Lasker, Morris E.

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Pace Law Review Volume 24 Issue 2 Spring 2004 Prison Reform Revisited: The Unfinished Agenda Article 3 April 2004 Prison Reform Revisited: A Judge's Perspective Morris E. Lasker Follow this and additional works at: https://digitalcommons.pace.edu/plr Recommended Citation Morris E. Lasker, Prison Reform Revisited: A Judge's Perspective, 24 Pace L. Rev. 427 (2004) Available at: https://digitalcommons.pace.edu/plr/vol24/iss2/3 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact dheller2@law.pace.edu. Prison Reform Revisited: AJudge's PerspectiveThe Honorable Morris E. Lasker*I am grateful for the opportunity to participate with all ofyou in coming to grips with "the unfinished agenda" of prisonreform litigation. My credentials may be a bit rusty from recentnon-use, but my continuing interest in the subject is keen.During the Beame administration in New York City, therewas a serious riot of prisoners at the House of Detention formen on Rikers Island.' Among others, including Ben Malcolm,the Commissioner of Corrections, and Bronx District AttorneyMario Merola, and I participated, at the request of the Prison-ers Committee, in the negotiations to end the riot. I am glad tosay we were successful.Some years later I had occasion to give a lecture at thestate penitentiary at Green Haven. After the lecture, a prisonerintroduced himself, saying: "Judge, I don't know if you remem-ber me, but we met at the Rikers Island riot."I regret that I no longer have such active connections withthe subject, but my twenty-four-year stint in presiding overprison reform litigation in New York City has imbued me with adeep and continuing interest in the accomplishments and frus-trations of the Prison Reform Movement.* The Honorable Morris E. Lasker is a senior United States District Judgecurrently sitting in the United States District Court for the District of Massachu-setts. For many years Judge Lasker sat in the Southern District of New York.While serving in the Southern District Judge Lasker wrote the landmark opinionof Rhem v. Malcolm, 432 F. Supp. 769 (S.D.N.Y. 1977), dealing with the constitu-tional rights of inmates in the Manhattan House of Detention (the "Tombs"). Af-terwards, litigation involving all of New York City's jails was consolidated beforehim. Judge Lasker is a graduate of Harvard College and Yale Law School. He wasawarded the Learned Hand Medal for Excellence in Federal Jurisprudence fromthe Federal Bar Council, the Edward Weinfeld Award for distinguished contribu-tions to the administration of justice from the New York County Lawyer's Associa-tions, and the Helen Buttenwieser Award from the Fortune Society.1. See Thomas J. Lueck, Benjamin Malcolm, New York City Jail Chief, Dies at81, N.Y. TIMEs, May 30, 2001, at C18.4271PACE LAW REVIEWProfessor Mushlin has asked me to talk about a judge's per-spective on prison reform litigation, including such questionsas: judicial oversight of conditions of confinement; whether liti-gation has made a difference; whether there are regrets; andwhat should be done differently?To the extent that these questions deal with the past, theyare easy to answer. There is no doubt in my mind that the in-volvement of the federal courts in ensuring constitutional condi-tions of confinement has, during the last thirty years or so,significantly improved those conditions in the institutions withwhich I am personally familiar. In this discussion, I take theterm "conditions of confinement" to include both physical condi-tions, such as cleanliness, minimal space per inmate, tempera-ture control, noise control, edibility, cleanliness and adequacy offood, adequate opportunity for physical exercise, limitations onlock-in, personal sanitation, and such non-physical conditionsas fair and adequate classification and disciplinary systems.Such a listing is not intended to be, nor can it be, exhaustive inthis brief discussion.I do not assert that, even today, these conditions are perfectin any institution, but I am convinced that they have been sub-stantially improved over the years as a result of prison reformlitigation.In New York City, the Manhattan House of Detention(known to all as the "Tombs") has been rebuilt from stem tostern to produce decent conditions of confinement, proving thatit is easier to rebuild than reform; and very substantial progresshas been made at the numerous facilities on Rikers Island andin the boroughs.2However, the goal of completely acceptable conditions hasnot been fully met, even in New York City. This is demon-strated by the fact that the litigation is now in its 33rd year,presently under the able supervision of Judge Harold Baer, whohas skillfully navigated the shoals of the Prison Reform Litiga-tion Act.3 Indeed, it is in the nature of institutional reform liti-2. See Philip Shenon, Tombs to Reopen With A New Look, N.Y. TIMES, Oct. 17,1983, at Al.3. Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996)(codified at 11 U.S.C. § 523; 18 U.S.C. §§ 3624, 3626; 28 U.S.C. §§ 1346, 1915,1915A; 42 U.S.C. §§ 1997-1997h).[Vol. 24:4272https://digitalcommons.pace.edu/plr/vol24/iss2/3A JUDGE'S PERSPECTIVEgation-not just prison reform cases-that it is a lot easier toinitiate the litigation than it is to end it. In such cases, we seemdestined to move constantly halfway to the goal line, but rarely,or never, to make it all the way.Yet, in spite of the gratifying progress, I do have regrets. Iregret that I didn't finish the job in New York. I regret thatprison reform litigation has impelled Congress to enact thePrison Reform Litigation Act, which, although not fatal, im-pedes appropriate and necessary progress. I regret the resort toprivately operated prisons, the use of which may in some caseshave been prompted by prison litigation. I regret the continu-ance, even today, of the conditions that permitted the murder ofJohn Geoghan, a prisoner in a Massachusetts correctional facil-ity;4 and the state of affairs in, for example, Alabama's Limes-tone Prison, where the federal government has sued theAlabama Department of Corrections and its medical contractorfor failing to care for prisoners who are desperately sick.5My regret, however, do not mean that I have doubts as tothe appropriateness of prison reform litigation as an exceed-ingly important tool in improving prisons when either the legis-lature, or the executive, or both, are failing in their duties toassure constitutionally adequate conditions. However, I do con-clude, with a caveat: that, as in the case of planning for war ina foreign country, participants in prison reform litigationshould arrange, at an early stage in the litigation, the establish-ment of an exit strategy, which should be regarded from the on-set as a matter of importance to all parties.In sum, I cast a vote for prison reform litigation as an im-pressively effective instrument for assuring constitutionally ac-ceptable prison conditions.Nevertheless, another more daunting challenge lies ahead.Today-some thirty to thirty-five years after courts beganto accept responsibility for assuring decent prison conditions,the corrections community faces an even larger and more diffi-cult problem-that is what I call America's love affair withimprisonment.4. See Daniel J. Wakin & Katie Zezima, Abusive Ex-Priest is Killed in Prison,N.Y. TIMES, Aug. 24, 2003, at Al.5. See Carla Crowder, "Medical Failure" Blamed in HIV Inmate Deaths, BIR-MINGHAM NEWS, Aug. 28, 2003, at 1A.429200413PACE LAW REVIEWAs we meet, there are approximately 2,000,000 persons inprison or jail in the United States.6 This figure compares withapproximately 330,000 who were confined in 1970, the yearthat the New York City litigation commenced.7 The increase inincarcerated persons per thousand is substantially greater thanthe growth in population during that period.8This audience does not need to be reminded that the sub-stantial increase in the rate of incarceration has been fueled bythe play-it-safe politics of being "tough on crime" as a formulafor election (or evasion of defeat) by political office holders. 9The result has been incarceration in the United States at alevel among the highest in the world'O-which affects not onlythose who are in custody, but the millions more who are on pro-bation (where it still exists), or parole, as well as their families.Among the perversities of the system are the facts that per-sons of color and Latinos are incarcerated at a significantlyhigher rate than average, and that, as a result of the enactmentof "three strikes you're out" statutes, the prison population isaging significantly-costing prison systems substantial sumsfor the care of relatively harmless people.'1 Fortunately, the ex-cesses of the system are finally being recognized by the states asthey are forced to reduce the costs of their correctional systems,and are doing so, in a number of cases, according to the VeraInstitute, by enacting laws to reduce or do away with prisonsentences for certain nonviolent criminals. 12At the federal level, however, the problem of excess impris-onment is aggravated by Attorney General Ashcroft's policy of6. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, BULL. No. NCJ200248, PRISONERS IN 2002 1 (2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p02.pdf.7. JENNI GAINSBOROUGH & MARC MAUER, DIMINISHING RETURNS: CRIME ANDINCARCERATION IN THE 1990s (2000), available at http://www.sentencingproject.org/pdfs/90no39.pdf.8. See Alfred Blumstein, Racial Disproportionality of U.S. Prison PopulationsRevisited, 64 U. COLO. L. REV. 743, 743 (1993) (noting the increase in the rate ofincarceration).9. See Elaine R. Jones, Violent Crime Control and Law Enforcement Act of1994: The Failure of the "Get Tough" Crime Policy, 20 DAYTON L. REV. 803 (1995).10. Id.11. Id. at 804.12. Paul von Zielbauer, Rethinking The Key Thrown Away: As Ashcroft CracksDown, States Cut Prison Terms, N.Y. TIMES, Sept. 28, 2003, at A41.430 [Vol. 24:4274https://digitalcommons.pace.edu/plr/vol24/iss2/3A JUDGE'S PERSPECTIVEall but eliminating plea-bargaining 13 and by Congress' passageof the Feeney Amendment, which substantially circumvents theauthority of the sentencing judge to depart downward, andwhich provides that sentencing decisions are to be reviewed denovo by the court of appeal.14If I am correct in concluding that the criminal justice sys-tem of this country is incarcerating citizens at an unjustifiablelevel with clear overtones of racial discrimination, the quest is,where do we go from here? This issue is very different from theissue of prison conditions. Resort to the courts was appropriateand useful in the fight to improve prison conditions, but refor-mation of incarceration policy cannot be achieved by litigation.A change in the incarceration policy can only be achieved bypolitical action, directed, for the most part, against Congressand state legislatures rather than, as in the cases of prison con-ditions litigation, against the executive.Influencing incarceration policy will not be an easy job. Itwill not depend on resort to the language of the Fifth or Four-teenth Amendments or (in light of Supreme Court opinions le-gitimizing the most sever sentences) the Eighth Amendment,but rather on rallying the troops to support (or oppose)legislation.To sum up, we have-on the whole, but not everywhere-come a long way in assuring decent conditions of confinement inAmerican correctional facilities, but we have a long way to go tobring justice to the American incarceration policy.It is a pleasure to be back in the company of so many skilledand caring practitioners, and I wish the conference well.13. Id.14. See generally Materials From Interested Groups Opposing Original FeeneyAmendment, 15 FED. SENTENCING REP. 346 (2003).2004]5

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Prison Reform Revisited: A Judge\u27s Perspective

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