REFORMING PRISON REFORM

By DONNA LENNON

The Prison Litigation Reform Act was enacted in 1995, with the aim of reducing what critics called "judicial micro-management" of prisons. Among other provisions, the Act imposes a controversial "automatic stay" -- a 90-day deadline for a federal judge to consider a state official's request to end court monitoring and supervision of prison conditions.

suspended. Thus, under the Act, prior court orders can be turned on their heads. If a judge does not act, then, at least for a time, the original losing party -- the constitutional violator -- automatically wins.

The ACLU believes this provision to be a blatant violation of the Constitution's separation of powers with respect to the legislative and judicial branches. It allows Congress to force federal judges to act within a time period mandated by Congress; and to take away judges' authority, reversing their prior orders, if they fail to capitulate. Nevertheless, this past spring, in Miller v. French, the Supreme Court, in a 5-4 decision, upheld the provision.

The Miller decision will have serious repercussions not just for the rights of prisoners, but for the rights of every citizen. The Act and its "automatic stay" provision are part of a trend of Congressional animosity toward judicial independence.

The Federal Courts' History As Protectors of Individual Rights

Traditionally, plaintiffs with constitutional claims have gone to the federal courts to defend their rights. When oversight of institutions was necessary to protect rights, federal courts provided it.

Consider, for example, 1960's school desegregation orders, or orders in the 1970's requiring inhumane conditions at institutions for the mentally ill to be changed. The same officials who had discriminated against, and maltreated the plaintiffs often could not be trusted to comply with a judicial order requiring wide-ranging, necessary changes in conditions. And the plaintiffs -- politically unpopular minorities who often lacked the right or ability to vote -- had only one protector: the court.

So, too, have prisoners sought federal court relief when the harshness of their conditions became so extreme as to rise to the level of "cruel and unusual punishment." But unlike the aforementioned cases, Congress is using the PLRA to dismantle court orders that remedy unconstitutional conditions. Consider, for example, the prison at issue in Miller itself -- Indiana's Pendleton Correctional Facility. Extreme overcrowding made stabbing, bludgeoning and homosexual rape frequent occurrences. Its filthy kitchen featured live roaches and fresh mouse droppings. And inadequate medical care allowed communicable diseases to go undiagnosed and untreated for months.

Why the Prison Litigation Reform Act Threatens Rights

Can a federal court with a crowded docket that includes hundreds of other cases carefully evaluate a prison like Pendleton within 90 days? And can plaintiffs be expected to obtain experts, take depositions, and gather all the evidence needed to prove current constitutional violations within that same time period? The answer to both questions is a resounding no.

Prison litigation often involves multiple facilities that are geographically separate. Moreover, the issues at each facility can be diverse -- ranging from the adequacy of medical services, to whether decent sanitation is provided, to whether prisoners are physically safe from rape, assault and murder. Yet under the "automatic stay" provision, if plaintiffs cannot prove the existence of a constitutional violation, court supervision is ended, regardless of the fact that the federal court had already found constitutional violations in the past.

hostility toward the courts. For example, another provision of the Act invalidates past prison supervision orders that did not expressly recite a particular mantra. The mantra includes findings that the relief ordered is narrowly drawn, extends no further than necessary, and is the least intrusive means necessary to correct the violation.

It doesn't matter that the judge would have made these findings, if asked, or that he or she found serious constitutional violations at the prison. All that matters, according to the Act, is: Did the order include that mantra? Thus, the Act also tries to put words in the mouths of judges. Again, the separation of powers issue is clear.

The Repercussions For Everyone's Rights

The Prison Litigation Reform Act is not alone in its hostility to the traditional role of the federal courts as the protector of individual constitutional rights. Two other statutes, passed in 1996, join the same trend: The Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act. These laws make access to the federal courts much more difficult, by restricting judicial review and requiring plaintiffs to meet prohibitively stringent standards. In doing so, they threaten the separation of powers by encroaching on federal courts' authority. They also leave plaintiffs in the cold, without a way to vindicate their rights.

These laws are part of a larger organized conservative campaign to reverse the civil rights advances of the 1960's and 70s. Unable to persuade the Court to reverse important civil rights decisions, anti-civil liberties groups have lobbied Congress to enact laws that accomplish the same result -- by stripping the federal courts of the power to fully enforce civil rights. Though prisoners have been specially targeted, the precedents -- destroying judicial independence -- threaten the enforcement of everyone's constitutional rights.

Donna Lennon is the Project Coordinator for the ACLU's Access to Justice Project. The ACLU filed a Supreme Court brief attacking the Constitutionality of the Prison Litigation Reform Act. The Supreme Court, however, upheld the Act in Miller v. French.

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