A Troubling Response To Overcrowded Prisons

A Troubling Response To Overcrowded Prisons – Statistical Data Included

Elizabeth Alexander

The Prison Litigation Reform Act of 1995

Before 1980 criminologists debated two popular theories about incarceration rates. One school held that a particular society has a stable level of crime; the other, that a specific society has a stable level of imprisonment. One of the standard pieces of evidence cited to support the latter theory was imprisonment rates in the United States Between 1890 and 1972 the imprisonment rate remained relatively steady: it reached a low in 1923 at approximately 98 sentenced adult prisoners per 100,000 people, and a high in 1933 with approximately 151 prisoners per 100,000 people. The 1972 rate was 131.7 prisoners per 100,000 people.

The Incarceration Boom in the United States

After 1980 something dramatic happened. The US incarceration rate started climbing, and it has continued to climb. Our current incarceration rate is approximately 450 sentenced prisoners for every 100,000 people. In contrast, most other industrialized countries resemble the United States before 1970. For particular subgroups of prisoners the picture is far worse. For African Americans the rate is just under 2000 sentenced prisoners per 100,000 population. In 1992 over half of all African-American men in Baltimore aged 18-35 on any given day were under some form of control by the criminal justice system.

Aside from the long-range social effects of this situation, we have not yet fully experienced its direct fiscal effect. In 1995 governmental units collectively allocated 5.1 billion dollars for the construction of new prison and jail space, even though every one hundred million dollars in construction will cost 1.6 billion over the next three decades in finance charges and operational costs.

The dramatic increase in incarceration rates cannot be explained by our crime rates. Homicide rates in the United States are much higher than those of comparable countries, but homicide convictions account for an insignificant number of sentenced prisoners. In general, other crime rates in the United States are high, but they remain in ranges that overlap with comparable rates in other countries–for example, one can point to industrialized countries with higher auto theft rates than the United States. And while there is much contested terrain about changes in U.S. crime rates since 1970, it is generally conceded that the crime rates have not changed dramatically and that movements up and down in the incarceration rate have not correlated with crime rate changes.

What has changed are policy decisions about who to lock up. Since 1980, 84 percent of the increase in State and Federal prison admissions has occurred among non-violent offenders. A third of the increase is due to incarcerating drug offenders. The United States now has a higher rate of incarceration for drug offenses than its average rate of incarceration for all offenses between 1920 and 1970.

From the late 1970s on, incarceration rates rose dramatically because prosecution and sentencing policies changed. Most of those changes involved legislative policy, but parole board actions and discretionary judicial sentencing practices also contributed to the increase In the most general sense, the attitudes reflected in those changes seem to include the beliefs that crime is rampant in the United States, that the typical criminal is violent and different from other people, and that the solution is to lock enough criminals up.

The extraordinary increases in incarceration in this country since 1980 reflect those attitudes; at the same time, those same increases make it far more difficult and expensive to maintain living conditions within prisons that meet minimum standards of decency. As a result, since 1980 most states have one or more of their prisons or their entire prison system under orders from the Federal courts to maintain minimum constitutional standards.

Passage of the Prison Litigation Reform Act

Most of the legislative enactments reflecting public attitudes about the criminal justice system since 1980 have had the effect of increasing sentences for convicted criminals. However, since 1994 Congress has developed additional ways to achieve its policy goals, culminating in the passage of the Prison Litigation Reform Act of 1995 (PLRA).

The legislative parent of the PLRA was a little-noticed section of the Violent Crime Control and Enforcement Act of 1994 popularly known as the Helms Amendment. The Helms Amendment provided that a “Federal court shall not hold prison or jail crowding unconstitutional under the Constitution except to the extent that an individual plaintiff proves that the crowding causes the infliction of cruel and unusual punishment on that inmate.” In one sense, the statute was an entirely symbolic act. It was already the law that no prisoner could succeed in obtaining an order from a court based on a constitutional violation without proving a constitutional violation, and the Act itself had no effect on prison litigation.

But the concept expressed in the Act — that Congress can define for Federal courts the circumstances under which the courts can determine or remedy a constitutional violation–is extremely important, particularly so when combined with another provision of the Helms Amendment that allowed prison officials to ask a Federal court to reconsider court orders based on overcrowding every two years. This provision also seemed unimportant on its face because, in Federal court, any party can at any time ask the court to end a prison overcrowding order or any other injunctive order (an order telling a defendant in a civil suit to do something the court requires, or to stop doing something wrong) if the party meets the legal standard for gaining a change in the order. But lurking in these two sections, which together had literally no impact in the law, was the germ of the PLRA.

The heart of the PLRA, which became effective in April 1996, is the provision that prohibits a Federal court from issuing an injunctive order related to prison conditions based on a violation of the Constitution or Federal statute unless the order satisfies four standards: (1) the order is narrowly drawn; (2) it extends no further than necessary to correct the violation of the Constitution; (3) it is the least intrusive means necessary: and (4) it gives substantial weight to any adverse impact on public safety or the operation of the criminal justice system.

If this were the only provision of the PLRA, it would have had little impact. The standards in PLRA are not noticeably different from what Federal courts currently require, and for new orders issued after the passage of PLRA judges can make clear that they have decided that the PLRA standard is met. What the PLRA also purports to do, however, is to end all past injunctive orders unless they contained such specific written conclusions by the judge, or unless the judge decides that relief remains necessary because of a current and ongoing constitutional violation.

Here the provisions do cause problems. While the required standards are not a change in the law, there were no pre-PLRA orders that happened to recite precisely those findings, and there are many variants that Congress could add in the future.

Moreover, a very large percentage of injunctive orders in prison cases were entered because the State or local government in charge of the prison or jail agreed to have the court issue an injunction, rather than go to trial. Such injunctions, known as consent decrees, ordinarily contain no findings, and the court record does not show what evidence might have been presented if the case had gone to trial. Under the PLRA, all such consent decrees are dissolved unless the plaintiffs persuade the court that there is a current constitutional violation.

But how do plaintiffs prove a current and ongoing constitutional violation if the prison officials are complying with the injunction? Even if a court were to give the provision the sensible construction that what Congress had to mean was that a “current and ongoing” constitutional violation would exist if the injunction were allowed to lapse, the plaintiffs must immediately prove a constitutional violation in a case in which the judge has no information, or at least no information about current conditions. Typically it takes several years of preparing for trial to bring a big case to trial. Yet, under the PLRA the prison officials can require plaintiffs to re-prove a constitutional violation once a year, and if the Court has not decided a pending motion within 30-90 days, the officials are entitled to have the entire injunction put on hold (stayed).

The Constitutional Controversy

All over the country, the constitutionality of various provisions of the PLRA have been challenged in Federal court. These challenges take place in the context of a broader argument over the core structure of our government. The United States is a democracy, yet in the Bill of Rights the Constitution also incorporates certain limits upon our democracy, Under our Bill of Rights, no matter how unpopular a particular group is at any time, the majority is prohibited from taking from the minority those freedoms that the Constitution itself protects.

The principle that the Constitution serves both to protect our democracy, but also to place certain powers beyond the control of a transient majority, is not particularly controversial. What is controversial historically is who decides whether the majority has trampled on rights protected by the Constitution. Indeed, perhaps the most important Supreme Court decision in our history purported to answer that question. In Marbury v. Madison, in 1803, the Supreme Court ruled that the Federal courts, not Congress, ultimately have the power to determine whether particular legislative acts are constitutional because the Constitution is “a superior paramount law, unchangeable by ordinary means.” Federal courts are to recognize and give heed to the Constitution when it clashes with mere ordinary legislation because “it is emphatically the province and duty of the judicial department to say what law is.”

Although Marbury officially settled the issue, the results in Marbury and in another case, Martin v. Hunter’s Lessee, which announced the right of the Supreme Court to strike down State statutes as unconstitutional, have never been entirely lacking in controversy. The same constitutional struggle fueled arguments between Federalist judges and Jeffersonian Democrats, as well as debates in the Civil War, the New Deal, and the civil rights eras, when legislators denounced what they called “forced busing” ordered by Federal courts. During times of heightened political tension, Congress has attempted to test the decision in Marbury through a variety of means designed to prevent the Federal courts from holding its acts unconstitutional.

The PLRA is the latest stage of this ongoing political fight, generally known as “court stripping.” Since the busing debates, most of Congress’ attempts to limit the power of the Federal courts have taken the form of attempting to limit the Federal courts’ jurisdiction or their ability to enter effective remedies for constitutional violations; the PLRA certainly falls squarely within that tradition. While a number of Federal trial courts have struck down the part of the PLRA that requires the courts to end injunctions that lack the required findings, so far only one of the six Federal courts of appeals to address the issue has held the provision unconstitutional, while another suggested that certain applications of the provision might be unconstitutional. On the other hand, the stay provision of the PLRA that suspends relief while the court considers a final ruling has fared much more poorly. The great majority of Federal courts to consider challenges to this section have either simply refused to apply it to suspend relief, or have struck down the provision as unconstitutional.

Meanwhile, the partial success of the PLRA has encouraged those who advocate even more substantial “court stripping” aimed at far broader targets. Among the proposals that have been introduced in the current Congress, for example, one would prohibit a single Federal judge from striking down as unconstitutional an act passed by a State referendum, and another aims at preventing a Federal judge from remedying a violation of the Constitution if the effect of remedying the violation would be to raise taxes. What these various bills have in common with past attempts at court-stripping is that the bills target specific unpopular decisions by Federal courts and usually decisions that uphold the rights of an unpopular group. But when the PLRA attempts to limit prisoner rights by telling the Federal courts that they must revisit constitutional decisions and re-decide them under the limits Congress sets, it raises fundamental questions about our government that could someday affect the rights of all of us.

Elizabeth Alexander is Director of the National Prison Project of the American Civil Liberties Union Foundation in Washington, DC.

COPYRIGHT 1998 U.S. Commission on Civil Rights

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