms. ABRAHAM:. I think that there are other orders other than
caps that need to be addressed, and that is why the l2g-isbtion was
drafted the way it was.
Senator BIDEN. I understand.
M?. A~RAf:L.\!',f. I ~hink it would be tot.ally selfish and utterly selfservmr; ror Just Pluladelphfa, since my problem is the cap. There
are othe: problems_ across this Nation that I think STOP addresses
that don·t necessarily-Senator BIDEN. But quite f~y, Lynne, the only one that puts
people back out ?n the street 1s the caps, and I don't give a damn
about tl:e rest. I Just do::i't want these people out on the street.
Ms. ~RAHA.\f. Well_, sometimes, as a way of enforcing, or forcing,
depend1?g on you! view of things, reform, the caurt will crdcr a
moratonum
on nson
until , let's say, something is fin· ~h • 1 .-,
• admissions
.
k •• ed, .e. s say t e ki~en rs redone or something of that sort. But
tl:e ham~.er that mo"~ Judge3 haYc: over prisons like mine is some
kind of either prevent1on of peo;,le _getting in or releas~ from prison. So, for me, and I am only Epeak:ing for me, the cap is the mo.jar
problem, but there are other problems as well.
Sena~r BIDEN. Professor, you know your stuff in this area You
haye wntten a lot about it and you are well respected. One ~f the
things t~at came up 5 y ~ ago, and even earlier, ths.t I found myself having to argue agamst was a similar argument that. three of
you m:3-de today ab:iat, uinterfeifr.;( v.ith the ability of States to
e_n,ter mto consent decrees with Federal courts and it went like
truL
'
Everybody knows that the attorney general of the State of Delaware and the attorn~y general of Michigan and the D.A. of Detroit
and the D.A. of Philadelphia and the D.A. of New York-this is
~ow the argument went---€nter into these awful plea bargains lettmg !hese 1;lwful people out on the street. There was a proposal
here m a cnme law-and I see a Philadelphia Congressman behind

90
you; he may remember it when he was here--a proposal that said
we are going to outlaw plea bargaining, because there were a number of studies written about, in plea bargaining, the same incentive
exists for a D.A. that exists for a prison official, the same exact
one; one, their batting average, especially if they are elected; two
their incredibly overcrowded workload.
'
If we eliminated plea bargaining, Lynne, you would go out of
business.
Ms. ABRAHAM. Any district attorney who says he or she is going
to eliminate plea bargaining is a fool or a liar, one or the other.
Senator BIDEN. I am with you. Now, the problem I have i:s the
conceptual one. I sat here for 3 years arguing against the attempts
of some of my friends, tough law and order folks, saying we are
going to get tough and we are going to make sure that we have no
more plea bargaining because if someone is accused of first-degree
rape, the cops must have had a reason to accuse him of that and
to allow them off on simple assault or to allow them off on .,..,.hatever is an outrage and they are just going back out in the co:rnm unity. There are all these statistics to show that people with whom
D.A.'s have to plea bargain, I would argue have to plea bargain, go
out and commit <'- significant number of crimes.
Now, my question is how, conceptually, do we make the case,
professor, that it is appropriate for me to intervene between a governor, a mayor--by the way, Mr. Watson, when he ran the priso11
system in Oregon, had no authority to do anything by himself. He
may have been involved in it, but the governor had to sign off on
it. He has no authority in the State of Delaware that the governor
doesn't have to sign off on.
So I am inclined to vote for this legislation, but I am thinking,
OK, I vote for this and I tell the governor he can't enter into plea
bargaining, in effect. That is what it is. How do I not turn around
and say, by the way, the attorney general has no authority to enter
into a plea bargain? Same motivation, Mr. Cappuccio, same exact
motivation as the prison official may have. Can yo•.1 make a dis'tinction for me, professor?
Mr. DIIULIO. Senator, you are a special legislator because you demand that kind of conceptual clarity. That is one of the things that
I think is often lacking from legislation.
There are tradeoffs involved in all of this. I think the reason
why, if you look at the public opinion survey data on this, r:nost
peoP,le are willing to have prosecutors make those tradeoffs-they
don t like plea bargaining; it is considered by many people to be the
seamy side of the justice system. But it is almost without ex:ception, if you look at the survey data, that people believe that bigcity prosecutors, like my friend, District Attorney Abraham he:re-when they make those tradeoffs, the primary value in their calculation is public safety. It is not second, third, or fifth; it is first.
Senator BIDEN. Well, let me interrupt you there. In all the data
I have seen, the public overwhelmingly opposes plea bargaining
and overwhelmingly would support legislation to eliminate J>lea
bargaining. You may have different data than I have and I would
like to see some submitted.
Mr. DIIULIO. No; I would be shocked and amazed if that were not
the case.

91
Senator BIDEN. That is the only point I am making.
Mr. DIIULIO. Yes.
Senator BIDEN. So the public thinks that.
Mr. DIIULIO. Obviously, in this case the public is uncomfortable
and is opposed to the notion that people are committing three and
four crimes and are getting off with one. But the reason we had
the move to mandatory sentencing, in my view, in the 1970's and
into the early and mid-1980's was because people were saying this
justice system involves an irreducible minimum of discretion.
Somebody has got to exercise the discretion.
.
The 10 million violent crimes committed in 1992, the third of
them reported, the 165,000 of them resulting in conviction!', the
100,0CO that went to prison-we are not ever going to have a system that is going to invest the human and financial resources necessary to go after every criminal and incarcerate every criminal,
nor would most people at the end of the day want to do that. So
C:',,:,c::::1 :s i:;oing to be exercised. The c;.uestion always becomes
who is going to do the sorting, who is going to exercise that discretion.
I think from my pcrs~tive, Senator, the conceptual point you
raise leads me to the c-0::clusion that most people are more satisfied
to have prosecutors exercise that sort of discretion than unelected,
uns:::~:mtable Federal judges who intervene in cru:es in local and
State jurisdictions and who do not, and this is what we are really
talking about here, put public safety first.
Senator BIDE."1. Well, I think you are comparing apples and oranges. The prosecutor is to the governor what the State judge is
to the Federal Judge. It is not the prosecutor to the judge. The fact
of the matter 18 tne prosecutor doesn't make a deal with anyone
other than the defendant, which then can be overruled by the
court. In my State, you can make~ a plea bargain the court will not
allow to be had in my State. I don't know about the State of Pennsylvania.
Ms. ABRAHAM. Well, excuse ce, Senator. All plea bargains are
subject to the court accepting the plea, so the court must accept it.
Senator BIDEN. Right, OK, that is what I am saying. So it is the
same in your State. I just didn't want to speak for every State.
The point is the Federal judge is locatea in the same spot in this
deal between the governor and a Federal court as the prosecutor
is between himse!.f or herself a!ld the State court. The person in
question is either the defendant or the prisoner, and so I just have
great difficulty-by the way, the data I have seen-I share your
view about who is going to look at the public eafety, but the truth
is prosecutors, if yo-..i notice, nationwide have not experienced an
o,·erwhelming errcb:·ace by the American public.
All of them that have nm for higher office have gotten beate::i,
by the way. It tells you a little something about what has happened
in tenns of where the public thinks prosecutors are. Now, I am not
being critical because I am supportive. I don't think there is a single person here in the U.S. Senate who has been more supportivethere are many as supportive-of State z.nd local and Federal prosecutors _as I have been. I am not making the case that they aren't
rc~pons1ble. I am making the case in terms of what the public perceives.

27-255 - 95 - 4

In ;IlY State, I promise you the people of my Stzte would be more
certam th'.1-t the gov_ernor of my State is going to protect their interests relative to pnsoners than they think the attorney general
would because they know the attorney general wants resources.
They know the attorney general, which is the prosecutor in my
State--we have no D.A.'s-the attorney general in my State wants
more p~rsonnel, wants m~re authority. So every State differs.
I don t _want to beat tl:-is 0 death, but I find it difficult for me.
~d_tha~ is ~-hy I _am ?o mtngued by what you have suggested, sir_
1 thmk if this legislat10n lays out a predicate-and, unfortunatelv.
I was 1lere when Tunney was ~ere. That is how old I am, but I g~t.
here. w,~e'.1 I was 30. The predicate th_at you are suggesting exists,
and ,ha, 1s that there has to h.e a findrng that there is a reaso::.ab!e
prospect that a constitutional violation exists. Then I am much !es 5
concerned about me interfering in the State's affairs.
Here we '.1-re with_ this entire movement out there coming from
the center-right sayrng, Federal Governmem, stop dicta ting to the
States, except when it comes to morals and when it comes to stiffer, meaner, harsher, better punish~ent. Here we are telling the
States, by the way, you, governor-if I vote for this as it is now
I have to go back to my governor and say I don't think you ar~
competent; you are not competent; I do;-i't trust you because vou
make deals; I don't trust you to make a deal with a Federal co~rt
judge. 1?1ere is no·getting arot.U_:-d that. That is what it says.
,J~at 1s what you _have all said. You have said these guys, prison
o,nc1a!s-and that 1s what the gentleman from Michigan has implied that a previous administration, whoever it was Democrat or
Republican, entered into this consent decree. It was a' political deal.
So I have got to sit here as a U.S. Senator and sa_y my governor,
\\ho probabl,;: knows as much or m'?re than any of you at the table
20:mt governing and has an e1::emplary record-and the one before
him, Mike Castle, and the one before him, GoYernor duPont-that
these guys aren't smart enough, aren't honest enough aren't decent enough, aren't capable. enough to decide wheth.er ~r not thev
want to enter a decree with the Federal court.
•
No govcrnor-3.n?, Lynne, you know this-and no mayor, I don't
care who they ;:re, 1s going to let a prison official seal their political
fate for them. There ain't a one. Not a single one in America is.
going to let a prison official say, by the way, this is the consent decree I entered with the Federal court.
M:s. AERAHA.M. Senator, I am not he::-e to quarrel with you. You
know I have a great affection for you personally on a personal
level, as a Ser.ator, and for the institution of the Senate, and I am
n?t here to argue about perceptions. It depends, first of all, on your
view of who people really trust, and some people do trust their
local prosecutor more than their mayor and more than their governor.
Se:iator EIDEN. That is true.
Ms. ABRAHAM. Second of all, when it comes to some of these litigations, the moving party, the plaintiffs, whoever they may be, do
not move against the district attorney. They file their lawsuit
where the district attorney has nothing to d:i with it. It is against
the mayor or the body of goverr;.ment.

Senator BroBN. I undentand. but ~ would admowledae.
Lynne. I haw to make ajllqmenL Ap.ln. _I want to "tote for t6Ja
became I bow your ~ I realQ do. I don't bow it u well
u IOU do; not jut you. I mean :,ou and your coUeaguea.
lla..Aluwl.UI.Sure.
Senator BmBN. I want to '\'Ote f'or thia. but there la no ptting
around IL I haw aut to uy to ner, governor in the Natloli, well.
:,ou bow we in toe Senate don't trust :,ou enough to mab a Judgmat u to what la beat for your State. and that rue. in the race
ot nerythinc that la happening here saying eend it back to the
StateL
My time la up. H I can jut ask one more question and then
yield. we are going to hear a Jot of ~ . and we have-I
didn't h-.r it becauM I Btll.Jeci on the floor 'IOting-ebout truth in
eentenc:ing. I want to atate for the record. becaue appaR!ltly I am
80 old people wouldn't remember thia. that I am the guy that wrote
the Federal aenteDcing leglalation. You are looking at him right
here. I am the guy that authored iL I am the guy that authored
the ~ Trial Ad. No one elae can take blame or ~ i l i t y
for iL I am the guy. I did it and I am proud of it. At a Federal
level. it worb very well.
'The reaaon why people don't want to come to Federal court ia
they go to Jail. they p to jail. becauae Federal politicians. as bad
u we are. met our responaibillty. It ia easier to meet it than State

murt folb. We came up with the money f'or prisons. We came up
with the
for~
'The
wrote the Speedy Trial Act, Lynne. ia I read the
atatistica. People waiting to go to bial were ~ crimes at
a Cuter rate tnan -people who were not already
and waiting to go to trial. 11uat- ia the reaaon I wrote the law. It wasn't born
out of c:ml liberties. It waan"t born out of any of that. They were
committing crimeL So it ia worldng.
Now. we are ping to hear, ancl we have beard from governors
and State and local officials talking about they want to be tough
OD crime. but they don't have the nerve to go back to their officiala
and aay, you want WI to put l)eOJ)}e in jail. it ia going to cost money.
They all come down here and say, looi. balance ,our Federal budget; by the way, eend WI the money 80 we don't have to do this; we
want money.
My own governor, God Jove him. a political ally, makes a ~
about balancing the budget and then •YB to me, you are go.mg to
eend me SU m1Dion for priaona. right? There ia $24 million of Federal money ping to the State al Delaware to build priaona over the
nat 5 years. In the State ol Penmylvania, it ill probably going to
be more lib $350 million.
We ha-te got to have a little truth in Jegialating here. H we want
tbNe folb
let'a pay to have them go to jall. You don't
want ua to
· it. ""1 don't want WI to tab ewer all your
crimea. You want to brf'8 local authority. Let the fo1b in Barriaburg step
ball. lib they did in Tau. 'Ibey doubled them
liDce 1990.
ati11 have a problem and they atilf can't meet the

re:,

W,:°'

5
~.::my

qwtion. I( in fa:i,_ 'ft gG to truth in NDtencfna
requiring the 8tatei to come up with keeping the1r fo1b in prilon

=-~·

for 85 _percent ol the time aentenced. and the ~ la .c2 perGadola, do JOU know what it ia in Michigan. average
Mr. GADOLA. No, I don't.
•
Senator BmEN. I think it ia around .CO percent. Cor.ect me ff I
am WJ'CIII.. We are getting U now.
Hyou think J O U ~
problem
• now, you. wait uDtil we pua
thia truth in een
You will not get any money in
Mlcbipn feclerally un
good news ia )'OU are going to be able

:ex~-~=

;:J°
.:t:t~~ ~ f : :
lion out there for Statee to have money for _priaooa. The bad newa
Ia. to pt our piece r# that, 7.f!U have got to double the pruon apace

in the State before you. qualify to pt any ol that. Or, eoweuwr, you
have got to cut in half the aentencea Uated on tlle boou.
You are even worse. 37 percent. You are not nearly u good aa
Delaware. Pennaylvania la not nearly aa good aa Delawan. By the
way, Delaware ill wonderful. Do JOI! know why we are wondedul?

We have 750,000 oeoPle.
.Ma. ABRAHAM. Small State, small popu)ation_
Senator BmEN. We have the aecond h ' = .incarceration ratewe are not proud ol it, but the NCIOlld ~ - incarceration rate
of any State in America, after Tena. We are tough. We are amall.
It is easier to be tough when you are small..
But the point I am making here ia do you f'olb. any of you-I
want to go down the list and just pt a yea or a no-do you support
STOP and the Federal ~ t that bef'ore ~ get a penny out
of the Biden crime law for pmona. you have Ro& to 1iue 85 percent
average incarceration time for a 11e11tence? l>o you know what I
mean? H the statute in Michigan 118..JB 10 years for robbery, yoa
have got to have them in 8.5 yean.
I will start with Mr. Martin and work oar way down. llr. Martin,
do you 8Upport it?
Mr. MAlmN. No, I don't, but Mr. ColJirr
Senator BmEN. Well, he is ~ to
llext and I know he
doesn't support iL I know - - ~ Go..-ernor George Bush
doesn't support iL He bu got his
· full already.
Mr. Watson, do you aupport it?
.Mr. WATSON. N o t ~ ·
Senator BmEN. IOU pt more money. Say yea and 11119 will pt
more money.
Mr. WATSON. Let me put on tba hat .. a State correctiona adminiatrator. Thal ill one of the paaitiom that we hPe taken unanimoualy, I believe. that that ia something t.bat for mu1y States just
isn't worth it, ff that la what it tam to qualify for the Federal
fund&. The field isn't level Some State. ha'ft Ul 80-,-r .-tenc:e
for a certain c:rime. where in another State it ia I2. So to hue each
of them aene 85 pereent ill unfair mim that pwspeetifl.
Senator Bu:>BN. Mr. Gadola. do JG'& aupp.-t truth in aenteaclng?
Mr. GADOLA. Senator. that ill arta_in)y a aad wtattatic that JOU
cited from ·the State of Michigan ancl that la. I think. wb,J-Senator BIDBN. I didn't cite it to be critical.
Mr. GADOLA. I undentand. but jult to malat my point,, I tbfnk
that esplaJn• why the leglal•w-.. puaed and the pweuWJr ~

testHy

9C5
alpecl Into law truth in witendng Iegiel•tion in Mkhigan that
would permit ua to meet that 85-percent requirement.
Senator Bulmf. Over bow lODg a period o(time?
Mr. GAooLA.
the 80ftrDOI' bu appointed a eentencbg
IEUicWiw commfwkm• .imilar to what wu done at the Federal
raw '1'bey are requirecl to make recommenclationa back eome time
in 1996; l tblnk at the mnduaion of that year. The l_egialature then
bu the ability t o ~ or i-.ct tholl8 recommendation.a.
Senator Bulmf. I will make JOU a bet the NCOJDJDendationa come
back with lower amt.nceL
lfr. GAooLA. They may ftry well.
Senator Bmar. Which DUWII aenee, I mipt add.
Mr. GADOLA. They may ftry well.
Senator Bulmf. I.pne?
Ma. AalwlAM. Senator. speaking for myaelf and not the governor
aE Pennayhania nor the National District Attorneys

wen.

Auoc:ietioll
Senator Bu>BN. I would like to see JOU as governor of Pennsylvania.

wen.

Ma. ABJwwl.
he ia a good man.
Senator Bmar. Right.
Ma. AmwLuL I tliink the people of thia country and the people
aE my State really want truth. whether it is in sentencing or anything elN. I think they would be
the price if it meant
that they could feel free of predatoJy · ·
I think they are so
fed up. they are arming themselves in record numbers. They are
acared to death.
I think it ia about time th11t I stop having to send my cases down
to ~ Federal proeecutor becaWle t6ere ia pretrial detention, a trial
within 60 daYa. long aentenc:es for felons in possesaion, and the
like. I would like to be able-to do that myaelf rather than having
to foiat thoee caaea cmto my local Federal prosecutor because our
Jaila an, f'ull and everybody thumbs their DOiie at the system. So
l woald aupport it. Y-. I would.
Senator BiDEK. PraCellllOI'/
Mr. DIIULIO. I am aE the view, Senator, that without STOP or a
STOP-lib proriaion, truth in l l e l l ~ legislation ia going to go
the way o( mandatory aentenc:ing Jegialation; i.e., 15 years from
now we will be talking about 37 percent here, 42 percent there, for
the reucma that haftbeen put OD the record here today.
That ia why I do mpport what the Howie did back in February
in 8PliUbur tliat pot ti money l50 peicent for States that just move
in the dindlo.a without hittin,r 86 percent. Fifty percent of that
1IIODey pee to States to haft die incentmt to continue to put violent repeat crimlnaJa behind ban for longer terms. and the other
l50 percent to gift an incentive to Statea
Senator BIDDr. Yoa bow we do that under preeent Jaw anyway.
Tbat ia now the Jaw, not the ume ~ It ia for violent ofCenden. NCODd time. and ao on.
Mr. l'>Iluuo. Yea; well. I tblnk we haft
but
with prow,- about the need to develop a more
ap.
pruachtoeornc:tioaaplmn~~to
andao
0D. which ia not in the lloaae DUL

~==~

7a::':J

Mr. CAPPUCClo. With the caveat. Senator. that I am totally unqualifted to opine on thia-Senator BIDEN. That doesn't ~ any or ua.
Mr. CAPPUCClo. I would support the concept. although I don't
neceaarily think it ia doing it the right way. Stat.es ought to pay
for their prilona, a n d ~ General Barr when he wu Attorney
General gave that speech 3 timea a week. If"70IC& are aeriou..a about
preventing crime. &a.tea have to inYNt in pnaoiu. The c:orc,lluy to
that seems to be the Federal Government ahouldn't gift money
away to the States if they are not going to uae it to 1odt people up
and ~ e m off the street.
That · said, it strikes me that there ia a bit of a cbickenand-egg p lem here. and JOU have alluded to it. You can't get
more money to lock people up until you have locked them up. at
which point you probably nm afoul of all se>rta o,f Federal decreea..
We have to figUre out a way around that problem.
Senator BmEN. That last was a little gratuitou&-efoul of Federal decrees. All you have got to do ia build mo~ prisons and she
baa got no problem with Feoeral decrees.
Mr. CAPPUCCIO. That ia right. You have -to come up with ::,our
own money.
Senator BIDEN. Right.
Mr. CAPPUCCIO. I am not sure that one ntle Cor every State ia
going to be feasible. With that. I support it.
Senator BIDEN. I thank the Chair for allowing :me to go over my
time.
Senator ABRAHAM. Before we proceed, I would like to just also indicate that we have entered into the record a correspondence at the
request of the chairman of the committee that was sent to him
from Michael Barnes. who is the prosecutmg attorney in South
Bend and President of the National District .Attonieys Associatim..
with respect to thia legi.slati&n, the Sl'OP Jegielation.
I also would just observe-I may or may not be right about this.
but I am sure that the population of Delaware is one reason that
you have reached these standards. But from what Lynne Abraham
baa said it also might be the case that if I was planninl{ criminal
activity, '1 would not do it in Delaware. I wowd go to Philadelphia
where it sounds like things are-Senator BIDEN. Unfortunately, they are com.ins from Philadelphia to do in Delaware.
• .
Ms. ABRAHAM. Senator, we will give your normal get out of jail
free card. which everybody has in Philadelphia. [Laughter.]
Senator ABRAHAM. Mr. Cappucx:io, let me 10 back to the consent
decree issue one more time. Senator Biden. following up on am:n9
of the earlier questions. raiaed the question o£ hoW' much authority
States ought to have and why we. in an era in which we claim we
are going to try to relinquish more Federal •~~ty aJ?d let States
do more things for themaelvea. would be COD.8ldenng thia type of an
approach.
b-·..a.•
. •.;-n_ to aL:- •
__ ... I
I guess the thing that •.,_.. me IDI---.,issue guess drove home to me the importance of at least bearing more
about it ia the experience we ban bad in Michigan bec:auae ~
the State doesn't want to be part Gfthe conaent decree. and neither
does the Department-or at leut u ol 1992. did the Department

97
of Ju.at.ice. So, aurely, it would

eeem to me. and I would lib your

comment.. that when both DOJ and the State and ita offlciala have
concluded that the conaent decree's ~ have been met, that
ought to suffice. it would aeem, to brmg it to an end. It hasn't, but
I guess I would lib your thoughta on at least that exception.
Senator BD>EN. That is a good poinl
.Mr. CAPPuccto. Sure. I agree fully. I think the importance here
is to keep in mind the framework and the perspective of a Federal
lawsuit and what is a Federal lawsuit. When I was at the Depart..
ment. I kept saying to myself, what do you need to do? You need
to remedy real constitutional violations. You need to get in there
and th it and when you are done, you need to go home because you
are not in charge. That was sort of the mind set that I had, thOURh
I am not sure it is always the mind set that has prevailed at the
Department of Justice.
lit the cue of Michigan, what we saw was it was really undisputed that an enormous portion of what the original consent decree
covered was not longer at issue. I forget the particular provisions
that were involved-fire safety. I forget whether medical was covered or nol I know mental health wasn't.
The philosophy of Attorney General Barr, consistent with what
I said and consistent with the Supreme Court's decision in Fruman v. Pitta, is as aspects of the system come into constitutional
compliance, let them go. So what we tried to do in Michigan is say,
all right, there is no dispute as to these 4 categories; that is it, it
is over as to that, and we will just have a separate settlement
agreement/consent decree on the other thing.
The idea that some Federal judge thinks he can say no to that,
I think. is offensive to the notion of judicial power in article III.
Again. it goes back to a lawsuit. When the parties to a lawsuit decide the controveniy is over, it is over. It is not up to that Federal
judge to keep it going. I think he had no authority to keep it going,
I am deeply, deeply saddened and disappointed that a couple
of daya after we got thrown out of office the Justice Department
for some reason t1ipped position on this. I think that that is disappointing.
Senator BmEN. Can I interrupt on that point?
Senator ABRAHAM. Sure.
~1?r BIDEN. But it is on point, Mr. Chairman. In last year's
mme bill that we passed so much of it, a lot of people aren't
aware of the apecifics of it, and you may or may not be. In title
18 of f:he law 1;1ow. section 3626, subsection (c), refers to periodic
and 1t saya, °'Each Federal court order or consent decree
to remedy an eighth amendment violation shall be reat the behest of the defendant for recommended modification at a minimum of 2-year intervala." That is now the law.
Ms. ABIWIAM. Well, it doem't define what "reopening" means.
That ia one of the problema. It ia a liWe bit mushy.
Senator ABRAHAM. That waa sort of the direction I was kind of
going to go in here because I know that there was an effort in the
1994 bill to by to addreaa the early releuea and some of these conaent. decree p~l~. We are ~~ to by to figure out whether-it is early m thia process,
·
y, but whether or not peo-

and

pie who have to deal with thia on the front lines feel that we lune
gotten to the point that we have addresaed it efrectively.
Could at least Ms. Abraham and Mr. Gadol.a and an::,body elee
who would like to, but you two obviaualy have been right in the
middle of these-Ms. A.BRAHAM. Well, just briefly abolLt the 1994 crime bill. the
crime bill of 1994 addresaes eighth amenCUllfllt daimL There la a
difference between an eighth amendment claim for sentenced priaoners and a due process claim for pretrial detainees who are incarcerated.
In looking at that act. the language ia ac,mewhat ambiguoua and
it doesn't really specify what is neeoed for relief and it doesn't define •reopening." The problem ia that for Federal judgea who are
inclined to do what Mr. Cappuccio said-OK, fellows, you have accomplished what you have set out to do and now it is time for you
to pack up and leave-that is fine.
But, unfortunately, there are a number of loopholes in the act
and judges who are not so inclined to say, OK, you have ac:mmplished what you have set out to do, go home-they, will find the
loopholes in the act, and that is why we are back: here. We wouldn't
be back here in light of the crime bill of 1994 if there weren't what
we perceive most respectfully to be an ambiguity in language and
a need to make certain definitional changea in tightening up. We
wouldn't be sitting here today if we had the problem solved.
Senator BIDEN. Lynne, have you made a m<>tion to go back to
court to reopen since the crime bill?
Ms. ABRAHAM. Well, I have to tell you something interesting.
Senator Biden. The answer is yes, but I have l>een found to have
no standing because the prisoner sued the former mayor.
Senator BIDEN. Right.
Ms. ABRAHAM- On top of that, in light of what Mr. Ca.ppucdo
said, not only has our Federal judge in question had a new prison
built, which was-I am not arguing that we didn't need it. We did,
but she had control of the whole FE:deral courthouse that was built
which doesn't have one prison cell in it. Her name was on the bond
indenture. No change order could be entered. She decided where
the flag poles went, whether the furniture got BCOtch-guardedtastic.
Senator BIDEN. I have got that, but could the mayor file? Does
he have standing, the present mayor?
Ms. ABRAHAM. The mayor is stuck with the consent decree. He
has attempted to get it changed.
Senator BIDEN. Has he attempted to reopen under the new law?
Ms. A.BRAHAM. Oh, sure. We have been fighting and fighting and
fighting. Of course, as soon as the ~ _act cam~ down-as his
promise was, the vecy day that the cnme bill was SJgDed-we were
in Washington for the signing, as you remember-the next day, he
walked into court and filed a motion to intervene.. But, you see. the
judge isn't really moving quickly on it, doesn't have to because
there is no time limit OD it, and
just puts the motion aside and
doesn't rule on it.
Senator ABRAHAM. Would others want to comment on the new
bill and what we need to look at or what your experience has been?

sne

100
99

Mr: GADOLA. I certainly would. 'l'be problem that Mkhip» facea
is ~ the atandard we would have to meet to pt out from under
the control of the Federal court in our CIUPA lawsuit is not a con.ututional atandard. We would haw to eatiafy the court that we
haft aatlaf'actorily dealt with the very detailed nqulremellta of the
State ~ for compliance and the aaaociated orders; in other
wora. all of the minutia that I think JOU. in particulari Senator
AhnJwn. are familiar with. and some of the thmp that detailed
earlier.
-1..;,.., .th
So it is not enowrh for 118 to say that we are comtn.1..-. Wl conetitutional atandanla. We would have to satisfy the court that we
haTe dealt satiafadorily with each one o!' ~eee in~vid~ m ~
State plan ~ t s . There is a ~ n dealing with aamtation in the CODBeDt decree and the State plan for compliance. Now,
it la not good enough for 118 to aa~ t o ~ with the J~ce De-

~~~:=
!: ~t! w i t h ~ t!°!.!'1=
Rather what we would have to do is satisfy the court that the tem-

~ of the water in the abawera is a certain temperature. and
on and on, ad infinitum.
Senator .ABJlABAM. Mr. CapJ)UCCio? I am just going to go do"!11
the line here if there ue any othen who want to comment. We will

just~~i'1:rnttr'Mr~
hJa finger
.the problem. and part of what I tried to talk about in my o ~ stateput

ment ia one of t h e ~ we ha'fe to control with conaent deaeee
and. apbl. I am not m finor of aboJi•blng them-is that openended standarda in the CIOD8eDt decree end up replacing the conlltltutional atandard.
What I think we need to find a way to do is to say, after some
when thla baa been going on, it can't go on any
and it is an important --unieaa,• the Constitution is
being 'Vi
or the minimum isn't met. I think that is what rule
60(b} requirea ~ { ' but not fJ98rY court is in agreement with me
on this, and I ·
if Congreea made that clear, it wouldn't be a
radieal c:bange. but. boy, it wouJd be an important one, and that
is if, at any time, Mr. Gado1a can come into a court and say here
la our mdmce and we are not violating the Conatitution, you have
got to let bim_=ou
haw got to let him go even if one of hia predeceaora wu
enough to agree to a Jot more, including profeaaionally trained
and bot water temperatures within 6 de~ of 110.
II& hBAHAV Chunky pemmt butter.
Kr. GADol.A. And chuiii;y peanut butter.
You bow, JOll haw aut to ~ JOIII' • on the ball. The ball
is nmechina conatitutioiud yjoJmma. and at 1CnDe point If he can
mme in·ana 187 I am not in "rio1atlon of the Coutttu.tion, that
oa,rht to be the .tand■rd cm l'eOIMIDUIS and he ought to be let go.
Seaat.or AmwwL Mr. DiluUof
Mr. l>Ilm.lo. I thlDk tbia bJinp u riabt back to Senator Biden'1
iDci■he mneeptual ~ I mean. tiaia really euta ~ t to the

==:

=1u~o~rule4-=r-=:~=er.~
good enoajb; CoagreN cunot do wbatfts lt

want■•

The lmplica•

tion, I gueu, waa that the Federal JudJcia.ry in tbeee c:aaes might
be able to do whatever they wanted. -X don't lmcnt- but it la the coatext here we are talking about.
•
When the prosecutoni exerdae cliac:retio.-i, yoa end up with fewer
violent repeat crlminal■ in euetody and fewer coat■• When the
judges exercise diacretion, yoa end up with fewer violent and repeat criminals in custody and higher c:osta. That la why getting
back to the question asked earlier by Senator Abraham. the~ 8I'OP
provision or a 8I'OP-like ~ O D deals mainly, in my view
through the prison cap prcmaion with i,ublic aafety, but it goes~
yond public safety and would restrain the growth in costa that ha'fe
occurred u a result of the interventions.
I mean, the Texaa case ii, I think, a perfect aample hen,. Between 1980 and 1994, the Tau prison population a6out doubled.
Yet, real inflation-acijusted cost per priaoner went up tenfold. Now
in those increases you aee the influence of the Ruiz orders, u i
think former Tena Director Lane Mceotter, who is sitting here in
the audience today, and others would testify. So I think that is why
the 1994 crime bill provision didn't quite do the trick. I think it la
clear that that waa not medicine that was 8trolUl enough.
Senator ABRAHAM. Mr. Watson or Mr. Martinf

Mr. MARTIN. I would add one element to Mr. Cappua:ida recommendation, and that is, in addition to the constitutional find..
ings, that there is a reasonable ezpectation that that conatitutiona1
condition will continue. That simply would be a codification of the
current Freeman and Dowell cases that, as you know, relate to desegregation. If there is a reasonable apectation that that will remain constitutional, then it is time for the Federal court to fold it■
tent and go home.
Senator ABRAHAM. I have an awful lot or additional questions
and we have a whole additional panel, ao I am going to turn it back.
to Senator Biden here and submit a group or additional questions
to all of you because I do want to get JIOUl" thought■ oa. how we
ought to proceed on a number of other matt.era.
·
[The questions or Senatot Abraham are located in the appendix.]
Senator ABRAHAM. Senator Biden?
Senator BmEN. Mr. Chairman, you have alreadY been generous
with me in the time you have allottecl. I will not as\: any additional
questions to be answered now. I would ask one broad question to
each of 1_0u and, with your pemuaaion. Mr. Chairman. I would like
to submit some questions in writing.
Senator ABRAHAM. Please do.
Senator BIDEN. My broad question. for :you to contemplate to answer in writing, and I will put it in writing as well, is ia there a
way to remedy without the act the ~ aection which reads -re~ • along the lines which appeal to me ~ much which Mr.
Cappuccfo ■aid, and I thouaht he wa■ nodding hia head in asre,ement with Mr. Martin's additlonal suaeatlon.
It seems to me we ~ be able to fl:i what la really i n ~ •
craw, including mine, the problem ottbe cou.d atQing on laag after
it has outlivecl it■ reuon for being infthed in tlle lint fmtance
I don't know whether that can be clone. I haw DO pride ot authorship about that, but I am open to ancl would fn'rite an.r aaa-tioa■
you have.

nrrnmrrr:·
102

101
Aa JD08t of you are lawyen, we ca_n argue in the

alternatift. We

are trained to argu9 in the altematfft. 'lbia ~~ way ~ f o.,L_
r
Jf :,ao amwer that queation ~ . your '9iew - ' }'Oil are
act and not tbla aborter ftL But Jf ~ canclwle that a more tarptecl fh may be wombJe. then I would appnciat,e your inpuL It
ma,y~
alld o
111 want. but can we improve subeedion 2. "'Periodic

I
·
Lynne makea a point about what c:onatitut.es reopening
and. to put it anatber way. when you can c:loee. Mr. Cappucdo, l
agree with JOIL It aeema to me tAat an attomey general. a district
attome:, a ma,yor: or a governor abould be able to go back into
Federal "cou.rt and• aay. look. then are DO eidating conatitutional
violatioa.e; notwitbataDding that the couent decree went beyond
that. we want you to reopen tbla and we WBDt you to fold your tent
unleu you condude. jodp. that then ia an mating C01l8fitutional
violation.
Due proceea can be a amstitutional violatlon. I am not hung up
on it being the eighth amendmenL You may be correct that this
abould haft aaid-,:-it -.,. "remedy any eighth amendment violation.• and it ahould aay -remedy any constitutional violation.•
There may be wa,ya to fix iL I would jut like you to look at iL
I thank :,ou. Mr. Chairman. and let me aay that I am very. very
parochial. .We are really prowl of Mr. Wataon. He baa brought
aome. real talent and a:pertue from the West Coast back to the
Eut Coast and we appreciate him being there for real.
Mr. WA180N. 'lbanKyou.
.
['lbe queatfona of Senator Biden are Iocatecl in the •rpendix.J
Senator ABlWwl. I want to thank the whole pane1 !><>th for the
1Gng period of time JOU haft been ~ to Bit tbroUgb today and
for your inaigbta bec:amae thia ia very
particularly. I think.
to tbolle of WI who want to aee if we can handle this problem in
a way that i• aatid'actoly to all. So thank you. very much for coming and we will dismiaa JOU at thia time. Thank you.
What I would like to propoee ia thia for IIOllle of ua who have
been aitting for quite a while here. and I know there are a few who
would like to take a brief break. I think what we will do is reconYene with the nest panel at 2:45. We will stand in recess until
then.

[Receu.J

_Senator Ammuv Before we start thia panel-Senator BmBN. Mr. Chairman. I apologi:re for keeping you waiting. I didn't bow you. were waiting on me.
Senator 4BR♦BAII.. I WU. and would aplain to our panel and
tboee few re,naining guata here tocla)' that we have Boys Nation
in town.
Senator BmBN. In light of pas hlataly, I fipred I may be speaking to a future P-NkJent. 80-i wanted to be wry polite 10 tbjy remember me. Tbe only commitment I ever aak ftom theee Jdu ia
that wben I ~ my
bf~ from DOW and tJley
are told by their ~ Joe
• ha the outer office they
won't ,ay J'oe who? '11lat la the ~ ...,.,ttm,mt I aak and I have
- that cornmttment. ao I ~ boidbqr~ up.
Senator Amwwl. Won~
the puel, I jut want to ,ay
we are trJ1D1 to a,nr- ----1 di--. umelatecf to ,ome extent

puddet

topica here in tbia panel. .Juat to ghe a little ~ . when we
made the initial decilioo to haft at Jeaat one bearing on pri.10aa.
the Jegialation that wu earlier dJac:uH ed in the prerioaa panel on
STOP was in the forelront of oar thiDkina. But· u we Dioftd toward having the actual hearing ttael( we 6eeame aware of Yariou
other bills and inter.ta that were oat there, fnduding the lasue of
privatiu.tion. the iuue of work in ~ and 80 oa.
It wu my fear that Jf we didn't inci"Mie an opportunity for eome
of those topics to be diec:uaeed bel'e toclay. we could find ounelftll
getting nearer to the eod al the yea witbaa.t ever ~ had a
chance to have at least an ~ for people who care about
those iaauea to be heard ~ and ao that ia what we are tr.,iDg
to do today.
We have on thia ~el lb Katbleeo Finnegan. who is esecuthe
director of STOP; Mr. IA.ne McCott;.w. who la the aec:athe director
of the Department of Correctiom for the State oL Utah; Andrew
Pepon Thomas. who ia the deputy attos:ney general of the State of
~ : : ~ Dr. Timothy Cole, who. la cbairman of the Board of
W
ut Correctiona Con,oration; Kr. AndY Collina. who is director of corrections for the State o£'l'aaa; and Mr. Zee Lamb. who
is chairman of the board al coantoZ,.QWDJDiNinoen for Paaquot.ank
Count;,. NC. If I got that right.
is definitely moring in a good
direction.
We will beitin with Ms. ~ . and I want to thank you. for
coming and also indicate that Seilator Made had booed to be here.
In fact. had we been operating oa. oar boped for ecnedule earlier.
he would have been here and ia YflrY 8IJlf"IY that he couldn't be with
us to introduce you and make aome «•MD ■ 11tt1Dta. He had rr,ery intention of coming and wanted both to alllft!Y bis regret to you. and to
have the statement that he wu prepared to mab inBerted into the
record.

(The prepared statement; or Senaur lfadt follows:]

PuPAJIBD ~ 0 , 8IIMTOa ODNNm ltlait
I wvuld first like to thank Semtan Bddl 811d Alnbam 1111d tbe adla---.
o( the .Judiciary Committee Ir ...... ... 111 tauity .. ..... , _
todu to introduce a fiMllll fllmine 6 - ~ . . . . . . liWDlf ezll!llp,lt awbneecl to tab a tou«h ~to_.____.. CIID9llt czime mu. Dmq ay liae
hen in the Unit.ea Stat.a Samde, I hPa ~ a. Jda:la primw ar. alt I,c fl.a
criMe problem& wbidl ~ ball! - - bmll' cidaa -a - ·••lbc ....illarbe,; . .
I line came to realiaii tliat. ~ ~ imwwdcc ~ t... bKll , poeed. "917 rew crii- IICDIIID7 will wait.
:00--, Ibelinethat-~fllwbidl_._,.iD_~-•elllldifllQ'
reduced ia thnJuch Trath-lDS +w ;fm1 I t = - . . ~ a&ildan
whse they ~Ccaftdecl.....,. criwJwlw
-cent oftheir een~ i.m- tbl pdama -a.-.lld • 60 ~ •tblirtence becaUN t h e y ' r e ~ ft
) - Raa..; dlllli7 abauJd tblir auln
Nntaa with. JEiiudmua ofdaa
~ a c:rlme lboalt of 1 .. . _ .. IF
twillbenia_.wtaltl.
An4 tluaee who - plat ............................ aulT• ..., - - - ftlribarcrimlul Ida:
.'

belulll!.llln
-w'li1lc•--...-

.....ti ,....... ,,.. .... ---

ffl~---

s-thatltlkta4eatala
.,
·---~
..thatwrni::::L_ ,, ... ..-, ,m:,.
..........
\EC

lmu.Butil'-mellllilll~---mi-...... ....
1
•

1br the_,_ criliiiii.t111a. r..- tlle
of Plarida Nlldmta .... lunl ..._ eM I I \i
,_. .._..illlunl ......
fll~utbetlma~
,w ►••--•
tbli Florido fl.- l/iuM 114 .,. . . 1lla& ~ "Ptflaa Ilda! Lill Baala ~
Montbe'" about a...,.. aitlulidir . . _ . _ ..... Ille . . . _..,._

Wd.,_,---.1 ..

104

103

. . . _....,~...,•-c:mdMl
. . . _oat_~·
m

~ . . . ha - st-. - . I will_. lqlt tba
~

....._ I will ~ : ; ;
Gal'l--u aSdat;J

......lilrc a n d ~
-~
a _.._
fil . . . _ Ort n111rl, 7bo
bar

tbe pW-+

DOlloe ........ -

I to - 11)' tba family fil B-,n
ld1W 11)' u Nit.,,..... c:dmlm1.

Tb■ euty.--aWalaa,___......,1bathaacmt_.i:lu-tbllrU-.

t:Wr ~ aad . . ....., t o ~ n-C17all ~ - a t m l n a l a .
It'■--.. It-■.......

la Ul87, tba.,... ~ ......... tut 8S ,-mat - Amail:am

-w

b■ 'lidmafila.w.tata.atl■a■l-lDIWl-li.-;2&,--t-Wb■ aY»
t1m fil at i.■t tin■ 'ftllllllt ~ , , _ _ . , . . ■r. •• rwtinc 11r • nation
wbida caD■ ltMlf' th■ "'l■nd fil tba r..■..• How c■n - lie 6- wha than 80
,--tfilmrci--■ will ha fllllllllly -.la:..~ ..t paint ID tbllr lift■? Tb■
~ -■y thi■ latm will lie aJi1■ to ....... V T mfm]l,, caJtarally, and aplrituaJJ;,

i■ if p■apl■ lhi■ ha - eawbwlt la w1lida ,.,... I■ ]ICllllihl■. th■ r.ar fil crime
panbw p■apl■ ... ■ti&■ 1hlir ■Wlll,y to nada . . , _ . - ~ and fDto their

- q t o ~ i'lwliia f■ tba -filall Jmm pr.-; but thll'9 i■ DO

-::r;=. . . . . .11m.

hadam In tba-mid■t fil,,...__

s. s. di,-

-■t ■-iaa■•

~ u ~ to tbe ■tat■■ to keep th■
WIDIII Ima Ir at-■t Bl percmt filtbllr---.
lir liaiJdmtr pri■aD■ to a- ■tat■■ wbic:h impl■-

Tb■ liill ...,.w,.. ■dditianeJ ftmd■

mat tbii■■ ~ ....... w - J'IIU. thi■ i■ DDt ■n WlfimdMI m■Jld■ta - tba ..... It f■ • wlmdmy ~ p,mt ... thme ■tate■
wbidacleciMtonallypttiaullh•cm..
B■■ed m apes- hi Fladd■, I haw DO doubt that many ■tat. will riae
to tba -■-111.. Ill r,q ■tafe, due to tbe Olwwlwlmia.a effia'ta al
and ha Gi<S■ d atile "'Slop Tanlinar Oat
ha■ t - a
call to mp 'l'ialmt .,..__. •tm n1re11111 and llehiDd hara. I will Jet Kathleen
- ~ ~ • h a t -W Jib to ...,.w■ JIiii with bac:qrowid OD
t b a - = = = wbida hne 1-m made ID Plarida.
In p c ~ &r lhe J99t alediaa, Slap Tamms O a t ~ . gr■-oota Ol'prrimioo in 1larid■• mlW JS0.000 b■llat ■ipaturw for • re&rendum to
1111111 mr1y--, ■i&n■DiDK tba dear ■aPPCl&t • l'landiam tar tou2ber' crime ea'--t. Thi■ p■■t-April. llach- ■tate-Baa■e and Senate pa811edliill■ wbic:h reqaiN mmiDal■ to at J-■t 85 (111-1 fildaeir _ . _ 'nlia Jeciwl ■t:ion oe-lawlDlam.
A■ I ■■id ..tier, ID1ICh fil the
. whim hu 1-m m■de in F1arida c■n be
attr.bmcl to tJie e&rta aKathlem
~ and Stap 'I'unling Out i n - . . She
f■ ~ friend ■nd ■n i.a■pb ■tiall to • all; and I ■m tJiriDed to l,e able to introduce
her to th■ -.uaiUw today. I 11:mw tbat , - will be a moved 11)' her ltory u I,
■ndm mayatlNrPlaridfan■• ~hawbem.

..........-tlm-e

Kathleen=

Senator AB1wwl.. He a1ao just asked me in introducing you to
mention and maJre not.e of the fact that you are the founder and
eaic:uthe director of St.op Turning Out Priaon
a 8UCCe88ful
gruan,ota mpni:ration in Florida. In preparation
the 1994 election. STOP coDeded over 150,000 ballot signatures for a referendum to end e2rly reJeue. Bignaling the clear support of Floridians
for tougher aime enforcement.
Jut thfa put April, both the State Howie and Senate in Florida
paued bills wbidi require c:riminala to aene at least 85 percent,
a number we have beard abollt quite a bit in the last panel. of
their aentencea. and it became law in June. Much of the progresa
which bu been made in Florida, u Senator Mack would have said
were he here. can be attributed to the eff'orta of Ma. Finnegan and
the organization which ahe bu put toptber, STOP. So we welcome
JDll here today.
I will just aay for the P&Del'• information we are probably going
to bane to end at around 4 p.m. toda,y. So maybe if we could limit
the opening ataternenta to about & minute.. then there would be
aclenate time for ua to pt Into
thereafter.
Mi. Flnnepn, if you will begin.
you for being with ua.

fur'

ao::,r,on•

PANEL CON8181'1NG OP D'l'HUIZN l'INNBGAK, DBan1VE DIRECTOR, STOP '111.BNJNG ovr ~ 0. LANE
McC0TrEB. BDCt1D'R DIIUil,TOII, t11'AB DBPAJt'DIENT OP
CORRECTION&s ANDm r&I 10H ft101U.8. DD1lff A'ffO&.
NEY OBNEBAl,. BrA'l'B OI" A8:J7A'.>NA; TDI01BY P. COLE,
CBADUfAN, WACID!:NBUT OORIIBCDONB COBPOJlATION;
JAMES A. COLLINS, .BDCOflVB l>IRBCJ'Oa. 1'DA8 DBPABTMENT OP CBDIJMAL JUB'l'ICB, ON BEIIAU' OF TBB AJ1BB.
ICAN COBB.l'.C'ffONAL ASSOCIATION; AND ZEB B. LAMB.
CBADUfAN,
BOARD
or COUNTY COIODSSIONEBS.
PASQUOTANK COUN'IT, NC. ON BBIIALP OP TBB NAnONAL
ASSOCIATION OP COONl"IB8

STATEMENT OP KATBLEBN P1NNEGAN

Ms. F'INNEG.AN. Thank you nry much. Senator Becauae of Florida's revolving doo-~ of iJtjuatice. I bear the acan of a aime 'rictim.
Beca~. of early
my life waa ahattered.. I would like to
share with you my story.
In 1985, I became a lawyer. I belined in our -,atem of juatice
end the American ideals that I waa taught ~ u a child.
My first job after law achoo! ,raa an aasiatant ·
lie defender. I
usually went way i>e,ond the call oi duty to :
my client■ and,
like a social worker, I found homee f'or them, I gave them money
for food. and I helped them get jobs. Unfortunately none of them
changed their antisocial behavior and they ended ~ back behind
bars. After 3 years as a public defender, I had learned enough
about the realities of our syatem to know that I wanted to prosecute instead, so I became an Hsiatan.t State attorney.
On A ~ 17, 1988, my life c:haJiged foreYer when my path
crossed with Sam Pettit, who had been releued early from a Florida prison just weeks before. He waa 26 year■ old with 17 prior
adult convictions and an ateasmt j1nenile record dating back to
when he was 12.
On the day of the crime. I had presented my fint murder cue
to a grand jury. What started out as one of the best dua of my
career r.ll'Ded into a nightmare that I will never forget. I had Solle
out with some friends after ...It and it waa a nke 8ftDU2J un~
Norman Langston and I walked to Norm'■ car. On our way tllroUgh
the pii.rking lot, we were laugf,~ and ~ . juat_ ey,yiDg our
lives. But suddenly that chanaed.
Sam Pettit was Jurtdng in the
darkness. He wasn't behind 6ara where he belonged. He waa free
and he was pointing a revolver at me and Norm.
Pettit stuck the gun in my aide and told ua to get into the car.
I sat in a small sporta car between a Yiolent. habitual criminal and
the finest man I haft had the opporblDity to call my friend. The
early releasee made Norm dine to a wooded area, nibbimr me of
my money and jewelry along the WIQ', and I wu tbankm1 I wu
able to keep him from seeing
in~~
Once we reached a aecluW spot..~ robbed Norm and then he
exited the vehicle. I can remember tbfnking at that moment. thank
God, this fa over. But it wu ~ pull: ~nuln& for u I let out
a premature sigh of relief, Norm aul,. ~ • I • • the barrel of the gun, a flaah of light. and I felt •
peill in my arm■
and shoulder. Then Norm l•nptnn 'D.ade bimaelf' a human shield

release.

the.,._

lOS

105

u he mvaed my heed and upper body with bia. Tben there were
more fluhea in the dart. more pain. and I felt my dear friend'•
body jerk. Tben I heard the nameroaa and C111Dtinuoua c:licb of a
pu mlaftrbur. I ~ no more balJeta would eecape that gun and
I gueu God lieanl me. but it wu too late for Norm.
"1be gunman fled and I played dead. feutDg that he would reJoad-riot a aound. not a movement. not a tear. After a while, I
aqueewl Nonn'a band and he aqueaecl mine back. In retroapec.t.
I gueu I knew tbat tbat wu oar Jut goodbye. But I had to try
to AW him u he did me. 10 I ran into the black of niirbt for bait
a mile. I didn't bow where the ~ had BOUe. eo f' rolled into
ditcbee and trNded through panda. trying to hide from him. I felt

lib a hunted animal
Eventually, I wu able to reach help. but my greateet fear materialised 2 cilQa later when Norm
27-year-old proeecutor
and a wonderftd man, died, and he · bec:auae the State of Florida did not do ita number one job of public safety. Were it not for
the ridic:ulou c:oncept of early releue. Norm and countless othera
would be alive toda,y.
Now, Pettit ia cm death row where he ia forced to 8.l>P98l over and
Cffl!I' at our expeme. Pettit admita hia crimea freelY. 1le brags about
them and ~ that hia only ngret ia tbat he didn't kill the bitch,
too. He didn't ahoot WI becaue we were proeecuton. He picked 118
randomly. Thia killer wanta to die and bu even moved to dismisa
hia own appeal. but the ayatem won"t let him do that.
'Iba 8,Jlltem that Norm. beliewd in failed him. it Called me. and
it failed aodety. lfy atory ia not 1ll1iqae. It ia one of thousands.
'l'hat ia why STOP wu formed, to give c:itizem a chance to combat
the early ft.lea.ae criaia. You aee, it ia cme thing to be victimized by
a violent career criminal. It ia wone when you are victimized by
tbe Ame criminal jaatice ayatem. that ia llllPII08ed to rotect
Thia ia not a partiaan iaue. No criminal
your pot~cal
ation before he robe you or rapes you or ahoota you.
We in STOP believe that ptjaon abauld be more than inconvenient pit atop in a criminal'a life of crime. It abould be a det.errent
to crune. It isn't in FJorida ,et. but tbanb to the STOP Ad. it will
become one 80C1D, and I refer to the Florida STOP Act. That act will
require State priaonen to Nffll at Jeut 85 percent of their sen~ ~ becomes law Oct.ober L Then judges will no longer be
COIIUllltting a fraud when they NS1h!are womeoae in our State.
But. you . . . ~ releue ia not llimp1y • Florida p.."'Oblem; it ia
a natJonaJ ~ Laat week, tluuap oar eff'orta and the outay
oftbe public; the State of Vermont agreed not to allow an early re.leuedn..
lfldllei'.it• Wa_yne DeLiale. to tranarer hia probation to Deltona,
wenm"t for 8TOP and tbe aatnae of the citizena of
Deltona. Wayne DeLia1e wuaJd be loaae cm tne atneta of Florida.
In doain& I can rm ft up Ir., -,mg tbe way ill enhanc-. the ef.
fec:tlvenesa of incarceration ia to put tzuth back in eentencing. We
~._!o atop gmng 10-year Nlltelaae tbat really mean 2. Priaon
~ mean ~ and pmJahment.. but moat importantly
. . - - ..... to crimbiaJa m,m ~ .wboee rulea they
ehooae not to follow mu! it pmta:ta all of ua. Only when we bouae
i,rl8onera~ -.ill we no Jaapr, be Pl'ilonera in our own
home.. Pi
help WI to atop the rnatring door of b,Juatice.

'"'JCit "

aau

Ju::

Senator AmwlAM. 1hank J'Ol1 TerY much.

Mr.McCotter'l

STATDIBNl' or 0. LANE llcCOTl'D
Mr. McCO'rrD. 1hank JOU., Senator Abraham. I am certainJy
honored to have the c,pportunity to be hen today and be iJmted
to ~ OD theee
wit.al pauoD nfanll 1--. that I bne
been aabcl to diacuN. one. oC coa:ne. being truth in aentencin&
and the other dealing with imlute litiptioa I. too. Mr. ChairmaD.
have provided a d e t a ~ will try to summarize w
of my
key points in a more
r--hiaa bent.
. Senator ABJWLUL We will enter into the reeanl all atatemeDta
you might aubmit today for the whole panel. Thank you.
Mr. McCO'rrD. Thank you. air.
'Ihe concept of tn1th in aenteadn,r fa a ju-tified badd•sb qajnst
the all too common pradice oC earty ndeeN aC Tio1eDce off'enden.
It is my understanding that apprmimately 18 States cune11tly
have early release ~ and in 1993 over 20,971 Yio1ent olfendera were releaaecl ~ f r o m ~ NDiAmce1
It is my opinion that thia contmu...l early reJeue of incarcerated
violent offenders from pruon literally pe.petaatal a fraud cm the
victima of crime and law-abiding citizen& It aenda a 'ftl3' nnanr,ept.
able and dangerous meeeage 1o our c:itisena. Vx:tima aC Yio1ent
crime feel that offenden are certainly not propedy pnnisbecl
To perpetrators of the crime itael( I think it eenda a mmieicvagr-!8
that crime does pay and it ia worth Che riak. and I think oar ncidivism rates probably gift WI that fee}jng U well. Then. to the aftl'•
age law-abiding cimen, they, I think, are beginning to feel that the
tire criminal justice system ia brobn. aomewhat. Therefore. truth
sentencing is a very ~ t i a l elem:?',~ or concept ~ ~
any war on crime, and I believe that 18 what we are m right now.
a war on crime.
.
Now after articulating the ,qnifi.clnt and rital concept of truth
in aeniencing and the importance al it. I think it ia nee
ry to
express a major concern of the al>Dl'QIICh taken by: both tbe Senate's
proposed bill and HOWl8 bill 567, ,rhidi has already pauecl the
House.
Both bills contain wording that dic:tatee to the State& Congrea'
concept of what conatitutea truth in eentenring "Ind ties all Feclenl
funding to meeting your cleftnition and atandarcL State c:rimina1
justice systems, State criminal Iawa. and State eentenc:ing atnactures all vary considerably. I ~ cme ol ~ gnat..t streagtha of
our Nation ia that each State fa UD1quely different.
-L-u
The concept of one-cize.fite-all for truth in aentenc:ing not
be forced on the States. Gotemora and leadslaturea ~ the-~
aponaibility to meet the c:rimJDal jutice
of their citisena. if they fail to do BO, I think the citiaeDa will ...... their -rim
in thb voting booth.
.
However, with that atated. ~ doM need to prcrride leadership in tbia very vital area, and I think -«I a ~111!E IP
on this subject acroea the Natian. Pnrthennore.
can apresa leadership in thia critical ...- by eample cm - ~ ' ~
with truth in aentencinK within tbe Federal ayatem.

two·_..,

neea.

..--v

108

107

the Federal Bureau m Priacma. You baw the opportunity to provide
an outstanding model for Stat. to emulate and follow.
One of the ftawa in the V-IO!ent Crime Control and Law Enforcement Act or 1994 wu ita failun to .....,.,,;. such States u Utah
that haTe indet.erminate aentenc:ing stnlc:turea. The propoeed revision in both the draft Senate bill and the House bill 667 recopizea
this and attempta to con-ec:t the problem. and we are grateml for
that. However, there are aome Oawa in it. Based on time, I am not
going to get into the euct Oawa that I feel are there, but I am vezy
pleased that you are 3ddreasing indeterminate sentencing structure

States.
Utah's indeterminate sentencing system bas done an exceptional
job in ~ the intent and I think the spirit of truth in sentencing. The system. I think. in Utah alao baa the support of our
courts, prosecutors. even IIOIDe derenae attorneys, probably not all,
the Department of ~ the Board of Pardons and Parole,
and most importantly, I feel, it baa the support of the general pub-

lic.
In a recent study m aftnl&le time aened of selected violent offenders within Utah, it is significant to note that we exceeded the
national average in homicide, rape. kidnaping, and robbery-all
very important violent off'enaes that our citizens have to face. Utah
currently has 215 murderers in prison, and only 30 of them have
a parole date and will spend more than 20 years in prison. Presently, 35 percent or Utah's convicted murderers have already
served more than 10 years in eec:u.re prison facilities. Moreover:
some second-degree felons are aemng full IS-year sentencea.
'
This significantly skews Utah'• mtiatica and does not show the
fact that Utah is euremely tou2h OD dangerous and violent offenders. So based on the problems ~ qualifying for Federal funds under
the propoaala and the acta that you are looking at, it is recommen~ that Congress consider eliminating the strings on Federal req111rements placed OD States to qualify to receive Federal
grants for truth in sentencing.
Each S~ baa different needs and different criminal justice systems. The statistica in one State are oft.en not even comparable to
the statistics in neighboring States. Stat.ea, however: should be accountable and required to have and provide crimirutl justice plans
that address truth in sentencing based on the uniqueness of each
particular State when applying for any Federal funding grants.
Oddly enough. States that may need Federal funding the most in
order to move toward the true spirit of truth in sentencing could
be the ona that could nner qualify under the act. The truth in
sentencing requirements of the proposed bill, while meant in the
best ~~tiona, could ~ become counterproductiTe. The bot!Om line 1~ that States that are already doing a good job in truth
m ~ntenang ahoald not be penalized or eliminated from Federal
funla_ding CODsideration u we plan for future violent offender popution growth and needs.
I would like to just for a aecond mention inmate litigatio I
kn°"". my time is a1moat up. It baa already been apobn to l,y oilier
panel:ista tc?daY about the backaround dealing with the hands-on
doctnne pnor to the 1950'• and' 1960'a, so I won't go into any or

tbe aa... that an alpfflc:ent.. I tblDk. bat I do think it la impartant
that . . look at that.
'lbe fmDate ~ In IJlrieoner ripta began in tbe late 1960'•
and ea_ri1- 1970'■ and 1980"'"9i tmd it WU tbe Oc:t.iber- al 1973 t."Dl
oftbe Ull. Suptema Coan tlaat ~ c:banaecl tbe pnriou ~
tion ottbe Supreme Court to tAt■IIY NfttN ihls haniJa.4 clodrine.
I would 11b to ~ briefly talk afloat tbe atnd oC tbe !IQ 22.
1974, Conareulonai Recmil did debed the feeling of the Ooart u
it c:u11pdJbla dlnctlon. 'Dda WU llll IDtemew with hatice Bladr.
Jaatlce B1act WU Jnfenlewed - - - .,... Jda death tmd WM
aabd, "'In 'riew of tbe ded...,_ .JIIII ■11t banding down - - . lm't
it abwt I m ~ • to mn-=t ~ He abca.ecl
by ~lying, VI COUJ'lle-that"'a the pwpoee. Read the CoaatituUoa.
Tbe GcnemmeD.t baa Immen• powei-----tLe FBI. police. ptQNCU•
ton-and limited funda.,. ThC1 he wiat Oil to Nf! -SO we haft
built a cordon of rights arouod bim to balm th,, mvatton, to prot.eet the indmdual against the ~ power of the Goftrnment.• Well, I think we certainly built that cordon ofrishta aroad
inmates ancl we haft awung !fay too far In that regard. 'I'bere is
a Jot or work that needs to bi . _ ID that area.
We ha99, too, in the State of Utah numerou ezamples oC fmoJoua lawaaita. I haft had inma,_ admit to me penaaaUy that if'
he can hit 1 cm 100 lawauita. it la ~ wortli all Ida time and
eff'ort because he· really llaa aotbfng elae to do. All of tbeae mat
money to litigate, money that we need deaperately rar other~
I ba-te provided in my hamd-out m
~ pma IPl1PIDpW of
what 1101D8 of theee rrivoloaa lawaaita ~ be. It is aJao 19 1111dentanding that all State atfomeJII ----1 Ult DOW O!IDpUb_qf •
liatfng for you of each State's top 10 list oC frrtoloaa inmate lawauita to emphaaiae the aeriousDeM ol tbia baae to~ ' D a e ~
force behina this flood of litigation is that they buicaily lune natJa:.
ing to loN in that regard.
•
One more point that I reel I mut make. T h e ~ wordiDK of
"2 U.S.C., aec:tion 1~, the .attorney'• f"ee provimon of the Cml
Righta Ad, statea that
shall be awarded attor,.
net'• f"eea. The Suprem41
bow••• decided t h a t ~
really meant t h a t ~
·
la ~ ~ i f ' . . _ . , abtain fees. while plaintiffs ahou.ld ~ and
_ 'be awarded re. even when a suit la di...,•d wltboat a flndinc al DY amatitutional violation. Thi■ difrenntlal taatm.tt of -plaintUI' priaODel'II baa created a ~ eatalylt and )lpl fine which mticaa
clef'enae attomeya to adi'N!y ~ Inmate chil ~ CUN that
ultimately cmt Stat.ea ancl f'ed.enJ affld•le million• anal mUJ1ona of
dollara.
Finall7, I would just lib to take this opportunity ~ aprw my
peraona1 viewe in. aupport ot S'l'OP that is l,eiq ~ here in
the Senate, u well u Houe lwl 667. I won't So inlo all the reaSOD8, for time, but I think then an many thlaa that ba'f9 to be
c:haruEed. I certainly feel that ... ha-.. many and" mmaerou ill-cooc:onaent dec:reea and permanent ~ that tie the
hands of cornc:tional ~ and haft fbr,-ra.
The ~ t y or State camctiaaaJ
DO
'IDd in

the~

uie5!:put;y

ceim

~n:=:
=:::=:-b;;.:=-.:.=-i:..~lla
pn■■ih)e

110

109

sischt, regardless of their efforts to be in full compliance. It is significant to note that numy of these consent decrees contain requirements or coi.ditiona that far, far ~ constitutional conditions of
conf'mement.
With that, sir, I will close my remarks.
[The prepar,!<( statement of Mr. McCotter follows:]
ful'ADD STATEMENT OF 0.

TRUnl IN SE!."TESCISG

'I"ne c o ~ al Truth in Sentencing addreesed in the Crime Bill is a justified backlash agamat the all to aimmon oocurrence in 110me states where violent offenders
are released from priaon after ~ only an unacceptable portion of the imposed
aentence by the courta. Reaaons for early reieaae• or violent offenders range from
h"beral good time and work ~ length of imposed court ordered sen~ . court ordered reJea.. f o r ~ conditioDS, and court ordered populatioo cape on ,P.riaon faalitim through conaent decrees and other judicial orders. In
110me atatea "life aentenca'" are quantified,. such u a life sentence is equated to
twenty years, by state laws that can then be reduced by good time credits and other
~ The continued •earty re1eue• of incarcerated violent offenders from prison
~ ~ and duigerous ~ to our citizens. The victims of violent
crune ,.,.,,, ~ offenders ~ not property punished, ~~ believe that crime
does pay-~ la warth ~ riak, and the awnge law aj,iding atizen feels the entire
criminal ju8tice a,lltem • broken. Tberelore, Truth in Sentencing is an essential elem e n t o r ~ ~ ~ ~ the war on aime.
After artieulatmc the 8!£Dificant and vital CODa!pt or Truth in Sente~. it is
~ andto~ • m..- COD0erD of the approach taken in both the Senates proi-ed bill II Houae Bill fiSI. Both bill5 contain wording that dictates to the states
~ oC~ CODl!titute. Truth in Senwring and ties all federal fund: , _or ~ off'ender houainc to ~ ,our definition or standard. State c:rimi~ ~ lltate criminal laws, and state aenteoc:ing structures all vary
~ Y , i ; ~ ~ ~~!~ ~ oC our great nation is that each state
umque Y - ~ _...,.. it c:omm to aiminaI justice systems. There~one ~,.__~al atandanl, or •one aize fita all'" for Truth in Sentencing,
. not
_._ oa all the states. Governan and legialators have the respon~ the crimiDa! ~ ~ oC ~ citizens and if they fail ti, do so,
_. .... , __ ., __ ,.... - ~.,.,:,.¥~!°the 'fOtiDg bootha. Con2nl88 does need to pro....... - · ~ m ..... ,.,... ~ ...... one gnat eumpie ccuicl be eetting standards,
~,.!!.~
85 percent oC impoeed aMJrt arde.red aentences throughout the fedc..,
-,u--, ...... ~ that atatea 00llaider- thia as a model.
~ ~~_f!awa m the VIOient Crime Control and Law Enforcement Act of 1994
- - lta ....,...., to. ~ Rafa that hne indeterminate aentencing structures.
1°l!e Pl'OP08ed lftiaiaG m both the ~ Senate Bill and Houae Bill 667 rec:ognizes
~ .and • ~ !O ~ thia pn,biem_ Howner, Houae Bill 667 actually discnmmatea 8P1nat inc1et.-:minat, wntencinc .tatea bY ~ such atatea to exJ)a'cent
the
•wenae oltime eened far such offenses
, rAJI!.
, ana - a l t m order to qualify for federal fl1ncti.ng The
draft ~ t e 11111,
•
to be the _,. !"""f'•ble -.ion far
:';'~
et.tea. ~ thia ~ .,,. ~ indeterminate states to qualfimdinir ............ tiaM aenecl - aeriwa violent feloniee equala
~~~~the
wdellCli e.taNiebed 'JDl5er the 3tate's a e n ~ guideo( _ _,_
-T• lltatea maat abow that the nerap time aened far the oft'eDSM
._.....,., rape, and robber7 under the atate'a ,aldeliDell baa been increued since

~!'n.

•-r:-ijali

't: =e.i:-.:it:.

incletenitlnate

flll::=.c:!~c-SeaiotJ:;::,..._
•==aw.
-

--►to
llri-. the Boerd fJCPvdoaa . . _ aaWy .....,_
Bible for ~ . . . . • lr the-felma allaald 11.e pieced OIi . . . . . . Biard
la~alhemanben-.bomnatacrwby~_-..tonleaean1-te
__..;;.r.. -11aw _,_ alU- to amalder 'lidim m&matiaa, ,........_ illOD r.--- •-:, ~~ hxa.rcerated. N~releaae KUidelil>N retied

an-,..,. while Umd depw . . . . -

• term o ( - to
0 - . leloa la ...,..,, . .

t; tah, as well as all Stat.es, and that is the protection of all our citizens l>y insuring
that we hu-e adequate eecure priaon beds to home violent offenders. This distingw.abed committee and the entire ~ are to be complimented for debating and
addre9aing tms critical iaue. Safe, secure, adequ.at.!, and constitutional prison beda
are vital to a n y ~ war on crime.
I ba'We been ubd to addrma two vital iawes under consideration for revision in
the crime bill before JOU. Pint, I will provide my news on Truth In Sen+.encing, and
lll!CODdly, provide my views on inmate litigation issues clogging both state and federal courts today.

,£''

=:!t
~

LA.,-.: McCoin:Jt

Chairman Hatch and ~ memhen at the Commit+.ee, I am honored to
~ been in-rited to be hen today to speak to one or the most critical issues facing

tbw-.-

1988.. Both al
"11 the crime bill are prrtl m:ttic &r the State al VWa
- wllll • maat atM diatlaaftmdatar_._.. Nntenc:fns .,,.__
Utah'a bidetenalraate - - ~ - - bMcloae •
al~
the mtaat uc1 ~ o1 tratb m - ~ TIie ayaaa
the aappmt a1 _.
~ ~.... atto.-,-. the;artmaat .lc.an.tiw, t&e Boerd,,,
Pardaaii ud
a d - - ~ tbe
la~.,_

=-~~-~-di&nntcr1-.1'1m.,--.,na
and
protedll aodety. It alao an-. flaibility to

~desr'N •

rytopnted

u~uaflntdepw&mifr

----....., ________

~'i-t~al-----timaNJ-...lf!Caalectal'lioleato&ada-., Utah aipiScautly aceeded the rational ....-r::JIL

...,...
_________nss....
_______
..,. ________
.... _ _ _ _ _ __
llidlllfill-------

sz..,..
_______
44 . . . . _ _ _ _ _ __

Asuoll

21 . . . .

1111--.

n--.

535'-

Utah ~ bu 215 muzdetm■ in Ff- and only 30 al tbma ha.. a paral,t
elate and JWt ~ mare t1un 20 ,_,. iD pri-. ~•.315 r-aat,_fJC
Utah'■ c:omicted......
a haft ■-z-d7 wwd ~ ten ,,..nm wme pr»Oll fadli.ti-.. Moreen-er, - . I ~ felaa■ are aenmc fbll 15 ,,.,.- ~
stew. Utala'■ atatiltica and doea not ■bow the f'ad that Utah I■
cl■nam-Yiolemfelaa■•

:,. propmec11,ill am Hou■e Bill 667reb'1-Yil.111:pOII _ _ . - . .
jectift" ■tat!atica to teat whedier • ■tate ia
tGup Cl!l ?i- to merit fad..
~.ir■ni--- T h e ~ i■ tllat the atatiatica
~~
eligibility
mmt -riolmt fWaaa who are ai;:tmD:, releaed .,

wufflciem&-

~m::,.;zt-iftt~~

Jl!lll:.i:::!

Utah~~-life - i - that aCNd the
affrllp .. - - ~ "'!'Im
•
Utah to ciuali& &r Cederal cranta, but-.ld amtra-the immt a l ~ m SIil~ ftla belined tbat ~oC-a---- ~tootba-ll&ma.
B■■ed
the pn,blemla oE CIWllit'rullE - INllnl ftmda 1IDller tbe lll'IIPGNII Ad,
it ia ~TDeDded that Campa cian■MJer el?·
tbe ~ ir ..... n~ placed Oil ■tatea fa qaaJ.jfy ta fiedlnl arama; Bid!. ....... s
(enmt needs and difl'ermlt criaafwl ju■tice .,...._ Tbe_ ataliatb la etat.e are
aften not ~ to the atatiatia iD • Dlllchbarirc atat& . . . . ■baald be
to haft
crimiml~ p1aa : : _ - : , ; : :
Tnatb in Seatandrcbuecl- the
~
&r
panta.
~
--~
-. . . -1...........a.8'! S
IUll_bi
the Cederal
JWt inftmllillC
CIIW to
_.,...
.,_-W
- - - ,_ U111& &R ➔•
tbe that eoaJd qaalify. Im the all.ll■ltiw. tbe act ......
hawirc
a pn,cedme &r ..w.i..:- m.. w ~ » tbe nquha ontr Tbe TNtb i!I ~
~~
while wnt wida the be■4 I - I re,, "'lllllld
od..aiM.
It Ill
Utall'a aiminaljaltica .,..__ ~
o(Trutb iD
fer Ha ~ Tb■nlin. - ~ JIIII
~t o ~ oar ■tatn -,.,..;,w ,-kWiw . _ 199S. m ardlr t. QQali& 1ir ' :
eral ftmdinw. if CIU"' _ . _ . . . , . iltri.idu:te ..mil time ...... - .............
rwlY mNti tbe int.at and aiiela OIC tndh iD - ' ,.., ~ . wily ■baald

·•tt•

-=••ble - ~

an1..--•
~'!a::Gt-:--.=-.....

'::-i:L

~:=.
m:r:;=::

tlle:t~~ ...:!

JO~._

~ - ~ - - - - - t o ....t tbe tim■i-Nd 1w
tbe uu-1 ~ a l ~ _ ._,+. . . . toc!kWenl ...._,
TbebottrmJlnelatbatata•1Wme~~
inc ebould not be Nllallad er allmira- .._
plill &r ftitme ftllent . . . . . .
pwwtb ad ......

,...,.,ation

m~.:;..W::

112

111
2. Aftar ~ to -

ll\,"NATB Ll'nGATION

~ ~ topic J Wu uked to addre.

= =8:

• UN

today was in the area oC inmate litip-

Prior _to the l~■ &Dd ear:fy 1960'■, the courta had adopted a "hands off" doctrine•

~~~= llignificant examples of the courta

• -Z..wful incarceration brinp about ~ withdrawal • • •

·•

~n~~~t1.s.~°c~denations :00~~

• "It 18• not ~ ~
•

of~ courts to superintend the treatment and diacipline
~~~J
~~~
11\iia~Y to deliver frotn imprisonment those who
......,
.......,,.. •·
187 F.2d 850 (CA9 1951).
~ - oC ~
necessary for the safety oC the prison

U::,::..,

.:W:tions

~:he
~ ~~
u for the ~te~ce and .Proper functioning
18
10 COl'Tections officials wxth expertise m the field not
· the
~ • COUlt9. '"--e can be no question that they mUBt be granted wide diacretion m the eurciee alllUCb authority.• Lo,w v. Pantu. 390 F.2d 816(CA3 1968)

• ~ ~ - pc,ln!rniJ!>; i ~ ~
(CAIO 1954), o a t ~ U . S . ~

~ t i o n or to interf~
Banning v. Lool'll!J', 213 F.2d 771

The inmate righta apbian i-an . the
October 1973 term at ihe United" S1Sta1!!..__
and early l970's. It was the
pn ·
-''~-- .,..........,. Court that clearlJ' ~ th
~ w u = - i al the Supreme Court to tatally revene the "hands off' d ~
Cowu
~ ~~ W ,cu,-,n;cwem; and corrections.
Record_ clearly defined the High
Justice Bladt
.
.
"In view o(
~ Y before hia death and was asked,
llible to convict ~ ;{: ~ down here, isn't it almost imposc:oaree-that'■ the ~ Bead the a>nsti~~The by replying, '.'Of
menae J)OWer--tbe l"BI, police
-....... . _go.-emment bas unvidual citizen at.and■ alone. Tbe~tonl--iuld ~ funds. The indiJror into the heart ala c:itmn. ~Uni~of~tes~~-~n~~ter-hn
0DeL So 1'e have built 8 cardon al"".... t■ --·--' him
,.._, __:>-· . O
tion, to protect the indnidual ~-the_......,..
. to uaiance the 111tuaenunent. That's our purp,.e. to make ...
powerth of the govwe can.•
......_ -....., ,or e proaecutor as

~1:160'•

i!97~-~
the.,::;,_~

,...:.•;;•;.~~'';It

~:;:"~er

auitude al the Supreme Court and •con1on of ~ts• Justi
ordend _ : - to m the early 1970'■ advanced the right■ of inmates m a
literally
f ~ and state court.i
1iom a1J!I millioaa alnn-zy daUan in a time a t ~ ~ the tax payers milAa _pnaon PGPUlationa continue to . drama . - - ~ resourcee.
Jou■ mmate lawauit■• ,\pprm:imatel ~ altically, ~ does the volume of frivonow ..,,,,.,nned by ·
...._ • Y.
the entire federal court docket is
3 6.318 <?f. 17!),000 private suite filed frotn
June 1993 to .June~
dude the numerou■ cm1 riilbta IIUit■ ~
~ right■ ~>: This does_ not in.
court■• Over- 90 pen:,em at t1-e IIUit■
frivolom corpua
..Ji:tions filed m state
~ lliilnificant t,a daDan a r e - ~ i n ~ - ~ go to trial, al~ Utali, J)er0eDt a( the ~ .
,.,. 9.
au!ta. One inmate at the Utah Priaoa J!OPUlatioatiled
me. orty percent o f ~ federal
■wta ~ the Ia■t four ~ ■II at ~ til
federal civil right■ law~ IDOtloaa. Belcre olltainiJlg
~
. .
m fnor of the st~•e on
ilftmaub.iectedtoabarnpaefmolo.a~ dism•-■le, ~ . the i.tate_ie
mate fileil over 40 fmalau■ motion■ . Juet few- request■ and motions. Another mlan In lepJ de(._ cam and court :t1me_ •
months, wasting thousands of dolOft.m fh.. fnmat. are muimwu _,.,..._ ·
~ t i v e to partaJre at the . -;--.1 mmatea who are too dangerous and
other p ~
tmiitie■.
~lional, employment, and
notlmiir but tim■ and~ "hii."
. ........., 1-lly admitted to me that he bu
it ie aif Worth it.
in•
he feeJe
tional officer■ and harue the ...,.__.
~
~ to manipulate correc• mere ■ampJmc al the Wllllt.efal and6i9aloa■ mita that
~ -daima prmdes
L An imnate
.
are ....,.. m federil a>!Ut:
'V. Jq,p«m
received ....-.c fann cl awticetioa instead of trade name. .Anda-8on

steatfy

==■!i:=.!: ~~!::"our

;;:-t:r.iCLe.. .

di:::.::

C'!!_~

ier

Fer~:...-::.:.~~~1t!thundred lawsuit■,

- ' ar'hi■ cell to eat to ... hi& Glici Y. s.-r,

two d8J9, p r ' - .... -

fail-

8. An inmate IDaarbt - - - frmD pd-. - - be dafmecl ({aWy) tbat be
~ Tramnatk Sb.- m--, (P'l'SD) fram VWnam 1111d
mt be In . . .

-w

Y.s--t
'- ~ tim■• w - 1 tr.97 deliftl'9d to IDmate, be ■&lit - ,aarda,. dim
9Uecl becaw the 111Wftuted wk hmch,w did mt f.Mte M --1 a■ the
AbboaY.L#&
5. An inmate ~ - - to .r..c. • daimecl CIQltib&tiuml dpt to plq
man wlla:,bel1 IIDd 11Utic:iPate In the -roamammt al Cud■..• AlWl'l!Z .,_ Caiwr
6. An inmate delibeiateJy Doolled bia cell, then . . . am.:.. who deued it 1lp
bec:auN they &at hi■ PIDacble cant. .... Ltuw 'f'. A.-y
7. ~ aied fir L.A. Gear er RaelJok "PIDnp,s" 6i.teed al C - - . daiaiac
a medical ---■it.y. r - .,_ Dd,antl
.
8. An inmate cbdin,d ·cnae1 and - · puriebmet" - - - - cell did mt
have a deak. Diuma •· V"p
9. An inmate filed lluit clabnfJllr he wu not allowed to call w t i - at a disdptinazy ~ Tbe _ . i t abowed he .... allowed to wJ all t h e ~ he,.
~ The court orderecl •ttaa'nff ,._ and the priaoa &me hi■ 1-ie - to collect the ..... Tbe inmate t5Jecl UMltJ:Mr c l a i m ~ tbat he bit Jaia l8dal
telerisloD tJ«aw bia fnmaie _ . WN pzuialwd to pay the atam_,. r... Tbe
court ardend re. ~ " T h i a ~ the IDmat.e ~ alit eplmt tbe atlmmy
who ~ de&nded the state. <Jar"-' 'f'. Dd,tm,d.
10. Anot. inmate flied amt amd daimecl indla,mt lltatua. It wu Jata di■c :ual
that th,, Inmate pmcbawl, with caah, a $80,000 IMNJN lllld a $14,000 DDdee Caravan far a trimd 1111d atiJl had thoaaanda al doDan man in di&reat liimk . .
counta. T,y/fY, Barl.Jl
IL After a cell 8Nftb. prboner med offlcen beamN ~ did mt pat hia c■11
back in a -raflbfonebW mumer 1111d miDd hia dean and dirty dothe&. llobcru "·
qaut.en, Glidt

hot-.

Hapluu
12. An inmate ■aecl hecau.e o8icen awft•:alwd Ilia "'homy ~ bat2le whida he
DNClecl tophimaell-.Ham-zY.Dd.-d
13. One bimate fDecl amt c:laim:inc he a Tllai-Bacldbiat.
the
~ DMt aChia denunda fir relfooaa matmala, b e ~
d,ilnd filed another auit ~ rJ million doDan apimt elp4 -zecticlm afflciala
for beinlr denied an oppc:a twmy to practice Ilia Natift.Ammcan Ila&&. Tim imolvecf- JDOtiollB &DIii -'~'--•. and went to the Tmdt Drmit c.rt
at Appeal■ cm two
beb'lt ftnaD.:i heme diwrie-1-. fmalaaa.
the h a d ~ CID - Jrmar that t h e ~ }'reedma . . . . . . . Act
(RFRA) becam■ law.Jmt bd:.e the 6 2 .to the Tenth arcait. 'D,eTwalh ar,.
cuit, OD ita OWD motiaa,. Jmmedi■~
RF.RA and wnded the to tbe
clietrict c:amt to cledde the 1 the ,..._. llltid■d to lra■p •
black medicine bq with nn,aa itema in tt. whim coaJd Dat be ...-,lad ar looked iDllide b., mt :tbn■J aftlcers.
11ceaa.r-, IIL
There are tboi-nda 'Ind tbouv:ndl • mmplea aCfriwil-■ mmata _...... tllat

~.:!t-

ace••-

.ao-.

w-•-

~cti== ::t:::r:= Ci'.s~~n ti.:~~
1

med tomnetruct-bomuicand~ovida~-,-.-..0.=
om fir 9lolent a&nden. h la "/IJ7 ~ that~aD llatie ~
--~n.tma•JaaaCeadlmw"a"llap ll■alia'"f/Lrriftloaum.telal,.
mite to
- - - ,o(this i - .
The
lGrcethe
behind thia f l o o d " ' ~ la that lnmatM . . . . . . . . . . . .
laN'" In fllini- the mNt fmalaa a n d ~ haw the pn■p■d
talnfna all oltbair hipJ,y inflatwd S.. and - - iftbe:Y_■--1 _ _
I
~. ~ . tbe 8upnime Ooart mandaled ia 1978 tliat ~ line a dabt •
lepl uellta- fa fflmc ~ lllita. ID dlla -,.ct. tbe mat wial■a& aimllla1e tnated bett.r t h e n ~ - . - . . . ~aod■lli7 wbo cumat _ . . t.pqiir a
~ to midlcata their Jmpl riclitL
Althoulh .... ~ pm-. au.my . . and aendilma lir ...... . _ _
1Uita, hJ■-7 ■bowl! t h a t ~ u. reladalit to award . . 1D tbe I fr I ◄• chil

•--+.r...

~ cuea, -

~--=.::m:::-,

•

wbm
~ ~~B~
cliilarilY Raia
frh'Olou&
Priftte
... the
~mail
-- -- Federal
~Chil
Paocedan tD cm6llly Wlilb
~their.._
1116n
waetiDr the -,ta ti-. Botla the . . . . . part.y and their---., i l l ~ are l8iictioned • nqaind to pq ..._«-•Oms rriftloa . . . . Biwaw.if

Iemnotawen~~----

-~---cti_."lllilllrllale

when NPZ-iirc a ~ in a dTll d p t ~ adt. .hidpa ._. tit mat

.iiiilliiiii. ----

rrtttf rnrer
114
113

t'-e civil Aita like crimim1 - . where any ridiculoaa and crqtive argument ia
entatained.
It would be moat helpful ifCoaar- -W aquire the courta to.ifply the aame
lltaDdard for obtaining attar-,. fw to plaintiftia and cWendenta in
priaon cum.
Additiona)Jy, requiring fwl or at leut putiel filing fee in all ca.- where the
inmate bu had any money ewer me lat m mantba WDWd at least cause 110me inmates to weip the validit;y of their IIUit. The Cml Righta Act WU originally dellignecl to h_elp eatahtiah equal rights far minaritiea. It was nner etmaioDec1, how_ . , that this Act would hamper and harua cmnctioas officials and CCJet tupayen
milJi-. of cloUan a year. 'Ibe original intent oC the Cml Rlghta Act bu been made
a ~ by fmolowi inmate auita.
Tbe original wonting of 42 U.S. § 1988, the attorney fee provision of the Civil
Rights Act. state. that the "preftilliig party" eball !Je awarded attorney fees. The
Supreme Court, however, decided that Congress really meant that prevailing c!efendants should rarely, if ever, obtain fees while plaintif& should liberally and gen.irowily be awarded fees, .,,_ when a suit i9 dimnimied without a finding of a Constitutioaal violation. Thia deferential tnatment oC plaintiff prisoners bu created a
powerful catal,-t and lepl farce which entice dereme att.omeys to acth>ely ~
mmate civil rights Aita that ultimately costs state and federal officials milliona of
dol1ara a year. The actima :,oa are ~ in bath the Senete draft bill and House
Bill 667 i9 ~ a step in the right direction and will be greatly appreciated by
c:mrectional adminiatraton aero. the country.
Finally, I would like to tab this ~ to strongly ~ress my support for
the proviaiona of the Senate draft bill and Howie Bill 667-that limits conso..nt decreea
to a two year time period. Emerging and ever cbanging case law since the 1970's
line resulted in numerous ill-<aacei-S COD9l!llt clecrees and permanent ituunctiona
that tie the hands at c:orrectiaoal adminiatraton for :,ean. The majority of state correctional administn.ton, gowemon, and legislatun are now hampered with binding
c:oment decrees that wen, agr-1 to by preriaus adminiatrationa with no possible
end in sight. reprdJem at their efrorta to be in full mmpliance Many of the conaent
decrees amtain requiremeota or canditions that far aceed constitutional conditiona
or amfinement. In the ~ t i o n oC coaaent decrees there have been examples
of overly zealoua fedenljudg,ea, magilltratea and comt appoj.nted masters (monitors)
who June tried to intervene or arpp]ant their ~ t m daily operational matters
and dedaiona of praleeaioaal correctiDnal adminisiratora. Unfortunately, the enforcement at eome COD8ent decreea June actually adwnely impacted prison security and
p)ac:ecl lives in clanger.
In Utah, amaent decreea 11ti11 bind the cmrectional aystem that were entered
into onr a decade ago. Lut year an old decree dating i.dt to 1978 was found by
an ent.erpriaing civil righta attorney that dealt with eztnH:onstitutional prorisiona
~ inmate dillC'iplinmy ~ The attorney ~ t a claim on behalf
or an inmate 1'vding an eztremely tedmical Yaation at this old decree. .\ltboup
the decree _ . not known to pneent adminiatraton and did not involve a vioany fedenl right, the state had to pay $7,500 in att.orney fees to resolve

~~ai!

8-- upon another - . a t decree. entered mt.o Dine

and three

directors

ll&'O. the priaon ia •~~
fium pn,peri7 ~IIE!riously mentally ill
inmates becauae the
· · atandanl m the decree is contrary to good
~ health practice and far ameda ~ Court standards articulatea in
W ~ .,_ Harpo-• .-Jtinc in Ncl--.1 quality oC care ror inmates. Absent help
fium ~ thiai ~ will cm& the state thauenda -!IC dollars in fees to dismiM
or-~ though it ia not in the heat mental 1-lth interests at inmatee.
~ ,am- propaaed adimaa to place time limitations on consent decreea ia
CDE C ft,red a waJcame relief to canec:tioaal adminialzatan that Is long overdue.

~=the

~ ~~
~-411"..: f...~~~
and....._
in all arw d'priaa nlina in a.a mmt eh•Jlengins tim. ~
P'Wl'Pfeated IIVWtla in Yialalt....._.papnJatimw

Senator AB'RAIWI.. Thank ,ou. Mr. McCott.er.
Mr. Thomu?
STATD!EH'r OP ANDBBW PBTl'ON THOMAS
Mr. THOMAS. 'lbank ,ou. Mr. Chairman and members of thia
committee, for the opportunity ad honor to appear before this

and aJonplde tJifa very d1atingulabed panel Oil the u.rgat
or crime and puni&bment.
turning to the narrower aubJec:t or pri80ll reform, it aeema
aMJrOPrlate to note very b ~ at tbe out.et that ~ to
poO.. crime remain.a one of the main ccmcema al the American people. ti my opiclon, Americans are right to be worried.. ~
crime rates appear to have stabilized nationally over the lat mr
,,___
.fuvenilee.
........ ·crime rates bite
among
juTenfJes continue· to grow dramatic:aDy.

=among

-t:!,'i!lln~"fi: FB:C, the crime rate among white J11ftDilea ill

now growing at more than double the rate al
black
juveniles. Thia trend u arguably the most un
rted story in
America today and it 1.hreatens to reduce this
lie to noth!ng
less than a vast tramicon.tinental ghetto in the near future. Tbe
growth or violent crime. it is respectfblly aubmitted. poees the
gravest threat to our naticmal tutu.re. •-~- is --'-'- _....._,
Although the uplodon of crime in ~
.._., Q U ~
and spiritual in origin. there are certain tbino that gunmment
can do to at leaat a.neat the growth of crime. <5iie al thiiee ill to repeal the outdated lawa that 1>l'Ohibit profflable ~aw~~
here I find myaelf' agreemg Independently with
ux-.uuu
and the sentiment. he expresaed here this morning.
Today 90 pemm.t of American inmat. are upemp1oyed. Yet. a
1991 atlidy by the U.S. Bureau of Priaona f ~ that unemployed
priaonen. once releaaed, are more than three timee more liiel.Y to
commit crimes than are emDloYed prieonera.
· Prieon labor was euentlalfy crirntnalfHd at the Federal Jeni
more than half a .:entluy ap, but prior to that time the ftat ~
tty of tnrnatea were em~~ In a wide -variety a l ~ ~
tural and factory tasks. .ISar1y
ad b.
came it helped to P87
t h e ~ ~ of the pmaoen
cauae it encouragecl.
itsp
felt,
- . . . I + ' - fir
thereby e m ~ Work,
was
consu:m.. .._-.__..
miac:hief. It ahio giTea the Inmate diac:ipline and diiectian
up otherwise idle time.
priaaa labor permWecl
0

~-=:.::..

mt=

lmportan!3i_

~=-:-~
~
AmeriE
was

a colleague toan,cl acnae al tbe
in the early 1800'-. they ~ 1~ ~
not a
one of them who did not alieak ..
wua a
kind ofgratitu and who did n o t ~ the1dea
without relief of c:onatant occupation, life would be inaafl'erable.;
But becaue ~riaon. labor com~ with the...,_ al wlrm• in
1ower-eldllecl incluatriee. worbra who could :,ote. prieoo
tually fell out of favor politically. Thia trend cuJminatecl ID • ha
of Federal laWll
in~
to1985.
~ e it a ~eden! crime to
pmaml'made~ fD Interstate commerce. In tdfec:t. tbeN law made priaon labor literally a Federal. off'eme and endecl pdaa ~ • ua

first

~°l!:n

begin=-

labor=

,::t.~_::-la
~

are

nu:,J:'%

remain OD tbe boob ancJ.
the mafn
inmate. todu are flee to apnd their time 1'ritiDar aDDNla
:vic:tiom, 6ullylna fellow JnmatM, and J:nnins ·their Dlld alTbe 1rony ill that moet or tbe Jobe
t . . 1aw .... •

C...

116
115

signed to protect ha"Ve now been lost to lower-paid foreign workers
anyhow.
A repeal al theae laws would permit the return of prison labor
on a broad ecale. If this reform were accompanied by an exception
to the minimum wage laws applicable to prisoners employed in certain industries whoae job& already h.s"Ve been overwhelmingly lost
to lower-paid foreign laborers, it is quite conceivable that the wages
of foreign laborers could actually be underbid for a change, and
that many of the jobs lost to workers overseas could be brought
back to America. A restoration of prison labor would allow more
humane conditions for prisoners, would allow them to help pay for
their keep and to compensate their victims, and would reduce recidivism rates.
The genuine tenon that today's prisoners confront daily, cruel
and unusual by the standards of most civilizations, are partly the
result of the Federal laws thwarting wide-scale prison labor. It is
respectfully submitted to this committee that repealing these Fed~ laws would ~ t l y aid government in the fight against
c:nme.. In the meantime. we must wonder what the early prison reformers would say upon peering into our Nation's prisons today
and whether they would consider them an improvement over the
hOUieS of horror they frequented some 2 centuries ago.
Senator ABRAHAM. 'Ihank you veiy much.
Mr. Cole?
STATEMENT OF TIMOTHY P. COLE
Mr. C~LE. Thank you. Mr. Chairman. My name is _Tim Cole and
I am chairman of the Board of Wackenhut Corrections Corporation
headquartered in Coral Gables, FL. I am here today to support the
pagage of amendments to the V10lent Crime Control and Law Enforcement Act of 1994. Among other things, that statute authorized
the ~nditure of $10 billion in Federal grants to construct and
improve State prisons.
b Twtheoo bbills_ ~troduced in this Congress, S. 3 and S. 38, introduced
Y •
Majority Leader, Senator Dole, and Judiciaiy Committee
~ Hat.ch. respectively, would improve existing law in certain respect.a. ~owever, we believe additional language to encourage greater reliance by the States on the private sector would
produce substantial mat savinp and other benefits for the American taxpayer.
One _propoeed amendment which is set out more specifically in
my wntten statement would help to assure that these grants will
help the States incarcerate more violent criminals and not make
S
govenunenta more dependent on Federal tax dollars in the

=tA
-n:rm.

•
contracting-oat m the int.egrated design. financing construe~ and operation ma priaon to the priTate sector began in the
nud-1980'L Today, there are more than 90 facilities and 50 000
PIUOl18!8 under private aec:tor management. With 23 con~ in
the Umted States..Canada, Puerto Rico, England, and Australia,
■;nd over 14,000 pn.aoners under management, Wackenhut Correc~ Corporation ia a remgnized leader in the private development
auu operation of'priaom.

We count among our employees dozena of former Federal and
State correctlona profeuionala. Our board al directon indudea
James Tbompeon. 4-term governor from the State of lllinoia; Benjamln Civiletti. former Attorney General m the Unitecl Stat.ea; and
Norman Cariaon. the Director m the Federal Bureau ot Prieona for

C.Chairman.

17
priaon privatization la not an aperiment and it
ia not a pilot project. Government. throughout the United Statee
and around the worl.cl are achieving real coat IIPinp and other
benefits by developing and operating priaona under private NCtor
contracta. Public-private priaon partnenbipe can do all of the following: reduce construction costs by 10 to 40 percent; reduce operating costs, which accouDt for more than 80 percent of a prison's
life cycle coeta, by 10 to 20 percent; accelerate facility c:onatrudioD
by 88 much 88 30 to 50 percent; aasure high-quality eenic:e; and
increase budget certainty, including the costs aaaociated with pmoner lawsuits for alleged civil rights violationa.
The White Houae has acknowledged the value al pmatization. by
specifying in its budget request for the Department of Justice in
fiscal year 1996 that eeveral correctional facilities will be ~
and operated by the private sector for the Federal Bureau of Priaons. In addition. the House AppropriatiOD.11 Committee unde.i:acored
the value of privatization just last week when it voted to appropriate $500 million for the existing State priaon grant program and
noted, that •substantial savings for taxpayers in both dollars terms
and in the time necess.ary to make newly constructed facilities
operational can be achieved by encouraging States to utilize the
private sector.•
A prison designed by iu private sector operator is the best gnarantee of muimum safety,_ security, and coat ~ency. A l ~
many public sector agenaes perform some func:tiona efficiently,
public sector efficiencies tend to get abeorbed in growth-;pvwth in
staff. growth in procurement, growth in bureaucracy. Some governments around the world have tried to emulate private sector methods through a variety of means. but nen marginal sninp fre.
quently seem unattainable or unsuatainable. I suspect this ia due
to the lack of a profit-based atructure. In abort. no one has yet devised a better pencil sharpener than the private aector' and open
competition.
All of the State and foreign governments we haft done businea
with began with one m..ajor reeervation about ~ They
need to know that privatized prilona are fully accountable. What
they have found is that privatized priaona are eftll more acoauntable than publicly operated facilities for aadly the same reuoas
they are more economical.
At least 6 facton contribute to this high standard of IICCOWltability. Ownera require it iD the terma of the contract. 'l'ben ~ facility-baaed monitors. The gcr,emment conduda um.ul audit&. '1'be
contractor conducts in-houae corpate au~ Accaun~ la
part or the accreditation aystem. and competition amaa, pmate operators guaranteea it.
Aa Chairman of Wackenhut Correctiona Corporatio?, I want to
thank you, Mr. Chairman. for the opportunity to teatif'y in support

118

117
of the incluaion of privatization language in the &mate crime legislation, and I would be happy to answer questions later.
[The prepared statement of Mr. Cole follows:]

bloD

All oltbe ltate and i l n i i 2 D ~ - hne dom bmiw wtth
with
one ~ - t i a a about i
~ DNded to kmw thet ptiw--.1 pr»
are ftilly ■-ntahle.
the,- haw found• thet pthatiwl . . . - an -are 1110N
-•nteble
i l r ~ the - - tbay
~ Athan
t _uuhliclY-ooeiat
. . . & ract«sfadlitia.
~ to tbiii hlpa- ltudard aC .e,o.

coumabllity:

PIIEPAJtED STATDmff OF TDIOnlY P. Cou!;
Mr. Chairman, Members ol the Committee, thank you for this opportunity to appear today to ~ the iMue of priaon privatization. My name is Tim Cole; I am
Chairman of Wacbnhut Cc:n-ediona Corporation and Eucutiw Vice President of
the Wackenhut Corpantion. ~ in Canl Gables, Florida.
I am heft
~ the pa.age of euwndmenta to the Violent Crime Control an<! La_w E
Act of 199(. Among other things, that statute authorized
the expe~~ ofSIO ~on !It federal grants to construct and improve state pris-owi. T,.-o oills introduced m this Congrese-8. 3 and S. 38, introduced by the M.ii.iority Leader, Sen.. Dole and .Judiciary Committee Chairman Hatch, ~vefywi>uld improve ezisting law in certain respect&. However, _, belie-ve additicnal language to encourage gr-Mt.er ~ by the states on the pri..-ate eecto.- would
prod- sub&tantial 008t aaYinp and other benefibl for the American taxpayer. Our
propoeed amendment [Attachment 11
to assure ~ t these grants will
help the states incarcerate more violent · ·
and not make tho, state govern.
menta ~ ~ o n f ~ tax dollars ~ the long tam.
'.fbe c o n ~ ~ of the mtegrated de&gn. finaiicmg, construction and operation of a ~ to the pm-ate ~ began in the mid 1980s. Today there are more
than 90 facilities and 50,000 pneoner places under private sector management.
Wit!i 23 contracts in the United States, Canada, Puerto Rico, Ellldand and Australia. _and over 14,000 priaooer places under mAn&gement. Wackenhut Corrections
Corp. JS a ~ leader in the private development and opeu.tion or prisons [Attachment 2].
The Co~ttee has heard compelling testimon_y today about the growing demand
~ the l>Uhlic for greater aafety ~ sectl!ity. ~ost Americans have grown uneasy
with wfiat often appears to be a disturbing IDlSmJltch between sentences imposed
and &entences Rned.. By ~ ".truth-in-fl!!ntenclng" laws, states have beiiun to
~ a fundamental ~ of justice and fairness to our system of crime ana punishmen1: At ~ same time. they have taxed their own abilities and challenged some
old-fashioned ideu about prism-.s. Priaon privatization has developed in direct respome to l;hoee challenges.
,..~.:_~ pruoa priTatization is not an experiment; it is not a "pilot J?roject. •
=n=n1I';'ents throui!hout the United States_ and around the world are achieV111g real
cost &aVlDgS and otlier benefita '7 developing and operating prisons under private
sector contracta. Public-pm-ate pnson partnerships can do alJ of the following:
• r-Educe conatnJction costa by 10-40 percfflt;
• l i~.,f.....
e
~ ~ COllta, which 8Ca>Wlt for more than 80 percent of a prison's
C011ta, by 10-20 percent;

~t;':.

~'!..:!r.

• ettelerate facility CODllb-uction by u much as 30-50 percent;
• &SR1n! high quality &erVioe; and
•

}~~~ ~d~ ~ ~ U90ciated with prisoner lawsuits

The White Hou. bu adcnowledpd the value ol privatization by specifying w its
tJ:ud&et~ - far the Deputmmt of Juatice in meal year 1996 that several corr-ec-

~ ol ~ f: ~~~u~~ted by~ private ~ for the federal

val al . ~ - ; , - ~ · - Appropriations Committee underscored
r.the the
ue. _pm-a
_ just """' week when it voted to appropriate $500 million

~~~ grant Proe;am and_ noted "that IIUbst.antial aavinp for

strocted Cacilitiea
. tenns and m. the time ~ to make newly-conpri~ Netor"_[Atti:;-~ can be adrifted by encouraging states to utilize the

a a f ~ ~ ' : . _ . ~eector opera!or is the~ cuarantee of muimum

effldent11• puhljc ~~~~ : '~

:::::~~=~":'.~i:ta~~~~
.:i!f ot~tL:r~"i!ble
eome

~!Ill

~ bat

mar,ina1
.
11-m■lneble I ~ " : : . is due to
DO 0De bu yet dr,iiied a betta- pencil UWpemr
competition.
riety aC

ct.or

m«hocla ~ •

Ya•

or
I:: the -...+. __._ . abort,
open
r • • - - - 1D

• ~ it iD the term. aCtbe caatnid (ilr ~ wabct.wa t,pbll7
thi riak and cmte a C ~ Jawaaita [Att h--...it 4]);
• there are lecility--■ed moafton;
• the pernment c:,onduda annual audit■;
• the contractor comducta in-home~ audita;
• -tability la put flltbe acaeditatloa 9J9laa; and
• competition among prhate operaton guarantee it.

Aa Chairman or Waacbnhut Con-ectiom ~ a n d ~ v- Pnwideat
or the Wackenhut Corparadon, I want to tbailk ,.,a,_ KJ:. Cbafrman, ilr the ~
tunity t o ~ in ,upport ol the lDdueioo aC pmatizaUoa wip.ep in the 8mde
crime legialation.. I wmuld be happy t o . _ qiJeatiaaa.

ATI'ACHMENT 1
PRlsoN GRA!ffll: PRIVATIZATION WILL )'4:mrn;g PIJBuc BBNEPITII
CURRENT LAW SUBSIDIZES 11''BFFICIENCY AND DfCJIIWlBB DBPmalDICB ON
PUMD8

=nutidw

n:m:at.r.

srama

• The Democratic Crime Bill (Pub. L.
SlO liilliaa in
11D
•comtruc:t • • • ~ or unpnl!'I
•
f'acilitles" in anler to -rr.. -ventional prillon apace for tht, ccmffn oment'lf"fflllentatrenden. • • •
• The new grant program la available Sr •a1tematne cmia:tiulMol ~ and
doetl not recognize the arga,.t lwedforM«Wotlla ;,._,..fadlma_
• The tnditional d a t e ~ appoach is to eepuate the l'll8aflllPClll_l!i.....,li..HHiliti-•k
cleslp. c:onatnxtion and fadlit,J n:;zapnrcnt, 9'bich - i t . in die ~
• alow e n d ~ c:omtruetiaa; Uld
• un-rily high operational COllta &r the entire Im ol the f'ac:ilit;y.
• Cuzrent law_..... billion, to be !lp8llt on er Ntruffltecl ladliliea t1lat
are not 1arp ~ eecure -.f.a er
to bap the me:rimnm
r.wnber of 'Violent; ciiminela in priam i1r the leut cmt..

efflcieat-.

• States

wm th-rare need -

fiedenl fblanda1

■---- m the tbtma..

PRJVAT'.IZA.flON WJLL IOllff 1BB MOS!' IDGDn' ND:D8

With pmatizetion, Stat.ea haft prv.- they can:
• r e d u c e ~ C091a by 10-40 percmt:;
• reduce operutio,tal coca (which _ . ilr 80+ peraat aC the ».,-r- liltc:ycle apeDNB ot a priaml) by 10-20 ,--it;
• deli"VIII" facili6:ia ~ permat r..ea-;

•--qaalily~and
• UJCrUN --.D ~ ___,.,,,.
111B LAW SHOUU> BMCOUJU,O& PIIIVATIZADON, WIIIUI snu. AnmlllNO l"LSIIBIUl"I

Tbe followinaprorilliona ahaalcl be..w.d:
• It ahould be clear that panta are aftilehle to Wp ,-y ilr the..,. , . . .

cornctional ~ etatae can prutidailt-ioaNor.,_,.--,,.,,.
• Statae lbould be ~ to ebaw that the,- haft all tlM. w ;

~
arullority to embark upon a ~ hdlpatioo . . , . _ mid tMt .._.
will _play
• Tbe Attormy Ge--1 ebauld &he
to 1h11 CIIIIIWtnldlml a l ~

the,_.,~-,,_,_..,_,_

top"""""
~
1:"~.=,:z,':
~a:=1,:::t~::,-o1,. · ,.

. . _ . . &cllities; and

• To heeten

al t h e ~ . : =

120

119

s. ____

104dlc.oacl11Seuioa

4gfts,t-9j

S1!Cnot1 BT 8l!lCnON ANALYSIS

Subtitle A of title II oC the V-ioleo.t Crime Coatrol and Law Enilrtement Act oC
1994, Pub. L. No. 103-322. autborbed the ~ ----1 to award $10 billion in
granta to the .tata +1.-..1. Fucal Year 2000 far the ~ ol - r i n , , pmon
cella will l,e nailable
criminala. In put. thia leplatioa - - ~ to
the burden on • • that ara ~ n c 1a- to . - that auch
criminals will lduAlJy""'"" out more ol
· NDtencm or that are otberwiae determined to put more Yiolent aft"endera behind ban and keep thmi there.
By ~ autharizinc panta ta •c:oos1ruc:t • • • ~ • • • or imp""'-•
ccn-ectional facilities, the Act reocgnized that the states face a basic infrastructure
problem. HoweTer, the Act did
into IICCOWlt the foll<nri"" two apecific UJM!da of that infratNctuH
em. Finl,
existing stat".;. i.cllities are
too am.all. A state cannot operate
•
by l l i m ~ mon amall, low-eecurity facilitiea. 8-ld. due to outmodecl atate ~ t practices, deaiiPl. construaion and muqemmt oC e:mlinc f'adlities were divorced from each otlier, instead al being ~ t e d to promote cumnuity, -=ability and efficiency of operation. Since opemional cmta represent 80 penm1t or more al the 20-ye11r life-qcle
expem,es of a ~ an:,_ c:oat ~ ~ will not only guarantee the states and
their citizens more '"baJIC"" ir their bum, but a1ao help prevent them from ~
to rime taxes or to wit federal Ulistllnce t;o keep their priaons operating 10
or 15 yean, after CODlltzuctian.
Two state&-Tezu and F ' ~ addr-s the urgent need for prison space
by building laraer, "harder" priaom, and by-amtracting out to private organizations
not only to build new JXiaam, but to operate what they built. Procurement practices
line been l'fflNCl "' empbube CDllt amnp in both CODllt:'\iction and : ~
quick deli-,- ol new facilitiea, quality .,m,ce reflecting the hilrhest
·
standarda, and budget certainty. 'I'be i-iit ia ~ prillons can lie :J:°ror 10 to
40 pen:ent i-. operated mr 10 to 20 peroeni 1- and delnered ao to 50 peneni
fut.er than under outmoded procurement practi.;;a..
&ction 1 al the bill adde langnagoe to aadre5a both short- and long-tenn collBideratiooa. First, the ~ additiom ta Sec. 20101(a) would clarify that grants are
available to help states pay fir the entire nmce oC correctional aenie- they can
pro-ride in-tiou.e or under- c:ootract.
Second, the additiom to Sec. 20101(a) (3) and (-0 would require applicants to show
they hne an the ~ - s l • t n e auth~ to embark upon a comprehensive,
~ t e d approach, ;
• - . I types oC publid~- ~ _privately-operated correctiane ~ and that
will employ the best tecllDoklgJ at tne lowest coet.
The pmpoee ie :0 . _ not only that the federal 1DOIWJ' would be uaed for
conetrw:tion. ~ npemina and the like, but that it will minimize lifeeyde caeta, make prism operation aafer and more efficient and not iDcrealle the
8tatel' long-temi depende,.,.._ - federal funds.
Thlrd, the pr..-cl ~ (d) ~ sbol't-tenn considerations by direc:tizlc the Attorney Gmenl to act firllt on applicatiom for grant■ that will enable
Ntell to conatz:nct W'&W (Oftr liOO bed) Cacilliies - higber-lnel aecuri
monerL
In_naluatinc ~ ~ · a n d ta mamme t1ae Jons-term CD11t ~ t e of the
PlUIODII to be built,
Aitomey o-.J would fizrtber be directed to .
priority
to et.ates that haw ~tne inadeqm.ciea oC traditional
~~
and have. thenfcn
·
an eac:utne body ~ _promote
in design.
~ - - ! ~ ~ accelerate deliffr7 al new filcilitiee; usure
p n i { ~ ID 6icilit7 apentiol1 and limit a lltate'■ ezpaeure to coet OWln'UII■ ID

'ir~

nctatake

r:=

COmtnletion G I ' ~ ~

Sedion 2 oC die bill

mmt.

maw thMe lmpn,ni:neata in the law efl'edift upon enaet-

IN 1llE SENATI! OF~ UNRE> STATeS
Ma.y_,

inbtAuced die fallonlC bill, wllic:ll Commillce OIi die Jadic:iary

Mr./Ms.

Rad twice aad rdc:rmd ID Ille

ABILL

To....,._..,._,_;c_fll,.._.,,._ _

_.m _ _

&ilenaaol"1theSOOleondS-•~••Ullital$1,al,a•;.,,,erim•
Congr=assa,,bled,
SEcnON 1. Pms0N GJlANISSaballc A of tide n of die Vlllkal Crime c-ol aed Ln &lb
and dae ameodnw>ts aude diel~ aR a-4cd ID sad as fallon:
"SabtltJe A - V1o1mt Oft'aider ~ ud Tnllla • S

C .\cl ol 1"'

k c ~ Gr--.

"Sec. 20101. Grams ror Ca a, thetl Fldlides"(a)

~A~

'I1lc AltlDlq Gmcnl aay aab: 0 - ID - - - ·mt

$Ws and 11,Slala«pau,cd a 111811i-s-~ ID c,amlnd,, . . . . . apwt_

IDOdify operate,

imprv¥e. flirrgly g: tlpw,I git# ldm fJlflMSI, SAiii CUI l

~ ~ ~ - - j a i l s , far.., oaf
I - " ~ ~ID-..
·
cdl space is available a die coaf
r -f violipl offmdm • ID.....- tn6
•
~_....__.__
ill xollelleing laws fol .,, •• ,..... . _ . , . _

prison

• (3) ass,,raaca lhal funds ~ llftdor !his ...::bOII ril be med 10

124
123

ATTACHMENT 2

Financial Highlights
&dsUndc,

WACKENHUT

AwardfCoova::t

CORRECTIONS
1994 Annual Report

Sedsln
Opention

INO

lffl

t"'1

- .Nee Income

.,.

1,n

t9M

126

125
WAt.atNUUI

......,. ''°""

Letter to the
Shareholders

Corporate Profile

\11,'.6<

lt•11!11,1 1 ,, 1 r,.,

hon,• •>ll"",.!""" n.,

k.,,!,:1i; ••.,·,, :.,~~ • .. :, 1 ,,:.. ,.~r.t1': l''.1,411•"'V 1,w

1,·t1,o:1.::! .,•id <!,1, ,·t1s·n fJ· .•:•,c-,. il ,,~ha r.,,·.~:n;-;;e;,1-'1 ~;·
;,,ct.ir;:,,· ,.,,,.,;" col
p,r.. m ~l\l,n hum <o~-..i::1,n,: '" 111.- •:i:q;,r.1ip,!dt',:_r::1. l,:u, .. :r.,:: f.>::,:·t.,r·."l:1 .,~,: ~.1::~p·
mn,1 o! Y" tirl" r.1., ,titK"'>
\C"\IJli~)'. ttw lO'itl~ny pHw,d(-j. • wfdp •:r.1, ••I u·h,1b.::1.i11vr ,1,nd niu
\u(h .n (hrm1c,1! ~~nry counw-t:n1 .J:nd ,~1·,1tmen1. b.luc f'dUU!I0."1
U}cj pob ,1nd ILff'-\ ... 1lb 1t,1.1n.:.g It ,1l'\-0 P°"tdn full k>gr\tK".JI ",.UP'i"-'l"I. t:-<.1'.1h u-r,·,cn !!'.'.1,t!IU

Ir •d'1i11•1n to (,1,{t!HJr

c,11,on,11

pr,:n:ro1m1.

uon.4-1 fo..-.1 'lottv1<c. u1d 11mtl.ii1 <Vr,tuctu.,J rrquirf'rnf'n~\
l9!1 ◄ u

• c.~:))On of lh!' W.::kenhi..t Co;p01'Jtt~'n. \'l..t<h·r:hu1 C..ure,c11om be
~ • puh:1c compiny m 19'94 It O?t"i•!M bn!:t1'"1 1n ~ - r : i ·.utc··- ;;n •·t"ll .-~ ~;.nu.-1:-1. G:t".11
!.nun:, .11nJ :'u"rto Rico
Fvund<"'d

/111•,,:, (J,r (i,~ muru,al rrpa,t ts, lltr s/J01rhuldni a{ K'J.1.n:lud ( ,.,tnl:.Nn ( fK/""aar'""
rU'CC)
im/1.al p«t,,/tt' o(frn~ n(app,c.i.JUtOtrly 2.2 11ut:w:,,i J.ho:n af ll;c- ur-wp.i .. , - l.itt
July ond ~r,nber wus 3,rT'fnl w,th on ruthuu.-ntit ,rs.pon,1 fronr h:,(/J :r..d;,'Jd!-t_,J ,u:3 ~~1r1

·nu

tut,o,ni1I m"'fl.tors. F10,,, .,,r U-.tldlaf{nvtjptiuo( J9o lAdlr. l~ ,--Kr•"""' to J25• ,Ju.,r m

thr(int Jt"'M!"n nunJln a{badu~. lnlJ«~. ,,_..,,,.,,.daJytrllldutz t,O/wnv1r-Q;;llrd ll__ l.'.X]
,1ta,r1 on /r,losdaq"J notional n.nl,t.
IN«- •tt- pknrd lO rnpond IO lhft ~ conf"ldrncr Wlfh .a H'')"llllr1 ol Jton,: e-....n-fflJ'
P"flo«rancc. w e e ~ wair..,68"-IC SIOS ..a.hon and rw1 irwcwnir mc,~.Hftf 17~ IO
S2 2 million cw lOttnliprll sh.wr. Thrtutaunr:..,illa~!nr"""""'"ff'dpal•tc 11,ftM-,r-...aiat
m..any ~and urrlulty ~«:lfflPUIY powdl.

wee

Sln<-r thr ~•rly 1980"~
Ni Jl'Oftftft'I rtw<Olleqll of pm,.acuro drwiopnwnt Mk1 rr-......an
1:~toleotr«nofYIHlddnfflllOn~M~clos,r,o11994,thft,rwint'~fflla.2riy
47.00() bN1s undn pn"'31« ~ i l l ~ U.S. and inrt'HWOY.bp WCC"i U.711 t . e
undn contr.-n/•w.ud tt"pft'Wnl ~ ~ ol thr pPYatt <orftt1KW'ri m.a.."krl,... P"'•

....,

Our drasnabe iDCtt'.nt ia:1 ~ b e d s . Along -.th the- cor.rspondutg mcrt.ne- m
markN ~ was dut t o ~ lfll new CDDIActs dwtng meal 1994 wtucb
m1:tdy 7.600 brNh. Thtw ~ WCC bNk,q.:wnrm: ~ol.thr;,ipp,oaim.at,r JS.63'9 bNh awatdNI
10 thr- pnntc con-rctlOf'lS t.ndu:ilry dM'iaC' 1994.. lht •&lut of wees lftl rww contrJICtJ wdl add
•ppro:umatcfy S80 milhon in ont'·hfflt ~ and dnign ~ Mid S 100 man.on. 1ft
1:nnual ~ • ~ ThC'rJ'Wt'.i•h.:EWIC .-.+,rityol~ ntW ~ d o 1h01 ~
until 1996.

tot....,~-

"""bdtn"lr the 11111,ar tr.non b lht 1arS" lllllllbft of lW'W prtqtia'd l:JiNh dunn& 199C u
auribuhblor to a~~ h r • ~ ol suta ol 1hr nftd t o ~ ~

cotr«tJOnal Splmn in ~ 1 0 ~ p.lbacdnu.ncf IOinc:uunt,r IDOff h.abftualcn,mi..
nals. Acrordingly. sum ilolkS .as Tcus,, Mm.is.sippi. florim and odwn :nn:fflf mr prnr>t&:Atae::11".
opt:Km 1:1 onr ~ to ,ldd IIIOff bNI cap,wYJ qllictlJ and COit ~ .

••.«kd

It is tmport.lnl lO nc:tt twro nurbl urnds ffUli"I' IO the- pmratizrd f•uLtK'S
m lfll-4.
F1rit. tht majority ol cht bc!-m ~ o f • at'dwm ltwf WOril)r. o, hicha. pnsibfy andac:AtJnc, •
·1urdtning• of tht pmon,n popuUuan.. Sro::IJftd ~ dw bet thM ~rJICI Jl-..b ~ n,,,,,cc
mM1rt on tht tMsb of 1hr lc,,o.nl rltWlfliCUI bid. lJufinswJld on .a nrwtJ o' cOIISldnauo,n -,.a,-,.
lng com~ ~ l l ~ . ~_..,appc;kh IOprbOnnff'habiliulton..

Table Of C.~ntenu
Corpc,i1te Pr::;!i!~.

Lrnrr lo t~ $h.lteho~
f ~ y O~r~!1om,
~l'\1 of OrrK.tOr>
CorJ)O"',llt: Sort"°' Off1Cet\

f~..iR~""""
Nr,OCt' of Aonu.11 Mt-fof1ng

In Joolun& ao Uw "-""'· ~ w,,r • ~ a l t!w attnrr.akd or,,m,on of prn-~•~~
1n tbt' US. .a,nd abroad Al clM' dow al '""'· ~ . . . , . 19 shin at.ad pm,.atLN'd faoFltJf'i W1thtn tl,tif boulldU'tH bul
~bns ~ dHflinc lqill ■ t,on tD P,.~ffl Ii
pr1v~l1UIN)II. Tlwtt • n p&ftll['IIQf IOlffna ~ ~ wtwt- wane b f'.&Jl"""' lhr-.1 Nd ! ..a
po1oty to ffift't tht hdnal C,,mr a.fl"t fundu',i ~ lhM prnor,rn""""" &!I.._ (t- ltru
wn,irnct At Ow h-dnal ~ ttw ~JC'f' Or-pMtllW'Dt 1\,11 ~ pan, 10 pn11'.MIJT t• r . , _
(lf1\0lu m rt.- ntM futurt' - . t .-idl1~ liK.......,. lhnr..ttn

...,.,ow,.

f.tiLt.an ..

IC
ln\fdf,6...ckC°"'"'

127

1.28

""'A~l<l-1"1

l'."O••rr,,n.,.,

Facility Operations
Tb, lwm/y.two Wo<4rnhul (ortrct,oni l0<."'1~ undn monogr,rvm_/~nl tn(lud, kcJ.
,rol, sln!r and b al c ~u. ond s.pon oll 'Sff"urity kwll f r o m ~ lo maU'nllm 1hr I ~
o a samplt' ol ,nv,1r u,..--,,q:,w locJ,1-r> undr, WCCt ~

IJ~:: :,~:•~;:,~;:•i~ •:,1:I(:~:;!~~~/,~. ',:;/~:r:~~_1:~f~;~'l~~to :: f,~l~:.r":.;~~~~O;~~::;.~,~(;~.~;:.;~~;: 1

~:~::: ::;::t,:,.h:>:;;~~.:r !::':::~:t~·,~7;;t~.1it.oruJ g10-,h

opp,}ttumt~ ••·

In fl'r,urmi for'~•«" 1!,11d m1!lrnnn,m and ttu' tlnt~hz.1tKm of prrv•tunJ corrN:IIOflt. WL(
ha1 '•.«n • numbt', cf 1mporur.1 t1'1"- W" ru"" t-Uaba1sttN a crntr,11 <Ofpor,ur tnfr•urunur<"
(>J~t_..... ul 1"U\l.a,mmi,: glob.ii ()J.l('f,IIJO,i11 w1!h nU<nf"IOU1 clttt1U AOlhtM>n.alfy. 11W' h•~ ~t•b
ll\hr._f~(J ft"J;:IOn.a.l ,iff'.c"s In Hw
.Ind ~wolhcn In I~ Unllftt Kingdom and Aus.1r,ah1
~ .-.er <"~rpor.a1r ohict-n conu1:utr •n unpuillkk'd ln-t-1 o1 p , o f ~ I m•mg«ul f'J. ,
t1:..- h mJl\1duah wh.) h.avr su..cr,UuHy wot'kt,d totf1hc-r for fiw ~~
P"

u.s

in : '.,J';Jn&,. Wt' fe't'I pt1v1kg;f'd to

conn"l.i.tt our ptOl'ltt'ftng dforts to
fur.tr. ~~t.hsh lh«- p:i\/".1ti.ution
of cor:~tlOns tn otl".er s1.11~ a:"ld

Counu1n Our pkdgr to th~
• Uatrholdt-n 1s to <Onduct our
bulJJ"lnl ae1h-1t1n 1n .accord1.na
Wilh 1h, h!ghtu st1.nd..uds of
tr..arJ:t'e"fioll profruion.alhm.
~

hO'_?t th.at you sJure our u-

Clfnnt"T:I

m pl,1ying .1 ~rt in stup-

'"I., nrwly tmrrglng 1ndu'5try

-;, ..:..:.:;,-12-z.e.e_
Timothy r'. Co:e
·
Ct-.o1.un.£n of lhr- Roird

,9:rZo~~

Ptf"'..JiC•:1, offld ("":h1f.!'f ll~u1 1v"
otf~!"'

Loddlwt., ,.....
Lockhart Work Program Fanllty

rrcf"t"'" inmarrs from 11'M' stat~ sys.lf'ffl who att wtthin one
of ~
kaw. l'ri•alt industry is ff'CTVrtrd to
~ on-sitt ~raining a.Id paid
positrun\ 10 hf-Ip uans.ttion tM m.
ma1n1oo1productiwdvtlianlik-. Tlw
stair mpuU!trs what portion of dM.!'
runmgs go for housing. ,,,cum rntitull0f1. ,1nd support =>t" dr-pt-ndc-nts

Y"'"•'

~ ~

H.M. Prison Doncutn boasn
o&ndns In Pff-t'W.a,in,,kttd
and wnlflK«I catqortn_. lncludanC
atqory •A• prt,oDrn. tht bi&MSI
iC'C"Urity cbudiatioa In 1M lrithb
sy-stffll. Ph)"Sic&IJr..wp,ar•~ •tt SI
~

tc,-.

Ta:as
NcwVISioaCbffluc::al ~
Tttatmcnt CrntN. ttw woodd's ~
in-prison lntrns.in dna..-1 tft'&tmrnt
Cfflttr. h.n .S00 anmat~ rnidmu. h
rf'«"iVT'S indlftdu.als fn:»m the SUit

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j
132

131

Board of Di,-ectors
Dtllf•

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<•p•c•cr

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1.....-1

Date of
O~nl"I:

~r.lltf'goC:u)J.ail
S...n O.r~o. ,-,.!.furnu

T"Unothy P. Cole,

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134

133

ATTACHMENT 3
[FUIL COMMITI'EE PRINT]

cor:ic=}

l04nt
1st &sswn

HOUSE OF REPRESENTATIVES {

REPORT

104--

DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE,
THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS BILL, FISCAL YEAR 1996

Ju-_y, 1995.---Committed to the Committee of the Whole House on the State of the
Union and onlered to be printed

Mr. ROGERS, from the Committee on Appropriations,
submitted the following

REPORT
together with

ADDITIONAL VIEWS
(To accompany H.R.

INDEX TO BILL AND REPORT

Title I-Department of Justice .~ _ _ _ _ _ _ _
Title ll--Department of Ccmmerce and Related Agencies _ _ _
Oflioe ol the United States Trade ~resentati"" · · - - - · - - Intenwional Trade Commission _____ · - - - - - DepartmentofCommerce._. · - - - - - - - - Title W-The.Tudk:iazy - - - - - - - - - - · - - - Title IV-Department of State and Related Agencies - - - - Department
State
- - - Agu,,ey
-------Arms
Controlofand
Disarmament
______

StatesAgencies
Inrormation
},geDCf
·--_
- ·_
- -_
- ·_
- -_
-TitleUnited
V-Relat.ed
__
__
_
_
_

~Bill

2
32
32
32
33
47
54
54
65
65
70

Department of'l'nnsportation: Maritime Administration -·-·-.
70
C-rnission <o.- the Presen-ation of America's Heritage Abroad ··73
~ o n C i v i l _ ~ t s -·-- · - - ' - - - - - - - 73
Comrnumor "n hnrnigration Reform - - - - - - - · · - - · - · · · · 73
Conimiss.on on Security anJ Cooperation in Europe ·-···---·····-74
Competitiveness Policy Council - - · · · · - - - - - - - · · · · · · · · .........
00--068

Rq,o,t

44
44
45
45
74
81
81
99

100
106
107

108
108
109
109
110

State
Prison
Grants..-1be
rea>mmendation
provides
$500,000,000 for State Prison Grants pursuant to H..R. 667 which
passed the House of Representatives on Febrwuy 10, 1995. The
Committee recommendation provides an increase of $475,500,000
above the c:wrent year appro_priation. In 1995, $24,500,000 was
provided for boot camps for violent offenders.
The $500,000,000 recommended by the Committee is available
under the provisions of H..R. 667, 1be Violent Criminal Incarceration Ad. of 1995. The Committee rea>mmendation supports the
changes adopted by the ~ouse to the State Prison Grant program
included in the Violent Cnme Control and Law Enforcement Act of
1994, which strengthen the incentives for States to implement
"truth in senten~ policies and address States' costs due to the
incarceration of criminal aliens. Of the $500,000,000 provided, up
to $200,000,000 can be used for reimbursement to. States for alien
incarceration.
After the reimbursement for alien incarceration, $300,000,000 is
available for grants to States and to eligible States organized as a
regional compact to build, expand, and operate correctional facilities for the housing of serious violent offenders. Funds can also be
used to build, expand, and operate temponuy or permanent correctional facilities, including facilities on militazy bases and boot camp
facilities, for the conimement of convicted nonviolent offenders and
criminal aliens for the purpose of ~ suitable existing prison
space for persons convicted of a serious violent felony. Such grants
may also be used to build, expand, and operate secure youth correctional facilities. All ~ t s a.re subject to the distribution and requirements outlined m H.R. 667.
1be Committee also recognizes that substantial savings for taxpayers, in both dollar terms and in the time necessary to make
newly-constructed facilities operational, can be achieved by encouraging States to utilize the private sector. In reviewing and approving grants under this program. the Attome_y General should take
steps to assure applicants have considered privatization of both
construction and o~rations, where most appropriate.

136

135

ATTACHMENT 4
federal taxes. if any are incu1Ted. with respect

the operation of the Facility.

Sr,clion 6.8 ~ Contractor shall pay all utility charges and deposits
im:urred or imposed with respect to 1he Facilily.

ARTICLE 7

INDEMNIFICATION, INSURANCE AND DEFENSE OF CLAIMS

This indcmnifica1ion provision shall no( be applicable to injury, death or damage
to property arising oul of lhc sole negligence or sole willful misconduct of 1he
Stale. ils office1s, agenls, servants or iodcpcndenl contractors (other lhan
Contr.aclor) who are directly respoosiblc to the State. Contractor shall not .,..,aive,
release, or otherwise forfeit auy possible defense the Stale may have rega :rding
claims arising from or made in CODDCCtion wilh the operation of the Faciliity by
Conlrador without the consent of the State. Contrac1or shall preserve all such
available defenses and coopcralC with the State to make such defenses available to
the mnimum extent allowed by law.
In case any action, or procccding is brought against the Stale by reason or 3!lY
such claim, Contractor, upon notice from the State, shall defend against such
action by counsel satisfactory to the State, unless such action or proceeding is
defended against by counsel for any carrier of liability insurance provided for
herein.

Section 7.1.
Indemnification. The Contraclor shall protect, defend,
indemnify, save and hold harmless the State of Louisiana, all stale departments,
agencies, boards and commissions, its officers, agents, servants and employees,
including voluntcczs. ·from and against any and all claims, demands, expenses and
liabilily arising out of acts or omissions of the Contractor, its agents, servants,
subcontractors and employees a<id any and all costs. expenses and attorr.ey's fees
incurred as a resull of any such claim, demand er cause of action including, but
1101 limiled to, any and all clairrIS arising from:

a)
all claims, including death and claims based on viola1ions of civil rights.
arising from lhe serv)ces performed under the Conlract

(a) any breach er default on the pan cf Con!ractor in the perfom1ance of the
Contract;

b)
all claims arising form the sci-vices performed under the Contract by
Ccnlractor, and

(b) any claims or losses for services rendered by Contraclor, by any pers.:,n or
firm performing or supplying services. materials or supplies in connection with
the performance of the Contract;

Section 7.2 Insurance. The Contractor shall continuously maintain and pa).- for
such insurance as will protect the Contractor and the State as a named insured,
from:

rclions by a third party against Contractor as a result of the Contract

(c) any claims or losses 10 any person injured or property damaged from lhe
acts or omissions of Contrac1or, its officers, agents, or employees in the
performance of th-: Contract;

Seclion 7.3 Type.5 of Insurance. Prior to the effective date of this Contract,
the Conlracmr shall provide insurance policies and endorsements in a form .and
fer terms satisfactory to the State·s Office of Risk Management evidencing
insurance ccverage of the following types, for the following purposes and in lhe
follow:~g amounts:

(d) any c~aims or losses by any person or firm injured or damaged by
Contracto_r, ,ts o~cers, agents, or employees by the publication, tramlation,
reproduction, delivery, performance, use, or disposition of any data processed
under the Contract in a manner not autb_orized by the Contract, or by federal
stale, or local statu,es or regulations;
•

a.
Worker's Compensation and Unemployment Compensation lnsura,nce
prolec!ing lhe Contractor from claims for damages for physical or personal
injury wh_ich may arise from operations performed pursuant to this Contract,
whecher such operations arc performed by the Contraclor:by a subcontractor. or
b:,, a person direc1ly or indirectly employed by either of chem.

(e) . an>: failu_rc of Contractor, its officers, agents, or eJllployces to observe lhe
laws of lhe United States and the Slalc of Louisiana, including bul not lim:ted 10
labor laws 2nd minimum ,,.-age laws; and

(f)
any claim or losses resulting from an acl of an inmale while under
Con1ractor's authority.

General Liabi lily Insurance, which shall specilically include civiLrights and
19

·YM if1ftttl1Stttr

137
medical maners in an amount not less than five million dollars ($5,000,000) for
each occurrcnc: with an aggregate of at lczst ten million dollars ($10,000,000)
per yea.-. Such insurance shall also provide coverage, including lhe cos! of
defense for all stale officers and empl~yecs, whether in their official or
individU:.1 capacities, against claims and actions as sci forth in Section 7.2.
c.
Automobile and other vehicle liability insurance in an amount not less lhan
five million dollars ($5,000,000) per occurrence.
d.
Insurance in an amount not less than fifty thousand (jollars ($50,000)
covering instances of emplayec dishonesty.
All insurance policies required under this Contract mus! provide no less than
thirty (30) days a<fvancc notice to the State of any contemplated cancellation. The
Stale shall have the right, but not the obligation, to advance money to prevent the
insurance required h'crcin from lapsing for nonpayment of premiums. If the
Slate advances such amount, then the Contractor shall be obligated to repay the
State the amount of any advances plus interest thereon at the legal maximum rale,
and the State shall be entitled 10 set off and deduct su<lh amounl from any amounts
owed the Contractor pursuant lo this Contract. N~ election by the State to
advance money to pay insurance premiums shall be deemed lo cure default by the
Contractor of its obligation to provide insurance.

Section 7.4 Fire and Properly Insurance. The State shall maintain fire and
propeny insurance on the State's buildings and equipmcnl located at the Facility
site.
Section 7.5 Defense/Immunity. By entering into the Contract., neither the
Slate nor the Contractor waives any immunity defenses which may be extended lo
either of them by operation of law, including limitations on the amount of
damages which may be awarded or paid.
Section 7.6 Nolice or Claims. Within five (5) working days after receipt of
summons in any action by the Stale, or of any agent, employee o; officer !hereof,
01 within five (5) days of receipt by the Stale or of any agent, employee or
officer !hereof, of notice of claim, the St;ite or any agent, employee or officer,
shall notify Contractor in writing of the commencement thereof.
Section 1.7 Financial Slrenelh. The Contractor shaJI, prior to signing this
Contract, file with the Stale a financial statement showing a nel stockholders
equity, calculated according lo generally accepted accounting principles
consis;cnlly applied, of not less than five million dollars ($5,000,000)
Thereafter, lhe Conlraclor shall file annually, on or before October I of each
20

138

Senator ABRAHAM. Thank you very much.
Mr. Collins, welcome.
STATEMENT OF JAMES A. COLLINS
Mr. COLLINS. Thank you, Mr. Chairman. Mr. Chairman, I am
Andy Collins, execa.tive director of the Texas Department of Criminal Justice, and chair oC the American Correctional Association's
Legislative Affairs Committee. I am honored to be here today to
speak to you on behalf oC the Association and its 20,000 members,
representing a cross-section of corrections professionals.
Thank you for this opportunity to share our views with you on
the issue of the Nation's prisons, and particularly the proposals
about truth in sentencing and incarceration of violent criminals. I
am submitting a detailed statement for the record, but I will briefly
summarize my comments for you today.
Earlier today, Mr_ Chairman, you spoke about the importance of
a balanced approach to dealing with the issue of incarceration of
violent criminals. The American Correctional Association believes
that we must be rnore successful in our efforts to reduce crime
through a balanced approach, one that places equal importance on
prevention, policing, prosecution, punishment, and treatment,
while being sensitive to the rights of victims.
One of the most critical issues that is addressed by current legislative proposals f'or controlling violent crime in America is the issue
of providing incentives to States for imposing tough truth in sentencing laws for ~ose who commit the most serious violent crimes.
In my view, there are two key principles that should be considered
in developing Federal incentives to States.
First, the truth in sentencing incentive should not be mixed or
diluted by trying to piggyback other reform incentives to the critical issue of truth. in sentencing. We can see in some of the current
proposals attempts to tie truth in sentencing to other kinds of reform issues. For example. in S. 930, we see effort to tie truth in
sentencing to the issues of inmate work and education requirements. In H.R. 667, we see efforts to tie reimbursement for the cost
of incarcerating undocumented felons to truth in sentencing.
These kinds of efforts only detract from the central issue, and in
some cases provide mandates that are very costly for States to implement, and they are overly intrusive in the day-to-day operation
of State prison syste:ms.
For example, inlplementing the inmate work and education requirement under- S. 930 would cost the Texas prison system about
$14 million a year m. additional security personnel. Additionally, it
would cost about $5 million for additional work supervisors. To
meet the mandates of the educational program requirements, it
would increase our budget by 400 percent. When these kinds of
mandates are included in the legislation, States are forced to
rethink the value of the truth in sentencing incentive.
Second, the truth in sentencing incentive should not be tied to
an unrealistic goal. H States are to work effectively toward truth
in sentencing, the goals set forth in the legislation should not be
so impractical to achieve that States are discouraged from trying
to attain them. Current proposals would require States to im.ple-

140
139
ment State laws requiring violent offenders to serve 85 percent of
their imposed sentences.
We suggest using a formula based on a progressive continuum of
truth in sentencing incentives that judges a State on its own
progress toward goals set for itself in place of the 85-percent requirement. Also, given that it is nearly impossible to determine the
national average perc:ent of time served, we think it is more logical
to require indeterminate sentencing States to assure that 85 percent of the minimum sentence imposed will be served. We believe
that these requirements will provide a more realistic incentive to
States than those offered in current legislaticn. It will also help to
ensure that an optimum number of agencies are eligible to participate in the national crime control initiative.
In Texas, where both sentence imposed and time served tend to
be longer than most States, the 85-perc:ent requirement would cost
Texas taxpayers an additional estimated $1.5 billion over the next
15 years. How can a State like Texas be motivated to work toward
85 percent when the costs to State taxpayers of doing so would far
outstrip the Federal funds we would receive?
Texas taxpayers, without any Federal incentives, have already
committed almost $2 billion to expand prison capacity from about
38,000 _beds in 1987 to about 135,000 beds by September 1 of 1995.
We estimate that another 78,000 would be needed over the next 15
years to be able to implement an 85-percent requirement.
If_ the overall intent of the truth in sentencing legislation is to
motivate States to enact laws that protect citizens from violent
crime, the Federal legislation must look at performance measures
~hat are much bJ:?8,der than just served as a percent of sentence
imposed. By f~mg ~lely on the 85 percent of sentence imposed,
States tha~ are J.D?,po&lllg lo!lger sentences and that are requiring
longer penods of mcarceration for violent offenders may still not
meet the 85-percent criteria, but may actually be doing more to
meet the goal and the spirit of t:ruth in sentencing legislation than
other States.
In a recent study published by the Bureau of Justice Statistics
1:exas was shov.'11 to have longer sentences imposed and longe;
t~me served than
of the 4 _Sf:ates identified by the Congress1on~ Re.search SelVlce as qualifying for 85-percent truth in sen!enc~r- According to the study, Texas' average sentence imposed
r:.r -::.~•~•nt offenders was 145 months, with an average time served
of 56 months, or 39 percent. However, even though California, for
example, showed 85 percent o~ sentence imposed, their average
sentence was only 39 months, With an average time served of only
33 months.
In summary, I would ~e to make the following points. First, we
must be more successful m our efforts to reduce crime through a
b_alan~ :1PProach, one that places equal importance on preventio_n, poliCI?JJ, prosecution, punishment. and treatment while again
be
mg sensitive to the rights of victims.
'
Second, legislation to provide incentives for truth in sentencing
should no~ be mixed or confused with other reform issues, like inm_ate req~rements for worlt or education, and should not be laden
With reqwrements that are not cost-effective to im9lement.

anr

Third, truth in sentencing incentives need to be tied to mo.re
flexible, good-faith efforts by States to achieve the goals of imposing longer sentences for violent crimes.
Mr. Chairman, this concludes a summary of the American Correctional Association's testimony. Again, I provide an expanded
commentary on these issues, and I would be more than happy to
answer any questions that you might have.
[The prepared statement of Mr. Collins follows:]
PREPARED STATEMENT OF JAMES A. CQI.LINS ON BEHALF OF THE AMERICAN
CoRRECTIONAL AssocrAnoN

Mr. Chairman, and members of the Committee, I am James Collins, Executive I>irector of the Texas Department of Criminal Justice, and Chair of the American Correctional Association's Legislative Affairs Committee. I am honored to be here today
to speak for the Association and its 20,000 members representing a cross-section of
the corrections profession.. Thank you for this opportunity to share our views with
you on the isaues of our nation's prisons and, partic:ularly, the proposals abcnat
truth-in-sentencing and incarceration of violent criminals. I am submitting a detailed statement for the record, but I will briefly summarize my comments for you
today.
Crime is one of the top Issues on the public's mind today. Current sentiment could
lead one to believe that the crime rate has increased significantly and that our initiatives have done nothing to control it. The truth is tliat the majority of persons
in this country are law abiding and do not commit crimes. The majority of crime
is nonviolent even though violent crime captures the public's attention.. A sector e>f
the public tends to thinlr. that somethini drastic must be done to curb the increased
trend. Some believe that the moet effective method of curbing crime is to take criminala off the street so they can't commit more crime.
While the total number of arrests have remained relatively stable since the mid1970s, with a minor increase between 1987 and 1990, several factors have led to
inaeases in convictions and thus, incarceration. They include enhanced law enforcement efforts, advances in forensic technol~es, abolishing discretionary parole.
eliminating good time, and adding or increasmg percentage requirements for ti.me
to be served in prison before release consideration. In reality, the crin.e rate has
remained flat in the last 20 years while we have increased our prison commitments
by as much as 155 percent.
This unprecedented increase in prison population from 1980 to 1992 has largely
been due to drug, property and public order offenses (which comprise 84 percent or
the incarceration rate increase), and to increasing mandatory minimum sentences.
National research.on the impact of the Federal Sentencing Guidelines indicates that
substantial numbers of low-level drug offenders have lieen sentenced to Federal
prison because of mandatory minimum sentences.
The United States has now reached the point where we are vacillating between
first and second in the world in incarceration rates, yet the crime rate has been virtually unchanged.
In 1980, we nad 310,000 inmates. By June 1994, we had 945,000. We incarcerated
150 people per 100,000 in 1980; and now, we incarcerate 519 people for every
100,000. Unfortunately, things will get worse. Accordi~ to Dr. Jeffrey D. Senese,
University of Baltimore Department of Criminal Justice, the cun-ent consensus
among criminal justice research is that we can anticipate an increase in one area
of crim&-that being juvenile crime. Thejuvenile crime rate ill expected to increase
by 25 percent over the next 10 ..
This is largely due to the grandchildren oC
the original "baby boomeraw rea ·
the crime-prone age group of ages 16 to 24.
Both demogr&J>hY and policy are working against that crime rate dropping off: As
1>rofeeeionals in the correctional community, we share an overwhelming consensua
that incarceration, in and of itself, does little to reduce crime or have a positive impact on recidivism.
We have an obligation to acknowledge the public's fears about crime and victimization. We need to help victims obtain true justice in a fair and practical manner.
Therefore, we aa con-ec:tions professionals and members of our communities have a
responsibility to work hand-in-hand with you aa the p o l i ~ . to educate citizens on empowering their communities to maintain public safety. We must be more
11t1ccessful in our efforts to reduce crime through a balanced approach • • • one that
incorporates prevention, policing, prosecution, punishment and treatment. It is our

J,;·

142

141
duty to formulate and promote p.•Ucies based on informed, rational discussion, accurate data and profeMional ezperiomce. Today's hearing ia a step in that direction.
There ia compelling evidence that indicates that, when polled, four diverse segments of our aocie9" ga,ie similar reaponaes to questions ~ crime solutions.
Replies by local citizens llhowed that many favor strategies involving the use of reci~viam reduction programs auch aa literacy training and educatfon to reduce
cnme.
Th_e ~ _segment waa a ~ p of 1000 members of the ~eneral public. A national
public op1D1on pc,11 conducted m June 1995 by The Wlrthlin Group, an independent
reaearcli firm, l'ound that tbme out of four American citizens support the balanced
approach involving prevention, punishment and treatment as a way of controlling
and reducing crime. Theae finding& are consistent with other national polls.
The members of this Committee are familiar with the results released in Decemh:er 1994 of a poll conducted by the Senate Judiciazy Subcommittee on the Constitution. That survey :eached a iourth segment-corrections professionals. It revealed
that 85 percent of wardens amveyed do not think that most elected officials in
America are offering eff'ective eolutions to crime. The wardens polled overwhelmingly aupport prison programs to reduce recidivism:
• 93 percent favor literacy and other educational programs,
• 92 percent favor YOCational training, and
• 89 percent favor drug treatment.
. _Over 45 national, regional, state lllld local organizations and individuals have
Jomed the Am~can ~rrect.i"!1"1 Association in ~pport of our position calli~ for
a balana,dfublic JJ<!licy o!' cnme control., We ~eve that incarceration is an mtegral part o _combating cnme ~en comb~ed with a comprehensive, balanced approach that includes other effective tools aimed at prevention, policing punishment
and treatment.

. · State and local con-ections and criminal justice systems need more flexibility to
~plemen~ stra~es for m n ~ :,iolent offend~ and protecting citizens from
\'lole?3t °'!3'es. Prison reform legislation mllBt contain language pertaining to adult
and Juvenile offenders that supports:
• using conventional_con-ectional facilities for incarcerating serious violent offenders and pen,ona wnng a fireann in the commission of a crime.

• using community-baaed puniabments for nonviolent offenders.
• implementing recidivism reduction programs, prevention measures and drug
courts.
• ~ o!fe!>dens to pay victim restitution and imposing community service
m those mdiYidual caaea where 100 percent financial restitution is not feasible.
• redfSucing frivolous lawauits filed by inmates [Title II, H.R 667 and Sec. 103(c)
o . 3).
811P ~ fl?e concept or ~th-~-eentencing. Sentencing policies should be
L-~Cf
~ on th4! pnnc,plea or ~ t y ao that the punishment is commensurate

~5:1nalouanma

~tyth
!If~ cnme. When theae policies fail in fairness and rational, co
o
practice 18 adversely atrected and the public is ill-served.
We urge the Senate to allow truth-hHentencing grant funda to state and local
~ e n t a to be uJle!l for the ~ o n and operation of correctional facilities
be ~ t o
L - ~ t .t b e ~ t o n and criminal justice professionals must
•
~ waa 18
.,._ comprehenaiw, plan to address their correctional

~ !:~:;_~
§: ~~......, ......ces

~~':.t;i;~er:,n~::l~di:,ce ~ ~~~~to the unique fiacal, organizational and p ~

otrenJ:.~I==:.~ " h i l ~to.i!IIPlmn?t strategies for controlling violent
he introduced Senate Billc; on the Sena~T ~ n a t o r Dole stated when
u:._.•. ii: ~not the Federal Government, are on the front
..,. war
c:na. and are beat equipped to devise effective
ID.....,.

ltate;

~=U.,
=~.:ra
ta

it coma to fidltm, crime, the role of the Fed-

be to auiat thelit.ta and localities in their own

C!imt~~ em.ta, rather than~ ""-1117 regulatlo111 and 'one.._ ........ ~ that often do mare hum than good.

GenerallyiJ.~,.1111Pllllria the 199' Crime Act. It there are ~ to be made
we BUgpet
tlie tzuth-hHent.encinc atandarda rather than tightening them

aa proposed in eending bills. Aa states change their laws and implement statutes
to asaure truth-tu-sentencing, offender populations and related costt, will dramatically increase for decades to come. A number of state correctional agencies have reported to 118 the impact that the S5 percent requirement would have on their prison
operations. They project that construction-related coeta will range from u few aa
2000 beds for small states to aa many aa 44,000 beds for larger states over a tenyear period. Thia ~ of apanaion may caUBe states to incur constrution-related
coats from $64 million to $773 million. Increases in 8.ll80Ciated average annual operating coeta are estimated to range from $34 million a year to $81 million a year.
I will address the specifics of our recommendations regarding truth-in-sentencing
later in my testimony.
We suggest using a formula based on a progressive continuum of truth-in-eentencing incentives that judges a state on its own progress toward goals set for itself,
in place of the 85 percent requirement. Also, given that it la nearly impoeaible to
determine the national averege percent of time served, we think that it is more l~ical to require indeterminate sentencing states to 8SSUre that 85 percent of the mirumum sentence imposed will be served. We believe that these requirements will provide a ·more realistic incentive to statea than those offered in current legislative l)rDp0118la. It will also help to ensure that an optimum number of agencies are eligible
to participate in the national crime control initiative.
ACA encour~ea the members of this Committee and your colleagues in the Senate to resist legislating additional mandatory minimum sentences for nonviolent offenses because they encourage the release of violent criminala to make room for
newly sentenced nonviolent adult and juvenile offenders. They al.so reduce the use
of a broad range of less costly and effective sentencing options for nonviolent offenders.
We are committed to comprehensive criminal justice and correctional planning. In
order to have a truly balanced approach to pnson reform, we mllBt recognize the
role of community-based sanctions and other alternatives in creating space for violent offenders in conventional incarceration facilities. Federal legislation should encourage state corrections agencies to develop comprehensive correctional plans that
are designed to provide an integrated approach to the management and operation
of correctional systems.
The Association iJI concerned that current proposals no longer require a state to
consult with local governments as it develops its application for the use of the prison
grants. There mWJt be provisions for states to share funda with local governments
that operate correctional facilities. In many states, local jails are used to houae state
prisoners due to crowding in state facilities. Other factors auch as enhanced law enfol'a!.Dlent efforts, three-strikes laws and the abolishment of parole have inundated
local detention facilities.
ACA aup~rts correctional facility programs that reduce idleness and promote safe
working conditions for staff'. I know first-hand the value that correctional ~ e ment tools aucb u earned time credits and recreational programs have in maintaining secure institutions and protectin11: public safety. Recent events show 118 that we
are moving toward an austere, purutive and harsh treatment of offenders in this
~ : ; ; are citizena who do not realize that these activities are necessaiy management tools to operate aafe and effective facilities for staff' and communities. My colleagues and I !mow that when inmates are involved in constructive activities there
ia lees time for them to think of ways to make weapons, etlCBpe or beat up on staff
and other inmatee. Exercise and recreation reduce idleneea, relieve aggreaaiveneea
and in the long ND will reduce the health care costs in corrections. Treating a physically ill inmate coets three times more than the cost of treating a healthy inmate.
If• common sense that healthy inmates mean lower correctional health care costs
for the taxpayer. We request that the Senate evaluate the impact of eliminating offender programs before potentially putting our nation's communities and over
800,000 correctional llta.ff' at riak u well u inCl'U.ling coeta.
ACA believes that work and education are important elementa within the eorrectional a,_stem. We know that vocational ~ . alcohol and drug treatment. violence reauctlon p ~ and qnitive behavioral tralnill( reduce recidiviam. Over
600 ~ ltudiee validate the penonal experience at correctio111 profeulonala.
Off'endera who 111cceNfully complete th- pl'Op'IJIII haw a lowered niddivimn rate
of u much u l50 percent.
.
For aample, hi a ~ n t study, only 4.5 percent oC the inmates in I1linola pnaona
who received their deON while incarcerated returDed to prlaon after three ~
Alao, National Institul.e of Ju.et.ice (NIJ) l'N8&1"ch 11hOW1 that o'ffl' one-halt or the
aubetaDce abuaers involved 1n the Miami Ifni, court IUCC888fu11y complete court-ordered conditio111.

143
For the balance of my telltimony, I ~ like f:o speak in ~ore detail about a key
issue of today's hearing, that or tmth-uHentencing. In my vtew, there are two key
principles that ahouJdbe cooaidered in developing Federal truth-in-sentencing incentives for the Statea.
First, the truth-bHentenciJ!C ll>Cl!Dtive abould !l!'t ~ Dilled or dil~ted by ~
to •piggy-back'" other reform incmtivea to the cntical 1811U~ of tru~-m-aente?'=ll.
We can see in some at the current propoeala attemets to tie truth-m-sentencmg to
other kinda or reform - - . Fer mmpJe. Senate Bill 930, attempts to tie truthin-aentencing to inmate want and education requirements and the state's ability to
give or take away inmate privileges. Also. H.R. 6o1 tries to tie reimbunement for
the costs of incan:erating undocumented felons to tmth-in...,,,tencing. These Je,;tislative efforts only detract from the central issue and. in some cases, provide manaa tes
that are not conduci...., to efficient,. COIIH!ff"ec:tive management of state prisons. They
are too intruaive into the daily operations at our correctional facilities.
Implementing the inmate worlr. a.n-1 education requirements under Senate Bill 930
would cost the Texas pri,,on system about $14.7 million per year in additional seett·
rity personnel C01Jb1, $5.3 million ~ year in additional inmate work supervision
. costs, and our annual coeta a t ~ educational programs to inmates would increase by 400 pen:ent. When eee ldnila at mandates are attached to the incentive
programs, correctional admiaiatratma and policymakers are forced to re-think the
~-.Jue of truth-in-eentencing incentivelL They tend to interfere with the day-to-day
operations of state prison and local clet.enticin a,,,tems. State and local correctional
systems are too divene in their compoaition to be forced into a mold that ia not an
inappropriate fit for all.
Second, the truth-in-Mmtenc:ing incentives abould not be tied to an unrealistic
goal. If states and loc:ah, are to work effectivelf toward truth-in-sentencing, the
l!08ls set forth in the legialation ahould not be ao unpractical to achieve that we are
mscouraged from trying to attain them. C-Jrrent proposals would require States to
imp!Pment state Jawa requiring violent offenders to serve 85 percent of their imposed aentencee.
In Teua, where both aentences impoaed and time served tend to be longer than
most states, this 86 pen,ent requirl!ment would coet the t■Ipayers of Texas an additional estimated $L6 billion cm,r the nezt 16 years. How can a state like Texas be
motivated to work toward 86 percent when the COB1a to state t■Ipayers of doing so
would far outstrip the federal funds - would receive? Tena tupayers, without any
federal incentive■, haw alnedy committed a1moet $2 billion to expand prison capacity from about 38,000 beds in 1991 to about 136,000 beds by September l, 1995.
We estimate that another 78,000 beds would be needed over the next 15 years to
be able to implement an 85 pa,:,eat requirement.
The U.S. Attorney ee-nI estimate■ that states will spend as much as $20 for
eveiy $1 in federaf mat.cbing timda under the truth-in-sentwcing guidelines proP<l8e<l in H.R. 61;7. OU-. ha,... prQjected ffJ"ying coat■. According to an analysis by
karc Mauer, asaiatant clindor at the SentA!ncing Pn,joct, states will need to spend
between $2 and $7 at their own moDl'J' fer awry_ tlolJar they receive in federal prison
grants under H.R. 667. The Campai,in far an Effective Crime Policy has estimated
that an,ywhere &om $3 to $6 at atatai' ~ will be required.
The bottom line, &am the atate8' point or view, la that tbe prison grants have
•atrinp attached..• 0.- the lone nm. these lltrinp can make the cost of participating in the grant _prapam too pruhibitne.
Currently. violent affimden in the state■ aerve about 46 to 48 percent of their sentence■• according to .Juatice Department. Thus, to teach the "truth in aentencing"
l!Olll of 85 percent, Mauer eatimatea that states would need to more than double
their time-Nrved figurm. Far an avenge state with 8,600 violent offenders in prison
~one-fiftieth or the natimi'a tolal), that wou1d reiu-nt an increase of roughly 8,500
mmatea. The 8,600 adctitianaJ ium■tea will cmt the typical state $425 million for
prison conmudion pl1m $170 million per :,ear for operationa, Mauer calculated.
Thus, over the nat ■ix ,-n, the state wou1d lll)elKl more than $L4 billion to become eligi.ble far the panta. And the federal grant■ for the typical state (one-fiftieth
oftha total) would ■-- to $210 miJlion..
Furthermore, the fedenl pant■ ue acheduJed to end following tbe year 2000,
after which the state■ wouJdluaft to find new W1l,YII to pay for, or elBe abandon. the
~ N D ~ pn,.,i■i.aw and larger priwl ayatema they established in order
to qualify fer the P'■nt■~othnal adminiatraton lib myaelf haft been ll■ldng whether our states can
coml'!y wi the ~ p a n t ~ We liave turned to the Concr-onal ~ Serrice (CBS). tlie Natianal Inatitute or Corrections (NIC} and
~ ~ t a t .J1llltice Office J Jutiee Pragrama (OJP), but aa oCyet, none have
--.a able to provide a definitmt judg,emeot on whether individual states are in com-

144
pliance with the firEt standard for truth-in-sentencing incentive granta. They are
working tirelessly olll this effort, but it ia an extremely complicated process.
Several key terms muet be defined in th'3 Office of Justice Prograina (OJP} regulations, yet to be publ..iahed. OJP haa indicated that the final rule will be out in the
fall of 1995. Needed. for example, are a definition of "violent offenae• and clarification on what the terw:n "aentence imposed" means for purposes of the 85 percent calculation. Thl18, it is clifficult to locate a stat&-by-.tate analysis of the ability to qualify for grant funds, tl:iough exploratory studies are underway at OJP, NIC, and CRS.
We commend the Attorne~meral and the staff of the Office of Justice Programs
for their support in provi ·
.answers and ongoing technical assiatance to the corrections community :in our e <>rte to understand and move toward compliance with
the 1994 Crime Law_
According to a Ma.~ 1995 study conducted by NIC, 19 states were found to have
had truth-in-sentenc::ang legiala-tion in place before the 1995 l~alative aeaaion, and
legislatures in 29 states reportedly dealt with proposed truth-m-aente~ legislation in the 1995 eeseion. Havin~ the legislation in place does not necessarlly mean
that the laws are co mpatib!e ""1th the truth-in-sentencing language of the current
Federal leitislative prope>B~. In fact,_ only seyen sta~ have been iden~ed ~
qualifying l"or Federal truth-1n-sentencmg fundinll; Washington. Oregon, California
and Minnesota (according to a February 1995 {:RS report), and Arizona, North
Carolina and Delaware (based on January 1995 OJP estimates}.
Actual time aerved for a givem violent offense is longer in some states than in others, yet can appear ahorter when presented in percentage terms. It ia important for
other factors than the percentatte of sentence aerved to 6e asaeased when evaluating
ths degi-ee of compliance witb truth-In-sentencing guidelines.
There ls some controversy regarding the compatibility of truth-in-sentencing ~d
earned or good time creel.its. In man;r departments of corrections, an earned time
or good time system i.s considered an lm{>Orlant tool for managing off"ender behavior.
For example, Connecticut i m ~ disciplinary action precl~ an inma.te fnn_n
classification reducticma if the mmate refuses to follow prescribed _prognurunatic
work or educational essignmen1s. Masaachusetta awards inmates with earned good
time as a result of in.volvement. in positive programming such aa education. In Rew
Mexico, good behavii»r is a requirement for participation in all programs iDcluding
education.
.
. Jamolo • •
•
_._
and
If the overall intent of ~e tnath-m-sentenong 1~,.......tion 18 to motivate a ...tes
locals to enact laws Uiat protect; their citizens from violent crimes, then Federal legialation ml18t look at pert"ormao.ce criteria that are much broader than just the percent of sentence impc>&ed. Stat.I are imposing long aentencee and requiring long periods of lncan:eration. for violent offenders but lltill are not meeting the 85 percent
criterion; and yet, they may actually be doing more to meet the apirit of truth-inaentencing legialatlon. tha.n othe.ra.
In a recent study just publia.hed by the Bureau of Justice Statistics, Texaa was
shown to have longer aentencea impoee,d and longer time aerved than any of the four
states identified by the C-Ongres.aional Research Service as qualifying for the 86 percent truth-in-aentenc:£ng. According to th~ study. Texas's average aentence !mpoeed
for violent offenders waa 145 nnontha, with average time served ol 66 montlia. or
39 percent. However, e.....n though California, for example, sho~ 85 percent of~tence imP01!8Ci. their average sentence was only 39 montha, with an average time
aerved o( only 33 mon.tha.
Additionally the al; percent criterion alone does not address another aspect of
public wety tlu;t ma::, be overlooked. Many states, like T~, who ~ long periods of lncan:eration. for violeC11t offenders have crafted theu- correctional ~ t b
e
80 that control can b& exerted 0"81" violent offenders after they are re1eaaed into

~i:,mrJ:·does Texas require Jong periods of incarceration for violent (!lrenders, but
when tbose violent otYenclers are e.....ntually r e l ~ into th~ ~ t y . ~ find
that they are also facing Jong periods of commumty 11UperV1B1on. Moreover, if the
terms of their releasa era violated, they will be returned to priaon to serve the remainder of their Jong ;eentence.
In closing I would l.ike to emphaaize a few points.
First, we 'mwit be 1more successful in our efforts to reduce crime throui11 a balanced approach • • • one that incorporates prevention. policing, proeecution, punishment and treatmelllt.
• .
.
.
d
Second, Federal legialation to provide mcentives for truth-ln-eentencilljt aboul nor,t
be mind with or con.fuaed witli other reform iasuee like inmate requirements or
work or education and mould n,ot be la.den with requirements that are not coat-effective to implement.

145
Third, we cannot build our way_ out of this problem. We need a varii,ty of sentencing options including community-baaed puniafunents.
Fourth, truth-in-eentencinl!: incentnee need to be tied to more flexible, good-faith
efforts by states to achieve tlie goa1a of imposing longer sentences for violent crimes.
Fifth, correctional management tools such aa earned time credits and recreational
profP'am& are vital to maintaining eecure institutions and protecting public safety.
Sixth, Federal incentive grants ahould not imi><- requirements on state prisons
that will impair corrections offida1a in the day-to-day management of their facilities
or in their ability to manage their inmate ~pulations in a safe and secure manner.
I will conclude my remarks '!>, emphasizing that incarceration is an integral part
of combating crime when combined with a comprehensive, balanced approach that
includes other effective tools aimed at prevention, policing, punishment and treatment. We urge the Senate to consider a balanced approach to crime reduction. This
approach JJlaces aa much emphasis on prevention and treatment as it does on punishment. Two-thirds of inmates are illiterate and have limited, marketable job
skills. As high aa three-quarters ol inmates have drug and alcohol programs. As a
society, we will either pay now to teach inmates how to read and write, learn a
trade and get off drug,, or we will pay lat.er in higher crime.
Thank you for your attention toda:r. We appreciate the thought and deliberation
that this Committee has given to pnson reform issues. We aak that you and your
colleagues in the Senate be mindful of our concerns when voting on related measures. The American Correctional AMoc:iation stands read,v to work with you to meet
the challenges of today and to better the future of corrections in our nation.

Senator ABRAHAM. Thank you very much.
Mr. Lamb?
SI'ATEMENT OF ZEEB. LAMB

Mr. LAM:8. Thank you, Mr. Chairman. In addition to my prepared
statement, I would aak that a resolution from NACo, the National
Association of Counties, concerning violent offenders, as well as an
article and a citizen's guide concerning structured sentencing be
entered into the record.
'
Senator ABRAHAM. They will be. Thank you very much.
[The information referred to is attached to Mr. Lamb's prepared
statement.]
Mr. LAMB. My name is Zee Lamb. I am a county commissioner
from Pasquotank County, NC. I am a member of the NACo Board
of Di~rs and chairman of its Subcommittee on Corrections. I am
also chairman of the North Carolina Association of County Commissioners' Criminal Justice S!eering Committee and I serve on
the governor's Crime Commission for the State of North Carolina
1\1r. Chairman, the problem we face in corrections is not that
States and counties are soft on crime or have been reluctant to construct jails and prisons. The fundamental problem is that we have
not aa a Nation ad~tely managed and set priorities for existing
space. Out of $30 billion spent annually by States and counties on
adult ~rrections, ~ Y ~ percent is directed to capital and
operational expenditures for Jails and prisons. Only 11 percent is
spent on ~me kind of alternative program, including probation.
Mr.. Chamnan, the corrections systems in our country is inherently mtergovernmentaL For example, when some is arrested and
charged with a serious. f~o_I!y, they are n~t taken to State prisons.
Th~y _go to the county Jail. When Federal Judges put population res~nctions _on State J!~n facilities to protect the constitutional
nghts of mmates,
· actions inevitably impact on local jails.
Today, there are more than 50,000 State-read inmates who are
backed up in county jails. What this all means is that since the
problems are intergovernmental. so must be the solutions.

146
Our urban county jails in the United States are at over 100-percent capacity and account for more than half of the Nation's jail inmates. But, Mr. Chairman, the overcrowding of our jails is symptomatic of the larger crisis facing our corrections system. The fundamental lack of partnership between States and counties and a
general failure to develop a comprehensive intergovernmental
strategy is the core problem. Yes, there is collaboration, but it is
nowhere near the level it should be.
In my State, Mr. Chairman, I am pleased to report, thanks in
part to the active participation of the North Carolina Association
of County Commissioners, a creative partnership has been formed
between county and State governments in both community placement and secure incarceration.
Essentially, the North Carolina approach gives the county responsibility for dealing with nonviolent offenders in the community thereby freeing up valuable bed space for violent and repeat
offe~ders in State prisons. The effect of this new partnership is
that serious offenders will be spending more time in prison. The
people of North Caxolina, and I believe the Nation, got tired of
being lied to. Victhns of crime got tired of being lied to when in
court they were told someone was going to go to prison for 20 years
and they would be out in several years.
Misdemeanants sentenced to 2 years in North Carolina were
spending 10 to 14 days, and a felon sentenced to 10 years waa serving less than 1 year. With structured sentencing, there is no longer
good time, no longer gain time, no parole, no early release. Rather,
we have bad time. You get a sentence of, say, 80 to 88 months. If
you act up in prison, you serve more than 80 months. But if you
are good prisoner, you will serve 80 months, no less.
'
The State has also established a new relationship with the counties under the State-County Criminal Justice Partnership Act th.alt
will enable counties to receive State grant& to develop a wide range
of community programs, including education, job training, and drug
treatment.
The National Association of Counties is deeply concerned about
public safety, but we also reco~ the importance of prevention
by focusing on early intervention. In North Carolina, just as the
State sees counties as a player in the field of C<">rrections, the State
has also recognized the county role in prevention, aa evidenced in
the Smart Start Prc>gram which targets newborns to 5-year-old
children.
. la
. ..
Under North Carolina's new structured sentencmg w, pnonties
are set in the use of jails and prisons. Truth in sentencing is vigorously promoted and policies a.re balanced with resources. In short,
North Carolina's stra.ctured. sentencing system ensures that violent
offenders are locked up for longer peri~ of time. However, no~career nonviolent ofJ"enders are dealt with at the county level m
a vari~ty of community _programs,. such as resti~ution, ~ork release,
drug treatment, intensive probation, community serv1ce, and day
reporting centers.
.
Mr. Chairman, in the past. there has been a fundamen~ nusconception by Congre,ss and by the States of the county _role m ~-e
correctional system. The misconception is that the DUijOr partio-

148

147
pant is the State and that the counties only have a minor role in
finding i,olutions to our corrections problems.
Representative McCollum's prison bill in the House, for example,
would grant counties only up to 15 percent of part II funds for jails
lea"nng the State with at least the remaining 85 percent. This i~
surprising in light of the fact that counties incarcerate virtually
one-third of the Nation's non-Federal inmates in county jails on
any given day, and spend well over one-third of total State and·
county correctional expenditures.
Un~er curre~t proposals, b~use of the lack of a comprehensive
planrung requirement, counties fear that there is a real danger
that governors will take the money and use it solely for State prisons and ignore the corrections needs of counties. How can there be
a partnership if one partner gets all the money?
The National Association of Counties offers the following recol!lmendatio~s. One, CC?Unties must be recognized as equal partners
wi~ States m managmg correctional systems. Two, this partnership must be reflected in comprehensive funding and policy approaches. We recommend that relative corrections expenditure data
be use~ as a basis for determining the counties' share of the State
allocation and that such funds be directed to local governments.
~n summary, there are people who believe that we can simply
build our way out of this crisis in order to make sure dangerous
people are locked up. For more than 15 years the National Association of Counties has pursued a management' approach that seeks
to prioritize oll! li-~~ institutional resou..rces. Let me suggest that
the lack of pnontization and management is at the core of the
problem.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Lamb follows:]
PREPARED STATEMENT OF ZEE

B. LAMB

ON BEHALF 01' THE NATIONAL Assoc!ATION

OFColJNTIES

My ~ e _is Zee B. Lamb. I am a county commissioner in Pasquotank County

~ ~arodirectolina. I am a member of the National Association of Counties (NACo) i

0
rs and chairman of ita subcommittee on correctiona I also chair the
North . Carolina Association of County Commissioners Criminal Justice Steerin
Co~ttee
and
serve on the Governors Crime Commission for the State of Nord;
Carolina.
tan1t"ii C h ~ I wish~ COD1I!'end_you and Senator Biden for holding this imporl
fi ~ e corrections cnaes m our country is clearl,r the number one prob::mpa~thcoune
Natftiolo/~t intth
e area of criminal(·
•
• justice. As of last June, for
, .
n a J= ~ a 97 percent o capaaty.
Mr. ~~. the correction's system in our country is inherently intergovernfulentalth ,ts nature. For e:umple, when someone is arrested charged with a serious
ony
not taken to a State priaon-:the, go directly to jail-the
ail
J.>111 population restrictiona on State prison facilities
O
jaila.
co
rights of inmet---.t.beir action& inevitably impact on local

tect~!

?a are

countJ iro:
·

:r~

coJn~J~e~
~rt,m°!"l ~ 50,000bl "atate:l'et!dy" inmates who are backed up in
tiona.
·
mnce
pro ems are intergovernmental ml18t be the aolu10

1 The National ANoclatioa r1 Cowitiea · tbe
I OD!y DatioDal orpDlat:ion "1>1"M8Dtinc coUDty
P."ffiment in the United Sta-.
ia
JOin topther to build elfec:lne, ....,~~
IDelllhenbip, wtiaii. lllhwban and nu-al coUDtieo
to: impnr,e cow,ty connmieat= : :tbe 1111.. ~~ lmll ol the orp.Dization are
u a lwaon bet...,;.,; tbe N • :3
.........__..... fiir COUDty ~ e n t ; oene
llal1diq of the role rl
laftla ol "'"""1111eDt; achlm, public UDder-

CIIWl::"'i!

~-=-

In the urban ereas county jaib are now ~ l y overcrowded. Accordina: to
the Bureau of Justice statiatica, "the largest f"aci.litiee, thoee with an average daily
population of 600 or more inma tea, were the most crowd.ed--o~ting overall at
more than 100 ~ n t . of capacit=,. More than halt of the Nation e jail inmates -..,
h0118ed in theee large racilitiee • .. *"(Jaiu and Jail Inmatu 1993-94).
But Mr. Chairman, the overcrowding of our jail9 is e.,mptomatic of the larger crisis facing our corrections system: the fundamental Jaclt of partnerahip between
State& and countiee aad a general failure to develop a comprehensive intergovernmental strategy.
In my State Mr. Chairman I am pleased to report, thaLka to the work of the
North Carolina sentencing and policy comrnill8ion and the acti"Ve participation or the
North Carolina Asaoci.ation of County Commissioners, a creative partnership bu
been formed between county ancl State government in both community placement
and secure incarceration. Essentiell:y, the North Carolina approach gives the county
responsibility for dealing with nonviolent offenders in the community, thereby free.
ing up valuable bed space for violent and repeat offenders in State priaons. The effect of this new partnership is that seriOUB offenders will be spending more time in
p~'.18Chairman, North Carolina"• comprehenaive leirialative package baa dramatically changed the States' sentencing policies by eetaolishing truth in sentencing u
a primary objective.
The State hu also eetabliahed a new relationahip with the countiee under the
State-County Criminal JU&tice Partnership Act that will enable counties to receive
State grants to develop a wide range of community _programs.
Under North Carolina's new structured sentencing Jaw, rrioritiee are aet in the
use of jails and prisons, "truth in sentencing" is vigorously promoted and policies
are balanced with reso'1?'Ces. Offenders are classified based on the severity of their
crime and their prior crimincl record. Based on these two factors, judgee are provided with a range of sentencing options.
In short, North Carolina's stnzctured-aentencing &y&tem ensure that violent offenders are locked up £or long periods of time. Hov.,ever, non-career, nonviolent offenders are dealt with at the county level in a varic.ty of community programs such
as restitution, work release, drug treatment, iiitenaive probation, community service
and dar reporting centers.
Mr. Chairman, in the past the.--e baa been a fundamental misconception by Congress and by the States of the county role in the correctional system. The miscon:eption is that the major participant is the State and that countiee only have a minor
r ,le in finding &olutiona to our corrections problems.
Representative McCollum'a prison bill m the House, for example, would grant
counties only up to 15 percent or part II funds for jai1!t leaving the State with at
least the remaining 85 percent. Thi.a is surprising in lignt of the fact that counties
incarcerate virtually oae-third of the Nation's non-Federal inmate& in coun~ jails
and spend well over oae-third of total State and county correctional expell!liturea.
One of NACo's major concerns is that in the absence of comprehensive planning
requirements in current proposals before Congresa, State official& faced with Federal
court mandates and th~ pressure ~ provide mo~ _prison SJ>!lce, will sp;end corrections funds on State pnscn needs instead of 888isting countiee m creating collaborative State-county stra1.egies and in meeting county correctional needs.
RECOMmNDA"MONS

1. Counties must be recognized es equal partners with Statee in managing correctional syatema.
•
2. Thia partnership must be reflected in comprehensive funding and policy approaches. We recomm,end that relative corrections expenditure data be used to detarmine the counties share of the State allocation and that such funda be directed
to local governmenta.
3. Ar,.:y legislation mwit contamplate the fieeal. eft'ect on count, ~tablan-!__~t,:
tional l!yltamL Unless theee componema are m balance, an meqw
e
likely to occur.
In summary there are aome wbo bellen that we can limply build our _,. out
of this ~ order to make BUN dan2troua people are locked up.
.
For more than 16 years the National K.taociation of Counties bu pursued a ~?
objective that hu takel2 ue in another direction-that the beat way_ to ensure uiat
serioua offenders are locked up is to prioritize our limited institutional ~
Let rne IIIG'88t that tlie laclt of prioridlation and management la at the bean .,.
the problem.-Out or $30 billion spent anmally by States and COW1tiea on ,c1u1i correctiona roughly 85 percent ls directed tit capital and operational u:penclitures for

= ..

150

149
jails and prison&-only 11 percent ia apent on any form or alternative p ~ including_probation and parole (an additional 4 pen,ent ia spent on administration.)
Mr. Chairman, the problem - Cace in ain-ectiona ia not that States and counties
are soft on crime or have been reluctant to eonatruct jails and prisons. The fun.
damentsl problem is that - have not adequately managed and set priorities for existing space.

THE

Cour~TY/C11Y CRIMINAL Jus11cE PARTNERSHIP:
EXPENDITURES FOR

FY 1992

NATIONAL AssocL\TION OF CoUNTIES PoucY ON F'EDERALSTATE-CoUNTY
PAlmlERSHIP PiloGIIAII FOR C0MMuNnT CoRIIEC"nONS

NACo supports State-county partnership programs which foster local comprehensh-e planning and provide a range al community alternatives to incarceration for
less eerious felony and miademeanant population& The Federal Government should
erovide incentive ends to 8lllliat States and munties in developin¥ or enhancing
Community Corrections Ads. State government& should assist counties in this process by providing a stable eoun:e of ongoing financial and technical 8"Sistance. Partnership programs should emphasize the role of the private sector and encourage,
-..·herever feasible, the syatematic sharing al re&IJUl"Ce& on a multicounty basis. Inherent in the practice of community conec:tions ia the recognition that the community
is the best place to deal with the behavior of lesa eerious offenders and that county
governments are uniquely able to coordinate, mllaborate, and provide administrative leadership and oversight in developing programs auited for their communities.

-- -

-----~;-- -~

. i',

lllE NATIONAL ASSOCIATION OF OOUNTIES POUCY LINKING SENTENCING GUIDELINES
TO OOMIIUNJTY OORRBCnONS

In order to reduce sentencing disparity, eliminate unneceese.ry confinement, establish !!lore rational and appropriate sentencing policies, and, in general, better manage limited correctional resourcee---includina: jails and prisons-NACo supports the
develo'lment and enacbnent of rational and UDifonn statewide sentenang guidelines. These should be tied to comprehensive community corrections legislation and
legislatively predetermined jail and priaon POPUiation muimums at both the state
and local level. Such sentencing recommencfations should set fixed presumptive
terms for felony and serioua misdemeanant -,Jations, indicating who should go
to jail or prison, and who should be placed in alternative community programs and
for how long. The guidelines should be based on an appropriate combination of offense and offender c:haracteristic and allow judge& to depart from the sentencing
jlUidelinea only in exceptional CIIBl!S, when they can provide written reasons explainmg why the sentence chosen is more appropriate or more equitable than that provided in the guidelines. A very thorougll and rigoroua monitoring system should be
established.

TOTAL, $24.521,410

TOTAL: S23,6n.269

.•
i Co,recticns
■ Police

~.Judicial and

I
Legall

~ by , - Nab:Jnal Ass-oo.ail01 OI ~
n...~1orF'tW_,.~1rom,-us &nsudhc.nsa.1'1'1it~dl'l,29d'f-COJnll~
~ar,recotr1edirat»rayup,,u,.,,,esOMy A s a r n u t . l h l 9 . f t $ ~ c w r . t y ~ b c - , v J ~ ~

Nole

TSiF

152
151

.;r..t:,, 16,

JUSTICE AND PlP.!LlC SAFETY STEERING COMMITTEE

/~'Yi'

,-,..,

w... s -9

~laking Sentences Fit the Prisons

RESOLUTION ON VIOLENT OFFENDERS
WHEREAS, the Title II of the Y-101cnt Crime Control and Law Enforcement Act
of 1994 contains S7.9 billion in concctioas funding and also provides for a comprehensive
planning requirement to promolC collaboration bctw,ccn stales and counties; and
WHEREAS, H.R. 667 incrcascs Tille ll funding to I 0.5 billion and eliminates the
cument comprehensive planning proa,ss which assures that states cn:atc an integrated
approach to the management and operation of com:clional facilities and programs and
which includes funds for diversion programs, pa.rticularfy drug diversion programs,
community corrections programs and prisoner worlc activities; and
WHEREAS, H.R. 667 requi= Slates to have in place both lruth in sentencing and
a requirement that all violent offenders serve BS pc:RZllt of their sentences; and
WHEREAS, NACo suppons a truth in sentencing requirement thal each stale
publish on an annual basis actual time served for all violent offenders. However, NA Co
believes that sentencing decisions should be determined by Slate legislators and not
Congress:
THEREFORE, BE IT RESOLVED that the National Association of Counties is
opposed to a federal requirement tl.at would specify any particular percentage of time.
BE IT FURTHER RESOLVED that NACo opposes a federal percentage
requirement of time served that imposes additional burdens on stale and local
governments; and
BE IT FURTHER RESOLVED that NACo su;,pons maintaining the current
funding level at $1.9 billion for Titie II funding and that the remaining S2.6 billion from
H.R. 667 be used to fund prevention programs; and
BE IT FURTHER RESOLVED that the comprehensive planning requirement be
maintained and that counties shall actively participale in developing the comprehensive
plan; and
BE IT FURTHER RESOLVED that states' associations will be the liaisons
between counties and states in this process.
Adopted by Justice and Public Safety Steering Committa,
(unanimous)
Marcb 4. 1995
Adopted by NA Co Board of Directors
March 6, 1995
Adopted by Justice a.,d Public Safrty Steering Commincc
(unanimous)
July 22. 1995
Adopted by the NACo Board of Directors
July 23, 1995
'

I JS

to Control Demand for Prison Space
North Carolina Tries to Balar.ce Pun~hment, State Resources
D7\1\'illiam~
.......... s - 4 . _

RAUJGH. N.C.-ln the tx, of ioauscd crim•
ml out-<>l-co,,trol pr:..0 coct s, ;Jd;:cs io North c.n,.
boa's aimin&I courts in Oclc,bu ,riJ( '>qv. mint a
°""'1'01< dlart of i.tters znd num!>ers to dispcm,~ thal--<!"il• titenl!y-mues the puoisbmtnl 6t the buds<tOffici,11)- caJJ,d the "1,locy p,,ndu,t,nl chan" but
1<non by pros,cuton aod avninals n "th, grid," the
chart is lhe c e n t ~ ol u, innovatiYe sentencmi
lsw IMI has put N,,rtl, CaroliN at the /o,dn:,nt of I
nuaat but incrcasina'7 P0()UW' of ain>irw
,omic<: bwncioi prison s,ntencu with avail.bl, ~

""""°·

-·

For seven.I ycus, cutes haw beffl turni.nc to s.entenci:n& £Ui,dcliDes in an attrn,pt r,> pin rontrol O\'t!

npid'7 e,a,1aiJnc p-i>oo pq,,,btioas. I»
ne<ttd lhd approocll. aod J)l'<S\.-m:,ive ,..teucinc
r:.iles have been eNcted mat leut 16 ~ states.
Th<ir budg<U ,t.....-.,d 10 the b«iliog
by
ris.in,z bu!Ul cMe COW W Olht-c soc:iiJ JX"0Uims.
IUl<s ,..,_ b,a, laJana a sea>M loo. at the b&rd,lio,
anti-crime measures md mandatc.ry ITUIW1IWI ,en.
lcnc:,s they enact«! in 1h, 19&0$-.,..,,h httJe rcprd
f« funrrc prison .:osts-and vt e:Dnti:r.Jl'.C morP.
«:onomiaJ altematrrcs.
"They're ruminf
to priorit;., wbo roes
to ~ and who fOtS i!itc- bs cosi}) comm=itr
con-cctions prorrams." s.a.,;I Donald Mwnr. associate ~gisb\ive clir«tc>! of ll'.t NatiOrW Auociauon d

"'°'

they"'"'

Cc.c.:ntjes_

States and O)Wllics s.pend S2~ b1lion a )'Ur r«
corrections, BS percent d which roes to buildi:lt and
f.et EENTI..lliCES.AJ:,Ccl. J

mmnznr
154

153

bon

.ind d&y rq.;iniq ctld.Cl'S.

......,duc,<lion. ... pen .........

NOrth Cuolw has spt.111 SSSO
nwbon llnCC 1915 to bwld pri,cm
for an aclditianal 16.600 iltrr.aies. and the Ccxnctiom Oepartmrnt·s opaatims lluqitt. lm an,wa
l:om $195 million in 1985 _to $472
millionlutyur•
But North Carolina."1, sadlffltiat

ed scnlcA«:tS provided they com•
pkte an ah,rnatiYe punishmrol.
sudl H intensive prob.allOft. bamc
aunt or boot: amp.
PffSOftS corn-acted al fvst«artt
murdc:r will continur: to r ~ a
deJith scntmcc • tile WMoul Jqrolc. and ~ I offendffs COIIWICll!d
al fir5t«ct'tt rape can Id ld'c: Without p.arolt. Dni1 traffrlus wilf conlmut to receive prttXJSlin& rnmdauar1· mirwnwn scnitncu.

1paa

•j

stt'UC1!oo:"1'.unliktthoK:vlmmtmts,.

a•ha..-dmdf.utlisllhalmha"bnlO
ht I ~ by ""11H or scaled dosa
b)" thr lcpl,,:urt lo mnfana IO ani-,
11bk prnaa rtsouras.

Kno-"!I as ·s.rcuctured 1C111cacqcr ·.:..apmr~·butd iotntcnc:inc."' I.lie
S)S.ltm rrccptitts the impcmit.lity
ol budd:nt pruom l'.aSl mDUp to
lup up w:th tM influx al o8mdcn.
The ~ S.)~ll'ffl .SC, acbow.~
tht SUlc·s Wbibty ta imprism IDDII
o!fcnckrs for anf"'-hrrc Dell tht ti.
:a110n of ttlt wntencn die cauru
hlvt: bttn Nl:wfin1 down.
Whut ,1~!,Vl,111 ~role: fa, aD ntw
o!ftndcn, a:id k:nttht-ninc s.mtmc:cs
for ,.-10~n1 ~·n:miuib .and re~ ol-

i
1

i5 fram 33 months b a f&rSl offmdu WWI fflilisatin& circumstancn to
158 tn0nlhs for a muhiplt offcnOer
with aarnatinc circumstanca.
F1nt and srcond olftndtn of
somt: DDrM0lcnt fclonits an. at tht

SE.'-"T'll\C£S.f,..AI
c;,eatL'\I pnson.s and ant, J1 per·
u::t of .-t-.ch is spcn& for OIIIIIIIDUl'D-ty-basecf correaiom IUCb as pnm-

frnC:tr).. t!'-.t rui:w la,· will reduce
~r•M>n s.c:r.ttncn an .u~rair ol 80
ptrcrnt to COf'Jo,m more dasrlr lo
:hf' lrroC(tl of t1~ tluil innutff acti,.&i!~ .a:C" ~hi;id bus ~I p r ~ .

~n.11 "-1' rt do.:tc rs wnma priao'.a wr·,r ~)lftl ~ •"11 """ our
;,:.c.nru for •·1:>k-nt olltndrn ..-.t otttr oiftndtu. lllf' cor::~nt' al lhal,
d. COWW'. '6 lhal •r •-.JI h,;1.~ la IUI"
;._,Ji tht Olbrt5 UI Olht'f ~ - said S...
:,rno, (01,:..."1. Judie Thomas w. Ross.,
,~.aumu o! tht ,1au·s Scnttllnlll'
0

Ad'"''°''

.anti Pohcy
Cammi:u.ioa.
•hd propcs.e:I th,: rdanns maaaf
.lut ~u by "'" kJ!Sbturc.
~~otht:r-.-&)"5'"arrCOffllDUllil,~wd al1ernalnn 5udl as dosdJ
5ul)t'nu.t'd probitioa. d.ay rqiartiac
ctnltU. halfway ho.KS. boat
.:.1n1ps.. dru& lrt~lmtnt ratilitin,.
e!rctrorac.ally rnoni1ored houv arrnt. fll'lts. and rnr:iluhon.
~ lht: ht.m of lht new II•- is the
;nd• .a compd.litlOft d. nnanol IUU::1i;m

.a:,d m.n.lfflUm wnarnccs fGf' 10

c•tt,onu of r,loni,s thal arr

BtM!ks babncina ~cncn wilh
.av11d.ablt rcsourcc5. lhr pad 5)'Sttm
~ llVlh in w:n1~1 for •ht
ftn1 tmac 1111 North CuoLn.a. Rd.x:I
L Lubiu. eaecvln"t director of lhce
simttncin&commiss,,on.s.d.
He rcc.allcd that whtn tht Sbtt hertlcasina pnsonas art, IO<llfflpl, wath .a 1987 fedttal <ourt order
that r~und ti to rNUCe pnson own-

1•

aowdanc. 11w lt1isl.a1urc: pd: a cNftl
on tht IOU( inm.atc: popul.alJDD. stttifti
ii al 97 pttemt fJI up.acitJ.
-n..t temporarily $Dived the
probkm of ovtrcrowd.lfll. but II had
an obvious dftcl on scn1encm1
pncben.• Lubiu s.aid.JYd1es. a . ~
shorter Rnlitn(e5 and puak ~rds
released lftm.lltcs at MIC:h a rQIII ntc
dut httwrm 1917 and 1990 1M
.1~ra1e timt acned declined from
◄ 0 10 2.~ p:rctnt of lht onpw sen•
tcncc. Actual limt Krwd no- hu
fallmlOll- .. thcorip>,I
KOleDot. at the Clllllrissioa pr~

jtctl, 1h11 widlOIII. sadcaan,: ,dorm

it would haw: falaa 10 ant, 12 per·
cadwithiD~,ean..

·-

For-.crimes,.t.:abitisaid.a

..,..,......_ ..... .,..........
petMDll:lllaadeo~yarsofimpriloammc lJpialywoullfbe out iD

......... _,.

lbdiCaralim~22.115........
ia llaie airilcllll. ..... ii 113 percat.

"'~-Ao-741cnarcbtiac--lmdtrOJlllnclin
Nl.of«atc~

k_,_11m-.., ...

-i..1na1,..
..............
.....,.oo1_,............,

- ____----.........................
_____-___
.

.,,:11chtd 111 ~ dt:ft'lldmc"s cnmma1
~('C"l>fd lh;-!lu,:h II PQlnl S)'Slaft.
0.. lht ld1,,. d.thr:chut ii .a
hs1 of crime catraorin,. raazi.aa:

._lndAUinz..__
rolowdl!lnud.......,. ... _

... ..,...._......
.......
... ............
...........,. n.e-. .....

de\11£1apa1 a maipu1u simubition model of aeak:oca O:i.at. at lull until lhe
Jal'2000. wiJI nal Galt an or:ru
ofinmata.D'IU'thtrunbcrol.~

,,womdne,anfrmnaowil

loab. ~ wil elCftd ... capaci-

.,._ ... .......,.. cao ...... ......

th."lJUp,._.convictioa&.· . .

Rlllaac:afunlM:ror buildlmottpria,-

"1'eama!dleothc
rad),lo--ajudr<
....,;,,....,.
..
1k aimt to the ddamnr: 11 Jrim'

GIII..

Bul:.t.mJ'DIIUW'lolad:it..,_,-.
bcp ID ICC lilt.._ ma ISIOCUI·

... ....__

.. find • -

-----

~~•bl~

F«-.i...iD.-•
bur.._, u4
an-.1-.,.
...... - .........
natto144
cludts fan1-de1rce

to55AIOlllbs...._

a11ravatU11 or naitiptiq ciraa.anc,s. n.. ,aca1 , _ 1or a...i o

That ii for l0CX'tJ to detide.-

~
,..• ...,1ar_ ...... ......

........ .., ....... .....,_

___

.....................
- -...
nil
..................
_,...
......... ... ...
State Rep.

lbdd•r. •M

............p1a, ... _ ..id

IO...._IOme,,..raomca•wi-

oknt and rtpaf offmdtr1 .and rs...,,:;.
Inf 10 allow nonvioltnr olfenckn 10 bt
p.wshed morr lirMtr.

However. Alvin J. Bronstein, e.xecutivr di:-«lor of the Ame:nc.an
Cn-il LDeniits Ur.Kln"s Nuiorul f"ns.
on Projecl. w.id, ""Thtrt's II s.chi:ophrcniJ. 1ou11 around 1hr Un1ttd
Sutes on this fsmtenciniJ. Many
states rc.a.l&J.t contttions CMl5 a:r
out al control and lhty"rr looluna for
to 1..1vc: monry. But ,1 the
umc time lhty"rt 1.1Jk1n1 .abot.it
'thr~ strikes .a.nd you"rc: ou1; trearinc juYCNJcs <lli ...duh:; 1.nd jamminc
111:-"0U,h other Ltws. 1h.at \l·JJ pell up
lhe fpri$0r!J cow. •
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••rs

A CITIZEN'S GUIDE TO
STRUCTURED
SENTENCING
FOR FELONIES

PREPARED BY:

THE NORTH CAROLINA
SENTENCING AND POLICY
ADVISORY COMMISSION

pns.on,; Q,d N,nc,· C. Lowt. diri:ctor
dthcC,ocn<1ion5~1•1avn.
in.a.I ,mKt p,anntrshi-p prOftun.
Ahhourh the nrw s.entencitic t,w

rttt~ s.uppon:..:..from bbc-r.als who
fzvor .ah.rmativcs to i.·,c.arccr.alicn to
con5ervativrs who applauded the
10-..1htr sentrncts f:-r vdent crimir\W-it WU not •i.thoul its critics.
Thcs.c indudrd same Norlh CuolN
judftS 1"bo Cell lht and
100 nalld and took away 1hci, cbscreticn.
and rictitns' rictns .advoc.ates..
-"What I worry about is 10mC hlt~uucnt sittint at a rotnpu1r1 ..;,.
q, "Well. lefs s«. Wh.a1 sp,la' do
~ h.aw •vai!ablc: next wuk.'" And
thm I memo ron out urine th.a1
c:.ify 200 beds arr avail.able and wr
■ ted to lowtr kntencr, some

,-.a,

more."' u.id Catht-rin,e: G. Smith. e.1•
ccvtiw dsrtttor cl lht North Urobn.a Victim'Assisl.Aner NtlWOJk
"We ~ea.ate tht (~I thi1 thty
art add,euinc IM.h in s.cntf'ftcina .
bc,t ,-OU loot It that lfid and )OU Iott
IMI there an: roin, lo be: .a lot cl

=i::-~!::l'

lO do

any

P.O. BOX 2472
Raleigh, North Carolina 27602

919-733-9543
1be Honorable 1bomas W. Ross

Olairman

Robin L Lubitz
Executive Director

156

155

QUESTIONS AND ANSWERS

INTRODUCTION

WHAT IS STRUCTURED SENTENCING?
For several years, the criminal justice system in Nonh Carolina has

been in crisis: sentences have lost meaning, offenders serve only a
fraction of their sentence, misdcmcananlS spin in and out of prison,
probation violations have escalated, and alternative punishments
arc undermined by a lack of credible enforccmenL

Structured sentencing is a new way of sentencing and punishing
criminals in North Carolina. Offenders are classified based o.-~ the
sevc,rity of their crime and on the extent and gravity of their prior
criminal record. On the basis of these two factors, judges are
provided with a range of sentencing options. These options
prescribe the type and lenglh of sentences which judges may
impose.

Against this background, lhe General Assembly created the Nonh
Carolina Sentencing and Policy AdviSOI}' Commission in 1990 to
make recommendations to restore rationality, order and truth to the
criminal justice system. The recommendations of the twenty-eight
member commission were reviewed, amended, and adopted by the
General Assembly in 1993. These new laws, called "structured
sentencing", were funher revised and refined during the Special
Crime Session in 1994. The new sentencing laws apply to all
felony and misdemeanor crimes (except Driving While Impaired)
committed on or after October I, 1994. The laws arc based on the
following principles:

WHY WAS STRUCTURED SENTENCING ENACTED?
Structured sentencing is designed to help the State regain control
over the criminal justice system and to restore credibility lO
sentencing. Structured sentencing sets priorities for the use of
expensive correctional resources and balances sentencing policies
with correctional capacity. Under structured sen1encing, parole is
eliminated and truth in sentencing is restored.

• Sentencing policies should be consistent and certain:
Offenders convicted of similar offenses, who have similar
prior records, should generally receive similar sentences.

IIOW ARE OFFENSES CLASSIFIED?
Offenses are classified into letter categories (from Offense Oass A
through Oass I) depending on the severity of the offense. Crimes
which involve victim injury or the risk of victim injury arc
assigned to the highest offense classes. Property crimes and other
crimes which do not normally involve the risk of victim injury arc
assigned to lower offense classes.

• Sentencing policies should be ttuthful: The sentence
·imposed by the judge should bear a close and consistent
relationship to the time actually served. Parole release
should be abolished.
• Sentencing policies should set resource priorities: Prisons
and jails should be prioriti7.cd first for violent and repeat
offenders and community-based programs should be first
utilized for nonviolent offenders with little or no prior
record

HOW ARE OFFENDERS CLASSIFIED?
Offenders arc classified into one of six priO£ record categories
(from Prior Record Level I through Level VI) depending on !be
extent and gravity of their prior It:COrd. Offenders with violent or
extensive prior conrictions arc assigned to the higher levels, while
those with no prior convictions arc assigned to the lowest level.

• Sentencing policies should be suppomd by adequate
prison, jail and community resources.

27-255 - 96 - 6

'
-

-~-

~~-~-··-~---

158

157

WHAT IS A COMMUNITY PUNISHMENT?

IIOW IS THE TYPE OF SENTENCE DETERMINED?
Under sttuctured sentencing, there are three types of punishments:
active prison sentences, intermediate punishments, and community
punishments.
·
Offenders convicted of crimes in high offense classes .Q!: who have
high prior record levels must receive active prison sentences.
Offenders convicted of crimes in low offense classes and who have
low prior record levels must initially receiv.! in~ediate or
community punishments.· For offenders who fall somewhere in
between, the judge may elect to impose either an active prison
sentence or an intermediate punishment.

WIIAT IS AN ACTIVE PRISON SENTENCE?
An active prison sentence requires felons to be incarcerated in a
state prison facility.

WHAT IS AN INTERMEDIATE PUNISHMENT?

An intermediate punishment requires the offender to be placed on
supervised probation, and the term of probation must include one
or more special conditions. These special conditions may include
boot camp (a regimented militazy style training program), a split
sentence (a stay in jail followed by supervised probation),
electtonic monitoring (monitoring the offenders movements through
the wearing of an electronic device), intensive supervision
(requiring very close supervision and daily monitoring),
commitment to a residential center (a highly supervised and
structured program requiring overnight residence), or commitment
to a day reporting center (a highly supervised and structured day
and evening program). These intermediate punishments arc more
restrictive and controlling than regular probation but less costly
than prison. They generally require offenders to behave, work, pay
restitution, and participate in drug treatment or other rehabilitative
programs.

A commuruty punishment is any other type of sentence which docs
not involve prison, jail. c.- 1U1 intamcdiatc punishmenL Most
people think of tins as Kgular probation. A community
punishment may also include fines. R:Stitutioo and/or community

service.
HOW IS THE LENGTH OF THE PRISON TERM
DEI'ERMINED ENDER STRUCTURED SENTENCING?
Today, judges impose a single prison term. Under structured
sentencing, judges impose bocb a minimum and a maximum prison
tcnD. The length of the minimlDD and maximum terms depend on
the offense class, the prier record level, and the presence of any
aggravating or mitig.ating factors.

For each unique combination of offense class and prior m:ord
level, three sentence nnges arc pa:scribed: a presumptive range for
normal cases. an awavatcd range for cases where the coun finds
aggravation, and a mitigated rangic fc.- cases where the coun finds
mitigation. The judge selects a IIWUDIIDD prison te:rm from one of
these three ranges. Once the minimum tcnn is set. a maximum
term is automatically set by statute (at least 20% longa).

HOW MUCH OF THE PRISON TERM MUST BE SERVED
UNDER STRUCTUREI) SENI'ENCINGt
Today, felons sentenced to prison acne less than one-fifth of their
seorencc due to rcdwctioos fcJr good time. gain time, and parole.
Under strucnued senseocing. good time. gain time, and parole arc
eliminated. Felons scorenccd fO prison must serve their entire
minimum term and may scnc up to their maximum term if rhcy
misbehave, fail to "10lfc, c.- ld"use to participate in specified
programs. Upon re.lease. offcmc:rs convicted of more serious
offenses must be placed on post-release supervision.

159

WHAT IS POST-RELEASE SUPERVISION?
Post-release supervision is a mandatory tenn of supervision
following release from prison. The offender's behavior is
monitored in the community and supervision is provided to help
the offender reintegrate into society. The offender may be retwned
to prison and serve additional time for violating the post-release
conditions.

HOW DOES POST-RELEASE DIFFER FROM PAROLE?
Like parole, post-release supervision requires the offender to be
supervised and monitored in the community. Unlike parole,
however, the offender is not released from prison early. Postrelease supervision only applies after the offender has served his
prison sentence.

WILL THE LIKELIHOOD OF IMPRISONMENT CHANGE
UNDER STRUCTURED SENTENCING?
Under structured sentencing, imprisonment is mandatory for all
offenders convicted· of crimes which carry high offense classes
and/or have high prior record levels. Compared to today, the
probability of going to prison will increase for these violent and/or
career criminals. Conversely, offenders convicted of crimes which
cany low offense classes !nd who also have low prior record levels
will be less likely to go to prison than they are today.

WILL THE AMOUNT OF TIME SERVED IN PRISON
CHANGE UNDER STRUCTURED SENTENCING?

In most .:ases, the sentence imposed by the judge will sound
shorter than under current law, but the time actually served in
prison will be longer (because of the elimination of parole and
other early release mechanisms). Compared to today, the average
actual time served in prison will increase for most offenders
especially for violent and career criminals.
'

160
HOW WIU NON-PRISON PUNISHMENTS CHANGE
UNDER STRUCTURED SENTENCING?
The minimum and maximum prison tam is suspended if an
offender is sentenced to an intermediate or <Xllllmunity punishmenL
However, if these offcndcrs fail to obey conditions required as pan
of their puni~hment. they may be held in contempt of comt and be
incarcerated for up to 30 days in jail. or the judge may activate the
minimum and maximwn prison terms. H the prison terms are
activated. the offender must sa:vc the entire minimum term and
may serve up to the maximum tcnn. Offenders will now know that
if they fail to abide by the conditions of their non-prison
punishment. they face certain imprisomnenL

HOW WIU STRVCTURED SENTENCING AFFECT
PRLSON POPULATIONS?
Structured sentencing is calibrated to make sure sufficient prison
capacity exists to back up the sentence imposed. When current
authoriz.ed prison construction is completed. the State will have
capacity for over 30,000 inmates This represents an increase of
more than 50% compared to just four years ago. Populations are
projected to remain within expected prison capacity over the next
five years.
Howevc:c, afta- five years. additional prison
construction will be oecessuy to support structuicd sentencing.

HOW Will STRUCI'IJRED SENTENCING IMPACT ON
NON-PRISON PQPliLATIONSt
Structured sentencing is expected to increase the number of
offenders initially sentenced to in1em1edia1e punishments. In
response to this increase, the General Assembly has funded the
hiring of about 500 new probation positions to provide enhanooi
supervision of these offenders. Fmtbcrmorc, under the recently
enacted "State-County Criminal JllStice Partnership Act". COUDties
arc eligible to receive financial grants to help develop supplemental
community and intomediatc prognms tailored to local needs.

161

SUMMARY
Structured sentencing is designed to restore credibility, rationality,
truth and cost efficiency to our criminal justice system. It is
intended to help accomplish the following:
• Increase consistency in sentencing. Similar sentences are
prescribed for offenders who commit similar crimes and
have similar prior criminal records.
• Increase the certainty of the sentences. The system
means what it says. Offenders will know that there are
real and certain consequences for failure to obey the law
or to comply with criminal justice conditions.
• Establish truth in sentencing. The system says what it
means. The offender must fully serve the minimum
sentence imposed by the judge. There is no eil.[ iy release.
Parole is abolished.
• Increase punishment for violent and career offenders.
Prison is mandatory for most violent and career criminals.
Once imprisoned, career and violent offenders will serve
significantly more time.
• Efficiently use existing correctional resources. Use
existing resources intelligently and cost-effectively.
Prison is first reserved for violent and career offenders.
Non-violent offenders with little or no prior record are
channeled into less expensive intermediate and
community punishments.
• Plan for future criminal justice resource needs. Allow for
long range planning of future criminal justice resource
needs. lbis is essential to assure that sentencing policies
are supponed by adequate correctional resources.
l ,600 cop/a of this public doc111mnl wen printed u a cost of $76.7J or obo11I
S.OSptrco11

162
Senator ABRAHAM. Thank you all very much. I would like to start
maybe by focusing on the issue raised by Mr. Thomas and at least
I would like to ask a couple of the panelists here wh~ are on sort
of the front lines of tbis issue what your general views are. We
have legislation right now, of course, that Senator Shelby has
raised and introdu.:ed with respect to work iti prison.
So, Mr. Collins and Mr. McCotter, would you two take a minute
to just give us your opinion from the perspectives you represent as
to the notion of putting some tough prison work requirements into
play?
Mr. COLLINS. Well, I would say that what is most important is
to eradicate the misconception. Inmates do work. ! think there has
been a lot of discussion about the fact that there is a perception
that inmates generally don't work, and that is simply not true. Virtually every State in the Nation has a very sophisticated system of
job placement for inmates.
Those jobs are based on the needs, in great part, of the system,
as correctional administrators were very sensitive to budgets and
the fact that inmate labor should be used appropriately to offset
the cost of confinement, and we try to do that and we try to do that
in a businesslike atmosphere.
To expend money on makeshift jobs that have no real meaning,
I think, is totally inappropriate. To arbitrarily set a number,
whether it be 48 or 60, as the work week may not necessarily
speak to the needs of the system or to the citizens that that system
serves. So I think it is very important that we look very closely at
any requirements that tie correctional administrators' hands to
some goal that may or may not be achievable or realistic.
Senator ABRAHAM. Mr. McCotter?
Mr. McCO'ITER. I would also speak to that perception. I think
that anyone ihat runs a prison system that doesn't require all
work-capable inmates to work is asking for some very, very severe
problems in security, everything from problems with inmate-on-inmate situations, et cetera. So inmate work programs are absolutely
essential to any good, safe, secure, constitutional prison system.
I think that any legislation that ties our hands-and I certainly
agreed with a lot of the comments that Mr. Thomas made- those
restrictions really hurt us. Prison industry programs-and this was
very, very big in the Federal Bureau of Prisons years ago-I think
have been cut back a lot because of Federal regulations that have
been passed.
I think right now we average about 5 percent of all inmates in
the Nation are involved in some kind of prison industries program.
In the State of Utah, we have increased that over the past 4 years
to approximately 15 percent, but we are in competition, then, with
private industry and they have a tremendous lobby and we have
a lot of problems in that regard.
But I think we need to do everything that we possibly can to try
to reduce the costs of incarceration through inmate work pro~,
and I hope that we do not get our hands tied any further with Federal regulations that keep us from doing that.
Senator ABRAHAM. I was going to ask Mr. Thomas to respond, so
please go ahead.

163

164

Mr. THOMAS. Thank you, Senator. I didn't mean to beat you to
the punch. In the comments made, a couple of points were raised
that I thought might deserve some elaboration. I certainly didn't
mean to suggest that prisoners today do not work. Certainly, some
prisoners work. The problem is that because of the Federal statutes
I discussed, the percentage who work is very small. The figures I
have seen most recently in Texas showed that only 8 percent work,
and that is hecause of Federal laws. That is not because of State
prison officials. Their hands are tied at the Federal level in a classic instance of Federal big government which has clearly outlived
its usefulness. We are talking about New Deal laws that, if they
made sense 60 years ago, clearly do not now.
I also agree make-work is not a good solution. Prisoners generally, like the rest of us, are no dummies. They know when they
are being given just make-work and they know when they are
being given something that is meaningful and productive, and I
would certainly urge that they be given full-time productive jobs of
the sort that I refer to where prisoners will be involved in industries that are competing not with workers in Detroit and Pittsburgh, which might have been the case 30 years ago, but with
workers in Hong Kong and Mexico City, as it would be today if the
proposal that I outlined and that Senator Gramm has endorsed
were considered and implemented.
Senator ABRAHA."\f. Mr. Collins?
Mr. COLLINS. Just one point of clarification. Only about 8 percent
of our entire population is actively involved in one of the 45 dif.
ferent industrial plants. Overall, 84 percent of our inmates are actively involved in either some kind of construction work, agricultural work, or a variety of types of occupations that are required
to maintain our facilities. In fact, the State of Texas actually has
a program where we work our death row inmates. They have a garment factory where they make clothing.
Sen!ltor ABRAHAM. Mr. Cole, would you want to comment on that
at all?
Mr. COLE. We do have one of the only private programs that I
am aware of, a work industry program where we have brought people into the facilities, businesses, to produce printed circuit boards,
eyeglass lenses. The wages that these employees earn go to the cost
of incarceration. They go to -.ictim restitution. They go to support
their families while they are incarcerated in a trust fund to be used
upon their release. So these are all good purposes and the program
seems to be working well.
Senator ABRAHAM. Would anybody else like to comment on this?
I don't want to limit other panelists.
[No response.]
.Senator ABRAHAM. Let me switch a little bit here to Ms.
Fmnegan. Would you just comment on how your experience has
ch!3Dged your lifestyle and the extent to which-I mean, one of the
things that I think happens when we have these hearings and people ~me in. '\\i!h a perso~al experience to share is that people
5?me~es disIIllSs these things and suggest, well, it is an aberrational ~stance; this is a cna-in-a-million kind of circumstance
and it is not so1:1ethlng that affects a lot of people.

So could you comment just a little bit about your own life and
how it has changed and the extent to which, based on your STOP
program, you have discovered other people have similar types of experiences as well?
Ms. FINNEGAN. Sure. As I said, this incident shattered my life.
My entire sense o( security has been stripped from me. I don't go
out at night anymore if I can help it. I have security alarms in my
home, my car, and my office. I am scared all the time when I am
out in public on the streets. I have a permit to carry a firearm that
I carry at all times, even when I take my dog for a walk. Of course,
I couldn't bring it to this fine city, but I have to tell you, since I
have been here for 3 days I haven't left the hotel room other than
to come here because I am scared to walk on the streets without
protection.
I spend a lot more money on hotels because I can't stay in ones
with exterior hallways. I have nightmares, horrible nightmares. I
have depression from time to time, and insomnia. My whole personality changed for quite a while after tho incident. In fact, my
nephew probably summed it up best when he said to my brother,
why did that bad man have to take Aunt Kathleen away from us,
too, because I no longer wanted to play with them or have fun with
them anymore. So it totally changes your life. Your sense of security is gone.
I am, as I said, one of thousands. Aa the spokesperson for STOP,
I travel .throaghout the State of Florida, and there has not been a
town that I traveled to that I have not heard what I call an early
release horror story similar to mine, many of them very much
worse. It is overwhelming in the State of Florida.
In our office, for instance, we have an 800 number for people to
call in. A day does not go by where we do not have a victim callin 5
in telling us they were victimized by an early-release criminal, o:someone calling to say, the person who killed my son or daughter
is about to be released, what can we do. It is a huge problem in
the State of Florida, and because of that and because of our public
awareness campaign to get this out to the people, I think that is
why Florida reacted with this tough litigation, the Stop Turning
Out Prisoners Act, req'lllling prisoners to serve 85 percent.
Senator ABRA.HAM. The number in your referendum was 85 percent, which is the same number that we have been talking about
here today with regard to the 1994 crime bill. What are your
thoughts with respect to some of the difficulties States have hitting
this number? I mean, how is Florida going to try to meet this target, and what comments would you have on how we might address
some of the concerns that Mr. Collins and Mr. McCotter and others
we saw on the earlier panel-I think anybody who worked in this
area sort of said they felt that the number was either unattainable
or unattainable in a timeframe that would allow them to benefit
much from the bill that was passed.
Ms. FINNEGAN. Well, I can tell you in 1991 when we first starte<l
STOP, inmates in Florida we1~ sometimes serving less than 10 percent of their sentences. As public awareness grew and our legislature started to bit the bullet, tht.y are now up to about 50 to 60
percent, and they have said they are spending the money for the
prison beds to ml!-ke sure they serve the 85 percent.

Wlliif'<;-HtiDSiti:¼C ~ ,. •

166
165

t
1·

I think the reason is because, finally, the State of Florida has realized that the cost of housing prisoners pales in comparison to the
cost of crime. You have to take into account the increased insurance rates. The cost of products is higher. Medical care is higher.
So when you look at it in those perspectives, I think you can see
that the cost of housing the prisoners is not that great in comparison to that.
Senator ABRAHAM. Mr. Collins, what is the sentiment in Texas?
I mean, you indicated earlier you di4n't think the voters would b_e
satisfied or would settle for a situation where you spent an additional, I think you said $1.5 billion over 10 years.
You know, I think in my State people might not equate it the
same way. I mean, you have higher levels, though, of incarceration
than most of us do. Do you think the voters feel that Texas is at
a reasonable level? I mean, just give me some thoughts on that.
Mr. COLLINS. This construction program, I guess, really began in
earnest about 4 years ago, and there was a perception by most, if
not all, citizens that Texas was an unsafe place to be. You are very
correct. The citizens at that point in time came out and voted overwhelmingly for huge bond obligations to construct prison beds, to
date to the tune of about $2 billion.
In my remarks,· I did not-want to insinuate that they would not
again pass the needed bonds to build the additional 78,000 beds.
I believe there still is a sentiment on the part of a number of Texans that they will continue to pay for confinement. Our own projections indicate, regardless of the 85-percent rule, that we will have
to continue to build beds, as many as 20,000 additional beds, under
our current sentencing structure by the year 2000. So we are still
not out of the construction business.
Senator ABRAHAM. How much of that is demanded by this court
order or the consent decree that we heard about earlier from Senator Hutchison? I mean, is that a problem?
Mr. COLLINS. There are certain aspects of the Federal litigation
that impact and actually have had a financial impact on, obviously,
the cost of construction. The actual pressure for beds was created
by the Texas Legislature by strengthening sentencing and requiring to date a SO-percent minimum mandatory of sentence served
before parole eligibility.
One factor that I didn't bring up that actually \\<ill tend to in the
future cause longer sentencing, maybe not to the 85 percentile, is
the fact that we have a parole release rate for violent offenders of
under about 12 percent. So even though they are becoming eligible
after 50 percent of sentence, there are probably going to be many
years of parole denial ahead for each one of those people.
Again, I think the real issue is-again, in our position, the fact
that Texas does give longer sentences makes the 85-percent rule
unworkable because I think you reach a saturation pomt. At some
point, 50 percent of long sentences gets so long that the pen,on
committing that kind of crime will be in prison the rest of their life
anyway just trying t.o satisfy the minimum mandatory sentence.
Mr. LAMB. If I may just say one thing from the North Carolina
perspective, we have built more prison beds and probably increased
the number of prison beds 25, 30 percent. We have also come up
with the community corrections legislation which seeks alter-

natives t.o incarceration for those who are not necessarily a threat
to society.
Also, whereas a class H felony used to be a maximum of 10
years, and they would serve a year, under structured sentencing it
may be now that the grid takes them anywhere from community
penalty to 8, 10, 12 years, or somewhere in between. So I think it
is hard for legislators in these States to cut what was a 10-year
sentence and potentially cut it down for a second offender to a
maximum of 4 or 5 years. But the fact is, under the 10-year sentence, they were only serving a year anyway, so truth in sentencing
is what it is all about.
·
Senator ABRAHAM. We are coming up t.o the very end. I just want
to go back to Mr. Thomas for sort of a final comment. I am intrigued by the notion of trying to identify prison industries that
would be noncompetitive. We in my State have; of course, as one
of our proud indigenous industries the furniture manufacturing industry. So clearly, there are a lot of people in my State who would
not be happ;y if suddenly we made building furniture a prime occupational activity of the people in the Mi~~an prison system.
But I think the notion of trying t.o identify the kinds of work that
maybe have left our shores is the right way to go. Have you
thought through and has your State looked at the feasibility of trying to target those kinds of industries as a way of kind of getting
the best of both worlds?
Mr. THOMAS. Yes; in Arizona, for instance, the Department of
Corrections does have one program that is run out of Winslow, AZ,
which was made famous by a rock song, but not much else, and it
is attempting to take back, I believe, a minor electronics niche in
the market from Taiwan, I believe.
·
I spoke to the deputy director of the department recently and he
said that they are having some success. He thinks that once they
expand and become a bigger operation, the economies of scale will
kick in and they will be able t.o compete better. But, again, that
has to be done within the purview of the current law, and that only
allows for for instance, 50 non-Federal work pilot projects t.o be
doing that sort of thing. It is on a very small scale, and w~t I am
talking about is just taking these laws off the books, penod, and
having Congress perhaps target certain industries. where there are
numerous jobs that could be brought back to Amencan shores.
Senator ABRAHAM. I recently saw a little story about the fa<:t
that one of the longtime American success stories in terms of business manufacturing had gone, I think, t.o Korea or to China, and
that was the manufacturer of Barbie dolls. It occurred to me that
if we had prison inmates in this country manufa~g ~arbie
dolls inside the prisons, and took photos of them domg this,_ we
could certainly affect their ability t.o go back into their old ne!ghborhoods and be very inti1J?.i~ting if pictuI"el! of ~em with little
Barbie dolls were widely distributed. So the idea, In general, appeals t.o me as a way of trying to deal with this.
We are at about 3:55, and I regret to say that I actually have
another event I hsive to be in charge o~ here in. a few ~utes. 8_o
although I have some additional Q.Uestions, w~ch we will submit
t.o all of you in writing, I have to bnng the heanng_ t.o a close. .
[The questions of Senator Abraham are located m the appendix.]

167

Senator ABRAHAM. I would also like to just apologize to this
panel, as well, because other members clearly, because of this
morning's votes, got, I think, off on different derailments here and
could not participate. But we will certainly make all of the other
members of the committee aware of the nature of the hearing,
make available to them the hearing record, and also encourage
them to submit questions pertinent to the issues that were brought
before us.
I thank you all very much for being here, and the hearing is adjourned.
[Whereupon, at 3:56 p.m., the committee was adjourned.]

170
Question 3. Are you aware oi any correctional facilities where genuinely uncivilized conditions persist? Do we need federal judicial oversight to prevent this from
occurring?

APPENDIX
QUESTIONS AND ANSWERS

~POSSES TO QUESTIONS F'RoM SENATOR ABRAHAM TO LYNNE ABRA.HAM

Question 1. I understand that the 1994 Crim Bill
d
the release order problem. Why had this failed~ d ma e dsome extort to address
gress need to do to make sure that we really put a si:p ~ ~?what more does Con_Answer 1. To my knowledge no ~sdiction h d
full ·
•
Bill to halt prisoner releases required by a fede:.U : ~ s rd Y usedLe. th
e_ 199:i <;:nme
O
federal court orders are especiall eecled
er. g,s1ative limits on
~ral litigation. Those cases whele ncontroi!" ensure reasona~le l.i.tcits in some fedJu~ most likely _to _seize on legislative loo ~l,:::osib:8f~alC '!ftenBbeillfore t.h?se
contains some amb~ties makina: ·t
. (o . ·
. rune
proviS1on
~mber 13, 1994 Philadelphia fileil 1 ~er or Judges to avoid the statute. On Sep~ the Philadelphia prison litigatio: ¥::'e
~ cornt decrees _entered
City's arguments based on the 1994 Crime Bill. J ge
re used to consider the
I ~ the Senate to amend the 1994 Crim Bill
· ·
·
remedies in prison litigation to addresse
e
8iroV1S1_on rela~ to appropriate
ample, the 1994 Crime Bill addresses E!ghJ:e,,!:p ~s 10 th!'-t legislation. For exsentence prisoners, but did not explicitl addres dn ent clBllD81 the standard for
for _pre-trail detainees. The 1994 Crime ~ill did s t
proceldssfincls.un_ s, the standard
mg", thereby permitting courts 8
. no ear Y e e the term "reopen1
ing order. Co
needs
also
lDlp
Y
to
review
rather
than m<Xlify or vacate exist88
lief. Federal ~ctive relief m~set cle8! standard fo: federal court injunctive restate law enfon:ement interests
mtod!~unt !I"po~t public safety and
consent decrees to i ~ thast ~ lirruts_onjudicial orders,
bespecially
ased upo
t w, ' ·
~= .-mansedta tiintedecorrectional
practi
administrati~~~=ntoan~~d~~P".'Pria~ly b_ind successor p~!fti~
state officials, who are r.ot necessarih
.
ention_ 1;ght:s 1D order to allow other
cha!Jeuges to those consent dee
parties to ~e. litigatio1_1, to raise appropriate
regard the state's own system ofcli'eckse P~phia 8 , that violate state law or disof atto"?ey fee practices and confine the ~le of Sn~ ~ogress needs to limit abuse
Questum 2. Are there any circumstan
. ~1
asters.
priate. response to prison conditioill!? ~t'n i!hi~ a release order is the approremedies are available for overcrowdhig? a a ut mmate caps? What alternative
Answer 2. Federally ordered rel
· f ta
.
~efensible. Often these orders refl~ '}. 8 te and !peal ~ates are almost never
;uldgment as to appropriate detention or ~~tiurt s dliesire l? s:ubstitute its own
ro e for the federal courts.
ons po cy. This 1s an appropriate
The federal courts have many ti
th
lati~n caps are imposed, leading (;,P ~ns at 1are all to often ignored before poputo 18S\le declaratoey judgmenta cJnrlBODer re eases. Federal courts have the power
lines to remedy any unconstitutional i:~tit:c>IY mlfonthetary damages, ud monetary
courts can iaaue limited · "uncti
•
ons.
eae measures fail the federal
claasilidvcation, priaoner ma~em:t~:i~~dme:-ing:alissues. such' u prisoner
any a el'Be effects from increases in th
.
an ~ ~ce. that mitigate
oner releaaea, if necesaary at all m·· ... bee pnso~pulation. Prison caps and pris• .....
a
of absolute last resort.

r.:1ii~"::r
~r

c;~
ilk

rem-,

(169)

Answer 3. No. The presumptie>n that federal judicial oversight is necesaary to prevent uncivilized prisoo. conditioJU is inaccurate. Given the rise of correctioill! professionalism, priaoill! today are a iar cry_ from the abusive and inhumane prison systems found decades ag,o. While 8'<>me abuses still exist, they are the exceP.tion. H federal intervention is ne,c:essary, it should be focused and limited to identifiable violations of federal law. Sweeping federal court orders that micro-manage state or local
prison systems are abDoet never necessary. State C')Urta and inmate grievance procedures also/rovide adequate reemedies for mOllt inmate claims.
Question . Under what circumstances, if any, do you think local authorities
should consent to ceilimgs enforceable by release orders?
Answer 4. Never in ~e federal courta. If any population limits are neces~ they
should be the product of self-regulation b,v state correctional officials in accordance
with state law. Federal consent decrees with population ceiling often disregard state
law limitations and do not permit correctioill! officials to readily change their policies when the circumsbnces change.
Question 5. Can you. ~ n e circumstances where consent decrees would actually
impinge on prisoners rights.
Answer 6. Yes. Con.sent decrees often are the product of plaintiffs lawyers ·bargaining away immediate remedies for immediate problems in exchange for longterm control of prison manage~ent. In Philadelphia, for exampie, the federal court
order did not addreas substantial problems with medical care, but instead focused
on issues clearly unrelated to prison conditioill!. The Philadelphia federal; court became extensively_ involved in the construction of a new criminal justice center, even
though that facility did not contain one prison red. The federal courts should be focused on whether there is a vic.lation of federal law and, if so, the expeditious and
narrowly tailored remedy for that violation. Permitting federal courts to micro-manage prisons removes the federal courts from its proper rol-8.qjudicating constitutional questions and remedying -them.
Question 6. How do decrees infringe on state and local authorities' "ffwers? Does
that distinguish these decrees fr-om p1ea _agreements in individual cases.
Answer 6. Consent decrees n»utinely infringe on state and local authorities' powers. Oft.en parties to C4>nsent decree do not have the power, under the state's system
of checks and balances, to agree to many provisioill! routinely contained in a consent
decree. Our states ha'Ve a delicate system of checks and balances which is designed
to prevent one branch of a government from exercising power in a way t.1:at is not
monitored or controlled by another branch of power. For example, there IS no one
segment of local state government that usually has the power to appropriate and
s~nd without restriction, taxpayer money. Correctioill! officials can, however, essentially give themselves that power by agreeing to a consent decree that requires them
to expend funds in a particular manner.
Consent decrees vastly from !Settlements ~ e n t s in individual cases. Consent
decrees often bind persoill! who were not oriltinally parties to the litigation. Consent
decrees often have ne> time limit, and therel'ore affect prisoners who were not even
incarcerated at the ti.me of the consent decree.
At the recent hearing on Senate Bill 400, people analogi~ed C:')nsent de<:rees to
plea bargains in criminal cases. Consent decrees are ~ y qwte diff~nt.. With consent decrees, attorneys bind persol_lS who are not parties to ~e litigation or the
agreement. This is more closely eqwya!ent to a prosecut?r a ~ l? not prosecute
a particular defendan-t based u?()n his agreement that his chil~n will be o!1 _pro~tion and pay restitution. Consent deeree practices allow parties to settle litigation
by agreeing to give up rights of other persons.
Question 7. Are coru,ent decrees the only mechanis~ for sett.lin/: li~~a?on_? What
about private settlements?· 1 u.nderstand Penill!y!varua haa specific ilillltations 011
consent decreee. Could you attach thoee and describe how cues are nevertheless
settled consistent with theee limitatiom?
Answer 7. Consent dec:rMS are not the only mechanism for settling litigation. Parties retain the ability to settle civil actiom through a monetary settlement or private settlement agreements. Private aettlement agreements permit the parties makettl
contractual agreemeo.ts that are treat.4 simply u ordinai:Y C!)ntrac:ts. In a !'fl ement agreement, for example, a plaintiff' may agree to dismiss t!ie actio~ m ~char·,re for a moneta1'3' settlamant, or ~ ~ e n t that the correctio1?9_ of!ici;all w!1J
change a particular practice. The parties could alao ~ that the avil action will
be reiill!tituted if the parties do not abide by the terma of the eettlement agreement.
Theee settlement &greeJ!lerits are often ..e!iri'erable becauae they allow the govemment defendanta eome llaibility to moeli!)' terma of agreements that, baaed upon

tilirt'.tlf?fff" ~
172
171

r
I.

subsequent experiences, appesr to be unwise or unworkable. Private settlement
agreements as opposed to coneent decrees, alao get the federal courts out of the
business or' enfore,ng contractual minutia that is often far remove from constitutional requirements.
Pennsylvania, for example, limits the consent decrees that may be agreed to by
counsel for the Commonwealth. Attached please find a copy of the Commonwealth
Attorneys Act that describes these limitations. These limitations have not precluded
the Commonwealth from settling au,es. Rather, they enco~ private settlement
agreements as opposed to consent decrees. The Austin litigation, in,-olving a class
action challenge to the state corre<:tional system, was settled by a lengthy settlement agreement.
Question 8. Please describe in as much detail as you believe would be useful to
the Committee, what Philadelphia is required to do as a result of these consent decrees.
Answer 8. The two consent decrees in Philadelphia have two major components.
One is a prison po;>ulation control mechanism, whereby the prisons are precluded
from admitting or mcarcerating pretrial detainees charged with certain cnmes. For
the most t>art this is a "char-ge based" detention system. As a result of these consent
decrees, Philadelphia cannot detain persons ~ with crimes such as voluntary
manslaui::hter, vehicular homicide, most robberies, bm;:lary, stalking, terroristic
threats, drug dealing or gun charges, pretrail issues such as the defendant's dan~rousness to the community are not considered. lasues such as whether the person
lS alcohol or drug dependent, how many times they've previously failed to appear
for court, mental health history, and prior eriminal record are irrelevant to the
question of the person's admittability to the prison.
The second major aspect of the consent decree is a prison planning process that
requires the Philadelphia prison system to create and implement massive and detailed plan under the control of the federal court. These consent decrees give the
federal court, for example, total control of the construction process of the Criminal
Justice Center, even thoU£h that Center had no prison beds. Federal court control
all operational policies, all renovation and construction plans, plans for expediting
crimmal cases, and plans for alternatives to incarceration.
The consent decrees also require an extensive bureaucracy which is very costly
to the City of Philadelphia taxpayers. Each and every prison operational policy must
be formulate<! by a consultant, hired with the approval of the federal court. After
the consultant and the prison's own internal re,iew formulate an operatiocal policy,
it must be reviewed by the city's lawyers. After this re,iew, the prisoners' lawyers
and the prisoners' consultant (who are all paid at prevailing market rates by the
City) review the policy. If the prisoners' lawyers oz: consultants propose changes in
the operational policy, and the City does not agree to these proposed changes, the
operational policy is then sent to the Special Master. The Special Master (who is
an attorney also paid by the City taxpayers) then reviews the propose:i policy with
a court consultant (who is also pa.id by the City taxpayers). The Special Master,
based on the report of the court's consultant, then makes recommendations to the
federal court. The federal court then either approves or disapproves the policy. If
the federal court disapproves the polii:,, the process starts all over again.
~ a _result, each and _every operational policy proposed by the City of Philadelphia pnsons must be reviewed by three separate set.s of lawyers, three separate consul tanta, all at City taxpayers expense. As a practical matter, the federal judge,
rather than the Mayor, has the final say on fundamental criminal justice policies.
As a practical matter, the Philadelphia prison consent decrees handed over significant state law functions to a federal judge. Successive political administrations are
powerless to overturn thoee agreements.
. Ques(10~ 9. I~ YO?J' view, are the Phila.delphia prisons subject to consent decrees
in continu,mg violation of any federal statutory or constitutional ~ment? If so,
1~ eve11_-thing mandated under the decree necesauy to remedy the violation or violatio~? Or ~o so!De or all of the requirements atem only from the decree itself? Please
specify which, if any, you believe are required to remedy or address a federal statu~l'J' or Constitutional requirement or standard that the Supreme Court would be
likely to apply.
~wer 9. In the Philadelphia _prison litigation there hu never been a trail or any
findi_ng that t!1e~ has ~n.a Consti_tutional violation. _I~ also unaware of any
specific Constitutional violation that 18 p,-nt!y occumng Ill the prisons In fact
I ~d it. would be very diffic:u!t for anJbody to succeed in c1.aiminJr tliat the Philadel'.
phia pnson syatem hall been deli~!:11.!!'!-ifferent to the needs of prisoners. Not
onl_y do the coneent dec:re. lack the
ntal fOW1dation of a Constitutional violation, the requirements or th- co1111ent dec:reee are far beyond what any federal
court could order in a litigated case where a Constitutional violation was found. It

is clear that the D'.111,jority of the provisions in these consent decrees are completely
unrelated to any federal lntereet.
Quution 10. How much haa Philadelphia spent to date in connection with these
coneent decreee? How much do you anticipate spending?
Answer 10. I do know the precise amounts of money that Philadelphia has spent
on these consent d - - . The direct ~ditures for Special Mastera, attorneys and
consultants is eeveral million dollan. Tbe new construction of the courthol.19e and
new prison is hundreds of millions of dollan.
The consent decrees have aleo led to many financial cosbJ that are impo88ible to
quantify. Penons released becaUl!e of the consent decrees have been rearrested for
tens o( thousands oi new criJmes. These new crimes result in police expenditures,
court time to proceee new criminal ~ as well as proeecutor and defense attorney
costs. In addition the increaeed crime has reeulted m untold financial 1088ell to the
victim of crime. fn addition to direct t.bef\ I088e9, crime victims also face medical
expenses, loas of earning capacity, increaeed security coats, and increased insurance
premiums. The coet c,f this kind of crime, especially crimes that affect buaineeaee
m Philadelphia, causes businesses to relocate out of the City of Philadelphia. There
is no way to estimate at this p,oint in time, the exact financial toll of these unwise
criminal justice policies. Philadelphia is a large City with a decli.ninl1: tax base. Unwise c:riminal justice policies encourage bueinesses and citiuns to leave the City.
There is no wa,- that I can calcwate thoee lOB11e11.
Question 11. How JCuch has Philadelphia spent to date on Special Mastera in connection with these consent decNe&? Are you aware of other instances involving Special Mastera that should be brought to the attention of the Committee in considenng
their legislation?
•
Answer 11. Philadelphia currently spends approximately $120,000 per year in
Special Master's fees and expenses. Attached is information relating to inappropriate expenses by a Special Master in Florida.
Question 12. ~estions were raised at the hearing regardinl!' the consistency of
the pro~ legialation with Plaut v. Spendthrift Farm, Inc. Do you believe Plaza
suggests a Constitutional problem with any aspect of the legislation? If not, please
explain. If so, please ~ t '!_hat can be done to avoid this mfficulty. See especially
the court's diacussion or Wheelin8 & Belmont Bridge Co., slip op at 22, and CollllMl
v. Dow, slip op at 25.
.
Answer 12. No. Plaut sddres&ea the problem of Congress essentially setting itself
up as a "su_per" Su11_reme Court to ovemtle an unpopular decision of the Supreme
Court. In Plaut the Supreme Court rules ~ t Congress attempted to change the_S1!·
preme Court's decieiom. by a purely retroective chanl!e concerning the statute of limitations Plaut did not address tlie issue raised by "S. 400 of whether C o ~ can
~ - the underlying substantive law which may ultimately terminate existing injunctions The Supreme Court in Rufo has made clear, however, that courts can be
required to modify or 'll'acate consent decrees baaed upon changes in the law. S. 400
proj)OIIS to do exactly "What Rufi, permita.
Question 13. What vould be the effect of limiting the legislation to purely proepec·
tive remedial ordera and consent decrees?
Answer 13. I recom..mend that the legislation limiting appropriate remedies in
prison conditions litigation should add..-ess litigation where the federal courts can,
m the future, enter orders affecting state and local prison systems. Ev~n wh~ ';OD·
sent decrees have been ap1;>roved prior to the enactment date of this legislation,
these cases are not "fi.:naJ. m the traditwnal sense. Beca~ these are ongou:,g i'!•
junctive actions with 0111going federal o~ght over local pnsons,_ il?ey do no~ 1mpli•
cate the same sort of questions illlvolved m Plaut. If one was to limit the legislation
to orders entered aft.er the effective dat.e of the legislation, th.is would not address
the overwhelming number of inappropriate consent decrees that are being used to
micro-manage state and local prisons.
Question 14. What wciuld be th.e effect of replacing the 2 year limitation on remedial orders with some kind of an obligation on the courts to terminate orders unleee
they find them nec:eeaary to remecly a Cautitutional violation?
.
AMwer 14. Conaent decrees should contain time limii;a ao that parties ca.1> terminate remedial orders Long-term consent decree& eff'eetively=udee local So"ffllment offlciall from ·
· operational: ·c:i• baaed upon
circw:nstaDCeS,
prioriti•, or funding~c:urremt stan~ make it eztremely · "cult for a government defendant to modify conaent dec:rwL
• be
A two-year time limitation clearly. notiftes all parties that theee orders will
subject to review r,er, ~ }'NZ'S., Thia tJpe or time W!llt helpe preve!1t 1 U ~ t
adminietrationa froiii being bouDII by apM1Dente or pnor ~dminiatrationa. The ~
year time limlt would mot preclude a court from contln\Ulll to enforce an order if
necessary to remedy a Constitutional viohtion.

174
173
REsl'ONSES TO QugsnoNB FRolt SENATOR Bnmr TO LYNNE ABRAHAM

Quatio_n 1. U.S. District .Judae Milton Shadur bu BUggeSted that S. 400 raises
concema baaed on impairment of the right to contract.
Answer 1. Caaelaw is e,dnmeJy dear that ~ to a consent decree have different legal entitlement. than c:ont:nu:linc putieB. eoi-nt decrees ~ ordeni of ~e
court that can be u,.odifi.ed by the court at ~ time. The arurta consistently reject
claims that modification ofcmuient ~ 'Violates the contractual rights of a party.
Question 2. Are you c o ~ aboot the Constitutional separation of power is-

su:!,_. 2. The separation of power-a iMUe is not imJllicated by S. 400 as that it
seeks to addrells only orders wtiere proapecli-.e .nlief 18 being im_plemented. S. 400
is not designed to overturn a judgment tliat ia tnly final, and Plaut v. Spendthrift
Fanna does not preclude legialation clelligDed to limit iJvunctive remedies that have
an ~ impact. It ia W!CY clear that the courts have always retained tha power
to modify ongoing iJtjuncti-ee ad:iona and can do ao on the basis of changes in law
by ~ The United Stat.ea Supreme Court bu made that clear in the Rufo
opinion that the ~ can be requin,d to vacate ir,juDctive orden, baaed on subsequent changes in the law.
S. 400 would automaticlllly terminate all remedial ordeni, whether entered by
consent decree or after a trail, after two :,,,ara.
Question 3. Doesn't tbia create a danR'l!I' of a eontinuing Constitutional violation
would mat without a judiaal remech7 Would cowta be required to hold a complete
new trail in order to continue the oraer'?
Answer 3. S. 400 would not create a danger of COlltinuing corurtitutional violati4?ns
existing without a judicial_raned:,. S. 400 doe& '!'K pnd~de _a ~ ~m moving
to reimpoae or continue relief' b"8ed upon an ongomg conab.tutional violation. In my
view no court would ever ~ that it wu powerie,ia to continue an i.ajunction necremedy an ong,,ing violation..
It is a1ao clear that the· murta -1d DOt be required to hold com_plete new hearings in order to continue reliet. This amt oL imue ~ frequently when parties
seek to enter a final iqjunction following the entry of a preliminary ittjunction.
Ofte evidence introduced in the preliminary llQlUlCtion hearing entered into the
bl stipulation at the hearing on the final iitjuDction. S. 400 does not require
duplicative testimony.

eaaary

::=;:i

8rATE OF M!CtnOA.N,
OP'ncE OF 'nIE GoVERNOR,

Laming, MI, September 8, 1995.·

Senator OiuuN G. HATCH,
Chainnan, U.S. &nau Committ« on t1w Judieiary,
Waahin,tton. DC.
DEAR SENATOR HATCH: I would like to exprw m y ~ and the Committee for allowing me to teetify on the important iaauea
during the Committee's prison refonn hearino. 1be following comtJri- my responaee to the written
questions propounded by <!ammittee member-a ~ to the hearing:
RF.Sl'ONSES TO QtJl!8TIONB FRolll SENATOR KoHI.TO MICHAEL GAOOLA

Quation 1. My question to the pa-1 is, do you believe that we ahould dedicate
a portion of prison funds far juwDile facilities? If ao, wuuld you support a bill that
Senator SJ>ecter and I introdutled (along with Senaun Cochran and Xaeaebaum) en-

titled the Juvenile Corrections Ad of 1996. which wauld dedicate 10 percent of adult
p ~ money to juftllile lilcilitiea?
Annv L The State at Mkbipn. ~ redenl ~tion which doee not tie
the Stats hande w i t h ~ to the UN at &deral IIN:DD funds. Rather, we 111pport
leidalation wbich - i d 1livvlde 81:atM with cmap)ete cllsretion u to the allocation
of'fedenl ~ flmda, le., If l&bipn wanted l.a - all or none of its portion of
federal t\mdina on ~ r.dJiti-, - c:ouJd and abould be allowed to do IIO. It
ia our paait.ion that the State. through ita Department at Corrections, !mows best
how to allocateir:i: ~

-~up~-~-.,:; -,:~rm:: ::i

~:~-=

juvenilea from a hudmed adult cdmiaal daa and the med to properly conserve

-lawenror-.twcm?
Annv 2. Micbipn - - , _ the Ulll'N80nable results ~
from the current ~ t.bat 8tata -,.rate "by Bight and IICJUDd• Juvenllii

prisoneni from adult prisonera. Similar to Wisconain, Michigan and other States'
have been subject to unreaaonable "aight and 80Und" regulations promul([ated by the
Office of Juvenile JUBtice for Delinquency Prevention, 111ch as not allowmg juvenile
prisonen, to use the aame eatiJiM utensils as adult_prisonera. These and other restrictive regulatioll8 are an ~ &train on Michigan.a correctional a.nd law
enforcement ll}'Btem& l ' d i ~ baa and continues to propose that the "eight and
aound" ~ e n t be eliminated, lllld be replaced by a less restrictive "physical
separation reguireme~t. This or a similar amendment to federal law would provide
the neceseary balance of protectimg juvenile prisoneni while at the same time eliminating the onerous and unnecessary federal regulations.
REsroNSES TO QUESTIONS FRoM $ENATOR BIDEN TO MICHAEL GADOLA

Quemon 1. S. 400 would automatically terminate all remedial orders-whether

entered by consent decree or a1ter a trial-after two years. Doesn't this create a
that a continuing constitutional violation would exist without a judicial remWould courts be required to hold a complete new trial in order to continue the

ed
0

Answer L The currect version of S. 400 requires a court to end prison litiption
involving proapective relief once the proapective relief baa reached two years m duration. This provision will ensure that all ,.Proepective relief in prison condition cues
will be limited to a reuionable amd certain time period, resulting in the _protection
of states' Tenth Amendment rights from overly intrusive federal ~
1 while at the
same time protecting prisonera constitutional lights. This result will be achieved
under S. 400 for two reasoll8. Fust, courts will always have the ability to closely
monitor compliance with any order it issues in a case. Thus, judicial remedies and
JIOWeni currently available to a court (contem~t. sanctioM, etc.) will help enaure
that any unconstitutional act.a are remedied dunng the two year period.
Second, given Michiga..n's decades long history with continuing federal court oversight of cert.am prisoM, this limiting provision within S. 400 will ensure that ju<4es
do not extend their iuruc!iction beyond proper limits. Michigan's prison li~tion
history reveals a need for ~ c Congressional limitations on proapective relief, as
the judiciary baa been unwilling to recognize the constitutional infirmities of a federal court attempting to micro-mu:iage a state prison.
Question 2. S. 400 allo-wa broad mtanding to challenge an order which limits prison
populationa. Specifically. it allows proeecutora, elected officials, and any other governmental officiala who "is or ma1 be affected by" the order to intervene. Please
comment on the im_pact of thia aection of the bill
Answer 2. Providing rianding to public officials or governmental units which are
or may be affected by remedial orders of the court will ensure that political subdivisioll8 of the state-one of the govercmental units moat affected by court ordered prisoner releases-have their interesta placed before and litigated by the court prior to
the ordering of any remedial reliu. Political subdivisions of the state, which house
the prisollll and are direc::tly respolllsible (along with the state) for the safet,Y of the
residents near any priSC>n, have a..n obviously significant interest in ensuring that
any remedial order will be the least restrictive and will adequately take into account
the safety of nearby resi dents. Hance, allowing intervention bl any of the peraollll
or entities eet forth in Section 2 of .S. 400 woulcf enhance the litigation process.

REsPoNSF.S TO QuEsnoNs F'R<>M SENATOR ABRAHAM TO MICHAEL GAOOLA
Question 1. Please describe in Yhatever detail you believe would be moet useful
to the Committee what Michigan i.s required to do as a result of theee consent decreea.
Answer L A. outlined in my wntten testimony to the Committee, Michigan is
aubject to innumerable consent d9Cl"N req1!irementa which, as interpreted liy the
court.a, go well beyond wbat la conatltutiomlJy reauired. Examples of th- estnorc!i1181'1 NClllirements each taken &om die CJml'A consent decree cue of Unu«l
Stata v. Mid&i(la.n,
caae no. 084-63 CA, include: equipping all cel1a with 1111W
electrical outleta and overhead lipt.izir, maintainini conmst.ent hot and cold -ter
~Jl8f&tw:-. repla~ old kitchen c:utti.JII boarda; purcbuing a new door f'or the
walk-In rr-r; reJl'.&lrfreplace ln~tiw final riDle monitorm, thermometer for
mechenicel diahwuher; replacing add metal ~ imerla in lllll"'@tion 10 that food
on the ~ do not touch. top ol metal elot when l.lllerted into cell; food and debris
removed li'o:n a can openar blade; Uld oukf'-cell activities Buch u P'OUP cou.uelinc,
therap1, prilOner ueoclational sro,ap meetinp, u well u other estra curric:ular act:lvithia. 'niere are man, more ezam.ples al limilarlJ ep-ep0111 requirement.a. The re-

USDC

176
175
quirementa set forth above, howewr, clearly reveal how far the courts will reach
into the daily operations oC state priaons, in the name of enforcing CRIPA.
Quution !J. In your view, are the Michigan prisons subject to consent decrees in
continuing violation oC &DJ' federal statutory or mnstitutional requirement? If so, is
everything mandated under the decree necetl8BIY to remedy the violation or violations'! Or do aome or all oC the n,quirementa atem only from the decree itself? Please
specify which, if any, you believe are n,quired to remedy or address a federal statutory or mnstitutional requirement or standard that the Supreme Court would be
likely to apply.
Answer 2. No, the M i ~ prisons which are subject to oven-eaching federal
court ecrutin1 are not in violation oC any mnstitutional or statutory requirement.
In fact, Michigan ia in full compliance with all constitutional and statutory~
menta. As evidenced by the record compiled in USA v. Michigan, the Civil Rilthts
Division obtained, throuJ.h the threat <a a CRIPA lawsuit, a consent decree wliich
outlines general unconstitutional mnditiooa {eg. unsanitary conditions) but J>rovides
a remedy which goes far iJ!!r.nd what is ~ to alleviate the unconstitutional
condition (~. •adequate• lighting in cell). However, although the consent decree
states that ,t ia meant to remedy only mnstitutional violations, the courta have interpreted the consent decree anil state plan fur compliance to require Michiiran to
remedy much more than ia mnstitutionally nec:esaary. Thus, compliance with requirements 88 minute and UDSUpported by law 88 thoee detailed in my answer to
question one stem only from the mnaent decree 88 interpreted by the courts, and
not from the constitution. Michigan has satisfied its obligations under the Constitution.
Quution 3. How much has Michigan spent to elate in connection with these consent decrees? How much do r.u, anticipate apendmg?
Answer 3. Since 1990 Midligan has spentaver $325 million in complying with the
terms of two of the mneent decrees. Between fiecal years 1990 and 1995, costs have
almost quadrupled 88 the state has mntinued to aeek,:rliance and an end to
these decades long ca&e11. A substan1ial portion of the
1995 coats have been
for PSYChiatric servicee, which mntinue to climb 88 the murt and its experts push
for the opening of more mental health beds for which there is iio current need.
Quation 4. How much has Michigan i,pent to elate on Special Mastera or independent murt-appointed esperta in connection with these consent decrees?
Answer 4. Sinee 1990 Michigan has spent aver $100,000 on court appointed expert
fees. Attorney fees paid to plaintiffs consent decree attorneys totals approximately
6.5 million dollara mnce 198'1.
Question 5. Do you have ~ you would like to add to the record regardinl(
the Department of Justice'• failure ■ctively to support the stipulation Michiitan ana
the Department had pnmowdy ~ to .-Ive the Michigan prisons litigation?
Answer 5. The Civil Rights DiVlllion■ CailUN to ■ctively support the stipulation
to diamiaa ~or portions of the USA. v. MicliiBan case is clear evidence that prison
li~~on against states ~ _not ¥ven solely by the !acts or the law. The Civil Rights
DiVl810ns rever■al oC pomtion did not re■ult from a c:banp in the facts of the case·
rather, it was a clump in adminiatration. H - , artificial limitations placed on pro'.
spective relief by Congreaa are emu:tlY what ia needed to preclude the Civil Rwits
Division or the courta from making deciaions, not premised upon the facts or Taw
which prolong theee ca&e11.
•
Question 6. Vr'hat Refbnns oC CRIPA would you proec-?
Answer 6. .Many of the amendments to CRIPA which are necesaary to strike a
proper balance bei- a atatee constitutional right to operate its {>risons without
f!'(leral intenention and a priacmen right to be free from unconstitutional conditions, are set forth in S. 400. A ■pecific time Deriod for consent decrees and other
pro■pedive reliel, and ~ BWlllinc to lacal pver11menta moet affected by
prison relief onlen, are what hi Deeded to that CRIPA ia Interpreted and
enf~ .u intended-to IIIVvide the leut n■trictiw remedy available to redress a
constitutional Yiolaticm. Otha- a p ~ t e •mendmenta -uld include: requiriq the
(NlYDlellt of a.ti! a n d ~ fees via a~~ IICCOWlt, thereby reducing the
ftnanc:i■1 ~_placed OD lupayen llf.."fndiaat" •
JaWBUita•
• • th
Attorney Generar to prvride a atate with ■pemic
th; : ,an;
e_~ner ~ to the allegedly 11-.titiition■l ~uct-prior to bringing •
~~.iu:uon ~ well ~ ~ a court to rniew the BUbataiice of the Attorney
~ • P.nt-lllinlr certification • that the ~ General can proceed with the

&:::iuding

!!Wt onlY ifhaWie ha■ ■ufficient f■dll to do ..
ti ~,_?'; What -111 be the eft'ect af'limiting the lepat■tion to purely proepec-

'-AlrA

w • ....._... orden a n d ~ ~

~.!·
The effect al limi~ reder■l legi■lation to oDly ~ v e remedi■l
....,.... •ppropriataly limit thi ovar atension oC f'eder■1 courts mto the manage-

ment of prisons. At the same time, lawsuits for compensatory damages to remedy
unconstitutional deprivations would remain a vital component to prouct a prisoner's
constitutional rights. S. 400 would not alter a courts power to award damages in
such cuea.
Quuticn 8. What would be the effect of replacing tbe 2 year limitation on remedial orders with some kind of an obligation on the courts to terminate orders unless
they find them necessary to remedy a constitutional violation?
Answer 8. Without an artificial cut-off period for a courts iuria:liction over prospective relief, the efforts by the courta and Civil Rights Division will moat assuredly continue. As discussed below, CRIPA currently places specific limitations on
a courts jurisdiction, yet court.a continue to go well beyond the jurisdictional constraints in acljudicating CRIPA actions. Hence, CongreS11 must go beyond simply
stating that courts ahould dismiss unless constitutional violations exist. A combination of this standard wit.Ji a mandBtory review period (eg., every year) may be an
appropriate avenue to follow.
All currently written, C:RIPA would appear to place a very high threshold for findinJ a statutory violation.. Furthermore, CRIPA specifically outlinee that only the
minimum corrective measures necessary to remedy the constitutional violations
ahould be implemented by the courts. Unfortunately in practice these are hollow
words to the courta Miclligan ancl other states have faced in defending against
CRIPA lawsuits. As the Committee ia aware, courts and the Civil Rights Division
have gone well beyond "tte minimum corrective measures• necessary to alleviate
constitutional violations. Judges are only too willing to continue consent dec:Nle
cases until even the smallest, most minute aspect of each prison ia to a level which
the court (rather than the constitution) considers appropriate. Faced with this situation, Michigan hae been 1n.1bject to three continued consent decree cases which have
lasted eleven years, fifteen years, and eighteen years. Amazingly, the judge in the
case which has lasted eighteen years recently ruled that he anticipates continued
jurisdiction until the year 2000! In the same ruling the judge declared that a murt
is not the appropriate forum for ha.ndling the daily prison issues which ariae in a
consent decree cue (an argument long posited by Miclugan), but rather than declining further jurisdiction, the couri: establiahed a committee of non-lawyers to
objudicaU all claima/motions which would have otherwise been presented to the hticle ill court.
Question 9. Can parties settle liti.gation through private settlements? Would the
HOll8e bill's limitations on consent decrees, which ~ interfere in any way with
private settlements? Ia there any ~nefit from consent decrees that cannot be obtained by simple contractu.al settlements, not subject to court enforcement?
Answer 9. It is my understan~ that under the House Bill private settlements
would not be subject to the limitations imposed upon proepective relief orders. As
such, if a state and the party proeecuting the case wiah to agree to a settlement
of the case which {>rovides for rem~al efforts beyond two years, they may do eo.
As ia the case in pnvate litigation, the settlement agreements are not subject to continued court supervision. 1nstead, if' a party believes the agreement is being violated, it may seek to rescind or otberwise void the agreement, and return to the
court for continued litigati<>n proceedings. If settlement is the course chosen by the
parties, the m06t appropriate vehicle would be a private settlement. As opposed to
a consent decree, a privata settlement eliminates the inherent comlicta which arise
in court proceedi.np, allowing for a more amicable resolution, and reduces the
courts and parties costs 8880ciated with obtaining the settled results.
Senator Hatch, I hope my answera are useful to you and the Committee as you
continue to work on these very important issues.
Sincerely,

MICHAEL GADOLA.

STATE OF DEI.AWARB,
DEPARTMENT OF CoRIIECl'IONS,

Smyrna, DB, Aup# 15, 1995.
Hon. ORRIN O. HATCH,
Claa.irman, Committ« on tlw . T ~ .

U.S. &nalc, Wown,rton, DC.
DEAR SENATOR HATCH: le the morcing mail, I received your kind letter thanking
me for my •ttand•nce at t.be ColDDlittee bearing on July 27. I thank you far the
opportunity to .iiare my thoughts aboiut the matten before the Committee that clay.

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177
REsl'oNSl!'.S TO Qu!:STIONS Flloll SJINATOR Kom. TO RoBERT

J. WATSON

Answer 1. Juvenile funding. in my opinion, should focus on areas o~er than construction of facilities. And, though I am MOid al• state agency resporunble for adult
offenders only, I believe the priority ~ government a~ all leve!5 sho~d be juveniles.
More should be dedicated to prevention, early detection, making children safe, and
providing life experiences that produce contributing adults.
If the focus of federal funda is c:onatnK:tion of juvenile facilities, the emphasis is
in the wrong area for eff'ectiw long-term management of youth.
Answer 2. Separation by Bight and eound is diftic:ult to implement for many local
officiala acroes the country. Many thousands of dollll1'8 have been spent building
jails and local detention facilities to comply with this requireme'!t. '.]'o _~ck away
now would be unfair to the hundreds, if not thouaands, of local Jurisdictions that
have complied by spending more on conatrudion than would have been necessary
without this proviaion.
I support the proviaiona of the Juvenile Justice and Delinquency Prevention Act
requinng separation. This is a provision al the federal law that is clearly designed
to protect Juveniles who come into conflict with the law and requu:e d~tention.
Though it 1S a problem for local law enforcement ofllcers, the alternative 1S worse.
A return to the days when juveniles had to be detained, then were victimized, sodomized, raped, brutalized an-! permanently iniured. for a relatively minor law violation, should be avoided. My advice is to keep tbis provision.
RESPONSE TO Qu&<!TION Fi!oM SENATOR BIDEN TO RoBERT J. WATSON
Question 1. S. 400 allows broad standing to challenge an order which limits prison
populations. Specifical!y, it allows pn-.:utara, elected officials, and any other governmental official who ~ or may be affected by" the order to intervene. Please comment on the impact oft.his eection oft.he bilL
Answer L I op~ - ~ the_ chal1engea to orders which in my opinion are
crafted after long and ~ t ~ Opening the challenges to an array of elected officials has the ~ t i a l of turning a reaped.able order of a federal judge into
a "political football In my experience, some focal officials do not have a long-term
commitment to gowrmnent and could use the headlines of challenging a federal
order for the sole purpose of being elected or re-elected, only to fail to provide resources, support, lll!IQlltana,, or any ongoing involwment in the matters being litigated.
A Governor is the chief esecutive officer of state jlOvernment. Other elected officiala have more limited roles. even thoae elected to statewide office. My recommendation and advice is to not broaden the opportunity to challenge, leaving thia
difficult to administer sector of government to those specifically responsible.
Al:ain, I appreciate the opportunity to provide input as the Senate Committee on
the Judiciary gives consideration to theae important matters.
Sincerely,
RoBERTJ. WATSON,

CoM.MISSIONER.

STEVE J. MARTIN,
ATl'ORNEY AT LAW, CoP.JlECTIONS CoNSULTANT,

Austin, TX, August 28, 1995.
Hon. ORRIN HATCH,
U.S. ~ Committa on 1M .Tudicimy,
Waa/iington, DC. 20610-6276

DEAR SENATOR HATCH: Thuik ,au rcr bmtina: me to testify before the Senate Judiciary C?mmittee n,prdinc the Stop 'l'IJmiDc l>ut Priaonen Act. I also appreciate
being given the o p ~ to 8.-ist you by answering the following question, poeed
by Senator Biden, that acrampuied ,our Auguat 9, 1995 letter:
REsl'oNSB TO QuEsnON Faoll 81:NATOB BIDIIN TO 8TEvB J. MARTIN
Quution 1. S. 400 allawa broad lltanding to cballenge an order which limit, priaon
populationa. 8J,ec:ifically, it
proaec:utan, elec:ted officlala, and any other 110"·
ermnental official wbo "ia or ma, be affeel.ed bJ" the order to intervene. P l - comment on the Impact altbia ~ alt.he lliD..
·
~ 1. I atzvlllrl:J IN&n that priallll amdltlom abould be handled i?1. correctional ofllciala and State Mtanie,s a-.I wbo are familiar with the conditio111

.ua..

in the system or facility at iaeue. Wholesale intervention by District Attorneys and
others will cause litigation of this nature to be more costly and protracted. Intervenors who have no responsibilitl,' for the operation of correctional facilities may be
motivated to take unreasonable and irresporunl>le positions becauae the negative
consequences of thoee positions will not aff'ect them. Moreover, intervention by the
prosecutorial arm of tlie state JD.aY cauae1 and indeed require, federal courta to become immersed in the entire spe,ctrum of 1ocal criminal juatice affairs.
The provision for wholesale intervention ia one of many misguided aspects of the
STOP bill. I am also 1{2""8tlY concerned with the provisions that limit attorney's fees
and prohibit the appouitment oi special masters. These provisions do not appear to
be in response to any identifiable problem or concern with pri8on conditions litintion and will effectively hinder the resolution of these cases and increase the bunfen
on the federal courts. These provisions should be changed to allow the award of appropriate attorney's fees and the appointment of special masters when needed.
Again, thank you for- consideri:ng my views on this important issue. Please do not
hesitate to contact me regarding this, or any other, matter.
Sincerely,
STEvE MARTIN.
REsroNSES TO Q~ONS F'Ro!II SENATOR Kom. TO KATHLEEN FINNEGAN
Question 1. Althougb the Senate soUJdit to address the problem of overcrowded
juvenile facilities in last year's crime bill, a provision dedicating a portion of prison
funds to juvenile facilities was deleted during the House-Senate Conference. So, over
the next five years, we are planning to spend $8 billion on adult facilities, with none
of the money set aside f"or juveniles. My question to the panel is, do you beliew that
we should dedicate a portion of prison funds forjuvenile facilities?
If ao, would you support a bill that Senator Specter and I introduced (along with
Senators Cochran and Kaaaebau.m) entitled the Juvenile Corrections Act of 1995,
which would dedicate 10 percent of adult pri8on mone,: to juvenile facilities?
Answer L Although l nave not reviewed the specific provisions of the Juwnile
Corrections Act of 1995. I am able to make some general statements about the issue.
Please consider m_y remarlca in that context.
First, I applaud the recognition. that juvenile crime ia a big problem acroea America and one that ia growing. Statee should (and many are) spend more dollars than
they have been on juv-enile detention facilities and alternatives for delinquents.
However, I believe that the first priority of our criminal justice system must be
truth in sentencing for adult crurun.als. Early Release sends a clear m ~ to our
youth. • • • do the crime and y11U won't do the time. Children learn from example
and a prison system that acts as a deterrent is eesential to the effort to reduce juvenile cnme.
For these reasons, I believe that the federal government needa~ut every poesible resource into the adult p~n facilities. Only when we pro
y hou.ee adult
criminals will we send a message to our youth that our society
no longer tolerate criminal victimizations. We cannot fix ~ at once, ao we muat prioritize
and I believe the $8 Billion is best spent on adult prlSOns. However, I would encourage finding other furidimg sources for juvenile facilities that do not take the money
that is ao desperately needed away from the adult system.
Question 2. Under the Juvenile Justice and Delinquency Prevention Act. in order
for states to receive gramts, they :must separate juveniles from adults in jails. This
createe 1artre problems in some niral communities, and I have heard from many
WJSCOnsin sheritra ~ these problems. For example, in some counties, sberiffil
must WJe two deputies ta drive juveniles up to six hours one way to place them overnight in an adequate separate ju-venile facility. That's quit& a strain on their reaourcee. Do you share m._y concern about the current law, and do you thinlt we can
come up with a reasonable compromiee between the need to protect a ~ juvenile. from a hudened a<lult criminal cl&Ba and the 11418d to properly conaerve ac:ane
law enf'orcement ~ ?
Anawer 2. Yea, I abllolutel,y share your coneern and do believe that there must
be a reuonable way to J)rotect bo-th the juveniles and our acan:e public Since STOP doee not really Involve itaelfin the juvenile~. I am IQff'J to uy
I am not IIW"8 what the 101ution ia, but I do agree that one needa to be IIOIJlhl

REsl'ONSES TO Qt/BS'nOINS FRoM SENATOR AilRAHAM TO ANDRBW PIYToN THOMAS

Quanon 1. Pleaae reap,nd to tbe concern that priaon labor will inerit,!lbl,- lead
to l.arp-ecale displacement of free workers by pruon laborers. Do you have any

180

179
ideas for creating a more punishing environment in our prisons without concomitantly punishing our citizenry?
.
Answer 1. In response to concerns that prison labor will displace free workers, 1t
should be noted that a mere repeal of the federal. laws prohiliiting interstate commerce in prisoner-made goods \Le., the Hawes Cooper and Ashurst-Sumners Acts)
would likely displace few if any free workers. This is because, without an eueP.tion
to the Fair Labor Standards Act (the minimum-wage law), prisoners would still be
required to receive the minimum W8f". Employers would, in all likelihood, continue
to employ free workers under th~ ~ o e s beca~ there would be no. a!1vantage to hiring prisoners. Only if pnsoners could receive less than the IDlllllDum
wage would employers be likely to employ them in any significant numbers.
Moreover Congress should create an exemption to the minimum wage only for
those priso~ers who are employed in induatries identified hf Congress aa having already !oat the overwhelming ~o~ty of their jobs to foreign laborers: Thus, o'!-1y
foreign workers would have their JObe e n ~ By narrowly -~ting such mdustries, Congress ':"'11d all'?" for the retrie~ of many lowe~-skilled i?bs to A;merica while safeguarding the Jobs of free Amencan workers. Given the mternational
economy in which America now competes, the restoration of prison labor would
mean that prisoners would be competing with workers not in Detroit or Pittsburgh,
but in Hong Kong and Mexico City.
Questwn 2. Please elaborate on your argument that prison labor is actuslly beneficial for inmates.
Answer 2. According to a 1991 study by the U.S. Bureau of Prisons, the Post-Release Employment Project (PREP), employed inmates are half aa likely to commit
additional crimes once released than are unemployed inmates. Employed inmates
are also more likely to secure employment upon release. Prison labor reduced recidi,-ism; it also instills in inmates discipline and direction, which people need to be
happy and productive in society. Employment of inmates is far more humane than
the current system of enforced idleneaa. Historically, inmates have been much
happier when permitted to work in a meaningful-way.
Questwn 3. Please comment on the advantages ~d disadvantages of private)y-operated prisons.
'
Answer 3. Like most institutions, pri,-ately operated prisons tend to be more efficient economically than their state-run counterparts. However, if r.ri..""n labor were
permitted once again under the lease IIJl!tem, prisoners could be eased out to private companies add allowed off-site under close supervision, with much the same
savings. That is, since private employers would be using rrisoners in either easel
a profit motive would be in place under either scenario. I prisoners were allowea
to keep a certain percentage of their pay depending on the quality of their performance on the job, aa well aa other perks such aa better food and rooms within the
prison, the incentives would exist to elicit from prisoners the quality of work necessary to satisfy private employers.
For further analysis of the benefits of prison Jsbor, please see my book, Crime and
the Sacking of America.: The Roou ofC!u:w8, pp. 117-23.
RESPO!iSES TO QUESTIONS F'RoM SENATOR BROWN TO ANDREW PErroN THOMAS

Questwn 1. You indicate in your testimony that there are three laws which inhibit
the expansion of Federal Prison Industries work programs. Please describe these
laws, why they were enacted, and explain their effect on prison industries. If these
limitations were restricted or repealed, what would the effect be on prison industries?
Answer 1. Ninetr percent of American inmates are unemployed, according to the
m';'St recent statistics that I have seen. I do not know the percentage for the federal
pnson system alone. The U.S. Bureau of Prisons should be able to provide this information,
Que•tion 2. Given the unique fac:ton of prison life that must be taken into account
when devising prison work program&, p l - deacribe the types of work that are best
suited for Federal Priaon lnaustries programs.
Answer 2. According to the 1991 PREP atudJ, (ederal prisoners who were employed were roughly, l1a1f' u likely to commit cnmes upon releue than were unemployed inmates. A year after rel- 6.6 pen:ent of ■tud,Y offenden had committed
11.~<µt;ional C1"U;Dea, 10 contrast to 10.1 percent of companson offenders. In other reC1diV11m atudie■ conducted by the Bureau, about 20 percent of released inmates
were revoked or rearrested within a year of their release.
rieue note that I erred when I ltated previoualy to the committee that employed
pnaoners are three times less likely to oe recidivist■. Kathleen Hawk, Dir..ctor of

the Bureau of Prisons, bu pel'l!IOnally confirmed th- reviaed figures. I apologize
for the error.
Of course, even a one-half reduction in recidiviam is a llllbstantial accomplishment
that few other pri..eon programs can claim. The study a1ao round that employed priaoners are more likely to be employed once released. ThMe findinp militate in favor
of prison labor.
·
Answer 3. Two federal laws prohibit prison labor on a broad ecale. The Hawes
Cooper Act (49 U.S.C. Section 11607), paaeed in 1929, permits states to bar the importation of prieoner-made goocla, despite the usual rule that forbids local interference with intefftate commerce. The Ashurst-Sumners Act (18 U.S.C. Section
1761), passed in JS36, makes it a crhninal offense to knowingly transport prisonermade liood.s in interstate commerce. The penalty for violating this statute is a muimum fine of $50,000 or two yea.rs in federal prison or boili. The only ezception to
this prohibition are prisoner-made goods frodticed for use by federal or state governments or thoee ~ generated by one o fifty non-federal work pilot projects whoee
inmates are paid the prevailing wage (1.e., the union ecale) . 'l'hese workers aieo
must participate ve>luntarily_
These laws were enacted at the behest of OJ'RllDized labor to protect low-wage jabe
than were then th.reatened by prison labor. Moat of th- jobs have now been !oat
anyhow to lower-paid foreign workers. For further disc:usaion of the history of thelle
restriction and the need for their repeal please - my book, pp. 117-23.
REsPONSES TO ~ O N S F'RoM SENATOR KOHI. TO ANDREW PEYToN THOMAS

Answer 1. Thoee juveniles who are prosecuted aa juveniles should be incarcerated
in juvenile facilities. This will require separate juvenile facilities supported by appropriate expenditures. /u I have not read the bill referenced in the question, f cannot state whether bl support or oppose the bill.
Answer 2. Limited exceptions for rural communities under the scenario presented
would seem apP,ropriate, However, in general, it is of course not a good idea to incarcerate juveniles with adult offenders.
REsroNSES TO QuEsT!ONS F'BoM SENATOR ABRAHAM TO TIMOTHY P. Cou:
Question I. Wha"t protecti<>n does any government, state or federal, have against
"low-ballini' bids tc> provide correctional services?
Answer I. The best protection the government has against "low-balling" is a well
planned procurement process conducted by professionals who have the total interests of the agenq ui mind, Solicitations for correctional services should have specific
evaluation critena established with points awarded for price, employee compensation, company experience an<I the quality of the technical proposal. Proposals should
be evaluated by se-ral profession.ala (i.e., procurement, legal, correctional, financial.
etc.) so that no one factor can unduly skew the process ana resultant decision. Once
the evaluation committee hll.l!I completed its task the findinp should oo presented
to a higher organization for review and ultimate selection.
Question 2. Amo~ government contracts, are correctional services especially susceptible to "low- balling"?
Answer 2. We do not feel correctional services are anymore or less susceptible to
)ow-balling than an:y other government requirement.
Question 3. Wackenhut withdrew its protest, the contract was awarded to Esmor,
and a recent 72 page INS report concluded that the company's pursuit of profit had
thwarted the government's beed :for properly performed services. What assurance
can you offer that state governments won't be at least u likely to experience the

same outcome?

Answer 3. To a very great extent we feel that the l!el[ional Office of the INS inflicted this damage upon themselves as a result of a trawed procurement proce,s
and insufficient review at the national level. If an agency is preiliapoeed to only conalder price there l1 1:10 assurance to be Riven b,Y Wackenhut Correction.■ or any otha'
company that would prevent it £rem liappelllllg again. If state
acc:ura~ ■tate their requirementa and then conduct tlie procurement proceu in a fair
and eq_uitable manmer geared to meaDingful evaluation criteria there ■hould newr
be an 1n.■tance of le>w-ballizur. We would suggest that the model Florida has developed is a great ex.unple of
to ensure equity and Cairn- in the proc:urement
or envate correctional services.
Question 4. Ia the profit motive the "beat pencil aharpener", u you put It, or la
it a doublHdged 1w-ord?

eovenunenta

now

-.-~~
182

181
. Answer 4. Our free enterprise system hes produced the most efficient and effective m9.:ket for goods and services the world has ever seen_ A cornerstone of this
system IS the profit motive. Qualified and motivated companies competing in the
open m~ket "'111 deliver. A clear statement of work coupled with a point system
for sconng th_e lml)?r'.ant feat·ll"eS of a proposal along with proper oversight by government officials will allow private companies to deliver their services in a measure.b!e way and at a price the _marketp!a~ will allow_ There are swift and severe rem":1i":' ~e ~rnment !!Pnoes can uae if contract performance is not adequate. This
~9Clpline 19 an essential part of the process_ However, the great majority of compames_ ere manag~ and o~ted in a manner so that a well-nm project becomes the
testimon,: to their CBP!'-'>!lities and allows further success_ Companies that take the
sho~r v:ew and maxmuze profits on a singular project will not survive in a competitive marketplace.
Que_stion 5. What hope does the Elizabeth experience offer that the General Ac~un~ _Office or any other govemm1;nt ~ t agen..-y "ill be effecti,·e, either
in awarding ~ontracts to the best qualified bidder or correcting non-performance of
contract requirement when that 00CU1"8?
Answer ?· ~e Elizabe~ experience is a failure of the process. It has clearly been
the exception 1f you review the history of private corrections procurements r
hopef~ that the L'<S ~ learn from this and as a consequence the process will ~
rn
'ed and theref will be no recurrence. However, there are dozens of agencies
w ,o ave _years o s u ~ experience behind them in the awarding and performance o~ pn,·!'te corrections contracts. It would be a grav~ injustice to allow the e enence ,.n Elizabe!:'1 to negate the preponderance of successful projects.
xp
Ques,wn. 6. Be.a~ states sho:tld be cllowed to uae federal money for constru ti
and ope,:ation of pnvate correctional facilities, should they first be re,;uired to
the,r procurement and contact management procedures are ad;,quate to the

1,P'11

~h;;

::::~?

• ~e~ 6. Wackenhut _Corrections would endorse this approach. Once again, we
~owd potn! o:it the Flonda approach to privatization. The creation of a Privatiza~an. Co':";"ss1on that would be ch.a.--ged with the responsibility to devc!op sc!icitae,~uate propochsals and make reco=endations (or awlll"ds is a wry positive
a nodru,proa,
...,·e approa .

Hon. ORR!.'; G. HATCH
C~.airman, Senate Ju.dicia,y Com.rr.ittee
D,rksen Senate Offi~ Building
'
Washington, DC.
'

COL1\"T\' OF PASQUOT1,.1-..;·1t,

Eli:a.!X'ih City, ,\'C, September 8, 1995.

DEAR C!fAIR.Y.AN lit,.TCH: In response to your letter of August 10 l"-"'"
1 .,
two auec:~o=..s 6".J.b 'tted b Sena H
, .::i.:,.::>, enc.Eo..,_n!'.7
Julv 27 ;ris~n reforrurm h
-~
tor erb Kohl as a follow-up to the Ccc:1mit~ec,•;
.
.
eanng, my responses are as follows:
Rs!!POSSES TO Qt)EBnOJl.'S

-~.~;.~

F'RoM SENATOR Kam. TO ZEE B.

Lt,.MB

Answer 1. On behalf of NACo
:lid
·
nile facilities pro,'ided that •t ' we~
sup;,ort n 10 percent set-e,:1de fer juveI WllS
and m
~ent
e outgrowth of a comprehensive assessment
-...iden~net"
~ concerned th~t such a provision not be us-.--d to
esscry protection· -..·ould be en ~ and other JU\-e~~- One additicna.l and nc-:dates cf the Juvenile Justice a n ~ t ~ _l"BC\Plents comply with the m,inAnswer 2. While counties favor llexibilityncyl •~ntion Act.
.
counties in complying with the mandates f th~
by ~e_ creativeness cf
kota and other states for
I
. 0
~
t. n rural Michigan, North Dapublic building,, until the eclillrrJ.P ~• ! ! . , ~ c e of!iee~ sit with ch!-ldren in local
worked very well.
appear m court. This system hns

r!,.~ ":,;,
't,

i.m';:'""'scd

....,.= ~"

tid;;8:r1c.o~~/0' i::,iting me to !er.i!y as a represc:st.etive of L'1e !1:'aticncl Associ~Sir.•:c-o·!:,·.
Cf.airman, Board f Co
.
ZEE B. L.\MB,
Ar-.d CJ-~r. Corrections S ~
1'1nt1Mwofthe.~~~:~~-==~ q>untyf,CoNC, .
..n-~"1r..c.:. ~.a:wn o
unttcs.

REsl'oNSES TO Qt.1E,STION F'RoM SE.';ATOR KOHL TO TiiE U.S. DEPARTME!-,'I' OF

JUSTICE

. QU";"tion .1: ;AftJ:iough the fi!ena~ 90'!-IUlt to a~~ the problem of overcrowded
JUvenile facilities im last years cnme bill, a pro,'lS1on dedicating a portion of prison
funds to juvenile f'acilitiea wa.s deleted during the Houae-Senate Conference. So o,-er
the next few years, we are planning to spend $8 billion on adult facilities with' none
of the money set aside for Juveniles. My question to the panel is do you believe that
we should dedicate a portion of' prit!on funds for ju,-enile f'acilitiea? If 110 would you
sup_port a bill that Senator Specter and I introduced (along with Senat.iI'!! Cochran
and Kassebaum) ectitled the Juvenile Corrections Act to 1995, which would dedicate 10 percent of adult prison money to ju,-enile facilities?
Answer 1. The A 'ttorney General shares the Committee's concer:i that state and
local jurudictions be able to provide secure confinement and alternative corrections
facilities and programs f'or eeriOUll Juvenile offenders who are often overlooked in
any corrections deb.ate. Alao, rec:ognuing the increase in serious juvenile crime the
De~ent would &11pport Senator Kohl's efforts to set a..ide funding to the 'area
of Juvenile correctietna and looks forward to working with him and other Senators
on this in the future.
. It should be stressed, howe-ver, that programs relating to the confinement of juvenile offenders are already a major focus of the Department's corrections initiative
being administered throwzh the Office of Justice Programs' (OJP) Correctioll!! Program, and that considerable r-eeour::es have already been committed to this area
Over the last year, OJP'a Correctione Office has been moving forward in implementing the several corrections programs authorized under both the Department's
fiscal year 1995 ap~ropriations bill [Public Law 103-317], and the Violent Crime
Control and Law Enforcement Act of 1994 (Crime Law) [Public Law 103--322].
Through these ~ . states and localities are able to pro,ide confine:nent space
for bot.I:, violent, ancl non-violent, juvenile offender,,_
Under the Justice Department's fisc:aJ year 1995 appropriations, $24.5 million was
made available to juriscliction.s to plan, renova!.e, and construct boot camp iaoilittes,
including boot camp,s for ju,-e:rille offenders. Under this program, such boot camp facilities, although targeted for non-'\iolent offender!!, would have to meet the requirement of making aclilitional secure space available for '\iolent offenders -..ithin a
state's overall corrections system.
To date, as a result of the tiscal year 1995 Boot Camp initiative, granta have bee:,
awarded to 34 jurisdictions for the planning of boot camp facilities; to 7 jurisdictions
for the renoYation of facilities for use as boot camps; and to 10 jurisdictions for t.'ie
constr,1ction of new boot e&mJ>S.
Further, more than half' the awards made during this fi.!ICB! year have been to fa.
cilities which -..ill s,erve non-violent juvenile offenders. Of the 34 planning grants,
12 v;ere for the plL>':..ning of juvenile facilities. Of the 7 renovation grants, 5 we"'
for juvenile facilitie.e. Of the 10 construction gl'ants, 8 were for juvenile facilities
For Fiscal Year 1996, the Administration has requested $500 million to implement the Truth in Sentencing Grant Program, and the Violent Offender Incarceration Grant Prograc:i, as authorized under Title II er the 1994 Crime Law. Under
the statutory requirements or both these progra,,is [see: 42 U.S.C. 13701 (b)J, each
recipient state must develop and have approved a comprehensive corrections strat•
egy which, among other thinga, addresaea the needs of their juvenile justice sy#.ems
at the state, county and municipal levels. \\1th the inclusion of Juvenile justice sy&tema in the overalf planning proceas, states may then, at their discretion, fund ju.-enile corrections prop-ams froID any monies received under these programs.
In addition, Title 11 of the 1994 Crime Law authorizes the Punishment for Young
Offenders ~ [ see: 42 U.S.C. 1379(ee)]. This program, el9o administered under
OJP's Corrections P.-ogram, will provide formula grant monies clirect1y to state and
local governments to assist in the provision of alternate sanctions for young offendeni. Such sanctions could include community-based incarceration, electronic monitoring, restitution p=grams, and community service program.!!. For fiscal year 1996,
the first year in which this program would be implemented, the Administration lw
requested $9.63 mill:ion for the Puniahment for Young Offenders initiative.
~uution 2. Under- the Juvenile Justice and Delinquency Prevention Act. in order
for states to receive grants, they must separate juveniles from adults in jails. Thia
creates l.azge proble:ms in some rural communities, and I have heard from man1
Wisconsin sheriff's r e g ~ these prcblema. For example, in some counties, sherifiil
must use two deputies to drive juvenile& up to six hours one way to place them overnight in an adequate separate juvenile facility. That's quite a strain on their resources. QuestioD!I: Do you share my concern about the current law, and do you
think -..-. can come -up with a reuonable compromise between the need to protect

.-;

.• nx

'Wrnrmm
184
183
accused juveniles from a hanlened ai.ltilt criminal clltl!S and the need to properly
conserve scarce law enfo:n:ement resourc-:,s?
Answer 2. The Office of Juvenile Justice £Dd Delinquency Pre·,ention (OJJDP) is
certainly aware of the difficulties faced by rural law enforcement in complying with
the jail removal requirements of the Juvenile Justice and Delinquency Preventfo'l
Act of 1974 (J,!DPA), as amended. You and other m~rs of the Wiscon_sin congressional delegation, as well as a number of rural sheriffs, ha,·e commurucated these
concerns to OJJDP recently and in the past.
Under cunent law, OJJDP haa no authority to en.end or waive the congressionally mandated time restrictions on holding juveniles in jails er lockups. However,
over the years, OJJDP has consistently worked with W°l8COnsin state officials to help
resoh-e a variety of juvenile justi0e11 issues, includinjt the jail removal requirements.
We will be pleased to meet with you and Wisconsin officials to review the state's
status v.-ith regard to jail removal. We are also prepared to offer on-site technical
assistance to the state and l~ties.
.
The State ofW1SCOnain has recently been awarded $1,220,000 in Fiscal Year 1995
Formula Grant funda, and their revised comprehensive plan has allocated $600,000
toward compliance with the jail removal core requirement. The state might wish to
consider the feasibility of providing transportation subsidies to rural sheriffs, which
could be used for additional personnel or reimbursement.
Finally, the JJDPA is due to be reauthorized in 1996, and OJJDP expects the jail
removal ~ e n t to be thoroughly renewed and examined as part of the process. Beginmng this fall, OJJDP intenda to hold two field meetings with OJJDP's
constitl1ent groups to receive first.hand feedback on implementation of the Act. We
anticipate that jail removal will be raised as an issue of concern.
REsro~SES TO QUEST!O~S FRoM SENATOR ABRAHAM TO

Jtr.mCE

i
ti

r
.j

TIIE U.S.

DEPA.'ITMEST OF

Question I. Is it the Department's position that the Michigan prisons Eubject to
the Consent Decree are in co°e~,;ration of any federal statutory or constitutional requirement? If 110, is
·
mandated under the decree necessary to
remedy the violation or violations. Or o BOme or all of the requirements stem only
from the decree itself? P l - specify which, if any, you believe are required to remedy or address a federal statutory requirement or standard that the U.S. Supreme
Court would be likely to apply.
Answer 1. First, CRIPA apecifically does not permit the Attorney General to enforce federal statutory riiibts in actions brought pursuant to the statute, 42 U.S.C.
§ 1997a(a), so whether Michigan is in compliance with various statutory obligations
is not at issue under the Consent Decree.
_Second.,_ compliance with the Consent Decree is under continuing assessment. The
Distri~ U>urt has already dismissed large portions of the Decree and State Plan
pertairu"j!' to the Marguette Branch Prison and the Michigan Reformatory at Ionia.
Michigan~ compliance with outstanding proviaions is presently under review.
The Uruted States Court of Appeahi for the Sixth Circuit has specifically found
that the Consent Decree addresiied physical conditions of confinement that rose to
the level of cocstitutional prohibitions against cruel and unusual punishment:
1. ~edical and mental health care;
2. Fire safety;
3. Sanitation, safety and hygiene,
4. Crowding and protection from narm; and
5. Access to courts and legal mail. United Stat..,.,. v. Stat.e of Michig::.n, 940 F.2d
143, 14 7 (6th Cir. 1991).
~u..'"Sllallt to the Decree, M i ~ p,:omulgat"4 ~ State Plan for Compliance detail!ng the m ~ to assure constitutional conditions and •other matters designed to
llllprove conditions of confinement.• Consent Decree, 11L Under the two step proce~ure adopted by ~ ~ court and approwd and upheld by the Court of Appeals,
m order to o~tain dlamiaal or a conaent decree provision, the parties most show
compliance with the State Plan. Ir the court does not find compliance the parties
ma.Y__ah'?W that constitutional standards are met nevertheless. United Sia.res v. State
of Midii,an._ 18 F.3d 348, 352-353 (6th Cir. 1994)
~uution 2. Hae the Qepariment at Justice retained the guidelines on prison litip!fon former Attorney General Bur ~u)gated in Januaey- 1992? If so are they
why did :,au pt rid orthem or modify them?
you

=~:..l&ft

What'bave

Answer 2. Although we are unaware of farmal guidelines promulgated b_y former
Attorney Genera.I Barr in Jan11a17, 1992, we are aware that he made apeec11es simi-

1~ to his testimony before tlie Committee regarding his approach to prison litigation.
In general, flexibility governs our approach to resolution of unconstirutiona1 conditions. The Department does not initiate prison litigation or intervene in such litigation unless it determines that unconstitutional conditio:1.S of confinement exisl In
seeking relief, we seek relief that will remedy the constitutional violations. Not
every provision in and of itself may be constitutionally mandated. The relief that
we seek, however, is necessary to bring about constitutional conditions.
~e Dep~ent doe_s. not_ n.t!e out court !3Upervision of prisons through injunctive
relief _resulfu:g from litigation on the ments or through enforcing and monitoring
compliance with consent decrees where such action is appropriate in bringing conditions into compliance with the constitution. Similarly, we do not rule out the U!e€
of special masters or monitors should we view these devices as helpful or neeessarv
in a particular case.
·
Each of our consent decrees has a termination clause providing for dismissal of
the decree when substantial compliance with its te= and/or the s+.ate plan have
~en mel As ~e _6th Circuit noted in _the Mi<;hlgan case, determining compliance
with_ the co~?tution may be a more difficult lSSUe than determining whether thE
specific proV1S1o_ns of a state plan h_ave been m_el In any ev!"nt, when we are satisfied that compliance has been attained and "-ill be mamtcined. we seek dismissal
of the decree or those portions no longer at issue.
Question 3. What is the Department's position of the follo..,ing proposals for reform of CRIPA?
a. Requiring the prisoner U> exhaust administrative remedies before filing a lawsuil
Answer 3a. We sutiport enactment of such a provision.
3b. Removing the mmate advisory role to a prison's grievance procedure as a minimum requirement for certification of a grievance procedure;
Answer 3b. Such a revision is unnecessary. By clarifying that states do not have
to permit inmates to sit on panels, the Department has already eliminated the cor.dition that had been t.'ie greatest impediment to the willingness of state and loca·
jurisdictions to seek certification of their grievance systems. See 28 CFR §40.i(b.
3c. Including a provision allowing federal judges to issue sua sponte ciimru£sah
of frivolous prisoner lawsuits;
Answer 3c. A rule of this type is desirable to minimize the burden on states of
responding unnecessarily to prisoner suits that lack merit.
3d. Given the federalism concerns raised by these suits, replacing the "reasonab:~
cause to believe" standard for DOJ lawsuits under CRIPA with a "clear and convincing" standard;
Answer 3d. The Department opposes changing CRIPA's "reasonable cause to believe" standard (42 U.S.C. § 1997a), the standard by which the Attorney General ~f
the United States may institute a civil action for a pattern or yractice of constit"~tional violations under CRIPA, with a "clear and convincing'" standard. First, a
"clear and convincing" standard is an evidentiary standard, used as a specific bu:-den of proof at trial. Typically. it is the burden of proof for a finding of civil contempt. See Jordan v. Wilson, 851 F.2d 1290 (11th Cir. 1988); Whitfield v. Pennington, 832 F.2rl 909 (5th Cir. 1987). The burden of proof in a ci,il action is the
"more likely than not" or "preponderance of the evidence" s+.andard, a less stringe::t
standard than the "clear and convinCUJB_ .evidence" standard. The imposition of a
clear and convincing standard es a pre-filing requirement under CRIPA, would ,.,,.
suit in the anomaly of requiring a higher standard to file a suit than would be required to ultimately prevail in the case on the merits.
Second, Congress' enactment ,of CRIPA's "reasonable cause to believe" standard i.s
consistent with other civil rigb.ts statutes. See, e.g., Fair Housing Act, 42 U.S.C.
§ 3614 (reasonable cause to believe standard for Attorney General to bring pattern
or .Practice litigation for violatiol08 of the Act).
Third, given the ~ m e n t that the Attorney General must personally sign the
complaint (42 U.S.Q. § 1997a(c)) and !)l!rsonally sign a certifica!ion_ tha~ all prefi!,in_g
requirements have been met, 42 U.S.C. § 1997b, no CRIPA action 1S going to be Lill·
tiated on any but the strongest ractua1 and legal basis.
3e. Statutcry restrictions on jt1dicially-crsated remedies?
Answer 3e. The Department is committed to preserving meaninim.tl redrea for
unconstitutional conditions of confinement. While Congress may validly enact proscriptions on the nature and extent of prison condition remedies, it must ll8Slll" that
any measures adopted do not deprive prisoners of effective remedies for real constitutional wrongs.

t"[ffttffr:-ttt"fttitt& ·-

186

185
Question 4. How many state correctio!lal cases is L'1e Dep:'-,tnent of Justice presently im·olved in? Include all past cases that are still ong01ng. How many has the
Department initiated since January 1993? Please attach a copy of all ~ourt papers
and attachments the Departn1ent has in its possession in connection with both the
ongoing cases and the cases initiated since 1993, as well as any court orders or consent decrees entered in connection with all these cases.
Answer 4. The Department is involved in 8 state correctional cases:
1. United Stales v. Mor.tana, C.A. No. 94-90 (D. ML). Complaint attached.
2. WiUiam.s v. Lynn, C.A. No. 92-1 (E.D. La.). Private attached. Uruted States
parJci pat.es as runicus.
3. United States v. Michi,Jan, 1-64-CV---03 (WD Mi.) Consent decree attached.
4. United States v. Virgin [s!arui.,. C.A. No. 86-265 (D. VI). Consent decree attached.
5. United States v. California, C.A. No. 89-1233 (E.D. Ca.). Consent decre<? attached.
6. United States v. Territory ofG=.m, C.A. No. 91-20 (D. Guam). Consent decree
attached.
7. Battle v. AnderSDn, C.A No. 72--95-5 (E.D. Ok.). United States Court of Appeals
for the Tenth Circuit, June 27, 1995 Order and Jud;;mer.t attached.
8. Ruiz v. Collins, C.A. No. H 78-937 (S.D. TL). 1-'inal Judgment Approved December 12, 1992 attached.
One case has been initiated since Jam1ary, 1993 resulting from an investigation
begun in 1992.
Question 5. How many state correctional institutions ere under federal court super\ision as a partial result of L'1e litigation referenced ~ question 4. Please list all
the facilities, S€parating Llic.::i by st&te. Please rummanze the terms of the fedenl
court super\".sion.
Answer 5.
Michigan: M8!'juette Branch Priso:i, .11'..ichigen &formatory, State Prison of Southern Michigan.
\'ir,;:!1 Islan:!s: Golden Grove Adult Correction Fac'J.ity.
California: California Medical Facility at Vacav:.llc.
Guam: Adult Correctional Facility.
Oklahoma: State prisons.
Texas: State prieo!lB.
See also answer to questio'.l 4.
Question 6. How many cth~r Et.ate correctioncl feciliti<:s are under federal cc::rt
s-Jper.ision, in whole or in P.art. whether or not the Department of Justice is involved? Please list all the facilities, separating them by State.
Answer 6. Beca:J.Se the Department is not involved in all of the cases, we do not
complete information.
.
.
Once again, we would be p!MSed to share the results of our constituent meetings
with you, and continue to work v,ith y-rJ to find a solution that strikes the approp:-iate bale.nee between juvenile protection end law enforce::::ent resources.
RESPOSSE TO QUESTION F'RoM SENATOR HATCH TO THE

U.S.

DEPARTMEST OF

JusncE
Question 1. We appreciate the Department's support of legislation aimed at curbing inmates' abuse of the jud.ici.e.l system, as well as its support in principle of lc;;islath'e initiatives to alleviate the burdens imposed on statc5 by prison population
caps and excessive remedial decrees.
Obviously, however, the Justice Department has a significant ability to affect
t.'iese iSS'..tes as v.·cll, in its role as a comelainant or intervenor in prison litigation.
\','hat steps, within its discretion, is the Department taking to address these problems? In answering this question, please provide the information required of the Attorney General 1,;nder 42 U.S.C. 1997(0, and compare this information for the
present Administration to similar reporta provided by prior Administrations. Additionally, please i:,rovide details of t.lie Department's compliance with the requirements of 42 U.S.C. 1997 Ch).
Answer 1. The Department seeks remedies designed to correct unconstitutional
conditions of confinement. The Department does not seek population caps in its prison consent decnes and litigation. For specific information, please see the attached
Attorney General Annual Reports to Congress .

The Department routinely complies with 42 U.S.C. 1997(h) by sending a copy of
the notification of the commencement of a CRIPA action to the Department of
Health and Human Services and the Department of Education, as appropriate for
the type of institution involved.
REsrossr;s

TO QUESTIONS FROM SENATOR KOHL TO WILLIA.\! P. BARR ASD PAt:L T.
CAPPUCC!O

Answer 1. We believe that States should dedicate a portion of their corrections
budgets to facilities that v.ill prevent juvenile offenders from maturing into habitual
adult violent offenders by teaching them discipline, responsibility and pride. ~ tary-style boot camps of the o/J)e being tried in Texas are a good ~!1;'&;e. We believe that it would be appropnate for Congress to provide funds for s· ·
facilities
in the federal correctional system, if the Bureau of Prisons determines that it has
the demand and need for such facilities. Funds should not be appropriate, however,
for juve~r:;,~rograms that do not teach offenders discipline and responsibility. '\l."e
are not fi · ·ar with the bill you have sponsored, and are not in the position to take
a positio!l on it.
Answer 2. Yes, we share your concern about the costs and problems associated
with separating juveniles from adults in jails, and would support a reasonable compromise that protects accused juveniles from hardened adult criminal wlile properiy
conserving scarce law enforeemen t resources.
RESPONSES TO Qt'ESTIOl'iS FROM SENATOR B!DEN TO WILLIA.\! P. BARR A.'iD PAUL T.
CAPPUCC!O

Question 1. The 1994 Crime Law enacted a new 18 U.S.C. 3626, which required
that consent decrees be "reopened at the behest of a defendant for recommended
modification" at-least every two years. Does this provision address your concern
Lliat cun-ently, consent decrees sometimes continue in force long after they can be
justified? If not, can this provision be modified to address your con-.,ern?
Answer 1. We do not believe 18 U.S.C. 3626 is itself sufficient to address our concern&-t.hat consent decrees oft.en require more than the constitutional minimum
and that consent decrees oft.en continue to bw-den States and localities long after
genuine constitutional violations have been con-ected. The main problem with section 3626 is that it is too vague, and it does not require a court to do anything.
On its face, it only requires that the consent decree be "reopened" for recommended
modification.
It is, however, possible that section 3626 can be modified and expanded to help
alleviate the problems we have identified. For instance, our concerna would be substantially alleviated if section 3626 were modified to provide that, as eoon as the
defendant !bowed both that: (i) the constitutional violations alleged in the underlying complaint had been remedied, and (ii) there was no imminent likelihood that
the prison or jail would immediately lapse back into constitutional violation, the
Court m.uat vacate the consent decree, even if the conaent decree required more than

conatitutional minimum.
Question 2. S. 400 allows broad standing to challenge an order which limits prison

populations. Specifically, it allows prosecutors, elected officials, and any other gov•
ernmental official who "is or may be aff'ected by' the order to intervene. Please comment on the impact of this section cf the bill.
Answer 2. I have considered whether S. 400'a atan~ provisions are consistent
with Article III of the Constitution, which requires an ir\JlllY in fact that is particularized to the penon who claims to have standing that 1.9 different from a general•
ized grievance suffered by the pu~lic !l8 a whole. My ten.tative vie:w is the s_ianding
provisions in S. 400 may be constitutional becauae certain correctional officiala suf.
fer a Paz:ticu18;rized i?uW"Y, from priaon population cap orders, but I have not looked
mto the issue 1n any cfetail.
REsPOSSES TO QT.IEST!ONS FRoM SENAT<>R ABRAHAM TO WILUAM P. BARR AND PAIJL
T. CAPPtJCCIO

Ques:ion J Do _you believe that Ptau, v. SpendJhrift Farm, Inc. limits Congress'
ability to relic,ve state and local correc:t.lonal authoritiee from unreuonable ongoing
judicfal supervi,ion and if 10 how? Sa upecially the Court's dillCl!Uion of 'WMelini1
& Belnwnt Bridge
slip op. at 22, and Counael v. Dow, slip op at 25.

a;.,

188
187
Answer 1. No, Plaut v. Spendthrift Farm, Inc., No. 93-1121 CU.~. Apr. 18, 1!!9_5),
does not prevent Congress from relieving ~t;ate and !ocal co~_onal authonties
from unreasonable ongoing judicial supervunon of pnsons and ;ails. Under longstandi~ Supreme Court authority, Congress may directly supersede on a prospective basi., a continui~ injunction like a con9<:nt ~~ "'itho;1t thereby contravening judicial authority m violation of the Constitutions se_pai:9tio? ?f po~ers. Indeed,
Plaut reaffirms Congress' authority to supersede a con?numg ll1.J'!,Il~on on a prospective basis. Thus, Congress is entirely free to prm:ide that existing (or future)
consent decrees shall not, going forward, apply to restrict unreasonably the conduct
of State or local officials.
.
.
As Plaut points out, at least since Pennsylvania v. Wheel,'¥! &; Belmont Bridge
Co., 59 U.S. (18 How.) 421 (1855), the Supreme Co~ h~ consistently approyed
Congress' oower to "alter [] the prospective effect of m;unctions _entered by A!tlcle
III courts.d Plaut v. Spendthrift Fam,, Inc. supra at _22 _(1:mphas1S added). This_ follows from the fundamental distinction between t;'ie )l~dioal power anj the le~lative power: It is the "province and duty" of t)->e Ju_dic1al departme~t to ~ai;, what
the law is' in _particular cases and con~~·ersu,sl m other. words, to decide C;B-~S
in under existing law Id. At 7 (emphasis m onginal) (quoting Marbury v. Madisvn,
5 U.S. (1 Cranch) 137: 177 (1803)); but it is the province of the Congress to say what
the law will be for future application by the courts.
.
. .
In Plaut the Court was careful to hold only that separation--0f-powders pnnc1ples
are violated when Congress attemrts to "set aside the fin8:1 judgment of an Article
III court by retroactive k~/.atwn. Slip OJ.', at 19 (emphas1S added). The Court defined "retroactive legislation" to mean "Jegislatio1:1 that prescribes what t!'e ll!w was
at an earlier time when the act whose effect 1B controlled by the legislation occurred." Id. at 14 (emphasis in original) The statute at issue i':1 flaut sought to re,ive lawsuits that had been dismissed es untimely under preexisting law and whose
dismissals had become final by ,~,.rtue of Ll-ie wwver or exhaustion of appellate review. "When retroactive l,,gislc.:ior: requires its own application in a case already fi.
nally adjudicated," the Court explained, "it does not more and. no less that 'reverse
a determination once made, in a particular case.' The_ Federalist N?. 81, p. 54~ (J.
Cooke ed. 1961). Our decisions [including Wheeling Bridge] have unifonn/,y _proV1d<;d
fair warning that such [a retroactive) act exceeds the powers of Congress.. Plaut slip
op. at 15 (emphasis added). The Courts, however, was clear to state that m contrast
to the retroactive legislation involve:! in Plaut, the "prospective effect• of the statute
at iasue in 'KMeli'V! Bridge was_sufficient in and of i1:5elf to_"dis~nguish" "fheeJzng
B~e, and "nothing in our holding today caJls [Wheeli'V! Bridge) mto question. Id.
at~rdingly, it is quite clear that the separation of powers principles discussed in
Plaut do not prevent the Congress from either: (i) altering the prospective effect of
any existing consent decree-by providing that it shall not govern the conduct of the
correction officials or the States and localities going forward, or (ii) limiting the circumstances and/or scope of any consent decrees entered in the future by the federal
courts regarding prison conditions.
Question 2. Can parties settle litigation through private settlements? ~ould H.R.
66Ts limitations on prospective relief, which state th_at "[p)rospeetive ~lief shs.ll crte:c.d no further than necessarv to rem,ve the cor.d.it:!ons that ere c..usm~ the dcp!"!·
vation of the Federal rights of individual plaintiffs in that civil action," interfere in
any way with private settlements? Please list the costs and benefits of consent decrees versus contractual settlements.
Answer 2. Parties can, of course, settle litigation through private settlement.
There is nothing on the face of the provision in H.R. 667-proVlding "[p)rospective
relief shall extend no fur~'ier than necessary to remove the conditions that are causing the deprivation of the Feder&.! rights of ind.h~dual plcintiffs in t.lu:t civil action"-that would pre,·ent the parties fro:::i entering into a private settlement. We
do not understand the plain meaning of the term "[p)rospective relief" to encompass
private settlement agreements.
In some ways, a settlement agreement if preferable to a consent decree. Most notably1 a settlement will not involve intrusive continuing federal court super:ision of
the aay-to-day operation.s of prison and jails. Moreover, a settlement agreement
could be enforced only by the plaintiff bringing action for breach of the settlement
agreement and carrying his/her burden to show such a breach. In these important
respects, settlement agreements are less intrusive than consent decrees.
We a.'"I!, however, cx,nstrained to point out that encouraging facilities defendants
to resolve p1 ison condition litigation by private setilement agreements does not address the problem of agreements (be they consent decrees or settlement ~eir.ents)
in which the defendant agrees to d~ subsi:antW.ly more than t.1-ie constitution requires. As we pointed out in our oral testimony, there is some pressure on correc-

27-255 - ::r., -

tional facilities defendants to agree to expensive obligations that tl:,e Constitution
doe3 not require as a means of" circumventing tight budgetary rontrols. By limiting
the approval and enforcement of ronsent decrees to the agreement that goes to far.
It is not clear to us how Congr,ess could limit private settlement agreements in the
same way-at least to the extent that they are enforced in State court. Accordingly,
it may well make more seIJSe tG tolerate and encourage consent decrees, but strictly
limit their scope and duration.
_Question 3. Are you a"".are <>f BJ?-Y o~lllN ~elation ~f_federal ~..a~to~ or constitutional law that reqwres continued Judicral SUperv!Slon of M1ch1gan s rorrectional facilities?
Answer 3. Mr. Ceppuccio visited several Michigan correctional facilities in 1992.
At that time, he came back to the Department with the impression that there were
no obvious constitutional violations in the facilities that he saw, and that both t.1-ie
Michigan correctional department officials and the Michigan Governor's office were
very serious and professional aoout maintaining the conditions in Michigan facilities
above the constitutional minimum. Nor, at that time, could anyone at the Department of Justice point to a gena.ine constitutional violation in the Michigan system
that justified federal involvement (except, perhaps, with regard to some narrow aspect of mental h<?alth care treatment whicli, if memory serves us correctly, was the
subject of a prupo~ narrow aettlement &gr£ement with the Department of Justice).
Accordingly, at th.it time, we concluded that it was time for the Department of Justice to return ron~l of the Michigan correctional facilities to the people of Michigan
without ongoing federal court su.perv.isi.on.
Question 4. What is your view of the following proposals for reform of CRIPA:
• Requiring the prisoner to exhaust his administrative remedies before filing a
lawsuit;
• removing the inmate advis<uy role to a prison's grie~-ance procedure as a minimum requirement for certification of a grievance procedure;
• including a provision allowing federal judges to issue sua sponte dismissals of
frivolous prisoner lawsuits;
• replacing the "reasonable ca~ !-> believe" stan<!ard for_ DOJ law~ts under
CRIPA "'ith a "clear and convincing" standard, with particular mention of federalism concerns.
• statutc,ry restrictioilJl on judi.cially-<:reated remedies?
Axiswer 4. Neither of us are, at this time, familiar enough with CRIPA procedures
to take a formal position on any of the proposals you have presented, although ,.-e
would be happ,- to_ take a. closer look at ~e matter._Gell8!81l.r speaking, however.
our tentative View 1s that 1t would b e ~ to req;inre pnsoners to exhau_st meaningful administrative remedies before filing a laWBU1t and to allow federal ;udges to
issue sue sponte dismissals of frivolows prisoner !&wsuita. It also seems quite sensible to restrict DOJ involvement under CRIPA to cases of clear violations of federal
rw:i'<s and to limit judicial reinedies to CXJrreCting the violation of federal rights
without further burdening the State or local offic:ials.
Question 5. What steps do yoti believe a.re necessary to correct the current deficiencies in consent decree procedures?
.
.
.
Ans-,:2r 5. In cur written testirnon.r.,!>.,!!'8 Committee, we outlined wa:ys m whi~
the Current deficiencies in consent
procedures could be substantially all~"lated.

REsro~sr;s

ro QUFSnO?l.'8 FRoY SENATOR Kom. TO JOHN J.

DIIULIO, JR.

Quutwn 1. My question to the ~ !8r do you believe that we should dedicate
a portion or prison funds for ,hlffDife filc:ilitiea?
.
.
If' 10 would you Nl)port a bill that Senator S ~ and I m ~ (along with
Senato'rs Cochran anif Kaaebaum) -titled the Juwnile Corrections Act of 1995,
whi:h would dedicate 10 percent of' adult pri8QD IIIOne,' to juvenile facilities?
Answer 1. I do not know the detail.II If the bill in ~ n , but I would W"P. the
Senate to con.sider increaa4ig ~ far P1'0IP'a1118 that ~ t e . ~ JU~
Dile otrendera. Given the deinographic:11, the •Aed f'ar ~ Juvenile faciliti• will
grow ra11idly over the nat the ,-rs. We are not prepared.
.
Quution 2 Do f.C!U ahare my _conc:em about tlae
law, and do you think
we can come.up with a reuonahle ccimpromiae between the need to protect accuaed
j11veniles from a hardened adult c:rimmal claaa and the need to properly CODNrW
acan:e law enf'orcement reaoun:ea?'

current

190
189
Answer 2. I run confident that such a compromise could be ~ch~. I wo~d "!,:e
the Senete to address s.s '-'-C!I the even bigger problem of keep1:,g ,~olent ;uven!.les
away from non•\-io!ent ones.
REsPOXSE TO QUESTIOS FRO!II SEXATOR BIDEN TO JOIDI J. DIIULIO, JR.

Ques:ion J. S. 400 would automatically te:m.inate all remedial o:de~whether
entered by consent decree or !'~ a ~~ two ye~. J?oesn t this_ create a
danirer that a continuing COll!Stitutional v1o!ati?n would enst_ without a JUdi~1al remedyf Wo:tld c,:,,,....-ts be required to hold a comp,ete new trail m order to continue the
order?

Answer 1. I fail to see how requiring the courts to ternunate orders after two
years would pose sue.'> a risk. If actual .iolations are still occurring (if ind 7ed, they
ever occurred in the first instance), the courts would have e,·ery opporturuty to reopen the matter and proceed eccordin;;ly.
.
The bigger danger is the one we have already suffered, namely, that courts will
enforce and expand decrees well beyond the point of judicial authority. The two-year
limit is a necessary brake on court intervention. Without it, I worry that the essential problemg that STOP addresses would not be remedied. Any_ costs of_ the twoyear llinit must be balanced against the costs of_ decade-old mterventio~ _that
threaten public safety, inflate !>udgets, and ha,;e a nuxed efrect on pnson conditions.
RESPOXSES TO QLEs.rm;s FnOM SEXATOR ABRAHAM TO JOHN J. DIIULIO, JR.

Qucsticn J. Are you aware of any correctional facilities whe:-e ,;enuinely unci,ilized conditions persist? Do we need judicial 0\-ersight w pre,·cnt this from

=·

ri~er 1. Senator, before enswering this question, plense allcw me to highlight
t.'1ose aspe<:t.s of my work in the field t.'16t may be deemed most relevant to 1t.
Since 1980, I have studied or toured scores of _prisons and jails-public and private, federal, state, and local-in dozens of jurisdictions all around the country. _In
the mid-1980's I sa,,-ed for a time as the chief consultant to the New York City
Board of Co~ons, the agency that ser,;es as a "watch dog" over the City's Department of Corrections. I haYe conducted leadership and management training for
a wide ,.-a.--iety of corrections practitioners, including a n:ajori ty of the wardens who
seNe in t.',e Federal Bureau of Prisons. I edited the first major book examining the
impact cf court inter,;ention on prisons and jails. And just a few years ago, I directed a U.S. Justice Department project which devised and disseminated to thousands of federal, state, and local justice-system professionals a new and demanding
set of e.ij:ht specific objective performance standards for criminal-justice agencies, including lllStitutional corrections facilities (please see Appendix attached).
There is, to be sure, inter-jurisdictional, intra-jurisdictionc..!, and 1'isui1~°'11 vo.rience in the performance of institutional corrections facilities (or what in my firs:
book I !Gmed the "quality of prison life.") Simpl_y stated, some facilities are sa1er,
deenc:-, rr.c!"e p:-o_wam-oriented, and more cost-eff'ecti\•e than others. Even facilities
in the f:1:1-.c: j~smction with \"irtual!y identical inmate populations and which she.re
other objective chuacter..ztics (funding level!!, c,:owdii,g levels, staffing patterns, institutional architecture) often differ in terms of how orderly and livable they are.
But the simple truth is that most incarcerated pers;,ns liYe without undue suffering, and are afforded a wide range of life amenities and semecs while in confir:ement. Generally speaking, prison conditions are better than jail conditions, but in
neither prisons nor jails do genuinely uncivilized conditions persist. While most prisons and jdls are not "country clubs" or out and out "resorts," eYen fewer are anything e,·en ,·aguely resembling "hell holes." Indeed, I have seen any number of federal and state facilities which, thc,:gh operating well above their rated capacities
("overcrowded"), and though home to thousands cf double-,_~!Jed or c;,en-bay
dormitoried hardened criminals, conllistently produced safe and humane conditions
behind ban.
It is true that prisons and jails in many parts of this country were once hotbeds
of ph.)'llical abuse and official coffllption. Even todsy, given facilities in ~ven places
at given times may give rise to disorders or deprivations that mObt Amencans would
consider uncivilized. But what STOP opponenta fail to admit is that such facilities
are now clearly exceptions to the rule.
Still, I continue to believe that federal_i.udges must intervene when P,articular inmates in partie-.tlar facilities Eu.ffer s ~ c serious ,-iolations of constitutional protections er fedez-:tl li:c~-s that prohibit i.n.'1u:r.a..,e treatment (total lack of medical
care, rotten food, physical abuee, total lack of access to law books). Indeed, the

whole point of m_y own scholarsllip on the matter has been to identify the conditions
under which judges can do more good than harm when they intervene. There is
most definitely a role for the courts in overseeing prison and jail conditions, and I
for one would not support any c:hanges in federal law that would eliminate this role.
The federal judiciary 1s to be credited for tJ:-:~ about many improvements in institutional corrections. The "han~ff' doctrine did contribute to the demise of wellgoverned, cMl.ized prisons and jails. The early, limited, incremental, and targeted
reversals of that doctrine made good constitutional, legal, and moral sense. But where STOP is concerned, we are not talking about a return to the "handsofl" doctrine. We are not talking about prohibiting tlie federal courts from any legitimate role in ovenoeeing pri&>n a.nd jail conditions or acting_to right specific constitutional or legal wrongs in partic-ular cases. Nor are we talking about a flat ban on
consent decrees.
Rather, we are talking about the desperate need for a reversal of the "har&ds-on•
doctrine as followed by federal judges such as Judge Shapiro in the Philadelphia
case, Judge Justice in the Texas case, Judge Muecfe in Arizona, and many other
irresponsible federal judi!:es who have given new meaning to the term "imperial judiciary." We are talking aliout limiting government by consent decree in the interests
of restoril'll{ government by conunt of tM governed..
Judge Sh'lpiro and her ultra-activist brethren have, in effect, substituted the
ACLU's prisoners' rights wish list for the Bill of Rights. Time and again, they have
intervened in sweeping ways that manifest only the most caswtl concern for the constitutional limits of their own authority, the bloody impact of prison caps and revoMng-door justice on public safety, the necesaities of Institutional order, and the
stresses on the public purse. They have arl>itrarily read into public law and correctional practice an expansive definition of prisoners' rights, and they have behaved
as if the protection of prisoners' rights thus defined was the sole value at stake in
public decisions governing the sentencing process. Not only have they behs.VPd as
legislators rather than as judi!:es, but they have behaved as bad legisl.atora who elevate one set of desirable publlc ends (in th.is case, prisoners' rights) above all else.
These judge-legWators neither weigh competing values nor make necessary compromises and trade-offs.
In sum, while there is a proper role for the feder&l courts in overseeing prison
and jail conditions, Congress must act to check and balance Judge Shapiro and
other practitioners of the hands-on doctrine for whom maintaining _public safety, respecting victims rights, preserving institutional order, and resaa.irung public spending are peripheral concerns.
AB I noted in my testimony on the 27th, a huge fraction of the financial costs <?f
institutional corrections is now the direct result of federal court orders and decisions. There would appear to be no end to it. For example, to comply "ith Judge
Muecke's latest ideas about how to stock prison libraries would cost Arizona taxpayers in excess of $2.5 mill.ion, plus another $L6 million a year for 14 new librarians and 60 new corrections officers to monitor inmates as they move back and forth
to the library at least 10 hOU111 each week. Likewise, there would appear to be no
end to the institutional disorders caused by irresponsible interventions on the TeJ:BS
model, whe:e scores of inmates were murdered as Judge Justice's sweeping orders
were rammed into effect.
But the biggest issue for me, and undoubtedly for most Americans, is public st.fety. AB I tried to suggest in my teetimony on the 2~ th, the statistical data are overwhelming. But the bare statistics do not tell the whole story. Let every Member of
Cowess look into the eyes of Philadelphia ~~ve Patrick Boyle, whose SO?, ,a
rookie cop was murdered in cold-blood by a criminal out because of Judge Shapiro s
orders. It'~ painfully clear that Congress can and should act to stop this judicial
madness.
Question 2. Are there any circumstance8 in which a release order is the a.pp~
priate response to prison conditions? What about inmate caps? What alternative
remedies are available for overcrowding?
,
Answer 2. Aa J attempted to
in my testimony on the 27th, there II abBI?"
lutely no empirical basis to the
•
about priaon "overcrowding" made by anti•
incarceration activists and man7 federal judgea. Aa prison population denaitiee in•
crease, life behind ban gron 1- comfortable, and greater streeaes are p).ace:d on
correct.ions administratons, esi,ec:ially at the line 1eTe1. But there is no consti~tional
right to comfortable prisons ·or jaila, and there are countleu c:aaee of pn,ona in
which poJ)ulatiom have ~ with~rocluc:ing ~ significant ill efl"ecta on inmates ana staff. Naturally, many co
na commiemoaen and bureaucra~ prefer
amaller populations and bisger per inmate budata (which, for all practical purpo!MlS, is what ccurt-impoaed cape and related anfera produce) to bigger pop~tioDI
an:I smaller per inmate budgets. And, of course, for the ACLU and other anti-lncar-

~1!';!!!

Appendix

,. NW11hrof'tUor,,_.arN.IW'1dotil'flJ
toftllcl.d Ml• /-alCWA JHriG4

"""°''

Criminal J111Uce Performance Measurea

0.
/lo,, tH'
b. ,.,_,io.J1,w11•1<001r..,.,i
J. Nw,,H, ofwinoly1U klU NIH CHI IMlpldo,, ht•

ror Prt,ona

i-MOlll-pnlod

il,diriu41111111 ar, Nini CM o.f/i~W 1ttord1. Otha, ue

•. ltottpni--,,
!,,

butd on 1urvey1 ol 1l&ff or lnm11ea (or both, in which c111
lhe staff and inmate nu &nl are counted •• aep1111e lndic1HN'1), •R11c per caplta--6.. muns ..divided by lotal numbtr
of inm11c1 ruiden1 11 aome lime durin1 a 6-mon1h
reference period.• Scale val.aes are omlued for all scale
11em1 (",11in1 of •• ; "perception or •.: e1c.),

•. _ , , pnc- ,.._
period!
I. .....1¥14 /nqUIIICJ olollludowna la IN llvin&
1111

2. ,.,._,,... lllqulncJ olboo17 N11<III•
,. P1opollioaol•laff•lloba........,
L An7 - n d a l p,allltffll wl1hln 1111
iaaUOllloo

II. ...........,

c. ,_

u,,,...... ., ...«

d. lnffllll NCUrllJ•loltllona

•• S1111 ,,...,•• iamtll mllconducl
I, Sufi l1norin1 dluurl>lnm
I· Olllerp,ollllma

,1r,.,,

IIMMbrfr llttd roll IM''"""'"'

'-r~'°"''..., ,.,.,.,'""°"'"'•

1. s1,n1,11,..r'"''"""•
ro,1ra,6
•. 81t)'IMHll1tll
,,IJMI/.. ,}
,.,.i.n..
l, llry11, n11111tt, 11111 flll P4' r,plll,6

DIIMUloa II .... ,1,, ("IINp 111111 la")
I. lllllna o( llow IN bulldlftl 111,1.. 1f11c11
IUMIIIIIICI ol inmllU

,.,.,o,6

Dr111-r11Dt1d ilh.·kk11U, 1tllfflbtr ,ittd rtllf ,-,
Di1cipli111 ,,poru ,,lo,H to
o, to11tr0Nltd,

D. Sl1nmc1n1 lncldenu (6•-fllltod)

Su,.,7 and ~NI"'"" mtUutOI ol prllon ptrloro,anc1

A, O.n111I

l'ropo,tlo#t Hlli"I ,o,lliw Jot, o,,'M11

C. Dni1 use (6-mon1h perk>d)

8. Communll7 UpolUII (6,mor,111 fllrtod)
/, F.,&ooalu, •""'"'' N roll,,, ry/'4.f

F. f'llldomol....,.ffllnl
I, 1'11col•ICI l'lwtdom ol m..11111111 lol lnfflllll:
D17 / a...,•• I Nlahl

s11mn1
I. .•,no oftt,""41 ,.,,.,,.,..,.,. 11n,,111 ,111/1

Dlmtuloo II ..,.., ("kt1p ..... 11r,•1

A, '""'"' .. ,.., \11-moolh porlad)
I, Porcol•t<I llk•III- ol tn lMloto boia11111ul1td
lnhl1 IMna,111
z. l!allmllld nit (per IOOpopulolloo) ., anned 0:IIUIU
1n,o1,ln1 lnm11u
J, lla1lm111d ltlt (per 100 _,,11on) of UHUIII
111lna1 lnm1111 wllhoul I w..,pon

Appendix

Criminal JiuUce Performance Meuures
CorPrlsGns

N.-bwroft1llorti.iorHIW1doWIU
cO/WtlCl"IUI• l""'°'"ltp,tt1otl
lf1111 IH" Ullfto11

hopo,1i011ftltdi,.1 C01ttrGb.vtd

J. N-.Hr of wiNJl11iJ '"" ba,rd
I ·MONA p,rlod
/14/iciud iU1JU 1u, NJ,d on olfici•l r,cordt. Othtn 110
bu.cl on 1urvey1 of al&ff c,r lnm•lu (or both, in which cue
lhe 1l1tr and lnmalc mun1111 counlcd II separ11e lndlca•
Ion) ... RIie per capita-6'" means "divided by total number
of inm11ea ruidcnl 11 some time durin1 1 6•month
rercrence period." Scalt vahtea are omlUcd ror all Kale
Items r,11in1 of ...... ""pen:cpllon of ... ,• etc.).

Surn1 and oJ11d.l rttfHW meuuru ot pd1on ptrformann

J.
1.

JbUn1 othow lhe b'llldln1 de1l,n 1lTcc11
1vrv1lllanc:1 o( UVTIHu

D. S.au-111 p,ondvn1 (&-month pe,rtod)
I, Pucclvcd lnqutncy o/ ahaktdown, In I.hi livin&

2.
).

....

htc.tlYed tn:qvcnc7 of boJy HM:het
Proponlon ol natl'""'° ha.,. obwrnd:
a. Any CONtquendal ptobhnu wllh1n tht
in1UMlon
b. Laa HC1,1ri11
C. Poor aul&NNRI of 1L1ff
d. lnm, .. M~rl17 v'°l•Uont
t. Slaff lanorln1 inm114 mUcon1Ji,c1
1, Stafr l11M)fin1 IJillvrbancu
& Other protilcrru

:,.

ho,,o,riCM u,1i111 p,uitlw, for opiatu

D,,.,-,,10,,d

i11dik1t1J. ,.,.~, """ ,,,,, /H'" ,,,/H·,a-6
D1Jctpli,., rlpo,IS 11/or,d to ...,, or CO#lltaHl!d,
"""'~" 01td

ratt p,r copito-4

D. SlanJncant lneldcnu (6·ffl(lfflh par1od)
I. Sl1nlftc1J111t 1ft(//U,.u, lotol IIIUI ra1114, coplla•6
•· Propo,tiOl'I o/6•1R011tlt pope,'41'1111t /,.-..olwff ;,.
1.

0.Mt&I

/f,,a/fJ,'" iNfldlf

C. Onie 1ue (6·monch period)

Dhn,nalon 11 Suurll1 (""kffp lhilm 111")
A.

°" ttUplCloit ;,. •

Ill.

""1 ltK/dc,111
6JCap11, ,....,..b,,,ONlrr,11 /HrCopJUJ-d

Communlly upo111re {d-mon1h pcr1od)
/. ,-,.,Jo,.11u, ,.,.""bfr Md,,,, p,r copi,o-6

f. frecJom of rn.rrtmenc
I.

Petnlwtd l'tctdom of mO'rCmtnc fot Inman•:
Day I Ev1nln1 I Nlaht

0. Staffina
I
.•atio of rul;:k111 pop.,l~rio11 kt

JICWIIJ 114/1

Dlmtrulon J: Mf111 ('"II.Hp IMcn uf1,.)
A.

IMlllt U(lly l,6-m0t1th pulod)

I.
2.

P1n.:elYtd ilhlihooJ of 1ft I.M\ate bllna uuuhtd
In hi, IJYina ,, ..
Csllm1ttJ rai, (per 100 popul1llon) of 11tntd &.:laulu

lnYohlna inmalu
f.ulmateJ r•I.I (per 100 popul•lloo) of 111111111
•J•lnu lnmaua wliho.JI I w~apon

/1,i,o,eJ

4, B,llm11td "'' (ptf 100 papul11lon) of ......, HIIUIII
1,1pon lntnllll
Hallmattd rtlt (ptr 100 popultllun) of ln111ni:t1
Inmate ht1 bun l)ftllurtd ror Ma
6. IM11ll1' ptn:1IY1d danaar of blln1:

killed or lnjll11d

s,,.,, or,••,....,,. .. (&.mon<ll pc~od)
I. P,rcal,td frtqwncr ot acc..,nu:
Hou1ln1 U11UI I Din.Ina Hall I Wo,lr. l'.nvlrONMnl
2. ~1rcched occvmnct In hou1ln1 unll1 ur ctunt, 1h11
could latd a fltt

e. s11mo11diqv1ey

b. punched o, 1111ul1ed

7. Propo,tlon ot lnm11t1 who UY

lht)' have

bun

period

a, Proportion or Inmate& who 111 lhey have been

en®&h 111ft 10 p,o,ldt tor 11f11y or lnm1111:
o,, I n...,•• I Nlahc
Proporllon of u,n who feel lhen III enouJh 1&1ff to
provide
!heir own 11re11:
Day I l!vtnln& I Nl&he

'°'

phyalully WIJlled b)' 11&rr In 1. 6-mooth perind
Dl1clplln1 r,porll 1M1 ,,. ...o1v1d ft11tt1111 or aJJot1lt,

""'"""and

rat, p,r copito-6
JO, s1,,t1Jfco111 ltttid,1111 111vo1...1111
ond ra11 p,r capltt·d

'""'a" l,V,,,-,, ,..,,,.b,,

Dlmcnalon l: Order (...,Hp lhea In llne")
A. lrmaic mlaconwt1 (6-fflOftth pulod)
I. Pt"ttl••d rmiuency of phy1kal

D. Staff 1 1re1y (6•month period)

•11ln1111aff

Rallna of how the builJln& de1l1n ,,rec11 1taff 1arc:1y
Pc:n:elvcd danatr to male staff
l. Perceived d1n1er 10 rcmale 1t1ff
4. Ralin1
how often lnmatH use rhy1lc1I force
I,
2.

111lnll 111tr
,. Perceived likelihood thal • ,urr member would be
asuulted
6. Proportion o{ 1llfr who II)' lhey have been 1111ul1ed
by an Inmate In a 6-monlh period
1. s,,,.1ftcont lncldtnll l11 ...ohl,e111afflnj11r-,, numblr
and ratt p,r caplld•d

Danac:rouJncu ut lnmatn
1. PropOnlon of lnm1&c1 perceived 10 bo utnmely

danprou•

2, Propor\lon of lnm11e1 perceived 10 be 1omewh11
3.

:::r::

frequency o( Inmate pouc:,slon o(
weapon& In Uvlna quanen

Perceived comrol
I. Acrumen& lhll 111ff know whll aoca on amoa1
hun111e1
Aarcement lhal 1taff have uuah1 and punl1htd the
..real lrOUblemakm'"
3. Perceptions of how much conuol lnmalU have o..,e,
other Jnmale1: Day / Evcnln1 / Nishi
4. Perccptlo111 of how much conuol 1laff have over
lnm11e1: D11 / ll•1nin1 ' Nlaht
Suk:tneH of ,nrorcemenc (6-month period)
I. r,op,,,Jon of dlJClpliM rtp«II

,1ta, w,, ...

DU#fll.l,ed

b. GoJ"1 of •,ndnM rtporr
t, Ollllr,ofolN)orreporl
2. ,ropo,IIOlt of,,,lN>f r,porl ,:Olt.,icllo,u 1.\a1 r,c,ivtd

J. ProporlltM o/M4J{N ,.,.,, ,on.,ktlo,u 1ho1 rec,ived
OIMClloleO/:

•. i,,,,""'"

Ollly
•· Lo" of 1oodtlm• onl1
(, $4,re,ataOtt and loll of 1oodlllfll
4. AHra1• ,......,,. of 1ood,U111 ddy1 ,at," •w.1
J.
,.,,,,.Hr ofdo11 ,o k •~tt1 '" '*'''111tion
d. ,ro,orlUM of M4}or rtJ)fJII IMCtt'OIU

,4.,,,,,,,
o.
b.

S.Upcndtd OI cOMnt"IIC /1-.,,I
l,,fod,Jltd by wordln

Dlmlmloa 41 Cert ("'Ulp them ht1Uh)'")
A Sltttl and lllnell (6,monlh period)
J_ IM111t 111t11 teaM: 1nra1e of 9 ilem1 1tpo,tln1
(telift11 ofmenlll, physkal, a,MI erno&iun.al 1111in
A,traat munbtrofd.ly1 an UU111" waa III or mJUrtll

'°'"

by lnm... ,

2.
J.

Pc~lvc:d aeccrily of lnmaie pcnonal propc.ny
Proportion ot 1nm11u who repott beln& punllhl!d
In the IHI 6 mnnlht:
1. wl1h Im,]« IIIIClioft
b. w!th a ~lltr sanction
f. Nornbtt of tnmo111 w,/111• -,. OJ p,opo,1/0,,
of d•monlle population
J. Dllclpll,., r,poru, IOlol tMd role ,,.r t•p/M-d
•· Repon, per IM111e
thot• wrluen up
d. s1,,.iflco111 ltttldt1111 of dl1twboltc1 or l,1clW1111111

•

(,)

•rnons

B. S1arruu of force (6-month period)
I. Pc:rcelvtd trequc:nc:7 INI ttaff hive u,ed fCltCC
.1111na1 bunaec, o.,., a 6-ffiorMh period

Si1nlftcont l,,cldt111J l11 wldclifa,e1

wa.,

MJhi,

ttumkr and ratt p«r caplto-6
J. Sitttiftcan, inddt11n ,,. wlilcli r111ra,111 wo, MJtd,
,.,.,,,N,. and rail p,r co/HM·d

Aver111c: number Qf dl71 M lnmacc w111eriou1ly Ill
enough that medical help w11 needed but did no1 10
l01ickc1II
'· Si1,uftcont l11cld1111J l11W11 ...ln1 1lllcid1 ottc1r1p11 o,
Jllf•lfljwy, ttlMflNr alt4I roll p,r coP,112-d
3.

Si1niftcon1 lncld•nt, r•q11i,l111 Jlrll oi'd or llf/l,mo,y
vi1d. nvmb•r oltd rat, p,r «1pila·6

O. llullh care delivered (6-monlb period)
I. hoJMAllon of lnm11e1 who used medical (aciUUe1
01htr 1111n for 1mcr1,nc1 problen1.1
a. Pr"POf1lon ol lhote who uacd &hi faciliUn who
fell lhe problem w11 properly 1U.1n care ot
2. Propalion of lnmllH who rtponad h1 ... ln1 llld

cmc,aency medical 1ruunen1
Propon:lon or lhot1 who rtcefved emct11nc-,
medical t1'11(mcn1 wha (tic lhtl II WII 1dtqu1ltl)'

hlndltd

Clinlcol contafU, IOlol o"" tote p,1r topito-d
Sid c•ll1. 111,mber
/Hr capltt1•6
J. Medical oppo/111m,n11, """'"' ottd ro11 /Hr copilo-6
d. Pliy1lcoU and TB tcm, 11aut1b,r ond ,..,, ,,_, toplto-d
1. Lab •ppolnt"'•""•
oltd r•II ,.r c•p"o-d
&. /,fi,ctllaJtlOMI cllnlt 'rlJiU, ll&Mtbfr Olt4 rOII P,t
cop/ra-6

and,.,,

,..,,,.1,,,,

C. Oen11I cart (6-monlh period)
I. Propottlon o( lnm1111 •bo received dcnt•I &rwatmeni
a. Propoc1ion o( lhoN 11c1lvln1 denu,I u-111me:n1
who fell II waa adtqu11ely handled
2. D•1111d tUu,, """"Nr olUl,•t• p,, copito•d
O. Coun1tltn1 (6-monlh period)
I. The akohol and wua counseUna serwlcet hne been

Ulisfadory (11reeJdb11rc•)

2. 01htr coun1ellns 1ervlce.1 have been 111i1fac1c,ry
(aareeldltagree)

J',i1u111

·1t-~~~

,..

to riot, ,uunbtr oltd ,.,, p,u taplto-4

"'°"'"°"of:
•· Wor11l111lreprNIIII

b. J•/0u.tt•1-r1o/dot,
<, 1'·10 ,,,,,. ,...,, o/ ,.,,
d. 1S•J0 ..,,. /towl o/doty

,,.1 lhtrt .,.

I, Proponlon of Iliff and lnrn11t1 who

phyllcllly HIIUlled by anothtr lnmtll In I 6•m0t1lh

◄I

], l'lllpOl\loftoflnmllllWho'""°'1haYlfll

pa,dclpllOd In IOffll kind o( -•Mllna;
L

'"'°"',.

I, f'r,po,11.. o{INM>UI .,/to Wllfl i. ..1"4 I• IM

Jollowi•1 ,,,,,_,,
a.

......
bt~JM'"'

·"" '°''

pn a,plltl-6
B. Stalllna for pn,1nn11 and 1ervlu1
/. N11Mbtr of p,01,.,,. or"""'" tkllury 11oJl(llEJ:
•·

NHK_, tU11klMI

Uwcado,tlwork

,. 1'1,cltoloOI""""'""'

'"""''"

C. Wort and lndu11,y cnluallon (6-mondl peflod)
I. 1l\C wo,k uainlna p,011•m h11 btcn 111idaclot)'
<•1rectdl111rct)
l. Have lhe vocaUonal &r1ln'n1 ,ouraH p,ovkied ,tUh
lhll an u1efu17
a. Percaived lmpor11nc• ot l•amln1 SM
ln(o,m1tJon p,esen1ed In clus
b. Ptrcthtd undcm1ndla1 ol lha Jnionn1Uoca

p., 11l11cotl0Nwort •w/1

,,, pqcJaolo1Ut1CCNN1lo,

d. ,,, toMI pro1rOM111rvk1 •IOJ/
Pto rom o, 1trvkfl d,llvtry IIO/f.a1 a propor1ion

1
0/10,0l1'4

Dlao..loa Jr Adhll7 ("kNp Iha'" ~..7")

A, Otnerll

I. Jm11tcl uauaU)' hlvt

"""""'' Gnd ftJII

ptr t:O"IG•d

thin&• IO do IO Ucp lhc:ffl bul)'

1. Pducaclonal
b. Soc:lal cducallon'pn:•rekQt 1klJl1
1. E11roll•11t1 IJt 1duca1lo,i or w,callOlld/ lrtJil'UIII
chu111:
o. f'ropo,I/Olt t1/ p,,p"/olion 1/l11b/1
b. l'roponl0tt ,n,oll,d
J. Amo1111/11/blt IMU1111, propo,tio,, inWll111d 111 tlu
fatlo-.1111 pro,,a,,,,:
a. Ad"II bo,ic td..caliott
b. Suottdury tduca1HH1

fl'IIIOIII

Colufl ldllaJluM COWIII

tL V-"""l"""""'
4, Awra,1 cMU ltow1 p,,r wH MIMI 14o11
" ' ~ or t'OCOIUMOl """""'

••-•Ion

"°''°""

B. 114uc&llcG Md lnlalnl
(k>on4h period)
I, Tbe ,.ne,al tdvcaUOD proa,un hu been 111iaf1CICM)'
(aa,elldllllf9t)
2, H.lvt lht acldemlc <GUIMI provided u,.M 1klll1l
L Pmolvtd undonl&ndlfta ol lho lnlorm11lon
p,eMnaed ia cl111
b. ,.,._,.... lmpor1an<e ol lht lnlorm•llorl

pmenlldlnclu•

P. • - (6-incndl period)

I. RICIMIJonallCIJyillu .,.1111,rlCIOry
(.....,dl,qM)

2. lllllft&otllow_p,\IOl\...,.lllloMlf1ellllk1111
uNd
J, R111ftaolllow_lnm...,,,. • .,bll10uHIN
...,.,llorllll'lcllllNI
0, a.11 ..... NrvlcN ( 6 , - period)
I. a.J11Jou1 M1Vlct111l,e bNn 111laf1CIOl)I
(1......dlN11'tl)
2.

D. Educ11ion and r,ajnlna lnvl)Jvem,nt (6-moetll period)
I. Proportion o/ lnm11<1 who tcpo<I ha,ln1 ponl<Jp,led
In IOfflt cducalioaal P"oS"m

urvltll,'
111. l',r 111fldk0l cllltlclM

Aailq of bow of'Mi• 1nm1111 atllnd ,.u,1ou, urvk..

C. Unev111cc volume (~month period)
I. Proponlon uaff rcportlna hulna I arlcvanc:c med

•1•lnS1 them In 1111 6 rnon1h1
l. Propcwlion of lnm1ie1 who reported OUna
• arioance •11ln11 111tf or m1na11mcn1
J. /M10l1Jftll1111rl111Gttc11, 11wmkr ottd p,opo,11011
o/6-mo111li pop~lolio11

lNnac••

fl'rOPofllOII of 011 ,,1,IIGIICII

corlla-6

I,,

Rall p,r topllo-d

0. Tht 1rt1V1nct procH1 {6-monlh period)

J. Perulwtd crr1e1l111neu ot lh• artevance procedurt
l. Perceived blnentt or the 1rkiv1nc• procedure
J. Percolved ctrcc1 or Jrlt\'lnct proc:cdu•• on the
quallly or Ure
◄. Proponlon
lnm111 1rtev1n11 who rsport lhtJ,

A, S1.1111..,_,

b, SL111111r111ondhonell
c. Wl\l&l1 are wrllten up whboul c1u1•
2. Slaff IN 10o ln¥o1Ytld In lhllt own lnleNIIII 10 care
, _ lrun,w-.11 (1......db11,.•l

GrllYOltCll/fl1d, lolal ottd ratt ,,,

J. NlllftlHr o/ 1ri1110ttc11 dlr,~1111 at Utdl11ldlu,J ,,~

DIIDla,loa ,, h1llct ("do llf,Jrl7">

I. Que1Uoaa on upecu ot 1Llff taJmtit
(11,.lldlatp•)
L Sllff ltt
know whit 11 H;a■ cled ol 1htm

◄9

8. lJmilcd uae o( force (6-month pertod)
I. St•« 11ae force only ..,hen neceUII')' <•aret1dlH&r11c)
l. Ptrctlved frtqllcncy wJth which staff ha¥e used
force •1•ins1 1nm11u
/
J. Sitttijicanl i11cirkttll in wAiclt fore, wo., MHd.
,..,,,,H, •lid roll p,r capil4-6
f. S11n(llc011t lttcuhn11 ltt whicl, r111ra,1t11
11 "''"•
1111mb,r and roll p,r capito•6

-'·

....

J. Orl1w,11c,,, 1NJ1 l11110l111d p,oblt1fll wit.Ii wor.l,

,.,.,.d..l,., fTI 111/f,-,1114a I•,,,,,,,,., .,

l,, l'rflpo,ll"1t WIK4/1tf
Amortf 1/11lbl1 IMtOIII, r~po,liOlt l,tw,l~td 111.
•· P,11011 ,,.,,,,,,,
b. Wo,4 1111•11

pnNnled lllc:lu1

TOTAL
l. Nlll'l'IIHf of IMIOIII '"""''' """' r,1iMttl
d.

hi p,11•11 IIWll11q, wo,I ,,~.,,.

""''"'"°""'Job•:
Propo,IUHt o/pop11l0,lo1t 1ll1lbl1

c, /,ul/MloltlJJ )obi
J. ,b1ro11 wo,A 110,.,1 p,r w11k "'"°"I ,,,,plo11d

f1yc1tMi,1r,,cl,IMrlc,· '"''""" 11Jma1K1

b.
tut4 ,,,.,,,,.,, towu1ll111
1'11cllM1rlc WIIU (owr • d•1N01tlla PfrloJJ, 11wrtbtr

f11w,/~w,1111
0,

c«MIMI ,.,,, ,,, C-,1'M

Dnlt'alcoholCOll-llfta

~,)'f'!!:!::
Jot "'°"'"
N_,of,..,..,,.._,,,.,...,.,,,.,,,.,

D. Wot\ Md lndu"'7 ln•olm"''" (6-,_... pe11odl

ancunce w11 11ken care of:
1. Complelcly
b. P1r1ially
c. No<111II
Proporllon of inmlle, who did not nlc • 1r1euncc,
who cite lhe followinJ reHon1:

The)' nevct hid In)' m•Jot compl1ln1
The problem wa1 solved lnf0<mally
They 1houah1 II would te u1elt11
d. They were alraid of ne11Uve consequences
e. Ocher re11on1
1.
b.

huons .51

~f.

,,.,,.,,,.,. ofall 111,ww:.. ,,.,, w,r1 .,,,,,.,,.,

lllaiemloa 11 Con41don, f'wllhout undua aulferlq"I

: & Thi dllclplloo pro,.,, (6-mot11h porlad)
~
J. Pn,parflon or lnmato1 rccelvlns I aaaJer 11nc1Jon
who fell Jc wu • fair punlahmont
2. ProponJcxl of inm1111 recelvlna I INHr 1■ncllon
wfNt {Ill JI WU I fair punl1hmtal
J. l'tlcepllaa of haw fflUIJ mulmum ICCurilJ lnm11C1
re■Jly belonJ Ibero
4, Proportion of c/LJdpllnt 1•11'1 mdic,, 1/uJr ,.,,.
dptHol,d
•• Minor rtporlJ

A, Oeneral

I, Thi ■dmlnl11ration 11 doln1 Ill best IO p,0vldl &oocl
IJVIOJ
ii, CrowdlOJ (6-mCM11h poriod)

.-,1.... ,•.,..,..,...,..1

a/cap«li,
l, P,oparliOII oJ6•mOllrli p,rlod I• wAlch <op«ii,
wOJ uc11d1d

J. A~1ra11 numblr of 1q.jt. ptr inma11 In liousU11 ~,.;,,
4, Perceived occum:nc:e ol crawdlna In !he hou1Jn1

b, Major r,pom

Unill

J, Proportion of major rtport sanctlon1
•·

J, Pen:1lved occurrence or crowdin1 ouuldo lhl
hou1ln1 unlll

S11JJHnd1d di commllt,, 1,..,,1

b. Modi/ltd by word,n
P. Leaal r11ource, and lc11I acce11 (6-month period)
I, Propordon or Jnmate1 who have used the law library
2. Pn,panl'"1 or IMulot who lnl Ille law llbruy ...
tupplle4 lldequalO lnlamallm,
J. "'-'''"' of Jnm,r,, who lcel 1ho law library bu

C, Social denslly and privacy
I. Propordo,i of inmar,, wllo w1r1 coff/1111d 111:
a. Sin1l1,occwpancy unit, of 60 sq. jt. or
b. Mlllllpl1-occ,q,o,,,c7 •nlti wit/a 60 Ml· Jt. or...,,

G. lutllcl delayed (6-monlh period)
I. A......,IIMnlb,,o/daysfrOffl IA,dar, o/tloo
duclplinc ,,port until tit, Mori,.,

d019.Jt,,,.,1.......

2. Perceived ■moun1 or prlvaq lllln lhc 1lupln& ue■

....

J. Perceived amoun& or pd•acy In Ille 1howlr and iallcl
ln&cm■ I

rrcedom of movement
I. Percdvcd rrcedom of movcmcnl for lnmllu:
Day I Evonin& / Nl&hl

Prgp,t,rtion o/rninor r,porll wi11t Ja,a,in11 b1yond

,,.,u,1,0M1

2, Proponl'"' ol lnma111 rtportlna lamlly and lrilnda
who nnd 11 hlnl lo 1nan11 vi1i11
,. A•on11 number or •IIIIOn rtponed by IMIIIII
4, RIii.. al Ille quallly of vialll
s.
or ioo nw,y poop1o 1n ""'
vlalllftl on•

_,Yid"""'"""

P. Sanlladon (6-monlh pedodl
I,

Perceived OCCUl&IIC'li or lnlccll, raduta, - dill
lalhahoualnalllllu
.
2. Pcn:elvcd°"""""' oflAHcll, '""'811, •4111

■It

0. NolM (6-monlh period)
I, Ptrc1lv1d nol11 l1v1I In lho cvenlna houn
2, l'l,..1¥td nolM lavtl In lhc 1lc1pln1 houn

H. Pood (6-monlh period)
I, Qualhy nl load 111111 ln&lhudon
2, YlritlJ ., 1111food111111 lnllllUllon
J, Propo,1lon of J1111111e1 who IHI 1nou1h lood
l1 Nl'¥14 tor UII main count
4, Proportion or lnm,.., who IHI 11,o app1111nc:a
al
food, II,•.,,..11
.. _,,,..,,,___..,,
,. ar1die
.......
.,,,.,,,,,._

.,.,,,.,,,,,..,,....,

I, Cammluuy (6........ pedodl
I. '1111N la ■a
HlccllCMI
(qlle/dlaqre1)
i. p_.ian ol"""""a who,.poncd:
a. No lffDH la lbllr CNlffll...., eccounl
b. limn lbll WW -...s

llla<j--•rJ

INffat" p,r 1how1T
IM1at11 ptr sln.t
IMIOIIJ p,r toilll

,,,,,,,., ,,

2, Grl1w»1c•1 abottt nuwtl1ttaM1, nwmkr "'" ,011

R11ul,n11 YI, COIIYIIIIIIICH '" ""'"' or,OI

•·
b.
t,

/MUJIII

la die dlalna 11111
). l'ln:clvad ......... of I bid odor or cln:ula1lon In die llau1ln1 ..,,.

Propollion of inmo111 who w1r1 con/fn1d IO hot11,n1
UIU11/or o~,, JO hours p,rday

E. P..11111c1 and malnlcnancc (6-monlh perlO<I)

"· '""'""' ,,,
p,r ''''"'°"'
t1Uvtslon
I,

M•lllplt-«npa,tq ""'" wltA ltu IMII

7-day dafl
"'"''of1rl1v011c, r,port unJil r110/v,d
J, Fr°'"
b11rl1i,anc1 olflc,r:
a. Av1ro11 numbtr of days
b, Proportion lnyond 10 days
4, From da1, of 1ricv011c1 r,porl until rtsolution
approv,d by wartkn:
a. Av1ro11 ,unb,r of days
b. l'ropo,tion b.,ond 27 days

"'°''

,,,,,,.,,..,,

Ml supplle4 lldequalO lnlomallaa.
•
,f, o,,.WU1C11 t/tat lnvolv1d lc1al HIOIUffl or"""'·
,...,., Md rat, p,r copl10-6

A#re11 r11ul1n1 l'Ofl•lolion GI p,rc1n1011

l!mnlhalWINIGICOIRCr,d

Yllll11ion (6-monlh period)
I. Propor11CMI ol Jnm111, who find II hlld lo '"'"''
vlllll wllh /1mlly and lrllndl

°' "°""
bu •-all fumku'"
"-11on of

,. Ra1J111
an.. II II bani ID lalk lo a vJ1hor
boc-Qf noln la Iha •llklna ...,
,. Paopaallon or lnmar,a who flol lhc vlalllq-

-■Ill

who feel
bu,_.., ................

di■

vlllll.. roona

,. Grl"'"""' ,...,,_, """"- w ul ,,..,,.,,.
"'"""' GIid ,.,, ,,, '"Pila•d
K. Communlly """ (6-IIIGCllh period)

,. '"' °"'"'· ......,""',.,,,,,

Dla,analon 11

Man■ atmoal

<y/l0-6

("'u tfflclaall7 11 poalbla")

A, lob llllll■cllon (6•mOIIIII period)
I. lnsll1u1lon 111l1lacllon lndla: , ..,... ""'" l l1e1111

11p,111ln1 pa1id,o 1Nlln11 lawlld die lnalll\lllon
2. ""'9orllon 0111111 who llponlll n11n11 Jriov ....
'lalnal-•
). "'-1lon or111ff wbo bin 1101 ftlld 11rlov■- •
who cllo Ibo followlq maon:
a, Navar 111d I m,)o, COlllfl■lnl
b. ,,_,. Wll llun- al lnl-■ IIY
c. '"-&hi II would bo -1a..
d,

Afraid alMJldVI COtllcqNIICII

•· O&berNUOn
D. Suu11n,1t111111...,1
I, lob 11r111 lndla: 1v1n111cro11S1111111111mlin,
how ollon 111ff aaperllnco 11r111 .., Ibo job
2. Hanlcnln1,1ow1n/,Jnm11c1 indu: •••1111 acrou
l lltn1111111dln1 how ollln lltff lotl lncllrl111n1
or harsh luw•td in1n1111

l. R•lllirla•to-blmllel lnde1: 1wr1111Crot1 '1 llema
n1anMn1 how on. ■ 11aff fwl potldve about lhc way
Ibey wort wilb lnmllel

H. Salary and overtime (6-month perioJ)
/. 11w,011 ,ala,y (111 ll .<XX11J

a. Total, m111au i,r111C11 Ila/I
b.

D. Slllf and 1M111&em<nl rtllllona

1. M1n11emen1 and communlcauon lnde1: 1Yer11c
ICJOtl 10 ,..... upnulna po1lllve 1ppr1l1ll1
of 1t. or&anlullon and authority of mana1emen1
2. Rellll0Qlblp-wllh•1uper,laor Incle&: averaae acro11
6 Uem1 111ardlna how poolllve 111rr ful Iowan! 1h<lr
1upervlaor
l. R11ln1 of how lho bulldJnc dc1l1n atrecu:
communfc11lon amona lino 11atr
4. R11ln1 of how Ille bulldlna de1l1n 1/lccll
communlc1don between line 1t1ff and 1upcrYlson
I!. Slllf e1pertence
1. Averaac number of yean worked 11 1h11 ln1-1icu1ion
2. Averap number ot Olhcr fecllitJe.1 worked in prior
la lhll facillly
J. At,,1ra11 ~ors UI a,rr,c,/o,u
.. Total Slq/f. '"'""' strviCIJ Slq/f
b. C,u1od111a/f
C,

Top odmlnislTOIOt'I

P. Educallon

,. .4.,.,.,, ~.,, of ,dwc•llon (1,1clwlln11,rvl(II Jlq/JJ

O. Tralnlna
I. Tralnlna Index: averaae across 5 hems reaardJna the
effecdvtnr.u and quality of lhe ualnln& pro1r1m

C,alody Sia/I

c. Top odmlniJ1ro1or1
AYer•a• number o(ovenlme hourt worked In• WHk
J, Avcraae proportion of overtime compen111Cd by:
a. Bxln pay
b. Compen111ory limo
c. No compen1allon

C. Statru,rnover
/. S"'4' Oft ref,r•nc• dt,11 dlvid1d Into:
o. Vacanci11 01t r,J1r1nc, dall
b. T1rmiuli01U duri"I pr,vla,u 6 mo,ulu
2, T1rmlnotiM rat1 divUUd by r,i•vanJ BOP
,,,.,.,,.,p,clflc ""'

S11rnn1 efficiency
/. NMfffbtr o/rcJld1n1 ,nmalts p,r FT£ Jla/JmtmlHr

....
:8

200
AoDm0NAL SUBMJSSIONS FOR THE REcoRD

TnA8 DEl'ART.1,.'E!ff OP CiuJaHAL JusnCE,
!lunuuilk, T.X; Jul:, 31, 1995.

Hon. ORRIN HATCH,
U.S. Saiau,
Ruudl Senate Otfi« Bu.ildinl,
Wcu/iin8fon, DC.
DEAR SENATOR HATCH: I would lib to take this opportunity to thank you for in-

viting me to tNti& before the Senate Judidaiy Cam.mitt. oa beball' of the American l::orrectioaal Auodation. The beering, I beline, addreNed a D1llllher at critical
issues that the nation'• atate prillona race in their effm1a to IDcan:ente violeut at-

fenders and provide !or truth-m.-eentencing.
Aa you know, the T a u ~ a/Criminal .Juatice (TI)CJ) bu been working
diligently with the Tau I,.Watun _ . the JIU! h ,-n to pro9ide tougher
uenalties !or th- who mmmlt 'riolent ~ and T - cc,atinues to be in the
l'orefront of atatea I m ~ the long,eet - i e - and nquiriq the longest time
aerved !or violent c:riminalL We have al80 led the 11atiOJ1 in creacinc the ~ capacity nec:easary to enfbrce our la-.
We in Texas app~te the won: of the Senate Judld.u7 Committee under your
leadership in adc1;e8Sing the critical areas of violent crime, IZ'Uth-ia-eentendng. victim.I riRht, and relief from c:ml action■ i n - of prison OfflQOWdiag,
Tbarut you, again, for the opportunity to abare my 'i'in-8 with the Committee. If
I can ever be of any umtaDce to you or :,our staff in these important areas, pleue
do not hesitate to call.
Sincerely,

JAJaS A. CoLI..INS,
Ez«u.tive Director.
PAULS. Kl!NYoH, M.D., P.C.,

BoAm> CElmFilID OimlOPEDIC SuRoERY,

J'ocbon, MI, July 17, 1995.

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Senator SPENCER ABRAHAM,
U.S.&nate,
Waahington. DC.

DEAR SY.QICB, Fint I would like to tlumlt JOl1 fir ..-ruig Mkhican u our firllt
Republican Senator in ~ ,-n. I appreciate your ha.rd work and !ltand behind
you as you try to reform W ~
Spence, as a member of the Senate Judiciary Committee I want to discuss a _problem that I believe la gajng to ~ thia country. Thia hu to do with the abases

Ii~,~

on the Federal bench. I believe that within 20 or 30
this
itaelf' out of emtenc:e. I belieft that thia is o f ~
1ltmolJt
needs to be done about aomehow cu?bi.ag the power of
the demagogues that currently pesa as Federal judges. I believe that the Federal
court system in this country, again, is going to lead to Dill' ruin. We need to change
it, and we need tci chanp it 1IIOUII
One way that I directl,J' - U- . _ bu to do with lltipt:lon oC the inm.at.ea
in the State oCMichi
Local. atate and federal are~ wasted to ply with F e d e r a l ~ and fmoloua lawanta that are filed in Federal court by inmates. I am curnntJ,:, imohed in four of them. I will describe them
to you as follOWI!
The fint hu to do with a Clllffict.ed child -ie.z. who WU trJiDI to escape and wu ahot and h a d ~ in his ,nkle. Ia&red tu remove
them. He refused to mp tbe
. - ' ud la 11111.q - in Federal court becaWIII
aii Eimth Ainericfmerrt -.iGlation fill' cruel &lid unusual
of

•

c:oJ:;;1"
is~
importance .::f aome

uni.shmant beca\1118 I fallal to tnet him. Thia is ridicaloaal U.S. Manha1a
t:!ve
had to come to my ofllce to
~ NIIJlmWI prec:ious reeou.rces have been wuted, and the Fedenl judges ha'"' allowed. thia to conIN!l"ft

tinue. I anticipate thia caae

&IU8 to trial, &pin,

~ my time, the

state's time and Federal beb9 thia la flnally-tmvwn out. Thia
needs to be changed, and chanaed - I have another inmate who la IIWIC - &or a similar lituation. Thia inmate wu going to aee me in my clime tr a new problem but wu eo unnlly

20Z

201
in the waitina room that be had to be removed by ,uarda. Again, he le

IIUing me for tailure to treat.
Atiother inmate le 8WJ11 me becaUle I would not do an elective operation
such u a knee replacement becaUle I did not feel that thie man wanted
to get any better. Again, I am being 11Ued becaUle I did not perform elective
surgel'y OD

a inmate.

Another inmate ia IIUing me for a problem that I newr even evaluated
him for. He had a A-C ~tion in liia ahoulder which ia normally treated
by doing nothing. He wu 9MD elMwhere and the thotuht was entertained
ol poesillly dolnjt an elective IIW'gical procedure which l would totally disagree with. Again, I am being sued for failure to treat.

None of theee inmatee currentb have lawyen. Tlw,y are all doing theee lawsuitd
on their own and going thrc,ugh die Federal courta. The judges in the .Federal courts
are allowing theee to paaa thmJch and, ~ are ca)!lling great upeD8e to the local
and state government& and the federal taxpayers. Theee are clogging the Federal
courta and thie needs to be c:hanRed. The least that I think that we should be able
to do ia to diaal!ow inmatee to 1ile theee ridiculous, frivolous lawsuite. If they do
we should at least rsquire them to put up $600-$1,000 to cover the ridicu!OU8 co~
coetll. If we do not, we are going to litigate oureelvee out of existence.
I am a1ao very much diilmajed by the activist positiona that the federal judges
~ Currently the citizens of Micliinn do not even nm the prison system. It is
being :ur l;y Juda Enaling out of lCaiamazoo who baa direct authority to pull
money ou·. of the "State of Michigan coffers to lund his pet projects for prisoners
Thia is absolutely ridiculOU8 and needa to stop.
.
Again,! have a )'Ol1Dg child and you have two young daughters. Ifwe do not make
~ m the federal court 8)'Btems to patrol these abuaes of power by federal
~ . I don't believe that we ai:-,_going to h~ve much of a country left for our children. You are on the Senate Judiciary Committee and I would appreciate your moving the Ju!li_ciary in tbil! direction 80 that ~ changes could be made. I think
Crom a political standpomt for Rellublicans that this Is a win-win situation. I would
be more than willing to testify
Senate committee regarding these abuses
of J>OWI!: and of the court ~
· y by inmatee.
. I anxioual~ await your reply. I tliink that this is one of the core issues for Republicana and citizena of thie country becall8e if the changes aren't made, I don't see
much of a future for us.
Sincerely,

bete:;,:R:

PAULS. KENYON, M.D.
PREPARED 8TATEME!ff OF TIil: .AMERICAN BAR AssoclATION

<;>n February .10, tha

House of Rep~ntatives approved the "Stop Turning Out
Prisoners Act" ( S.T.O.P. ") (H.R. 667. Title Ill), an Act whoee apparent purpose is
and clear effect would be, to curb aduit and juvenile inmates' a6ility to obtain ~
dresa for the violation of their conatitutional riizhta. This Act was rushed through
~e Houaeburd of _Representatives, with virtually no iliscuasion of its unconstitutionality,
would place on the federal court&, and ~e adverse, and potentially
_,_,_ face,._ ecta the Act would have on the already difficult job correctional om~ thie ll!ltion's adult and juvenile correctional facilities.
~e
~l.'t Prieollen! Act" baa now been introduced in the Senate (S.
• .. o
uauw 18 an analyaia prepared by the American Bar Aseociation of
tC151ons of the Act and juat eome of the ~ problems with the Act. Because
0
many pro~~ the American Bar Auociation urges the members of the
Senate to yoted.,against .:i.T.O.P. At the same time, the ABA recommends that Con•
8";11 Pnm. ! •~ the appointment of a broad-hued tuk force to study the aubject
'~tetoli~tt:l:ct prcmcle recommendstiona to Coagreee about sfepe that can
.....,n .
the burdens on cowu and correctional of!ic:iala or inmate liti•
P!°uU..~, ~ that conditiona of cominement in correctional facilitiee are
co
......,'!"' .........t the constitutional right of adult and juvenile inmates to
ha
ve ~ - to the courta le ineeerved.
~~reli~Q.ltha:Thia Netion of S.T.O.P. placee a number of limitations on the
P.
ve
"'
t may be puted in a ci\'il•riibta IIUit challe!_liµIB the condi•

~na,Jf,

;!o/o~

ti;8

~ ~~~;ia~ ~~o:J;1L9nu4:ci~~~~u:::~~

illepl condit:iona. of c o ~ t . Subaection (aX2) furthermore l)roluoits federal
courts fro~ redllClDg or limiting the Inmate population in a correc:tional facility un=t~~otheriathereli~~~•thof the unconstitutic.nal condit:iona of confine"' can n - : ,

oee unconstitutional conditiona.

One of the chief problems with §3628(8) la that it igD(lr'N the reality that moat
major daa-ac:tion suits ClOllt.eatina the conditione of coafiDement in adult and juvenile correctional facilities are reMihed tbnlucb ,. eettlement When government offic:ia!a• recognize that a court will moat likely find comiti01l8 of c:onfimmeDt in the
correctional facility to be UDCODlltitutlon they ...,...n,. decide that it la in the
beet interests of the people of the lltate er locality to enter into an • - t to
remedy the UDC0118titutional conditiollll ofmnfin-1
-.-The ironic - i t of §3626Ca) la that the federal pernment,- by legislative fiat,
will be preventing states &om rNOfflDC litf,ption in a - Y which the states have
coocluded le in their beet interesta.. Often. "9hen attempting to Nmedy unconstitutional conditiona of coafinement, lltatee will agree to tab etepe whlch are a reuonable and effective means of remedying the problem and yet technically not "necessary" within the meaning of I 362(!(a)~
. For eKlllllple, 88811.1De that inmates brine a c:ml-rigllta 8Uit becauae tarp numbers
of prieon inmates in a maldmUJIHl!CUrity priaon are being beaten, raped, and even
killed by their cellmatee. The Supreme Court bu made it quite dear that the Conlltitution doee not generally mandate aingle c:ellin£ See, e.g., Rh«!.~ v.
452 U.S. 337 (1981). State of6dala ~ to the unoonstitution,,l conditions aL
confinement might, however, decide that the li8llt - y to remedy the problem ol inmate violence ia by single celling imnatea. Such aingle ~ ~ t not be "'necessary; u required by § 3626(&), to c:ure the c:onatitutional violation, since priaon
officials could tab other stepa to c:mb imnate -riolence, such u ~· the number of lltaff" members monitoring inmates in 1heir cell&. Yet the single
· ol inmates would certainly be a reaaonable way CIC remedying the unconatitutio
conditiona of confinement prevailing at the priaon &c American Correctional Asaoc:iation, Standard& for Adult Correctional IMlitmiona, Standard 3-4128 (3d ed. 1990)
(single cells required in mazimum-eec:urity priaons).
Section 3626"<aX2) similarly tiea the hanma of state and local officla1a u well u
judges. Thia subeection pnmmta a court from placing a population cap on a priaon
or prieon system unlees no other relief will redreea the renstitutional violations
call8ed by overa-owdinir. This requirement -will, however, rarely, if ever, be met
since the conatruction ol new pruona can, at 1-st for a limited period of time, allevi-ate crowding and it. advenie eff"ecta. The practical efl'ect of §3626(aX2) would therefore often be to require states to build ne,r prisons to alleviate unconatitutional
crowding, even when officials would prefer to eue crowding by placing a cap on the
prieon population and developing c:oist-«f"ecti"9 community-based sanctiona for the
puniahment of the many nonviolent offimdera ~ incuceration ia not necessary
to protect the public's aafety.
Section 3626(a) not only rep~ta an unprecedented encroachment on the prerogative of state and local ~ to enter into agreementa to remedy constitutional violat:iona, but it wilf also imi-e added. burdens on already overburdened federal courta. Becall88 of §3626(a), eowts will no longer be able to simply enforce a
settlement agreement that the parties haw decided ia in everyone'a best interests
to enter into. Instead, courta will have to hold lengthy hearings to determine whether the agreed-upon relief ie indeed --.ry.• "narrowly drawn,• and the "least intrusive means" of remedying the constitutional violation. And since the ~t,Y of
the relief ordered depends on the nature and ~ of the conatitutional violationa
in question, courts will have to hold what are in effect full-ecale trials to ensure that
the relief conforms to the requirements of I 3626(a). The incentive to aettle c:onclitiona--of-confinement cues and the advantages ol doing 80 will then be loet.
2. Section 3626(b): Section 3626(b) ~ for the automatic termination or the
proepe¢ve relief granted in conditionll-of-ff>Dfinernent - . . Subsection CbXl) providee that IIUch relief will automatically end two years after the date a court found
conditiona in a cornetional facility to be 1IIICOllSt.itutioll81 er two ~ after the enactment of S.T.O.P., whicbfler ia the 1ateat clde. The critical tlaw in this IUbNctlon
le that C o ~ ia clirectmg that oourt orden 'be • uide it the conatitational
violationa which gave rile to the courl:I' mdma peniat. Thia IUbeec:tioD not ~
raiaee grave separation-of-~ c o ~ hut dianprdl the constitutional riot
of Inmates to liave " m ~ _ _ . to the com1a (Boiuids v. Smith. 430 U.S.
817, 823 (1977)) and their -,hth - ~ dpt not to be subjected to cruel and
unwiual IIUJliahment&
••
·
•
Subeectlon CbX2) proridee for the immediate termillatian of p.wpedive reliel m
conditiona-ot-confinement w
when the nliel" wu orderecl er apprirved bJ a court
without a flndinr that the conditions of conft-t in an adult o r ~ correctional f'acility were UDCODllitut:ional. ~ ~ court ordena will be wided whether or not the c:onditiona of confinement to wluch adult and juffllile imllatea are
. preeently IUbjected an unconatitutianal.

204

203
Tbia IIUbeec:tion rai8M the eonstitutional COIK8'DII that llllbeec:tion (a) dces.
In addition, the ell'ect of thill IIUbaedion will be to place a potentially enormous burden cm the federal murtL
Aa of January 1, 1994, tbirb'-nine ltat. and the Diatrict or Columbia, Puerto
Rico, and the Vqin lalanda hail one ar more ~ operating under a CODl!ent decree or other conrt order. 8tatu 8-t: Stat.~ aN1 tJic Courta-Jarwar:, 1,
1994, The Nat1 Priama Prqje,ct J. S:.12 (Wint.er, 199319(). More than a ~ of
the
603 larpat .iaila are alBD operating under court order. Bur. of Just.
Stat., U.S. Dep't ot Juat., .Jail .bunala 1992 & <.AwE. 1993). When theae court orders
are added to tne court arden ..,-rninc limaDer jaih, and juvenile correctional
facilitiea, the number ot cmni:tioDal fadlitiea ~ting under court order becaW!e
or conditiona o f ~ riaM to well aver two hundred.
Aa -tioned Nriiar, a laqre number olU- ~ ordera stem from a settlement
agreement ~ the parw!!IL And u put ol theae agreement&, the partiea typically include in the CODNDt decne a atatement to the effect that the defendant&,
by agreeing to aet.tle the - . are not admiUina that the conditiom ol confinement
in the correctional fadlify are unmulitu~ This atat.ement is included in the
coneent decree ao that the decree ia not later ueed againat correctional officials in
other lawauita eont.eating the conditiona ol confinement.
CongreN, through §3626(bX2), will he eetting aside the court orders in these
which the ...,,..;_ had agreed to aett1e. And if conditiom in the COITeCtional
fadlitiea in -:.;;.;; etiil unconatitutional, the juvenile or adult inmate■ in thoee
facilitiea
moet likely bring another la-,it, thereby placing on the court& the
burden of acijudicating theae la~ta and reeohing i.saues already resolved by the
partiea themaelvea.
3. &man. 3626 (c;} and (d): Section 3626(cX2) provide■ for an automatic stay of
J>rO!P.!ldive :relief after a im-cribecl period of time upon the filina: of a motion to
inodify or end proepectiw, relief'in a conditions-of-confinement caae."lJnder § 3626(d),
this motion can be brought not only by the defendant.a in the lawsuit, but by any
jlOYel'tUllfflt official •aff'ec:tec1 by" a population cap on a correctional facility, includmg proeecutora.
What §3626(cX2) doea in efl"ect ia to pennit defendant■ in these lawsuit& and
other gc,yemment offic:iala to tromp a court order simply by filing a motion. For example, thirty daya after def'endanbi or other ~ t officials who have standing
under S.T.O.P. file a motion to md proepective relief in a conditioruH)f-<:onfinement
caH, a stay will go into elf'ect, 'Whether or not conditions in the correctional facility
are flagnnitly unconstitutional and even life-threatening. Section 3626(cX2) therefore ~ only ~ t a conectional !!nd ~ government offi~ to llBllrP judicial
autbori_ty, but will fora! adult and juvenile lllJDBtea, at the whim of those officials,
to continue to eni:ure and suffer harm &om UDCODBtitutional conditions of confinement.
4. Section 362_6(d: In IDB!1Y condi~-confinement caaes, courta appoint special
masters or '!1orutora to Ulliat them m ~ that the court's orders are enforced.
V.lien questions are raised about whether correctional officiala are complying with
!I COU!l order, for ezample, a court monitor will submit a report to the court containmg his or her objective findmp ~ the matter in dispute. The monitor will
also often uaiat the parties in reeol'Vll!K dispute■ about the requirements of a consent decree or other CIIUlt order, thereti., awiding the neceesity for court interven-

-trr•

:if1

tion.

5e:ction 3626(e) would permit only United State■ magistrate■ to serve as court
moruton and would limit their role in conditione-ol-eonfinement caaea to reeolving
complm! factual iaalell submitted to them by the court. Thia section would have the
~ effect or nec.aitating ,r-ter intnlaiona 1w caurta into the administration
~Uea sillCII mqiatrata judei!e wwJd be -ponaible for monitorina
P
- - .,. COUit anfen rather tlian the wanlena, conectional superintencf.
enta, and other cornctional apertl! who ...,.n, eerve u court monitors at the
preeent time. In addition, CDlllt IIIClllitcn could no lolljU help to avoid court involvemany diaput. W - the putiea by uaiating them to informally reaolve
_....,put.es.

r!a~
~! ~-

-ce

&. Section ~ : Thia aulleediaD .....ntialq curtaila the - ~ · f - which
may ~ awarded under 42 ~ In lawuita In which adult or juvenile inmat.
Thia 1111
wDl haft the eft'ect or mac:er&t;ing the COD•
atitutiaml
ta or adult and jlnlllliJe lnmata and, like ao ~ othei- parta of
S.T.O.P.,
abl!IPt,e the e&ct or C11U1t anlln la condi~f<onJlnement cue■.
The Supreme Court bu l'IIIINiedly o1ieenec1 tbat the parpoee of I 1988 ia to en~ •ttarn.n to aaut others in the vindication or their coastitutional rubta 1,y
~ for t6e award or
fee■ 1D plalntifl'a who prevail in civil-righta

•tt.ameJ'•

■uit■.

~ - •City of Rwamde v• .Rioav, ◄77 U.S. 661, &7~78 (1986). Section
1988 ia
no& only to protec;t indiviclual■ w'-9 constitutional right■ have
been 9io1a
but to f\uttier the DUblic'■ mtere■t in the enforcement or the eoa.titution and c:ml-riplta la-. Id. at S74.
TbeN ~ will, howewr, be llllbetantially undermined by §3626(1) aince the
limitation■ wblcb it Placl!■ OD attorney'■ f-■ will ~ attomeya from rep-tine lnmat. in conditiona-of'~t - - Subeei:tlon ~2)1..f'or a:ample, ~ that the attarney'a f - awarded be "proportionall _ - to the
camt-ordered relief obtained by adult ar juY'Bnile inmate■• In Riwnide v. Rivero,
477 U.S. 561 (1986), the S u ~ Court remaed to adopt IUCh a proportionality re~ t . The Court recocnlHd tbat a atria proportionality requirement failed to
tillte into account the DODpecu¢ary benefits -to"" inilividuala and the public o{ vindicating constitutional rightj and ianored the deterrence of future conafitutional violations which OCCIIJ'8 when lainti1u prevail in civil-riahta suita. The Court alao
.
nized that many mentoloua civil-iigbta claim■ would simply ne-,er be broughTl?a
proportionality reguirmnent were ado!>ted.
·
• The 5uP.reme Court hu, however, "held that the ~ • degree ol in a
§ 1983 llllt ia one factor which abould be coaaidenicl by a court when ~
the aize or the fee award to be granted a p ~ plaintiff: H ~ v. EcMrharf,
461 U.S. 42" (1983). In addition, it muat be rememl>ered tbat thenclenbi in conditiona-of-Q)llfinement - • u well u other dvil-right,,
have a ~ deal of
control over the size of attorney'■ fee award& Tboee a
can bi limited by
romptly 1ettling, rati-- than conteetirlg lawauita imolving meritorious claim■ am
l .
.
ther than
.
court orders. H the laintiflil
rom~ :z1~u:'~~danta can ~ t h e i r liability for a ~ a
by tendering a reasonable 1ettlement offer to t,;he _plaintift"a. H the judgment o&tained
by the plaintiffs is not u favorable u the relief offered by the def'eodanta, the defendant& will· not be liable for the flaintiff'a • ~ • f - incurred after the date
of the offer. Morel, v. Claan,y, 473 t .S. 1 (1985). Section 3626(0 ia theref'~~
unsound since it will underinine the enforcement of the Conatitutio~ but
to avoid the award of exceaaive attorney•
in conditions-of'....,n nement "-""A
The proportionality requirement of § 3626<0 is not the only part ol that aecticu
which will have nefarious effect.a on the enforcement of conatitutional right&. Section
3626(f)(l) limita the award of attorneia f - in conditions-of-confinement caw to
tboee •directly and reaeonably incurred in prlning an actual violation• ol a fedenl
right. One or the adveree c o ~ irtenuning Crom the Ianguaga ol thill aubeection la that It would eeem to forecloee the recovery of attorney"s f - incurred
when enforcing court order■ in conditiona-of-a>nftnement caaea.
When inmate■ prevaJ1 in c:onditiona-of~ent c:aaea, their attorneys generally _,,;,,. that - ' - half of the bettle has been won becauee tnrically and unfort:uMi;i"m, def~ta drag their heels in bringing their facrutiea into compliance
the requirement■ of a consent decree or court order. The plaintiff's muat
continually nudge tne defendants to ll!eet their legal obligatiom, and the plaintiffs
are entitled to attorney', fees incurred in enfor,cing the courts' order■• 1J1P'lJIJ v. Carruthua1 885 F .2d 1492 (10th Cir. 1989). H the right to ~ attorney's fees is withdrawn Dy Congress, many court orden and consent decrees in conditione-«-conm»ment case■ will become nothing more than an empty, and unenfon:eable, aet of

c::::J.

re.

wfth

•

word■.

--;,r-"

.tw.not,,

For all of the reasons set forth above, the American Bar A98ociation
to vote against the "Sto!> Turning Out Prisoner■ Act.
S.T.O.P. reflects an insensitivity to the constitutional right■ or adult and .iuftnil~
inmates, encroachea on~ authority of atate and lccal governmente to aettfe conditioruH)f-conftnement c:uea, and placee e-■ burdens on the federal judiciary.
By ~ it difficult, and aometimee impoalib1e, for inmatee to obtain :redreea for
the violation or their constitutional ruhte tb,ro,ugh IIOllviolent ~ S.T.O.P. will
a1ao eucerbate tenaiona in correctional facilitiea and make the alnad7 dlflkult Job
carractional offleiala ftt.ee in maintaimDI control iD u-e facilitlea - - ilif~ members of the Sen.ate

Scult.

H ~ is truJ7 concernecl about ftoeeinar correctional facilitlea lhml court au~ n , there are ine:ra1 meanin&fti! atepa that Congieu can tau tu ■-~
~ which do not UDderm1De ~ Comtitution, atate■' riabta. ....
0ne or the prhM;lpaI rar tJia 'IUICllll9timtion■l alDdldm:11
many
~ nation'• coinctloaa1 l'adlitia la tbl. o-ciowd!D,r tliat ~
tboee fadlitia The federal ~ t can ~tlY ual■t the stat. and local Permnenta in eulntr tbia crowdina and ~ 'thelr correctlonal l'adliti• lntu pliance with the Conatitu=on prcrridlnr-t.ea.Dlcal uaiataDc■ In the ~ t
o f ~ commlUli
■anctiom for tile 1111Diabmat al DOimolem cifrendar■ wh-lncarceration not ~ to protect lb■ public l&fel;y. In addition, the

205
federal ~ n t could condition certain IIIOlletuJ' Ullistance tc, state and localities on their compliance, within a defined period al time, with court orden governing conditions of ronfinement
The American Bar Aaeoc:iation standa ready to umt
in devising meana
to minimize the need for litigation to bring adult and juvenlle correetional facilities
into compliance with the Constitution. Ana - welcome, and would_ again reql!est,
the opportunity to diacuaa our CODCel'DII about S.T.O.P. in a hearing before the Senate Judiciary Committee.

eon-

AMERICAN BAR AsaoclATION,
8EcnoN OF CRIMINAL JusnCE,
W ~ DC, February 17, 1995.
DEAR SENATOR: I am writing OD behalf' al the American Bar Aaeociation to urge
you to _oppose inclucling in S. 3 the pJVriaiona al the -Stop '1'uming Out Prieonera
Act" {"STOP") aa approm on February 1~~
Homoe of Repreeentatiwa in H.R.
667. Thia leitWation lacka constitutional
•
, violating the principlee or the
Tenth Amenament which reeenee certain,_.. to the states.
THe "Stop Tunrlng Out Priaoners .As:f' hnpedea the ability of adult and · venile
inmates to obtain redrew for the m.ation oC their constitutional and oth{:;. l~al
right.a in a number of ditferent ways. The Act for ezample, limits the prospective
relier that courts can order in lawsuit.a
""Jllditions of confinement, automatically tenmnates prospective relief after a
,ear period, and places substantial limits on the attome,11' r - which can be awarded inmates' a t t o ~ action which could have a serious •chilling efl'ect" on inmates' efforts to secure the vindication or their rights.
STOP will lead to a number or different problems, just a rew or which are briefly
capsulized below.
1. Much of 1/ae •stop Tru-ning Out Priaoncw Ad" is Unconstitutional. The United
S~~ ~reme Court baa held that inmates ha-ve the constitutional right to have
"m 1.
accesa" to the courta. Boruuu v. Smi11&. 430 U.S. 817 {1977). Much
of the •
p ~ Out Prisonen Ad,• however, rue. in the face of this constitutional command. To give an example al nut one oC the coDStitutional detects in
the Act, a StlCl.ion _providee that proepective relief ordered by courta in lawsuit.a
contesting the conditiona al confinement in priaons, jails, and other adult and juvenile correctional facilitiea must automatically terminate after two years- Even
if" the conditions of confinement to wbkh inmates and juveniles are subject are
still ~ t l y unconstitutional two :,ean later the inmates and Juveniles are, by
legislative fiat, denied relie£ Ezen:iee of'tbe right of inmates andJuwniles to have
access to the courta can be rendend an empty ritual if" the reeources are aimply
not available to rectify the violationa within two years. The right not to be subjected to cruel and unusual pnniebment QD be stripped or all meaning if" recalcitrant or dilatozy compliance dela,yw implementation beyond twenty-four months.
2. The •se,,p Turnin.it Out Priaonas Act'" will Pf.a« Undue Burdens on Federol
Courts. Alth~ STOP'a intent may be to relieve the burdens of state corrections
and other officials, it will have the mde efl'ect oC placing additional burdens on an
already overburdened federal judiciary. Much of STOP ia deaigned to strictly limit
what courts can do to remedy UDCOlllltitutional or other ill8R&l conditions or con•
finement. But in order to ensure that tboee limita have not Deell exi:eeded-that,
for example the relief ~ &'1111!1 "no Auther than neceeaary to remove the
conditions ti'i.a:t are cauamg the ~ al f"ederal rights, courts will have to
hold extenaive and time-conau:ming hearinp.
A very large percent.age of the my,r lawatita ch,He::ftng r.onditions of confinement in adult and juvenile Ctff8dional facilities are timately reeolm through
a settlement, sparing _the partiell and the courte the time and ea:penae oC a trial.
These benefits of eettiement will. howeftr, be !mt if a federal court must then
in effect hold a trial to determine w:betber the lltrict, and as is diacuBaed below,
unrealistic limits placed bJ' STOP on the authority oC courta to grant remedial relief are met.
3. The •stop Turnin.it Out Priaonas Act'" Betray.a a 1ACI, of U1IIW'tllandinir of
Court Procedura ana~ R.em«lia andllncroadia on Stata' Riaht&. STOP ignores the limitations whlch alreaclJ Gist oa the i,o-- or f"edenl courta to grant
equitable reliet Far maunp)e, u the ~ Court bu recognised, when a court
hu found, llfter a trial, tfiat the CCIDditioml al confinement at a juvenile or adult
correctional facility are UDCOll8litution the court'a remedial order must be tailored to cure tha constitutional violatiol1. /b,fo T. Inmata of CM Su/folJ& County
Jail, 112 S. Ct. 748 (199'i). When the state and qgrieved partiee agree, however,

d>•Uent;:

:,:--•

.r><we· ttfflT----•)ltl"ilifflfZ:Y,.

bi+rt ·T•-~w1 <?fFtI e· ii

=--------·--

Y f . ,..,;...,w;,J.l.'IW.,...
-..

201

206
that remedial etepa ahould be taken, they have the prerogati~, and should have
the prez"OP.tive, to devise a remedial ~cuge which most ~vely ~ the
iJlepl conditions ol confinement, even if the ~eed-upon relief' a- aomewhat be,iia the---'"• __
of the Constitution.
~
•-apl~ tlaibility which l:Ollltll and parties need to eft'ecti:..~"r.zn!t,one
~co!ntions of confinement, 1189!"De that j!1venilee in a ~
Dile det.entlon facility b ~ a cl.ua-actlon § 1983 11111t beQUH ~~~
~ beaten by correctional officen. The paniee 8iJ'89 that the J Y • - - conetituticinal righta are being violated and enter into a co1111ent decree. Part of that
decree pnmd9!1 for more training of COITl!Ctional ofticere in the handling of juveniles to avert the unc:orurtitutionally ezceeaive uae of force.
The Comtitution itself, however, does not ID8Ilda~ such, ~andbysuchSTOcourt-P
ordered trainintr might tedmica1I1 aceed the limitations p
on
court-ordered relict Yet such train!ng whether or not ~ to c:ure the conetitutional violation, is a reasonable
of doinll eo. States should not be ~
priwd by C o ~ of the leeway they need to eettfe th- and other lawauita 1n
which beat IC'Vee the intereeta of the people of the states.
: ~ •Stop Ttu-ni"8 Out Priaonea ~ will PUil the Already High TeMiona in
Thia Nalwn'• Corni:tional Facilitia. One of the _val1!99 o~ priaonera' cl"!,1-righta
IIUita is that they provide an outlet through which ~ve~ and adult UllllBtea
whoee legal right.I have been violated can eig,rea th~ s n - thrcnuh non•
violtmt means and obtain redre88 for the violation o f ~ rislhta. STOP jlacee a
number of 11lll'e&IOJl8ble and insunnountable obstadee ID the path of iJlmatea
-1dng the vindication of their comtitutional ~d other I ~ ~ghta. ~ practical
effect of STOP and eome of the related provilliona conoermng mma~ litiaation in
H.R. 667 is to eliminate litlption u an effective meana of ~ 1ilolations
of inmates' righta. Some inmates, Wlfortunately bu~ und~~tedly, ~ then, at
to protest the l!Oldid conditions of thell' confine90me point, turn to violent ment. In short, the end reaulta of this legislation will, in the long run, prove to
be not only short-eighted, but tragic.
problems ariae becalll9 STOP violates fundamental prindples.
Th- •
lea are iDcorporated into Standuda of the Ameriean Bar Aaeociation.
The
&iJndanb for Crimillol Jutice: Legal Stataa of Prisoners provide that inmates are to haft "&ee and meani!liftil acceea to the judicial proceia'" ud to have
the eame rights that members of the general public have to obtain~ fbr the
Yio1atioD of their riabta. See Standarcla ~2.1 and 23-8.5. The IJA/ABA Jur,enile
Juti« Standarda il18D reflect a concern about ~venilea' right of acceaa to the
courts. The curbl on attorueyw' feee in STOP would, for example, undermine juvenilee' ability to conteet the conditions of their confinement, ill contravention of
Standard 7.2(N).
•
•---'- •
to
For all of the outlined above, the An!erican
Bar ......uwa~on
urges you
'9Vte apiut STOP. Should this ll!llialation _proceed any further_ in Congress, ~
would request that bearinp be hela OD STOP and that the Amaric:aD B!ll' ~ tion be afForded ~ oppcni:unity to furtbv uplain the srave pnblema ID tlr• Act
and related provialam in H.B. 66'1.
At the aame time however: we wwld lib to ofl'er our auiatance to CoDIZ'lll9, or
perhaps a Commi..fon "'9tallliabecl by Congress, in etud:,ina dvil-ris)lta litlption inwivi!>c _F.ieonen and juvenilee and the ate111 that could l,e tabil both to IIDll_!ll'8
that ~ t e grlnancee ara eft'ectively and apeditiOlllly redree■ed and that fiiw_ . dafm■ do not banlen the court mtem. The Cornc:tlons and Sentencma Committee al the ABA'■ Criminal .Juatice Section ia alreab ltwfying th- matte,, and
will be NP(lrting ita recommendations to the American~ Aaeoaation.
H the Ameriwi Bar A&loclation can 11roride ~ with further illfonnation about
H.R. 687, p1- amtact me or Tom Smith, the Direct.or of the Criminal Juatice Section.

· .;r--

,_ft..

means

The=!

E. MicHAEL McCANN,
Chairpenon of the ABA Criminal Jrulil:e S«tion.
PuPAllED 8TATEMD1T OF KJCNNm1 KUIPBRS, PHJ?L~lf BEHALP OF 1HB NATIONAL
ColOCSSION ON CoRUCTIONAL nu.i.'11t CAllB

ML CHAmllAN Al'!l> Ml:vBERS OP 11m CowmzB: I am Kenneth Kuipen, PhD
al Gnnd Rairida. ~ where I am a County Commlllio.,.. of Kent County. f
am mo the National Aaaoc:ialiml of Countiel' (NACO'■) ~ t a t i w to the Board
of Dlnc:t.or■ of the National Commi■aion OD Comictional Health Cue (NCCHC).

Currently, I am the ChaiNllec:t al the NOCHC Baud and will aesume the office of
Chairman in November at the BMrd'a a--1 ~ here ill D.C.
We Vf1r7 lll\lCh appndate thi. oppwtuait) ~ ha:w provided ua to prwnt the
CODCel'II■ that NCCHC ha■ with re■pect 11P lrilielatiao ~ hebe you, S. 400.

At the outlet, let me IQ that my per-1 - . bi repril to the S.T.O.P. Jeg-

i■lation are the ■ame u tlwme at the NlltionaI Comminion. While mo■t di■c:u■■ion
~ the eftec:t of the llill'a ~ aa ~ and pri■on 11J11fema. ,--...
of S. 400 will baw an ~ er . . - - effid GIii
gova11111111Dta m their
iwpon■ibility to 'l)r09ide ftr the clet.entioa 80C incarceration of ~ and COD•
victed priaonen. On arq lffllD day, U-. are u.rly 500,000 pmonen in the nation'■ county jails. In 1111,J' ~ ,-r, than 11 millima men and ■re
n1ea■ec1 from~ -1 ....,.
~ t by
who an..
Conatitutionel defiriendaa i;-tb■ir
•
and the •
.
Uld court detbet follow, are u much coacem to the ClWlti• and t h e i r ~ u
are the actions brought by lltate and federal pri--■ and the ~ t court orden and ~ to OlagNm and to lltate legialaflucll and their dep■it:menta aC c:orrec:liona.
If I may, allow me a r.w - t a to deacribe a unique organizatim-the National Commiaaion on Con,,ctional Health Care-eo that our credentials are under-

~--:t-......

stood..

'l'lle Nati-1 Ominri-m -m Carec:tioaal 1£-ith Care, • not-for.pra4t 5!l~(cX3)
,,_...1-uon, ia ■uJll)Clried by 38 nau.-1 ,...,,.__, ~tion■ repr- , mtm,
~ of health; law, and ecirnctioaa,, iDchadiDg the National Sheriftll' A■eocia
tion; the NatiOllal Diatzict ~ AMoc:iaticai; tJie American Medical Auociation;
and my own orpnizatioa, the National 4Mllriaatiaa vi Count.fee. ( P l - note that
while we eqjoy t h e ~
aupport,,
O(liniona - mrprea■ here are thoee eolalj of the Na1ianal .........,,..._,. on Correctional Health Care

at~&::;;;~

t1!e

and not neceu■rily t i - of ■JU' ■upportiDc cqanisation).
NCCHC is the only ""l&nizattori ~ 8IOlelJ to -tabliehing .¢aDdardl fbr
beelthcareinlllll'l'8dimw,~techJdcaJ •eai■t■nceto~IJSt.em■ and
inlltitution■, a ~ ~ n d
• •
ec111ectioa.l health care
field. The NCCHC'e
•
8tiS1tdarda
Hi,,a/1/& &roica (aeparate wlumee for
priaom jail■ and ju-ieniJe emfi-i faalities) are in w,e throughout our country,
and iief~~ prl-, and ju...a. c,adJ - - - fllc:ilitiee UICl'aM th■ir Ol'pDizational
t i - , illlplVft tbe--U 1-lthdatu oftheirimnates and ■ta1I; and
reduce risk of afflne c u m t ~
,
Further, NCCHC'■ whmtary accredHation program hu been hailed u a my,r
factor in the
made In the hat twenty ~ toward i m ~
the availability,
, and ~ almectical. mental health, and dental care
provided to priloneta, cl■mw, ad jinmilea iiD omfioement Some llm-hundnd
priacm■ and jail.I are ill our ""'--rj -.ditatioll program. Each ha■ been litevisit.ecl by a team of medical and health ~ adiahilatntion ezperts and provided • written report witb fiJliclinp. 'I"- eva.luation vfaita are ~t.ed at least
three ye■n
if llCllldecl) - . in the interiaa, the acaiditllcl fac:illtiee
annual rep1!N with N0CHC clemlinir US, c:han,ea slixe the last OD·
site aurvey. There are alao many lamdreda ~ l!ft80II■• jaila. and jlnellile confinement facilities that the National Commieeioti'■ health ■enicea ■tandard■ to
guide themin~and-:4CtWr1-Itbcan ■yatem..
It fa this "hande-on• egie• i e a ~ qaali&ea NCCHC to befbl'9 JOU. today
to comment on S. 400, wtiic:h - beHne woaJd alter the prosz- made in the lait
~~~the~-~ lrmlCtimal in■titutiona to an ~ptable

-=in~

1111:::_~-

m!'~

<-- .....

u:!n~~

In
-hlrioe ..iu.w the hNlth ■--vL•aaocf
insti •
. , . . _ that UDder mun Ol'dll- o r ~
: _ At t.b• beginnhw, in the early. and ~70'■, - were ~ to find ~t
health ■emeee 'llel'8 beriiincl &r "7 imnat■a; the& much vlbaalth care-■ prorided
by non-liceDled , . _ _ . imia fire allier inalaliee; that---11-ltb__ ..,.. . .
rioas1y below
llliDbilal ~ and that dental-., ..... nailable at all ~ ~ l l l l l l h w teath. Vwy, often, little attmtioll WIiii paid to
the ~ coat bu1deD that ■liiftecl lo d i e ~ u tbe inmate or detainee was
nleued to the -anrnit;J, with . . . . . acquilw,d Ina otJw- inmate■ ar that f tarecl tiom the 1■dr. filbwtlllllllt ~ lncuafttal. PJeue DOie llfPIUl th■t ovw 11
miDian imnatea anralew47;S::-■::J:~,_._ ~ claim that the

~-~=tnu: ~

-■li~al

adequate wt
health ?rt l!' tb;e
- t e d ha?"" c l i • ~ Wbil9 lbfn - a g,aocl IIUlllherriloa,ediaaal imlti•
tau- that have-~ ............ aeelims aidoaal ■tudanl9 lr-■lth _,,_

209

208
ices their numbe?l! continue to decrease u con-ectional administrators wisely decide
to ~ health standards set by a maturing society.
.
. .
.. .
We recogniie that in some-<>r even moat-instances, pnsoner mstitu~ litiga~on
is bu:rderu,ome costly and unwarranted. Further, we understand that in some mtuations court Miera dr decrees seem to have gone beyond a judicial sphere, or a
court'• supervision of its decrees may seemingly have gone beyond the pale of good
judicial judgement. But these, in our experience, are not the nol'm; ~ d , what
baa come to pass since the 1970'■ is the complete turnabout of co~tions in county
·ails anc priaons. Turnabouts that oft.en are the result of court a~ons or the threat
~f such action., being visited on the state's department of corrections or the county's
"ail sya+..em.
J To in effect, eall a halt to the involvement of the courta would start us back on
a path leading to where we were twenty and more years ago.
•
. .
(As an aside, let me note that we oft.en quietly hear from corrections adminis_tra·
tors that they are grateful for the court orders, since ~nly _as a result of SU?I actions
are t!>e, able to correct serious health services deficienoes; and, that ..,,thout the
court's involvement they can't draw the atte~tion of th~ b~dget peopl_e).
Now to comment on sections that are particularly within the purview of our experience and knowledge.
. .
.
Section 3626(a) Requirements for Relief~bparagraph ( 1) llii;rits proe{'9Ctive relief in a prison conditions case to a narrowly drawn order. (?n its face, it appears
as a reasonable requiremen~ne that courta would obse<Ve in any case. However,
on c:loeer thought, it needs to be recognized that gains for both plaintiffs and defendants often come about when other factors are thrown into the rem~ pot. For example, in the process of remedying one fault, another more substantial one may be
created. ReQuirina: double-celling (two inma~ per cell) _may_ be fine i~ a de~~ent
of corn,c:tion (DOC) multi-prison s~tem. but mapprop~te in one of 1:9 facilities, or
in a part of a facility, say, where mental health concli~ns are pervamve. Or, on _the
other aide of the coin, requiring~·
le-celling may run m the face of sound medical
judgem~t that calls for mu;Itipl
· w ~ ~ates (or one inmate) may be con~lating suicide (the leading cause death m Jails).
• .
Limiting prospective relief seems to us to be an unnecessary restriction ~n the
courts-one that ma1 curtail an occasional abuse in discretionary power while, at
the NDl1! time, creating a whole new set of problems the solution for which is likely
to be costlf, time consuming, and burdellSOllle on the resources of courts and correctional institutions.
.
Section 3626(b) Termination of Relief-This provision would automatically terminate prospective relief with respect to prison conditions within two years after the
finding o{a violation of a federal right or the ~ e n t of~ leitia!4tio0:
In our experience, two years does not even begin to prm;1de !!tlfficient time for ~e
correction of a deficiency in health services that is present and clear to all parties.
In most prison condition suits, the flaws in the correctional system's health
program require substantial changes: the development of new procedures and policies; hiring of professional personnel currentlY- not on staff (this, alone, may take
the two years to accomplish); sometimes, the provision of adequate space to pro~y-il_uinna,y space, or special rooms to handle communicable diseases, or
space for a dentist, or for the evaluation and treatment of mental health patients;
and time for a "track record• to confirm that the situation hu been correc:ted.
An automatic termination of the court's involvement in the follow-up to its decree,
without regard to whether seriOU8 faults have been remedied is, in our opinion, simply wrong.
Section 3626(e) Soecial Masters-Thia provision would ~ the special muter
or monitor to be a Onited States magistrate and to limit his or her findings to complicated factual issues mbmitted to that master by the court.
It ia our experience that the health aerricee iaauell assimed to the ~ masters
and monitor are almost always complicated !actual situations. While the federal
inaeiat,n.tes are meet likely to be competent in many matters, they are not libly
to 6e k:nowl~ in medical relatecl ialuee. Nor are ~ ~ to acquµe that
Jmowled89 du..na, the coune their work. We find that the ~ e currently being
~ by the coarta u muten odand monitors are well qualiAad b.1 ~ence
and education to enter into the marau or complicated medical and adminiltrative
ileuea and ef!'ect a --rul conclusion for all the ln?Olved DUtlee.
Punber, the restriction against eztendinc the f\mctioD of a ID8CW master la not,
in om opinion, well
In ~ ~ rightin« a aituafion, the conecdonal
racmty, lta medical ltaft', and the DOC ma.1 ~ with the complaining party U!d
their attoi:n,eya that the needed NIU!t may belt be acquired in a way not apec:l.fica11J
desiv•hld by the Court. It ;5oee not to be aoocl common leDN to liold to re-

semce:a

rowided.

111:rictive languap whml an partiee agr'88 t.bat a amall detour would be beneficial
to the gw.ernment, DOC, ma p)aintifti in rea,Jring the iesue..
We believe, and 110 recammend, that coun ----'-'An .,.. __ ..._ a-• •:er _,__ _.
monitor not be limited.;provided fn ~ pu-agriph..W, - - o.,..,...
Mr. Chairman and Mmnbers oL the ~ Committee, in the main, it is our
opinion that consent ~ tmfan:eable by the iaauing courts, have been a ~
fact.or in the needed i m ~ o( meclic:al, dental, and mental health conditions
in the nation's prisons, jails, and juwaile confinement facilities.. The courts have
helped a maf;uring eoc:iety to ite UJidenltanding ~ the purpoee of incarceration--dfective punishment through the depriYation of ~ - We abould not be m,nnna
back to the WaY it was. Rot fir the counties' a..nd states' aalce· not for the-;;;,;;;;;.
tional institutions' Bake; ~ f"ar the sake oCthe icmate who needs medical or mental
health tro-&tment; not Cor the sake o(the COllllllUmity to which the inmate or prisoner
returns; not for our country's Mb.
No, not for the sake of any of UL
IIUITOKJ1NO OIIGANJZ-'TIONS

or=•

American Academy of Child & ~ Payduatzy
American Academy of Family Phyaic:ia:ns
American Academy of Pediatrics
.
American Academ of Ph:,aiciana Aaeiatanta
American
the Law
American Aaeociation of
• Len &ecialiata
American Association o(
• Health Pby,iici.ana
American Bar Aaeociation
American College o f ~ Phyaidans
American College ofHealtlican Eucuti.,.
American College ofN---"; • ........,
American Qollege o C ~ - American Comic:tional 1lealth Senicm ~ t i o m
American Qoun9eling AMociation
American Dental .Aa.,ciation
American Diabetes A->c:iatim
American Dietetic A~atioD
American Health Inronnation Manag,emmst .A.ociation
American Jail A--,iaticm
American Medical hsoc:i•tioa
American Nun. .Aa.,ciatiml
American Oateopatbic ~ t i m
American PharmaceuticaJ 4-ietiaa
American !"a,cblatric A89odatiaa
American Pi,yd,ological ANoc:lat!c.a
American Public Health Aeeori•tim
American Society fir Addiction~
John Howard A.lsoclatioa
National Aeeoclation oC Comltiee
National Aeeoclatioa oL Coanty Health OffidaJa
National Council of Juvmile & Family Court JudaNational District A ~ .4-.:iet;i«,
National Juvenile Det.entim 4POd•tion
National Medical .Aa.,ciatioa
National Sheriflii Aeeorietioa
The Society for Adol-,t ~

Academ;

PREPARED STATIDIBlff o, D.\vm Rlanwr, M'l'OIINBY Jl'0Jl PIAINTIPP INKATBS Df
HAllBIB v. Crrr or PBlu.IlBu'mA
lnfiaJIJUCiduN

M.Y name ii David .RidmMm. I - lead~_. t h e ~ claN of mmat.
in the t'ede.nl ~ 001111lidln ~ adiW Harrw •• Cil,)' O f ~ I
would lib to tliank JIIII fill'~ tbl u.. to---.r my . . . . npzdiJII tlie Stap
~ Outl'rilolllin.W, otbawfNlimwll• 'STOP.'
The STOP bill wu clrdecl with lbt MP!,..,_ CJ« .Jlhfledelpl,1• D1ltrict ~
L y n n e ~ the bill'■ lllllll-111:1 ::: Ma /JJnbam teltlW m,._ ii
tJie bill OD Juuar, 19, 1985 Wbre tm
_,ttee.oa Crime oftbe lloaN ofRap-

·e:roonv,t·
211

210
-tativa and is acheduled to preaent teetimony in defense or the bill to this Com~
~
~ before the House or Repreeentatm.,
·
1u-.....
te
~
Suedwon
her~
testimony
pat h •a t.....
AbrahaDI will portray the Barria litigation u 11n example or the eupP.!!,MC! evils warrantiDg puaage of the STOP legialation. Aa c:ounee1 for the plaintiffil, I feel a respomibilit,f_ to correct the District Att.ome(1 inaccunte portrayal of the lawsuit. ~
ca111e I will not be able to praent my '91nll fD peraon, I am preeentiDg my telti·
mony in written form l'or iDduaion fD the -.lo
.
First, a word about my badiground. A lawyw fbr 26 yean, I am a partne,: ID ~e

Pblladelphia office or the law firm Pepper, Hamilton & Scheetz. My practice pn•
maril7 involves the repNNDtation of inau■trlal cllen~ in hazardoua waste an~ tozlc
tort litigation. I joined the law firm in 1974, following five ,-an u an AasietaDt
District Attorney for the City of Philadelphia, mostly under the leadership of Arlen
Specter, who was then District Attorney.
HJSTORY OP HARRIS V. CITY OP PHIIADELPHJA

Ae a law clerk and then Aeliatant District Attorney under District Attorney Arlen
S ~ I came to know well the condition■ of Philadelphia's Jalle through particlpa•
tion in 'two investigatiODS fD the late 1960'1 and early 1970'1 into rampant homoaaual usaults ana a violent priaon rioL Thoee events were part of the ~
to a state court civil right■ action trial in 1971 (in which I wu not invol~) that
produced a 264-page opinion detailing the conditione in Philadelphia'! Jai_le that
were fOUDd to be 81lbjecting inmates to cruel and unusual ~ t m violation
of the Eiglith Amendment i:,,f the federal Conetitution. Affirmed by the PellI18)'lvania
Supreme Court, the ruliq 1J18wned a aeri• or remedial d - - that, becalllle they
wen neither honored by tlMi Ci~nor enforced by the state judicluy, left -ntlally
intact the conditione that the
• condttmDed.
ID 1982, a group of i-taa
the Hanv cue in federal District Court In
Philadelphia, and I wu auhwluently appointed by the Court to npwt ~
The thrust of the lawsuit wu that desP.ite the ■tate court llndlng ten yeara earlier
that the conditione in Philadelphia jaila aubjected inmates to eruel and unlllWll
pwil■hment, the promlle of' relieffrom thoee conditione had been UDftllfilled.
DJatrict Court J ~ Nmma Shapiro, who la reviled here by the District Attorney
fbr ber !NP~ actmam,, lnitialb' dimallNd the Harria lawsuit. She did 110 OD a
molioD
Ci that uped tliat the federal nit duplicated the still.-pendil!I
stat.a .ut
·
Ou an aJlpeal by the plaintiff" clua, the Court of Appeals
for the
Circuit iamtatad the lawsuit, and the Supreme Court declined to review the ruling.
When the laWBUit returned to the District Court in 1986, tha inmates and the
City administration eel)U8tely weighed the ~ntial benefit.■ and rim of a trial on
the ccaatitutionality of c:urrent conditione ID light of the current state of Eiahth
4mend-nt law. 'l'be City wu wed with the liarah reality that for m~ of the
1980'-. it had been hoaa1Da three inmates in eella deaigried for one; U8lDg rec:natiaaal area and cl.,- _ . u dormitoriel; and finding ltaelf unable to provide
..re or
in 1ails that wve too deteriorated to phyllcally maintain.
The City
• •
tioD .r.o realu.ed that without the eoopel'!ltion or the trial
coana and other e1ementa or the c:riminal justice Qltem. ~ would pen1■t
and u a l'Mlllt or l q delays in brinldJllr defendant.■ to trial and eentencm,.
~ perc:ep_tion WU borne out in a aerlee of independent ltUdiea in ensuiJlg JU11
by independent lnveatigaton who uniformly rouna that ~ in PliiladaJ..
phia'• Jan. WU larp1y the product of an lneflldent and maladmiDiltered ■.,Item or

=ifhe

aani~:!.tionl

~~
circumataw in mind, Philadelphia'• dien-Mayor decided that further
~

to the litigation WU not in the puhlic fntenlt and that, by eettling the
la'Wllllit, he could improve not only the City's Jail■, but a1ao ita c:rimiDal jultice 1111tem whoee DOtoriaus ineffieiend-■ a aource or the priaon o,maowdi..g.
The two CODNDt decreM entered into by the City In 1988 and 1991 marbd a commitment to upgra!fi!ig Philadelphla'1 Jail■ and lIDJlrovfng the criminal~ 11J1t8m
In preference to defending a IJltem that needed flzini, not defending. Elpt :,ear■
later, the wiadom that COlll'l!l8 ii not rationally •188llable.
Directly u a 1-llt al i t a - ~ to the CODNDl deer.- critic!secl by District

=:::;r.:,T~~;;:::i~"':ct.'1:;:;:i:it~

abut down an 'IIIIIIWiltaina haniflc 19th century jail. Philadelphia hu
ned
phyaical and operational etandard■ fbr its new and ~ jaila to achieve ~ ■me with CClffectlonal iDdusby ■tanduda. The jlll■ have 11D earned-time, rood-time

~~~

,:.~:'tn=nc Uteracy. New medical aenice■ haw replaced

In addition, the City is on the wrp or mstaJlina a computerized infbrmatioa
tem that will comiect the ~ COUrt8, ~ defender'.
•
.,,._
fimctione for the fim time.
8!'9 ~ tried ;_.. ~ and J18n?1e
delaya are ltill aceeaiw u fa thejall popalitiaa itaelt ~--il"!_Aa~h~
a model JU'Dll'IIII of -11mu1t:,-b-.cl treatment Ir ~tientl and out-patient.I
a probation or
m drwr and aJc:oho1 addieta. The City
the state courta deserve credit fllr all al theee ~ t s but would haw
come about without judicial enf'orcement of a rerried[al order' crafted and agreed to
by the parties In a federal c:ml right.I action.
'

eu..

parole.-

rc-niment-=

REBU'ITAL 01" TBB DIS'nllCr ATTORNBY"B CElfflCJSlr OF IIARRl8

.-ea

The District~• ~ virtually
th- - ~ and
damns th~ u having been pmdwed at the mat ar public safety.
Attorney's indictment or the Harri■ litiption ~ a mh1u.ie al half-truthe IIDd untzutha.
~~UBtico~=
social
J
ca.

~::::n~-~

Disbic:t

~n°fi1J:;! i:,.U::Uf~

~ation: The District Court imposed a _priaom cap and decided the appropnate level of Pbiladelpbia'1 prieon popuation..
Fact:_ The Ci!:J admini■tratian in 1986 ~ a jail capacity or 3,760 inmates
and, with the mmatea' conaent, the figure waa ~ into a ~ dem!e
that the Court.approved a f t e r • ~ The popu)a-tion 1evel is not a •cap•; it is
a threahold which, w h e n ~ tril!l!er8 a moratoriwm on the admi81ion or pen,ona
charged with non-violent crim•
clrua off'e,mea. It has never applied to
~rsona convicted of crime; nor hu it ever appliecl to pereone charpd with a violent

ana1-

cnme.

~Ulle _the. agreed-upo'? population level a not a cap, the actual population of
Philadelphia'• Jail■ hu typicillfy -=-led b y - thaJD a thousand inmate■ the •a1lowable Jll!pulatlon.• For the DIOlt part, the PGPUlatbn hu hovered W - 4600
~d 6000 inmates, or anywben Cram 20 to 40 ~ over the ll8l'IN-llpClll capacity.
.
Important11, the 111!1'8ed-u~ JIOllU)ation level appli- only to the jail■ current!
~ !'pera~~D 1D Philailelphia.: Accordingly, the City hu always been free to build
ditional Jail space to hOUBe an, ~ n e who an re1eaaed pretrial u a re■ult of the
agreed-upon capacity or the ~ jails.
The 1991 co111ent decree reciwre«1 the City to IIUbcnit propoaals for alternative
methods or criteria for mana&i11&. the eize of t h e ~ population.. Until recentl,:
none had been forthcoming fnim the City or the Dietrict Attorney The City hu _,;
filed with the Court a plan far the City and the llate COll1lte to
~
for controlllq the population al PbiladelDhia'a im-. On the lltrength of that und ~ , . thi Diatnct Court fa likely to clisllohre the J»_pulation contriil mec:barrimn•
embodiecl1D the COll88Dt decnN.

auume

Allegation: The two coneent decreee in the cue wwe entered "under preesure from the federal judge.•
Fact: Both deaw■ were anmid a t ~

':$:J:

negotiatio11■ between the

parties without any inwlvement by the Judge. al
the second dem!e benefited
from coD■Ultation with a prieon apart retained to
the Court. Indeed. the eeoond agreement of the partie■ ■at on the Judp'a deali: fbr over a J88r befbrll llbe convinced it.I IOUDdiiem and ..... her approval an. h,arlug tbe ~ al the
District Attorney and
mdmdual inmat.ee who -plained, re■pec:tively, that

or-

the agreement aft"orded too much or too little relief.

Alkaation: The Diltrid ~ = - t e d a clw-p-bued eyatem fbr
determining who Z11Q' enter
• •• jails, ~ preventing state
courts from ~ justice
individusli-4 bail determinatiaaa.
Fad: The criteria fbr diverting inmatai)i:mi pretrial i:nl:ari:entioa came &ma the
City IIDd the plam.WIII, nat the ..1n,1_ ~ the Judp'■ ..,.._ ~ ha
been to liberalise the criteria ra.
the immat.' ~ at the a.
tric:t Attorney', urging.
.
.
The District .Attorney', usertion that the conaent decree ~ the City al~
dilcretion regarding rel- ii untrue. Under 1lanv, the Dlatrict Attomey of Philadelphia ii allowed to pr9ftDt the re1eue or 811T inmate by ■ub■tltuting another in
the intere■t or public NM:,.

:,;;r-eekw\ ._.

213

212

AlleRation: The Di■trict Court hM invuded un~arily into the aff'ain
1~.~tiaiminal jnatice ■,at.em agaimt the wtama v1 the c:nrrent City

Ailqalion: A criminal defendant c:hargecl with a non-violent offense cannot be cletaiDed pretrial no matter how many times he fails to appear in
court.
Fact: The Diatrict Attorney• ■tatement i■ f'allle. A defendant who fail■ to. appear
for court in two open cues without a leJ!itimate ezcuN can be det■ined pretrial. The
District Attorney bu abandoned a umt to enforce bench wammta and eeize fugitives who could then be detained and tried. The failure to pursue and arrest defendant■ who perai■tently fail to appear for court does not result from the dictate■ of
the CODllellt decrem and hep eome other aplanation.
Ailqalion: More than 100 murders ha\18 been committed by criminalll set
Cree by the pri■on cap.
Fact: Thi■ inflammatory aseertion ha■ never been documented. Ifperson■ released
under Barria have been c:hargecl with murder allegedly committed d ~ pretrial
releue, two queation■ mu■t be ubd: Were they acquitted or found guilty of the
charp? Would the:, ha\18 been •aet free• on b■il or on their own r e c o ~ if Harm were not in eff'ec:t? In fact, the con■ent decrees ha\18 not resulted m the diversion
or any more defendant■ Crom pretrial cuatod:, than were diverted before the lawsuit.
AlkRatio,c Philadelphia can manage without population control mecha-

ni■m■like tho■e establiahed in Harri&
Fact: The Diatrict Attome,1. rep-ted in her testimony before the House of Repreeentatives that Philadelphia ha■ almo■t 60,000 outstanding fiutltive bench warrant■. There are roughly 5,000 people currently confined in Plillacfelphia's jail■, ant!
the City'■ own 1993 litudy placed tlie appropriate capacity at 3,549. Where then does
the Di8trict Attorney propoae to hou■e the other 25,000, 35,000 or 45,000 persona
■he evidently believe■ would be incarcerated but for Harri.s7 If Congrea■ mandate■
the abrogation of the Barria deaees, should it not alao provide the fun~ that will
be D8Cell8IIJJ' to house the deluge of new inmate■ bound to descend on the Jail■?
.
The DiBtnct Attorney responsib~ needed in her testimony before the House of
Reereeentatives that we are "mo
reauired to treat humanely all members of our
aoc:iety, even those who break the ,w" (as well as, ahe miltht have added, those
merely charpd with breaking the law, which describe■ two-trurd■ of Philadelphia's
jail population), but ahe offer■ no legialative preecription for housing, let alone humanely treating, 10,000 or 40,000 inmate■ in jails designed for fewer than 4,000.
Some form of population limitation i■ indispensable under these cin:umstancea as
i■ greater utilization of intermediate punishment■ including treatment for drug and
alcohol abuae.
AlkRatio,c The mo■t pemiciou■ of the Di■tric:t Attorney's di■tortiona is
that tlie Barria deaMS have turned Philadelphia into a crime-ridden hell
with a demoralized citizenry and a •judicial ayatem • • • broken beyond repair by the prison cap.•
Faa: Philadelphia la the 811fest of the nation's ten larR'est cities according to FBI
crime ■tatistic■. Arrest■ for crime■ of violence have steadily declined in Philadelphia
since 1988 when the popub,tion limit■ took effect. Since 1990, arrest■ for crimes of
violence ha\18 dec:reaaed in Philadelphia by nearly 20 percent. The incidence of dnut
crime in Philadelphia mirrorll the national picture· it i■ no worse. The number o?
criminal case di■po■ition■ in ■tate court i■ much higher since the inception of Barria
then it was before.
Although it i■ true that the failure-~ppear for trial rate i■ unacceptably high
~ persona di"8rted Crom Jail under Harria, that phenomenon is due ~ely to
the City's withdrawal of pretrial services to monitor defendant■ awaiting trial and
to take mea■ure11 to pmnote their ap.PNJ111108& More signiticantly, the rate of reanat for new crimes among thoee re~.Jretrial under Barria i■ comparable to
the narre■t rate of thoae who on bail or on their own recognizance
Wore the mception of Harri& :e.-, the Di■trlct Attorne.,'■ ■tati■tic■ as to the
number or new c:rimM for which per■Dll8 wen llll9llted aftei,' being released under
Harri, are ml■Jeadinr in the atreine u are the ■necdotes that accom_pan,: the data·
thoee fllU1W and lliJiiilar anecdotes a)IJl)y ecpll:, to the IJ8WID In ~ . before
Cit:, qreed to the cummt IJBf,em vfmalntalnh!r a limited l)rlaon poDUlation.
ID tfie Cit:,'■ own DWI for the QBtmn to ~ Barria (which will r.bably take
efl'ect In October 1!1'96 u a INll1t Ill the City'■ rein-ntatioa that it ia prepared
t o C i ~ ~ t : , for JIWl8ldq the size or the Cit:,'■ pn. polJUlat:lon), the
V P•u,,_/a that defeJidante will lie aiverted from pretrial ~ at f.he ■ame rate
as they are cliftrted t.oda:, in Philade111hia. There la little reaNn to believe that the
rarn■t rate amonr that population will materiall:, dift'er from the mating rate•

the

a...........,..., on.
Fact: Di■trict A ~ Abraham. list■ ~ the evu oC the redenl
tion■ in Philadelphia ita onnight oC jail CODlltruc:tion and of ~ • - acprocesa ~ the.~ agreed to. cany ~ in the
~~
p
proce■- reqwres .be City to _project tbe 11Ue c,L the prieon -·1-tion •
the future; to formulate ■tandarda, polidea and proc:eclcre,t fir J . n n ~
into
ing the City's jail■ to correctiaaal ~ ~ t.o ~~
■y■tem information ■y■tem; and to ~ for 0 - projeeta. Alter he was elected
and~ b e ( ~ ~ ~ M a ~ Rendell estm1.a the planning..- and
:::1tted hi■ admuii■tration to 1te fbll-lwrtecl implementation on an a:pedited

PJ:::J::

1991

;r:!;

In order to raiae the t'unda to bniJd a jail and a:iminal conrthouae the cfebt.
ridden City offered the investment bank«a the aec:urit,- oC federal~ ovenight
of contracts. The City'■ 6nsncinr ~ it■ coneent deci:- n,qwre the
Court's approval of con1ncbl and contract ~ u a condition oC
new
construction. A■ a direct rmnlt oC the Court'■ cnenigbt, Pbiladel~ i■ about to
open a J?I!~ criminal courtbonae and a 2,016-bed ~ both oC wmdi. will be completed within budget, an 1UJC0111J11011 event in large mumidpal Cllll8tnldion prqecta.
The Court did approve a c:hanp order at the ~ or tbit Pbilecfe!pbj 8 ~ 117&tem to expand a room in the new courthouee fer court imt.pretera; tlie Diatrict Attorney's information to the contruy i■ bed. (The Conrt'a Jetter oC October 26, 1994
approving the $5720 ~ order i■ av■ilabJe to CUJfinm the invalidity oC the Di■trict Attorney'■ c:harge.) ~ other eumple■ cited b:, tlbe Diatrict ~ of the
Di■trict Court'■ 9intrusi-- into the COl:l■lroction U9 fiuici1\Jl. There h&\18 been
no •debate.9 on such aubjecta, no order■, D!J appnnala .,.._ er mecled.
Allegation: The City has no power to extricate ii-If Cram a &nmendecree made by a prier adminial:ratioo..
,
Faa: A contract made b:, a ■tate or Jlll!llicipality hinds the ■tate er municipality
not ju■t the political admini■tration in om- wbmi the cmntnct was made. Con■eui
decrees entered into by a ■tate or municipality are libwiae binding beyond the term
of the officeholder who autborbed the ~
Although they bind ~ administration■ c:onaent deaN■ can be terminated
or modined under ezistin,r f'ederal law upon a showing of chanpd circnrnat•ncee
which obviate the plaintifta' need for, or entitlement to~tinued relief: Such a motion i■ currently pending. An eerlier motion by M.aJQI'
Neking llirniJar relief'
was di■rai■aed u a ■anction for the eiv.'• ccmturnec:iwa N!fbaa1 to ~ with court
order■ to produce a long-completed audit oC ~ conditicn■ and capacity.
Based on the aforementioned comrnitment by the City and the ■tate court■ to implement new bail guidelinea and ott.. for regnlating the me ot PhiJadel..
phia's jail population, feder■l court i n ~ in jail pc,pulation cantrol i■ in the
process of being tnmaf'erred to 1-1 anthoritieL
The longevity of the Harria litigation i■ by no JDMII■ due to the Diatrict Court
Ju~•• resiatance to retuminir the manaaement oC the jail population to local authonties. Rather, it i■ due to the City'■ failure to Cashioia a pljn for ~ t h e
size of the Jail population in the thirteen :,ear■ that hawe elapeecl am. tbe tiling
of the Homa law■uit, and the N98D :,ean that haft e1a.-ec1 mxe the implementation of the population contn,1 mecb•~ adopted in tlie ~ clecnea. Indeed.·
I had written penonal]y to the City'■ a ~ on llllll1iple occa■imm a&riJlc to &mantle the Harris ~ control mec:han- in reQmn fbr the at,'■ agreement
to manage the """"''•tion within. whatawr leftl l!light be found to be • ...,..,...,.;.te
in light of ed.etfui~amm. Until -tlJ: the
a l l ~......
It i■ notable that, al-' iulmedia~ ~ tbi ~
tlbe ~ o( a plan for reguIatinr tha me ot the Jeil ~ tbi fedan1 Court
ttie ~
ing jail population control to J-1 autbaritiea.
·
~ The perception or muy Pbiledelphis ..idiema i■ that Philadelphia law .enforcement i■ hleff'ectffti.
·
Fact: The alleation la true, but the~ lie■ ____.. than Bania . . i - . Fw
•tarter■• Philadelphia'■ IICllice fine bu decliaecl h a ~ by 2S ~ tha
put 18 ~ or 1111, while j a i l ~ ha■~~ ID. tbia -=rJ"
hM found an ef!'ectift drvar ud
cria», and n&-·
&nee OD more jail■ and Jaaaw, ~ - • - - will
la Jalllt befbn .
it cure& the drii2 probl-. Sat t.bia .. - - tha pamt.
the_
that Philadelphfa doN 1111& cunentq ha,e the jail . . . . to analcl tile pnlztal r--■

&nanang

=ha,d·declined

flt-•-

"'retmu-

---it~

215

214
on bail or otbenrile of numeroua penona charged with crime. If Philadelphia elects
to nmedy thu .Problem by building enough jail apace to detain every single ~ n
who is charpd with a crime, the Harris conaent decrws wwld not at.and m the
way.
SI'OP IS A DANGEROUII COUKT-8'l'BIPPD11 MEASUU

In addition to correcting the misimpreaiona foatered by the District Attorney, I
write ala, to urp CongreilB not to the madeet tide of prison conditions refonn that bu been accmnpliahed under the federal civil righta lawa. Thoee lawa
were enacted after the ctnl War to aftbrd federal judicial remedies when the Org'!IDII
of -te gv,enunent ~ hoatile or iodiff'erent to the gunanteM of the Bill of
RiditL Thoae righta include the right or indigent penona merely ac:cuaed of crime
to lie free &om puniahment without a trial IIDd conviction. They include the right
of comict.ed s,enona to be ~~ apinat ~ t a that are cruel and unusual.

n-, who benefit directly from the enforeement of'theae righta are t.Jl,!cally thoee

at the loweat rung oC the IIOCio-economic ladder and include many who have alien•
ated our 11.J1Dpathy by their !awl- behavior. Aa a conaequence, there baa been little
political incentm, hiatorically to imprison people under conditiona that honor these
nghta. With few exceptiona. the federal courta, enforcing the federal civil righta
Iaww. have been the only ~ of government to which inmatea have been able
to turn for relief limn conditiona which are •cli.egusting and degrading" and •severely
011e1uowde.i"-t.o use the worda of the Penna:,ivania. Supreme Court describing, in
1971. a Philadelphia priaon that is 111:ill in eervice today-and to wLich the description atill appliea:
H federal courta are themse:lws to be shadded-es the STOP bill evidently intenu-to prevent them from safeguarding the civil righta of prisoners, it is a safe
~ ~ t ~nera will be merely the fint to loee tlieir rights through a curtail-

=~~=y

~~:= ~~=

inbu~e~u:

the far simpler proceaa of s t r i ~ juclgea of their powen to forge and enforce remedies for violations of the CODStitutional righta of the powerleaa and unpopular.
CONCLUSION
~

of the Stop Turning Out PriaoDen Act cannot be justified on the experiof' Philadelphia's prison conditiona litigation. If the bill were to be enacted into
law, ita eff'ect on Philadelphia, aaauming it nrvi:ved constitutional attack, would be
to atop dead in ita trac:ka the remarkable - 1 l t now underway to revitalize the
City's criminal juatice -.,atem. to .__ minimallY decent jails, and to provide a
l'aJl&lt of' altemati-, to incanxlration for aiminal behavior. Theoretically, all of
tbeN goa1a could be accompliahed in the abaelxe al the Harria dec:rfte, but history
t.eecha the naivete of any IRICh expectation.
H th~ City of Philadelphia made
that is no longer sensible, fair, or just,
the aiatiDJ law of consent decne modi6ci,tlon and termination giws the City the
~ to cbanp or brine an end to the ~ STOP's erosion of the power
of f'edenl courta and ita revena1. of the ~ iudamenta of federal courta would
do lar greater miachief' to our ayatem of aeparation OJpowers than would any federal
~ order, however intrume, aimed at protacting priaonera from oppreaaive conditiona or confinement.

abarJlaia

PIIEPARED SrA'rEKENT OF CeA8B 'Riva.AND, 8BcnrABY OP' THE WASHINGTON
DZPARTIIENT OF CoRRlicTloNs

Good .Morniru>. I would like to thank all al JUU filr a1v1 .... me the op-••nRlty to
~ beantiila ~ Committee.
-·.-Iii • Cb.- Rmtland. 1 am t h e ~ of't.be Department of Correc:tiona
oftlie Stata ofWubiJtarton 1111d ba'l9 bean &r nine JNl'L I haft worked in the manapllllllli aad ~ al comctional &dliUa &Ir 30 y~. Before uauming
PGmtlon, I wu the Direct« o f ' ~ of Colorado for four yean.
-t. I wu in the W " ~ mrrectiaaal .,.._ filr 19 ,ears 1141r1m1 u ~
~ 1• S u ~ ~ t of' & IJl8S!ID1llll ~ ~ 1111d a variety or other
allo VISltad JIIUly ~ _ . tfie ~ b y U a C0118Ultant at
nqw& oft.be Natkmal lmtitate arean.-.. t h e ~ CorrectionaJ. ~
~ andYUioal ac.'"9nfsetime
I -id lllre to focm ~ cm the 8t,op ~ Out PriaoJlen
other- - known u STOP. I
tbat tb1a piDll baa mo been to ad. _ the St.appm, Abualw ~ Lawwita Ad; howvw, the - i dlaconcertina

W1a~
u.

O:!f

and woniaome 1egiaWiou und« ~ is that Jmo.rn aa STOP Aa a preliminary matter, I would like t o ~ 8117 CDDfbaima betwwn thNe two biDa. The •a1,u.
sive• ar "frivolOU1 lawauita" bill m c:oncm:ned, l!IDGIC other thinp with limiting
oloua jlriaoner lawauita. STOP, on the other hamc( ia taqeted ~ inatitutional ~
form litigation raising meritarioua comtitlltiona3 and eta-- claima. If __ _._.

mv•

STOP will apply to all l i ~
•
conditiom in~{ ·
--:---,
andjlnenile incarceration and ~ a ; ; : : . . _
Pnaona. adult Jaila.
.My coucerna fall into three areu:
L -pie defining prindplee of' this ~ that would be compromiaed by this !egia,lation;
2. The uaurping of what have heret.oCon beem the -ti-vea of atat.e or local
jurisdictions; and
r•--....
3. The enormous fi-1 impact auch legi elation ~ have on stat.e and local gov-

ernments.

First, the defining principlea: I believe ~ in the Constitution and the Bill
of Righta. But many countries ha'l9 constituaona; it is how they are applied that
deterininea the strength of the country or natian.. Thia country baa h.iat.iaically ex•
tended constitutional righta to ~ er ,._-, black ar white, male or female.
Indeed, extension of constitutioaal righta liDd p.oCectiw:w to our Jeaat privileged and
least empowered ia what aeta ua apart from other nationa. Extending U- righta
even to priaonen who may have coinmitted . _ c:rimea exemplifies the cfil!nity
humanity, and moral character of tba ~ or our citizena. I am concemecf thai
we are considering a shift er limitation in that defining principle.
Many individwila entering priaona feel that tbs justice er legal syst.em bu never
been anything but oppreeamt to them. that it ~ work fer them. We do know
that humane that feel aggrieved o r ~ wfa a.It redre. or IIOlu.:-,>DS no matter what setting they are in. 'lbia is aJao true aC immates.
I would rather have imnat.ee u s i n g ~ ~ and lawwita than physical
confrontation and dea1rw:tion to rMOhe their im,1a1ema. In w:t, I - it u produc.
tive to teach them to uae t i of' challenge in hopes that
thoee will be the aame meana of'
they
uae when rel--1. A 1ew will
abuse the priviJese. but the ~
haw die to deal with the abuse.
It is my opinion that this bill will -,.,. natricC badmdual conatitutiona1 protectiona and ~ limit a IIOCiaDy aa:eptalale ontJet fbr frustrated peopJa.
. I would like to deal with my NCl.'Dd two ~ of pnnptiwll aC
atatea and counties and the pot.imtial _ , , 5-J. impact OD state and local government:a-concunently. Our maJIJl'io.oi _,. abarL 'l'be riot al Attica in 1971 and
New Mexico in 1980 were bat visible mc:amplea • the destruction of' property and
life that can ocair·when pmona are operated
medical-and peychiatric aemcee; • lac1t ot trained. pro(elll!doaal
•
ataft; and inadequate
work and education prosrama. Such CODditi-. accnmpanied b) overuowding. were
not uncommon in the late l970a and the early 1980&
At the Wuhington State Pmiteatiary in Walla Walla. Wuhingtoo in the late
1970., conditiona were arguably u bad u any in die nation. It hoaied Mady three
timee the number of inmatee that it dellignad fir. atafl"
trained;
medical aervicea ware IZl'OBY hladequate; aDll ecllw:ational 'Ind
OIIP(W'tunitiea
were nonexistent to. tlie bulk
the inmate ~ Inmates, fer ill ~
p ~ . ran the institution. Inmate .-Ha and murden wer-e - ~
usaulta OD ataff' and staff murders were frequent. I~ became 80 bad that
institution locltdown became the . . in which cGc:ia18 could ~ riota, murders, and uaaulta. InmatN, two er tJane ta a
cell. were locbcl in their c:eUa
24 h:Rma a day.
:. •· t
.
·
• In 19791 a claaa action suit wu fiJecl and the imam wu later found to be 11111CODlltitutioDa1 on moat pouncla. 'l'be state b a a ~ apent JnaD7 milliaml al dallan to brine the phyalcal and ~
d lean comtitulioml
minima. Today, the
onr 2.000
hu Ul - t t and fJld.
dent rate lower than
aC ~
and ~ lnel.
Without f'ecleral court Iii
D. it la unlilrelJ tlaal -=II cbaDpl wwld haw been
'
·,•.·
.··
.
.
8-ue the 1tate ci.. to~ to trial in 1979, and ~ appeal the cllat:ric&
court'■ cledaion, mllliOJI■ of diilJan _ . ~ C I D llpl--. I n ~ the ■tate
wwld ba'l9 NM mill1- aC daU■n b.r_z'..... - ' dacne.: Ir the Stati■
of w ~ were to find lWf in a
chc _ . _ toclqs. the Bl'OP hill'■
pnm■ioa■ would haft 1Wflllir■tl the 8tatia to aDmll. the milUoa■ ca: dollan OD Jepl
co■ta; it -1d DOt nm line h■d the optm
the litiptioD b.r ~

=aa,eptahle-m-

':!!.!:~

-:!F

-n

UII Ul ■-z-ent.

:=holdbac adimf:.::»
any _..,,

Ill......_

rrmtr ·,ere

.::e

217

216

•

with coment decreM and poet.trial orders haa convinced me or
well aa the utility or the federal courts in enforcing th01!9 ordens and
~ Eacli time I assumed tne poeition aa the director or a correctional l)'8tem.
I inherited consent decreM and post-trial ordens. My expei:ience ~ been that each
one or thoee decrees and orders wu -1ltlal. a~ that pmnt-~-time. For uamp!e,
J recently ai,ned a decree that ~ the uiedical care pi:o:nded to women pruiln Waihlngton. There wen, clear problems at the Cacility that prevented us
onel'II ·vi the inmates minimally decent medical care. Although I would have liked
~
re!ive~ _p_roblems that existed at the facility_ without litigation, I had been unable to do 80. Thill decree will result in the allocation or resoun:es that are necessary

to remedy

U:J!.':~ correc:tiona administrator would reject
a etatute t h :
at
this bill would s· · •

~ ~ ~pi/like myael( Crom litigation; in reality,

tl ·
rstlier than decrease, the expenditures that my de_p~ent
be
~
~ - By way or illustration, iC STOP had ~n law, I v.:ould not have
been able to llign the coment decree renrding the medi~ care provid~,U? women
• nens in Waahinl!ton- Instead, I would have been required to go to tria. ma case
I know I woulcfhave lost. I would have ultimately been required by the Court
to pay an attorney Cee award that Car ~ the one that I ~ve currently ~
!o pay becauae I would have been required to pay for the time and expenses mcurred by the plaintiffs in going to trial
.
. .
r
p
The only way that I could have avoided a trial under the proVlSlons o . 81'<?
would have been to agree to a finding oC ~ty. Such an ~ e n ~ 11C liability
would have expoeed me and the State or Waabirigton to countless mdividual lawsuits by priaonera for damagee, and the aclmiuion of liability would have pn:vented
from mounting a defense. It ia for this reason that consent decrees do not mclude
~ o n a or lialillity and, instead, typically include a provision to the con1:r9,rY.
The decision to settle a case bY a conaent decree must be left to correctional offic:iala and State Attorney Generals who are familiar with ~e conditio!18. in ~e ~P.'"
um or facility at issue. They should not be put to the cho1!=9 or admi~ liability
or aoirut to tnaI In ~ cue. Requiring them to go to trial, and requmng them
t o ~ ~ to an increaaed attorney fee award;~ a caae.~at ~ey-~ow they
will lose 18 UDCOnscionable. Their only other alternative, admitting liability, would
exp.- them to unknown. and potentially astronomical, money damages.
To make mattens worse, after the state c o ~ ~e trial, and pal!' out a ~stantially unneceeaary attorney fee award, under this bill, the state will be required to
undergo a trial, and another attorney ree award, every two. ye&l'II. The ~ or a
coment decree or a ~ order can take eeveral ye&l'II to llllplement. Thia 18 particularly !rue when conditiona are extremely egftgi0\18 or aystemic. Courts liave
been remarkably flexible and understanding about the diffic:ulty or impleml!ntstion
or remedial orders and decrees in prison conditions eaaes. Since STOP reqwres the
termination oC poet-trial ordens two years aft.er issuance, there ia little reason to belie-re that courts will maintain thia tlezibility. Inatead, prison systans will be Co~
to implement the provisions or an order witliin two~. which ia oft.en an enC!91y
unrealistic time frame. Indeed, achieving the required resources from the Legiala•
tun typically consumes at least one half of that time. If a state has been unable
to impfement the provisions within two years, it will be ~ to relitlrlate the
islluee even when the state knows that it will lose the litigation. And the state will
be required to do 80 nery two yean thereafter, until they achieve compliance. Our
dol1ara woald be much better ~ t trainiDg Btalf and making conditions humane,
rather than relitigating iauee with IIUCb frequency.
A proviaion that ia related to the one that ~ t s coMent decrees in the future
is the one that cslls far the immediate termmation or all existing consent decrees.
Thia
will wreak ha~ and require the expenditure of an untold number
at
, iD_ my ~ alone. CoDleDt ~ are the product of endleea hours of
~tiona t.etwean the pa,rtiBI. Lawyers for my department haft expended COUlltleN houn In armmg at the nwneroua ~ t decre. that are hi ezist.!nce In
w ~ Tennlnating th.a dec:rNa bY legialative flat will undo all or that work,
and immecllatel7.. require~ deiNirtment fo pwp&IW_for trial i n ~ - .
I have beard tbat one at the ilri'VUII forcea behiJld the STOP ~tion la the per~ that priai:,n eondit:iona lawwita have resalted In the impoiltion or poJlulation
~ that hffll led to the ra1eue at ofl'enden who ahould haft remained behind
bm. N ~ . no
order or C0111et decree in the Statat Waahlngt.on, Colorado, or Wleeonmn, that bu capped IIOIIWAdom in one or more inatitutiona, haa rellUlted In lmnatee l:,elng releued eenl4ir than the nonaal rel- at the coaclUllon
at their -=ence. IJ:lst.Ncl. the Lesialaturea in all three statal rMJ)OIISibly provided
additional capacity. Tbls .. true mmoet ~ acroea the countr,. Thoee few
jurlactietlolll IIU1FeriDi eom-t-impoaed
raleue conditiona are aeuerallJ thoee in

cSJ.~

coun

earr,

which the funding bodies haw r e r u - d ~ to the plate by providing aufficient
rellOW'C8S to meet con,titutional minima.
it is my aperieme that Governors
and Legialaturee in atatee that hue
pri8on di8turl,ancee or been IIUbjec:t
to major prison litigation are man
to be reeponaiw to proridfnc adequate rellOUl'CeL

Moving to another oCthe bill'• prcmaions, the way I read eec:lion (aXI} oftbia bill.
before a court will be allowecl to -ter any relief in a claa■ actioa, the court will
have to hear from ewry llingle c:laN member. Ewa if m7. department hu made a
determination that the c:ba1hmpd conctitfom are 'llDCODStitutional, - will be forced
to listen to testimony, preaented by p1ainti!rs' ~ ! r u mewry single prisoner
in the facility or every single ~ in the state.
· on how the claa■ is
defined. The truth remaim: there are UDCOmtit.utional
· "ties. When such a facility is BUed, whst \ > ~ will be ...vect
the defendanta, and a federal
court, to hear testimony from nery lliJlgLe
?
I would also like to comment OD the jmpact the bill would haw OD preliJ!linary
relie£ The bill would prevent a court from ~ any relief until after it find■ a
violation of law. This would prevent a CICIIUlt er- entering any form or em_ergency
relief, BUch u a temporary reetrai:aing order _. a pre1imjnary ~ I - no
good reason ~ prevent a Cauzt from addrN8ing a proven emerge&:y. For example,
a trial court judge in P ~ entsed a ~ iJVunction
• · that
the aystem im~ a P.!OS!8ID oC TB t.ting rZ all incoming inmateL~ isBUed this order after- finding that the ~ o n ~ oC a TB epidemic
cauaed by the lack oC IIUCb testing. STOP would hue
the Judge from entering this order. After the arder entered, oC TB int'ec:tion were
di8covered at just one of the f'ourtNn JJri- affected by the order. Although a correctiona official would prefer to
a T'B conb'ol 11JBtem without being ordered by a court to do ■o, a court
is atiJl pr,efenble to a TB epidemic.
In 8UIIIIJ18JY, it i■ my oJriman that the limitation thia mil puts on an
wiempowered, di■en1ranchiaed ..-,at oC our ppulation aeta a clanprou■ p - .
dent; that "federalizillc" '1eeialonll that are c:ura-ently the p.ero,tative al 8tate and
local jurisdictions ia not only u u - r y , but presumptuous; ana that this Act will
create a me.jor meal burden for ■tate and local. ~ Indeed, it i■ a clear
eumple of an unfunded mandate.
Thank you for giving me the opportanit,Y to ebare my opinioDa with you.

?_,~

:£!r_,.t

Disciplinary Self-Help Litigation Manual - Side