The Initial Certainty: Role and Objective
The special master's job may seem more definite than that of other public administrators. He or she is appointed by a judge for the purpose of implementing a judicial decree. Thus, at the outset the objectives have been defined; they are in writing, they have the effect of a judicial mandate, and as a matter of law, they must be sufficiently specific to permit comprehension and accomplishment.7 Some provisions in the decree may be more specific than others, but generally the judge's order, whether fashioned through consent of the parties or following litigation, must mandate or prohibit behavior in reasonably definite terms. Because the special master's charge is governed directly by the terms of the court's ruling, the mission he or she undertakes at first may appear to be no more complex than reading a court order and figuring out how to execute it. Such an external articulation of aims is a luxury rarely afforded to officers with visible public duties. For example, public health commissioners have only the most general mandate to pursue when they assume the responsibilities of their office.
The impression that the job of the special master is concrete and comprehensible is enhanced at the outset by the circumstances of the appointment and the nature of the task. The special master is cloaked with quasi-judicial authority; at least in the world in which he or she trafficks, that endowment is of no little moment. The appointment itself is a judicial act that partakes of the sonority and force of judicial power. Moreover, the judge has actually ceded to the master certain rudiments of judicial power, so the position shares in the legitimacy of the judiciary. Indeed, in certain important particulars, the authority of the special master goes beyond that routinely granted to judicial officers. For example, in most circumstances the constraints of the courtroom and the formal rules of evidence are loosened to permit the special master broad access to documents and personnel as a means of collecting information.
A final aspect of the initial myth of the job flows from the legacy of federal court intervention as a primary agent of social change in the latter half of the twentieth century. Presumably, most high-ranking state officials or lawyers involved in institutional reform litigation are aware of the pertinent institutional histories- schools, mental health hospitals, systems of voter registration-and the manner in which change in these areas has been driven by federal litigation.
An enduring image of the nation's struggle with the imposition of the rule of law in a heated and complex social milieu is the presence of armed troops in the streets of Little Rock, charged with assuring the success of school integration. Equally potent, however, is the image of courageous and indefatigable federal judges, adhering to their oaths to support and defend the Constitution.10 Such history has had at least a symbolic effect on correctional administrators, who find their prisons under essentially foreign siege as a result of federal litigation.
This broad statement of a right may or may not be a proper way to resolve the tensions of applying a vague constitutional stipulation to a concrete civic setting. Of import here is that such a provision, which the master must evaluate and implement, is hardly self-defining. To summarize, then, the master may have in hand a written set of duties, but that does not mean it will be easy to know when they have been discharged.
The Living, Changing Constitution: Federalism. The pressure on the special master is further complicated by tensions regarding the legitimacy of federal court intervention in the affairs of states and localities, an issue that is subject to the flow of fashionable precepts within constitutional thought. In a fundamental sense the special master, working as a federal agent in a state institution, is at the center of this conflict. As a matter of constitutional legitimacy, federal courts are restrained in their ability to impose orders on state prison officials. The public debate on this topic during the confirmation hearings on the nomination of Judge Robert Bork to the Supreme Court provided a fascinating glimpse of how deep and troubled is the question of federal court legitimacy, both as a matter of arcane scholarship and as part of the ongoing life of the federal judiciary.
The master is a quasi-judicial officer. He or she feels concurrently the restraints of that role and the obligation to effect the changes required by the court's order. In doing so, the master must measure the reality of prison life against the articulation of constitutional standards contained in the decree. At this point he or she is directly exposed to the strain of giving normative content to open-ended constitutional provisions. That pressure is augmented by an awareness of the constitutional and political ideal of limited federal court intervention in the affairs of the states. In sum, the abstract pressures of a federalist system in here in the work of the special master.
These tensions are palpable to a special master and are actually, acutely, and regularly felt. Inmates whose constitutional rights are protected by the order have a legitimate right to know what will be done to enforce that order, and to them, the order and its constitutional platitudes are concrete. Thus, inmates will demand to know how the special master will insulate them from the enormous risks of physical and psychological harm they experience in the prison. Yet assume that Certainty Subsides: The Indeterminacy of the Order
The special master may begin his or her job with the comfort of a judicial appointment and a mandate to implement a seemingly discrete set of goals. This serene portrait is short-lived. The court's order, however specific, cannot account for the raw variety of conditions and practices at play in a prison, nor can it compass the lives and responses of confined human beings. Further, even if it speaks with some precision to the infinite diversity of life behind bars, the order is not immutable, for legal and practical reasons.
The Living, Changing Constitution: Substantive Rights. Constitutional litigation is swayed by unavoidable tension created by the indeterminacy of some of the document's most critical provisions, and the particular sources of prisoners' constitutional rights are among the more open-ended. The Eighth Amendment's prohibition against cruel and unusual punishment is the basis of a now-famous and still controversial notion of "evolving standards of decency." The other primary source of prisoners' rights is the Fourteenth Amendment guarantee of due process of law before the government can deprive anyone of life, liberty, or property. Yet the text itself asks the inevitable next question-what process is due?-so instead of one question, there are two: Does the government's action really implicate an interest in life, liberty, or property? If so, what process does the government have to provide before it can deprive someone of that interest? Unfortunately, multiplying the questions does not make the answer any easier to find.
In part because of the indeterminacy of the constitutional sources, judicially created rights are subject to modification and even suspension. Thus, administrators charged with running prisons must meet a shifting standard of conduct; prisoners and their lawyers must change their expectations over time; and to a critical extent, the master's job must be subject to these same pulses.
This problem could be illuminated by a case study of the fate, over the past twenty years, of the putative constitutional right of inmates to contact visitation- that is, personal visits, including physical contact, with people from the outside world. Although such a study is beyond the scope of this article, a brief review can establish the familiar dialectic. At the start of federal court intervention in prison affairs, few would have expected that an inmate's right to contact visitation would be resolved on the basis of constitutional doctrine. Yet as litigation swelled, and with it the body of recognized rights, the nature and scope of prison visits were subject to judicial scrutiny. Federal judges were asked to evaluate procedures surrounding visits. Should inmates and their visitors be strip-searched? How long should visits be? Under what circumstances can an inmate's right (or privilege) to court has permitted the prison administrators to tighten the clamps on certain aspects of inmate life, such as freedom of movement, intra-institutional mail, and non-mandatory group activities.
The Order Can Change. The evolutionary process of prisoners' rights has an important corollary. The law acknowledges the right of parties to seek changes in injunctions under certain circumstances. To complicate this matter, the condition under which parties may be entitled to modification or a vacation of decrees is itself a doctrinal area that is currently vulnerable to considerable internal pressure.
Thus, one factor that makes the special master's job particularly difficult is that the goals of the job are subject to change, subtle or dramatic, over time. This volatility of goals profoundly influences the ability of the special master to be effective. Whether or not one subscribes to the notion, increasingly fashionable among certain legal academics, of the "radical indeterminacy" of law, it is clear that achieving constitutional conditions in a prison is not a matter of mathematical precision. The words of the order will prevail, and they are hedged in by constraints of federalism and comity, vagueness in the original text, the organic nature of prisons, and the changing state of the law as it relates to and reflects the norms of this society.
