Peace was not the norm, of course, in that separate world. Decades of indifference have left only a haphazard and partial record of what prison life was like in the first half of this century. The available evidence does reveal that mostly prisons were dark and cold and violent. Thus, it may indeed be debatable whether judicial intervention in that world is practical or theoretically defensible. But since it is unremarkable to claim that a government should be accountable for the conditions of its civic institutions, it seems particularly hard-hearted to mourn the passing of the era of prison autonomy.
In any event, the long night of ignorance in which the world of corrections labored has ended. In the past twenty-five years virtually no state, and few cities of any size, have been free from the disruption, upheaval, and progress almost invariably associated with litigation in federal court over conditions of confinement at prisons and jails.
This discussion does not focus on the role of litigation in the operation of a correctional institution, or on the impossibility of administering a prison. It is sufficient to observe here that litigation has played a central and apparently indispensable role in the reform of American prisons. Litigation, however, has never been a total solution, and even in the best cases, its adversarial model has largely failed to create meaningful change. The typical history of prison litigation involves interminable cycles of court orders being entered, contested, ignored, and sporadically enforced with uneven results.
This jagged history has led judges and litigants to resort to a juridical instrument of ancient lineage: the special master. This remedial device was embraced in an effort to deal with the emerging perception that prison reform through federal court orders is a particularly complex and unwieldy enterprise. Prison litigation usually produces lengthy, detailed mandatory injunctions, which require vigilant monitoring and enforcement. That hard work takes place in an institution that is remote from the recognized norms of society and accustomed to its nearly gothic isolation. Given these complexities, the process of reform did not work well when cabined in the formal operations of federal court adjudication. Judges and litigators found, overtime, that resolution in the courtroom did not tend to translate into actual substantive change. As this knowledge evolved, the law, in its internal organic genius, searched out from among its traditions a solution at once age-old and modern: the use of a court-appointed special master.
In any full accounting of the constituencies with which the special master must deal, a word must be included about those actors who have been called the' 'hidden defendants." For reasons of federal constitutional law, neither the state legislatures nor their members can be made defendants in a federal lawsuit seeking to enforce constitutional standards. Thus, the named defendants will not include the speaker of the house, the chair of the state senate's legislative finance committee, or any of the prominent leaders of state legislatures. Nonetheless, because reform is a costly and highly visible process, achieving compliance with the court's order will cause an enormous drain on the state treasury. It is not uncommon for the budgets of state corrections departments to expand many times over as a result of litigation. This huge cost can lead to significant dislocations in the state's budget as well as a severe backlash among legislators. Some of their rhetoric will reflect sincere concern over the allocation of scarce resources; some will be more opportunistic.
The structure of the case creates a vast gap between the special master and the hidden defendants, which widens as long as political posturing prevails. The special master contributes to this breach to the extent that he or she interprets mastership as narrowly defined within the framework of litigation, thereby necessarily excluding the legislature. At this point, and at many others, the intrinsic tensions of the special master's job are salient and sobering.
A great deal of scholarly thought has gone into the problem of enforcing federal court orders that affect state treasuries without offending the constraints of sovereign immunity. Ultimately, if the order is framed with care, those constraints do not operate. In that sense, then, the remoteness of the state legislature from the active agents of the case has little consequence. On the other hand, this circumlocution is not merely artificial; it has real import for the success of reform. To the extent the state legislature does not participate in the process of reform and sees only its consequences in budget deficits and the need to increase tax revenues, reform will be a political catastrophe. This potential disaster cannot safely be ignored, for the end reforms that are enforced unwillingly and undemocratically are always vulnerable to compelling political critiques. The line between the judiciary and the legislature is real, and one need not be a constitutional theoretician to observe and worry about its obfuscation.
Thus, the world the master enters is not so simple as one might surmise, and its contours are always changing. Among occupations in the public eye, only baseball managers enjoy a less stable tenure than prison administrators. Similarly, counsel who represent the defendants often change in response to political whims, and they may come and go with governors. Nor do the prisoners remain the same, as some depart under the pressures of crowding, parole, and early release.
Changing an institution as complex as a prison is not easy. Doing so when you are the only constant, and all else is flux, may be another sense of what is meant by impossibility.
