Spreading fundamental reforms over time is essential. Prisons are organic places, with entire cultures of their own. The exploration of this anthropology is beyond the scope of this article. However, it is essential to recognize that a change in one aspect of prison life will carom through others in ways that cannot be predicted. As a simplistic example, an increase in surveillance in a prison, caused by increased staffing and more conscientious and consistent posting of staff, could lead to a significant increase in the number of misconduct reports that are issued to inmates. This increase in turn taxes the inmate discipline system. Officers responsible for that system may struggle at first under the drastically increased workload. Simultaneously, the court's order may have imposed new procedures for discipline. If both these changes happen at once, the entire system may threaten to collapse, as large numbers of misconduct reports are dismissed for failure to adhere to the unfamiliar procedures. At this point the master can expect a backlash of formidable proportions.
Is any part of this scenario merely contrived? Certainly correctional administrators are capable of subverting the court's order by implementing a chaotic reform and then blaming the court for the resulting disorder. Nonetheless, the underlying problem is real, and it arises from actual dislocations in the operation of the institution. It is impossible to conceive of a definition of success in correctional reform that would embrace the deliberate destruction of institutional order. As long as the prison exists in its current form, order is preferable to chaos. Chaos is dangerous, and in a prison there is enough danger without the complications of dissolving norms of conduct. It is thus imperative for the special master to advocate, and obtain the parties' consent to, graduated and sensible implementation of reform according to defensible prioritization.
Fostering Consent
Positing the possibility of consent raises perhaps the central coping strategy of the special master. The essential role of compromise in the work of the master is a result of positive and negative pressures that operate on the job: First, there are negative pressures that limit what the special master can accomplish by way of reform in the absence of agreement; and second, there is the positive insight that ultimately the implementation of change through agreement is a key feature of meaningful and enduring reform.
Litigation over prison conditions is almost by definition intractable. The intricacies of an entire living institution cannot readily be portrayed through the fact-finding process that is the core of the Anglo-American judicial system. Even if an accurate picture of conditions and practices at a prison were to emerge from trial, the real constraints on federal judicial power in this area create certain problems in enforcing constitutional norms behind prison walls. Moreover, the definition of compliance with an order, when measured in terms of countless human actions and reactions, is inherently problematic. This confluence of difficulties, as much as anything, explains the extraordinary measure of a special master's appointment.
The quasi-judicial authority of the master does not make the task any easier. The master does not have the power to order that conduct do not conform to certain constitutional standards, nor can he or she punish disobedience. This is not to degrade or downplay the nature of the master's role; it merely acknowledges the critical constitutional limitations that form the ultimate distinction between the judge and the special master. In this sense, then, the master formally functions, as noted earlier, as an expeditious fact-finder, a role that is complex but potentially valuable. The role is defensible because prison conditions are not easily susceptible to determination through an ordinary process of adversary fact finding. If, however, the litigation remains intensely adversarial, this short-circuiting maneuver is not likely to work.
Thus, the special master may be most effective in attempting to propose resolution of contested issues. Whenever possible, the law strongly favors the amicable settlement of disputes, and certainly that maxim applies forcefully to the area of prison reform. In the absence of consensual reform, prison lawsuits are almost fated to last decades (and entire careers).
One can easily enumerate the benefits of consensual reform. The parties have plenary control over what they agree between themselves to do with the problems they face within the litigation. They, unlike federal courts, are not constrained by the doctrines of comity, federalism, no intrusiveness, and related concerns. Without these constraints, a particular problem that may have a constitutional dimension can be solved through the detailed explication of standards and guidelines-more detailed than a federal court legitimately can include in an injunction. For example, faced with the problem of security staffing, parties can engage in a comprehensive statement of security staffing, posting, surveillance, and staff training. Ultimately, specificity of this kind may fall within the federal court's authority, but the exercise of that authority is certainly doubtful. Moreover, in the absence of proof that a less intrusive order-preserving administrative discretion-has failed, there is a significant question as to whether such a detailed order would be valid. Thus, the process of conciliation itself is a means of solving one of the major ingredients of impossibility in the task of a special master-the indeterminacy of objectives.
At the next phase of the case, conciliation is also of great benefit. In attempting to achieve compliance, unforeseen difficulties will arise. If the goals of reform have been defined by consent, the possibility that problems in the pursuit of those goals can be resolved amicably is surely increased. No doubt disputes will arise, but it is reasonable to expect that if consent has been injected into litigation, the habit of conciliation will take hold.
