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Silencing the Cells: Mass Incarceration and Legal Repression in U.S. Prisons

By Richard D. Vogel

People without a voice are not people in any meaningful sense of the word.
Silenced people cannot express their ideas; they can neither consent nor
protest; they are reduced to being pawns in the schemes of the powerful,
mendicants who must accept whatever is imposed upon them. In order to keep
people in a state of subjugation, silencing their voices is essential.

This is the strategy behind the latest campaign of legal repression aimed
at prisoners incarcerated in the United States. One of the major vehicles
of the latest round of repression is the Prison Litigation Reform Act of
1996 (PLRA). This law, which has been declared unconstitutional by several
U.S. District Court judges but upheld upon appeal, is reversing the last
thirty years of prison progress and moving the nation another step closer
to fascism under the guise of democracy. Anyone who cares about the
reactionary direction of political developments in the U.S. needs to pay
attention to the PLRA. When John Ashcroft was a U.S Senator, he advocated
adapting the provisions of this law beyond prisons to other state and local
institutions. This is exactly what is happening now.

A Short History of Incarceration

Reviewing a short history of incarceration in the United States during the
twentieth century is necessary to understand the impact of the PLRA.

Chart 1 depicts the number of prisoners under state and federal
jurisdiction for the years 1925-2002. The numbers are reported as rates
per 100,000 total national population to allow for meaningful comparison
across time. The trend of incarceration for the 50-year period from 1925
through 1974 indicates a series of increases and decreases with an average
for the entire period of 108 per 100,000. Since 1975, however, the rate of
incarceration has soared, reaching a high of 478 per 100,000 in the year
2000over 440 percent of the 1925-1974 average!

Chart 1 reveals a steady increase in incarceration rates during the decade
of the Great Depression (1929-1939) to a high point of 137.1 per 100,000 in
1939, a rate that would not be equaled until 1979 (137.3 per 100,000).
Starting in 1940, incarceration rates decreased sharply and reached a low
point at the end of the Second World War. A gradual upward trend began in
1947 and, with small decreases during the Korean War, continued climbing
through 1961. A pronounced downward trend began in 1962 and continued
throughout the war in Vietnam, reaching the lowest rate in post-depression
America in 1968 at 94.3 per 100,000. The most remarkable feature of chart
1 is the skyrocketing trend in incarceration that began at the end of the
Vietnam War and continues into the new millennium. Not only does this
trend far surpass incarceration during the Great Depression, it has reached
the highest rate of any country in modern history. On December 31, 2001
close to two million prisoners were being held in federal and state prisons
and local jails. This unprecedented period of mass incarceration is the
setting of the PLRA.

Prisons Then and Now

Up until the period of mass incarceration that began in the post-Vietnam
era, not much new prison construction had taken place in the U.S. The
Great Depression witnessed the last major prison construction boom, and the
flood of new prisoners that began in the late 1960s overwhelmed those
aging facilities. U.S. prisons were quickly overcrowded and substantially
understaffed, exposing inmates to widespread violence, abuse, and neglect.
The case of the Texas Department of Corrections (DOC) offers a good
example. By the early 1970s the state prison system was so overcrowded
that some units were operating at 200 percent of capacity with as many as
five inmates to a two-man cell and others sleeping on hallway floors and
outside in tents. The problem of understaffing was addressed by an
infamous building tender system that used selected inmates as auxiliary
guards. Medical care was grossly inadequate and meaningful correctional
programs were nonexistent. Prison conditions in many other states were
comparable to those in Texas.

The mass incarceration and overcrowding in the U.S. prison system led to
widespread and devastating prison riots and insurrections. In the
four-year period from 1968 through 1971, there were forty major
disturbances, including the historic insurrection at Attica Prison in
upstate New York that resulted in forty-three deaths. An accurate estimate
of the monetary cost of the prison disturbances in this period is
impossible because the bills are still coming in after more than thirty
years. As recently as August of 2000, the State of New York agreed to pay
the former prisoners of Attica up to $8 million to settle a class-action
lawsuit resulting from the excessive use of force against prisoners during
the 1971 assault to retake the prison.

Not surprisingly, the modern upward trend of mass incarceration produced a
parallel trend in prison litigation. Again, the history of Texas prisons
is instructive. In 1972, David Ruiz and other prisoners filed a lawsuit
against the Texas DOC seeking relief from the prison conditions cited
above. The case was tried six years later, and in 1981 U.S. District Judge
William Wayne Justice ruled that confinement in Texas prisons constituted
cruel and unusual punishment. He cited brutality by guards, overcrowding,
understaffing, use of building tenders (prisoner guards), poor medical
care, and uncontrolled physical abuse among prisoners. Similar lawsuits
were filed across the country.

The higher incarceration rates throughout the last thirty years have driven
litigation rates increasingly higher. In 1970, the total incarcerated
population in the U.S. (just under 360,000 including jail inmates) filed a
total of just over 2,200 civil rights cases in federal court. By 1995,
prison and jail inmates (by then totaling almost 1.6 million) filed close
to 40,000 new lawsuitsnearly a fifth of the federal civil docket. Adding
to the crisis was the fact that, in that same year, almost a third of all
correctional institutions across the nation were under state or federal
court orders to limit prison population or improve the conditions of
confinement for prisoners under their jurisdiction.

By the middle of the 1990s, mass incarceration sparked both legal and
penological crises. In addition to the burden on the courts, and despite
the most massive and expensive prison-building program in history,
correctional facilities in the U.S. continued operating at or above rated
capacities, and, consequently, many DOCs remained in violation of court
orders and consent decrees. Economic recession was threatening the nation,
tax revenues were declining, and budgetary cutbacks were the order of the
day. Even the staunchest conservatives in the nation were balking at the
prospect of more prison expenditures. It was during crises of the 1990s
that reactionary politicians drafted the PLRA and railroaded it through

The Prison Litigation Reform Act of 1996 grew directly out of the
Republican Contract with America, a conservative agenda for the U.S.
embracing all aspects of national life. The PLRA was not covert
legislationit openly addressed specific legal issues and thinly disguised
the reactionary goals of the statute.

The Legal Issues

Congressional sponsors of the PLRA, allied with the powerful National
Association of Attorneys General (NAAG) and the National District Attorneys
Association (NDAA), promoted their bill as the answer to alleged prisoner
litigation abuse. Senator Orin Hatch, Chairman of the Senate Judiciary
Committee, introduced the bill on the Senate floor, proclaiming, This
landmark legislation will help bring relief to a civil justice system
overburdened by frivolous prisoner lawsuits. Backers of the legislation
launched a propaganda campaign utilizing various Top Ten Frivolous Filings
Lists that were concocted from the silliest lawsuits that could be
located. These carefully edited lists excluded the four leading topics of
correctional-conditions litigation in federal court: physical assaults by
correctional staff and by other prisoners, inadequate medical care, alleged
due process violations relating to disciplinary sanctions, and general
living-conditions claims (for example, nutrition and sanitation).
Conservative senators introduced two of the lists into the Congressional
Record, and lobby groups like the Citizens Against Lawsuit Abuse circulated
these Top Ten lists nationwide to rally popular support. In spite of
the disinformation campaign and ruthless congressional arm-twisting, the
PLRA could not pass as freestanding legislation and had to be included as a
rider to an appropriations bill. Which duly signed into law by president

Three procedural changes of the PLRA have effected inmate litigation
significantly. The first of these changes imposes filing fees on even
indigent inmates. This provision increases the financial burden on
prisoners, the vast majority who are already poor at the time of their
incarceration. A second major change limits the damages and attorneys
fees that prisoners can receive if they win their cases. Considering the
historically low percentage of successful prisoner cases and the small
monetary damages awarded to the plaintiffs, this limitation restricts
prisoners access to legal representation by making prison litigation
financially even less attractive to attorneys than it was before the
enactment of the PLRA. The short history of the PLRA indicates that the
rule change with the greatest impact on prisoner litigation has been the
requirement that prisoners exhaust administrative remedies prior to filing
lawsuits. Through this provision of the law, incarcerating authorities can
block lawsuits by complicating grievance procedures, shortening deadlines,
and adding multiple layers of review. These procedural reforms have
produced the intended results.

(Chart 2 here)

Chart 2 depicts the trend of mass incarceration and the corresponding trend
of prisoner civil rights case filings in federal district court for the
years 1970-2001. Both of the trends are reported in actual numbers.
During this period, the year-end prison population census, which includes
both federal and state prisoners, rose from 196,429 in 1970 to 1,324,465 in
2001, an increase of 574 percent! Chart 2 shows that the growth of prison
population has been an uninterrupted upward trend throughout the 32-year
period. The trend of court filings during the same period presents a
strikingly different picture. Beginning in 1970, when a total of 2,267
cases were filed, the trend continued upwards through 1995, when 39,008
cases were filed, representing an increase of 942 percent! In the six-year
period immediately after the passage of the PLRA there was a 43 percent
decrease in court filings in spite of the fact that prisoner population
increased 23 percent. Chart 2 presents a clear portrait of legal
repression in the U.S. prison systema significant number of voices from
the cells have already been silenced and the repression is continuing.

However, considering the low success rate of prisoner litigation
(historically about 15 percent) and the modest money damages that are
actually paid out (in 1993, excluding one multimillion dollar settlement,
the mean settlement was $18,800 and the median was a mere $1,000) the
political effort and expense needed to enact the statute hardly seems
justified. It is not until we see how the PLRA serves the reactionary
agenda for U.S. prisons that we understand why it is so important to
silence inmate litigators.

The Political Agenda

Political analysis of the PLRA requires close examination of the impact of
the law on court ordered changes in the operation of prisons in the U.S.
that resulted from earlier prison litigation. There is no doubt that the
court judgments and consent decrees of the last 30 years have ameliorated
some of the worst conditions and abuses in American prisons. The results
have been dramatic and astronomically more expensive than damages awarded
to individual inmates. The case of the Texas DOC is illustrative. The Ruiz
lawsuit fundamentally changed the operations of Texas prisons. In 1981,
after a lengthy trial in which 349 witnesses testified about prison
conditions and practices, Judge Justice ordered improvements, set
deadlines, and appointed a special master to supervise compliance. In
1982, the Texas DOC agreed to discontinue the building tender program and
began to hire more guards, significantly expanding the state payroll. To
address the issue of over-crowded and outdated buildings, Texas began a
massive prison construction program in the late 1980s that continued
throughout the next decade. During the 1990s alone, seventy new prison
units were constructed, adding 108,597 beds to the system, and the DOC
staff expanded from 22,332 to 40,081. The Texas DOC operating budget for
1990-1999 was $15.8 billion. This price tag did not include an additional
$1.8 billion in prison construction bonds that were passed by voters during
the period. Despite these massive expenditures and because of increasing
incarceration rates, the Texas prison system continued to operate at or
above capacity and was unable to meet many of the court ordered improvements.

The Texas experience was not unique. The U.S. Department of Justice
reported that in 1995 a total of 456 correctional facilities across the
nation (31 percent of the total) were under state or federal court orders
for the totality of conditions, to limit population, or for specific
conditions of confinement. It is in the arena of court orders and consent
decrees that the political agenda of the PLRA becomes clear.

The PLRA restricts the settlement of prison litigation by consent decree
and limits the lifespan of any court judgment or consent decree, even
existing ones, to two years. Texas provided an important test case for the
new law. In the three years prior to the enactment of the PLRA, the
prison population of Texas increased 142 percent, leading to conditions
that clearly violated several restrictions imposed by Judge Justice. As
soon as the law was passed, the Texas Attorney General demanded the
application of the time limitation provision of the statute to the Ruiz
case. Judge Justice responded by declaring the PLRA unconstitutional, but
the 5th Circuit Court of Appeals reversed his ruling and remanded the case
to him. In 2001, the Ruiz case was settled and federal oversight of the
Texas prison system was terminated. It should come as no surprise that,
with the help of then Governor George W. Bush and his general counsel,
members of the Texas Republican congressional delegation drafted key
portions of the PLRA dealing with court judgments and decrees and
intervened openly in the Ruiz case.

The nationwide impact of the PLRA on court ordered changes in prison
operations has been significant; during the first five years under the new
law the number of state and federal correctional facilities under court
order or consent decree was reduced 22 percent (down to 357 in 2000). The
impact on state prisons was especially significant. Between 1995 and 2000,
the number of states under court order to limit prison population dropped
from 216 to 119 (down 45 percent), and orders to relieve crowded conditions
were down from 208 to 98 (a drop of 53 percent). Court orders effecting
medical facilities dropped 51 percent.

The state of Michigan offer a good example of what was is at stake in the
medical arena. In 1998, Michigan was appealing two ongoing consent decrees
under PLRA, hoping to save money. For the fiscal year 1997-1998, the state
budget appropriation dedicated specifically to cover the additional costs
of the consent decrees was $100,627,800. Michigan legislators were eager
to reclaim this money but were disappointed. The problem was that 79
percent of those dollars were spent on mental health care for prisoners,
and, even if both consent decrees were terminated, the state would have to
continue offering mental health services or risk a new round of litigation
if it let psychiatric services deteriorate to a condition that violated the
federal rights of prisoners. A fiscal analyst warned legislators that the
actual savings from PLRA might be only a disappointing $10.0 million, far
less than the annual appropriations for consent decree operations. The
fact that so many U.S. prisons have become de facto mental institutions for
the poor has, so far, frustrated the purpose of the PLRA in this area.

The restrictions on consent decrees and count judgments in the PLRA have
also had additional impact on prisoner litigation beyond the procedural
changesduring the initial five year period of the law, the number of state
facilities under court order to provide library services dropped from 126
to 33. This was a devastating blow to prisoner litigators, 95 percent of
whom represent themselves and must research and write their own legal
papers. Several states have actually closed down their law libraries and
auctioned off the books on e-bay for a fraction of their actual value.

Although the primary targets of the PLRA were the federal and state DOCs,
the law has had widespread impact on the local level as well. In direct
response to the PLRA, U.S. District Judge Norma L. Shapiro closed the books
on Harris v. City of Philadelphia, a jail-overcrowding lawsuit filed in
1982. She put her reservations about the dictated settlement on record:
It is with some concern that the court will approve this settlement.
After 18 years, the population of the Philadelphia Prison System has nearly
doubled. Although new facilities have been, and are being built, they are
immediately filled beyond capacity.

Taking Back the Prisons

Political conservatives celebrate the PLRA as a victory for the sovereignty
of state and local governments and have recommended that states pass
reforms of their own prison litigation laws modeled on the federal statute.
So far, New York, Pennsylvania, and Wyoming have done so, and initiatives
are underway in several other states. After the final Ruiz ruling in 2001,
one of the members of the Texas Republican congressional delegation
proclaimed to his constituency, We have just won a significant battle
against Judge William Wayne Justice in our struggle to regain control over
Texas prisons.

Political rhetoric aside, in-depth analysis of the PLRA exposes the
conservative victory for what it really isa legislative maneuver to raise
the ceiling on incarceration and seriously restrict outside control over
conditions of confinement in U.S. prisons. This legislation facilitates
higher rates of incarceration at lower cost than during the pre-PLRA period
with no regard for the human consequences. And the consequences for this
trend in U.S. incarceration practices will be direa return to a
hands-off prison policy will reverse the modest gains that prisoners have
won in the last thirty years and return the system to darker days.
Progressive judges, like Justice and Shapiro, who have been monitoring U.S.
prisons for the last thirty years, already see the problems returning but,
because of the PLRA, are powerless to intervene.

The PLRA is clearly a political vehicle for the reactionary agenda to
continue using incarceration as a solution to the economic and social
dislocations produced by post-industrial capitalism. The boast of Taking
Back the Prisons is a thin smokescreen for mass incarceration and
intensified repression in the U.S. criminal justice system. Through the
PLRA, the political right is silencing the voices of U.S. prisoners and
tightening the hold of reactionaries on the machinery of government.

The Prison Litigation Reform Act of 1996, following thirty years of liberal
judicial intervention in U.S. prisons, is a prime example of Marxs
observation that reform in the bourgeois state, including prison reform, is
always reform by the bourgeoisie for the bourgeoisie. The PLRA illustrates
for us the important lesson that bourgeois prison reform must never be
confused with revolutionary prison reform that will render the prison
system we know today a grotesque relic of human history.

The history and impact of the PLRA is both instructive and alarmingthere
are more of these reforms on the reactionary agenda for America. They
target everything from court ordered education for special needs children
and shelter for the homeless to legal attacks on citizen access to the
courts and the fundamental right of habeas corpus in order to make the
death penalty more effective. Make no mistake about itthe political
assault by conservatives on the poor and working people of the U.S. is in
full swing.

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