First, because the language of the order is to some degree vague, its meaning must be derived largely from the expectations of the parties and the manner in which they implement and enforce it. Moreover, in traditional doctrine, enforcement of the court's order is the responsibility of the plaintiffs. If the plaintiffs, through counsel, wish to baiter some rights for others, one would be hard-pressed to find a theory of adjudication that makes such a trade illegitimate. Nor is it easy to see why the master should be disabled from assisting in, or even encouraging, such exchanges.
Even here, however, a problem arises. The term "the plaintiffs" assumes a unity of interest that may or may not be present.' 'The plaintiffs" are the inmates, who have prevailed in the litigation; their counsel are lawyers committed to represent the interests of the inmates. Yet this is not an easy task. Imagine a prison with five hundred inmates in varying categories. The lawyer represents the class of inmates, but not all of the five hundred inmates share the same concerns. Within the prison there may be a group of inmates who, for whatever reason, are prone to receive misconduct reports for violence against staff and other inmates. The prison administration may want to isolate these inmates for long periods of time and may urge that isolation should be accomplished with a minimum of due process protection and on the basis of broadly inclusive substantive criteria. In this situation it should be apparent that within the class of inmate plaintiffs, there will be diverse responses, generated by self-interest, to the proposed actions of the administration. In the nature of things, it is predictable that the court and the master will turn to plaintiffs' counsel for conscientious representation of the class's interests; but in this representation, the lawyer has to make some hard choices between interests. Those decisions may or may not be responsible.
In all events the master has an essential role in dealing with the inmates' lawyer on a long-term basis. This relationship is crucial, because the lawyer can provide stability in the litigation by distilling the potentially compelling interests within the class and by shaping the class's expectations of the order. At the same time, of course, the inmates' lawyer determines how the case is litigated. A lawyer representing a large and sometimes unwieldy class inevitably makes certain decisions personally, on behalf of the client. Thus the lawyer, in a critical sense, becomes a separate party interested in the process of the mastership.
The inmates themselves are a key constituency for the special master, who will have a direct relationship with them. The broad access to inmates that special masters traditionally are granted creates a personal connection between inmates and the master that is deeper and more immediate than what the inmates have with their lawyers. As a source of direct information, this access is invaluable to the master's attempt to evaluate conditions and practices in the facility and to measure compliance with the court's order. Yet it would be highly unusual if inmates, under the pressures of confinement, isolation, and idleness, were able, in their exchanges with masters, to limit their comments to the scope of the court's order and desist from extraneous complaints. First, the task of defining precisely what is and is not covered by the order often befuddles lawyers in conditions cases, so inmates cannot be expected to be more concise in their thinking. Second, under some circumstances, facially irrelevant conditions may in fact be caused by elemental noncompliance.
The relationship between the special master and prisoners is one that demands careful attention and sensitivity, for it can be transformed by both parties into something quite different from what was contemplated by the order of reference-and one potentially hazardous to the process of compliance. Institutional litigation tends to be long, and the passage of time in a prison certainly has a different feel than it does in the free world. A special master's perspective of progress is not the same as the prisoner's, particularly as the case reaches its final phases. From the special master's viewpoint, inmate complaints about abhorrent conditions and deviant, although hidden, practices can create frustration and irritation, especially when the special master's focus is on the advances that have been made. The master's sense of the progressive history of the prison can appear shockingly detached to inmates who are more present-minded and who see what appears to be a trouble inattention to the intimate particulars of prison life.
Certain aspects of incarceration are unpleasant, painful, psychologically threatening, and dispiriting. The litigation, no matter how successful, will not change that fact. When the special master has concluded that the prison substantially complies with the court's order, the grievances of inmates will only be reminders of how much is, and must remain, unfinished. This realization can be profoundly disheartening.
Inmates are a constituency for the special master, and their expectations are critical because they are parties in the lawsuit, they have obtained relief, and they are entitled to implementation of the order. It is arrogant and insupportable for a special master to ignore that fact. At the same time, the master must be mindful that the court's order defines the inmates' rights and that inmates may not be in the best position to evaluate whether those rights have been secured. Nonetheless, the special master will and must depend on inmates as invaluable sources of information. The tension between this dependency and its hazards is a significant complication in the job of a special master.
Thus, when the special master looks to the inmates' side of the case, he or she sees neither a block of unified interests nor a common spokesperson. The portrait is no clearer on the other side of the case. The term "defendants" fails to convey the range of people and interests who are obligated to provide constitutional conditions. In fact, the "defendants" are likely to be located at widely different positions respecting the terms of the court's order.
First, the defendants are probably represented by a lawyer who must synthesize a set of interests that are not entirely congruent. To illustrate the breadth of the real interests that are lumped under the rubric ' 'defendants," consider a hypothetical case of litigation over the conditions of confinement at a jail. The inmates sue the board of county commissioners, the sheriff, and the chief jailer as named defendants, claiming that the conditions and practices at the jail are unconstitutional. The initial court order is entered by consent. After some period of difficulty in the implementation of the order, a special master is appointed. The master's powers are those set forth generally in orders of reference. An unwritten but critical part of the mandate is to mediate and resolve disputes before they are submitted to the judge.
In such a situation, the master must take into account an exhaustive variety of interests in attempting to solve problems. First, the named defendants have markedly divergent interests. The county commissioners are elected officials, and almost inevitably, they represent a range of political objectives and perspectives. The board's function is to merge those objectives into county policy, but that is no easy accomplishment, particularly in a highly contentious area such as criminal justice policy. The individual constituencies of the commissioner, and their perhaps overlapping political ambitions, complicate the process of even identifying the objectives of the board.
