In a prison case, a special master typically is appointed after the judge has made a preliminary determination that the conditions at the prison are unconstitutional and that some relief must be ordered to secure the constitutional rights of the inmates. At this juncture the master's role can vary greatly, depending on the judge's perception of the magnitude of the problem and the difficulty of the solution. Among the common duties assigned to special masters are the accumulation of facts, the investigation of conditions, the evaluation of compliance with the court's order, and the formal reporting of these findings to the parties. In some cases the master's job has been limited to monitoring and fact finding. In others it has included drafting compliance plans and providing direction and guidance to compliance efforts. Some special masters are ceded authority to actually order certain measures and to punish misconduct. Masterships have been limited to single issues in a single prison or jail, where special expertise and monitoring skills are needed. At the other extreme, masters have been used in cases in which the court order governs virtually every condition and practice inside the prison.
Broadly defined, the master's assignment is to successfully implement the court's decree and thereby terminate the case. A more limited formulation of the job would be simply that the special master is a fact-finding agent assisting the parties and the court in obtaining an accurate portrait of the state of affairs behind prison walls. Notwithstanding this simple characterization, the special master's job is complex.
The process of implementing change in any complex institution is difficult, and the multilayered role of the special master adds to that complexity. In addition to observing, monitoring, and reporting-the obvious duties of a master-the master soon learns that the translation of a remedial decree into operational terms and standards approved by the court, understood by the defendants, acceptable to the plaintiffs, feasible to implement, and susceptible to reasonably objective monitoring is a forbidding task. The hindrances to its achievement are the primary subject of this article. First, however, the specific job of a special master needs to be defined. What follows is a reasonably orthodox statement of the special master's duties as set out by an order of reference.
Fact Gathering
The order directs the special master to discover the facts relating to the defendants' compliance with the court's decree. This process is a substitute for the formal fact-finding procedure that occurs in courtrooms through the taking of evidence and the weighing by the fact-finder (judge or jury) of the credibility of that evidence. It ultimately produces the facts upon which the court determines whether the defendants have complied with its order. The special master cannot make legal conclusions, at least not with any authority.
The method by which the special master goes about his or her fact-finding duties is established by the order of reference. Ordinarily, the special master is empowered to obtain access to documents maintained at the prison, to conduct confidential interviews with inmates and staff, and, in some instances, to compel staff at the prison to gather information and respond to questions. This process is extraordinary. It replaces the essence of the Anglo-American judicial procedure -adversarial fact finding, including the opportunity to confront and cross-examine witnesses.
Reporting
The special master is directed to record his or her findings in a report that is distributed to the parties. In some manner the parties must be permitted to review the master's findings and make relevant objections. Such a review theoretically applies the adversary process to the findings, at least to a muted degree. The master's findings are then filed with the court, reviewed by the judge (in light of the objections of the parties), and adopted or rejected as appropriate. At the conclusion of this process, there are "final" findings of fact, final in the sense that they are binding between the parties in that litigation.
Promoting Compliance
The special master may be charged, formally in the order of reference or informally by inference, with facilitating the implementation of the court's order.
Where the order is somewhat vague, the special master may assist the defendants in developing policies and procedures that will comply with the order. Where the institutional administration founders in the execution of the order through inexperience or lack of resources, the special master may provide technical expertise and may, in extraordinary circumstances, attempt to discover resources that can be used by the administration to overcome fiscal restraints. For example, if the staff-training program for officers employed at the state's prisons is deficient, a master may arrange for monetary grants and the provision of technical expertise from agencies such as the National Institute of Corrections, in order to alleviate short-term financial problems and to create a program within the state that can, in the future, furnish adequate training.
Other Tasks
Masters may be asked to mediate disputes between the parties, particularly when problems arise regarding the status of compliance with the court's order. Sometimes this role of mediator is decreed in the order, but it may also arise informally. Masters may have to develop a system for reporting and recommending disciplinary measures against staff responsible for noncompliance, as an additional means of promoting obedience to the court's orders. In some cases masters have been given the power to enter orders against the prison administrators, compelling them to take certain actions to conform to the original decree.
Even if the job description is the same, the actual operation of the mastership varies greatly from case to case. The nature of the prison, the personal qualities of the administrators, the composition of the inmate population, the predilections of the judge, and the personality of the master all shape the mastership, and these forces never merge in exactly the same way.
The success of prison masterships has been uneven, but generally judges and litigators have become confident that the use of a master promotes and expedites compliance with the order and termination of the litigation. The phenomenon of mastering does not fit easily within the traditional notions of the judicial function in institutional litigation. Partly because it deviates from tradition and partly because prison reform itself is often intractable, the master's role is profoundly difficult. Competing objectives - even among the constituencies whom the master serves - and the inability to control circumstances that bear directly on his or her success consign the master, on many occasions, to complicated problems. These contrarieties may be at the heart of what is meant by "impossible jobs."
