By Ronald J. Ostrow, Los Angeles Times
From: Seattle Times, January 15, 1992
Agency taking hard-line position on crowded prisons
WASHINGTON - Outlining a major policy shift, Attorney General William Barr said yesterday that the Department of Justice will be "receptive" to states' efforts to remove court-ordered population caps at overcrowded prisons.
Barr, in a hard-line speech to the California District Attorneys Association in Palm Springs, Calif., said that many federal judges went too far in the 1970s and 1980s in deciding what the Constitution requires to remedy purported; "cruel and unusual punishment" in prisons.
"If we want to reduce violent crime, we must press ahead unrelentingly with the policy of incapacitating violent criminals through incarceration," Barr said. "The choice is clear: More prison space or more critne." The speech comes as President Bush has seen his popularity fall as Democratic opponents question his ability to solve domestic problems, including crime. Political critics note that even as prison populations set new records, the nation's crime rate continues to rise.
Barr's policy shift drew immediate criticism from Elizabeth Alexander, associate director of the American Civil Liberties Union's national prison project, which litigates on behalf of prisoners' rights.
"He is wrong about the law, but more importantly he's wrong on the humanity of it." she said.
In the past, the DepartInent of Justice frequently has sided with inmates on prison-condition cases. The departtnent's civil-rights division has taken part in obtaining consent decrees to correct prison conditions in Texas, California, Michigan, Guam, the Virgin Islands and three local jails, Assistant Attorney General John Dunne said.
But Barr said the department now will be more sympathetic to state attempts to lift population caps not essential to remedy constitutional violations. He said that the federal courts had gone too far in ruling on "the particulars of prisoners' diets, exercise, visitation rights and health care."
"Most burdensome of all, these decrees imposed limitations or caps on the population of state prisons," Barr said, adding that the restrictions in some cases "have wrought havoc with the state's efforts to get criminals off the street." He contrasted the states' prison situation to that of the federal government. In January 1991, federal prisons housed about 65 percent more inmates than the institutions were designed for.
State prisons overall had populations of about 15 percent above mandated capacity. But many of them were operating under federal court orders that kept their population near or below design capacity.
Barr stressed that the policy shift did not apply to mentally or physically disabled or other institutionalized persons.
Barr listed several elements that will govern the Department of Justice's participation in prison litigation from this point forward:
The department will initiate or intervene in prison cases only to remedy " specific deprivations of a prisoner's basic human needs," that is, those which amount to cruel and unusual punishment.
In seeking to remedy constitutional violations, the department should not seek to impose on states additional burdens not required by the Constitution or applicable federal law.
In the case of consent decrees or other judicial orders still in effect, the department should consider supporting a state's move to modify the ruling to remove restraints not constitutionally required.
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