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Prison Reform Revisited: The Unfinished Agenda, Pace University Law Review, Vol. 24, No. 2, Spring 2

Prison Reform Revisited: The Unfinished Agenda, Pace University Law Review, Vol. 24, No. 2, Spring 2004 (softback, 460 pp.)

Reviewed by John E. Dannenberg

In October 2003, Pace University Law School hosted a three-day symposium at its White Plains, New York campus, widely attended by leading academics, attorneys, prison reformers, judges and prison officials, to discuss how to advance the cause of prison reform in the United States. Vol. 24, No. 2, of the Pace University Law Review is a reprint of the papers presented at that conference. The organizer of the confab, and the resulting Law Review publication reviewed here, was Pace law professor Michael B. Mushlin, well known to prisoners nationwide who regularly rely on his three-volume book, Rights of Prisoners, dealing with civil rights of institutionalized persons.

Prison Reform Revisited contains 24 papers grouped into five chapters: (1) Accomplishments and Failures of Prison Reform Litigation; (2) The Modern American Penal System; (3) Anatomy of the Modern Prisoner's Rights Suit; (4) The International Context of Prison Reform; and (5) The Future of Prison Reform Efforts.

Chapter 1 takes stock of the successes in the past three decades of prison litigation. Noted prison monitor Vincent Nathan propounds that major advances have occurred via the courts relative to severe prison conditions, inadequate medical care, overcrowding, excessive force and unfair disciplinary proceedings. Professor Nathan lauds two consequences of this litigation, the impact upon the mindset of prison administrators, and the restoration of dignity to prisoners as not being mere throwaways. He notes that the results do not yet reach the goal of reducing reliance on incarceration as the sole punitive sanction, nor has racial discrimination behind the walls been solved.

Observing from the other end of the telescope, U.S. District Judge Morris E. Lasker, wrote from his thirty years experience with litigation over conditions in the New York City jails. He believes that the federal judiciary has significantly improved prison conditions, but laments that courts may not reach further to achieve reformation of incarceration policy.

Indeed, Professor Malcom Feeley and Van Swearingen point to the defensive reaction of prison systems to harden their bureaucracies, making prisons arguably more legitimate with even stronger controls. They call this the iron cage of bureaucracy." Authors James Jacobs and Elana Olitsky argue that as a result, if lasting positive change is ever to be achieved, prison officials must adopt a more humane and professional posture, for which courts can at the least set standards. The development of a cadre of professionals to deliver on such an agenda presupposes the existence of the best national prison and jail college in the world," which does not exist.

Chapter 2 addresses ongoing problems in America's prisons, including supermax isolation, sexual abuse and mistreatment of the mentally ill. Writers Jennifer Wynn and Alisa Szatrowski note the proliferation of the supermax concept, which disaffects their populations by relinquishing social control" to technologically controlled cold boxes. James Robertson's article, A Punk's Song, addresses male prisoners who assume the role of submissive females in the prison subculture, i.e., what amounts to prison rape.

Writer-activist Vince Schiraldi describes the extensive use of incarceration in the states, which has literally redefined our society's functionality, noting that 1 in 15 Americans born in 2001 will spend some time in prison in their life, that an African-American male born today has twice the chance of landing in prison rather than college, and that spending for incarceration has grown at 2% times the rate of increase in spending for education. Schiraldi's principal thesis is that the only real weapon against this self-extinguishment of society is to make the public more aware of the magnitude of the problem.

An analytical perspective by Eric Lotke and Peter Wagner exposes the economical and political distortion of apportionment of government funding that flows from prisoners being counted in the census of the town where the prison is located, not their home towns. Thus, farming out prisoners to private prisons in other states literally costs the sending state twice; perhaps now they will think twice about this self-defeating process. Finally, Ohio's Director of Corrections and Rehabilitation Reginald Wilkinson writes about a partnership between the courts and corrections to effect prison reform through enhanced reentry programs.

In Chapter 3, the technical difficulties attending getting a prisoner's rights suit into court are discussed. A perspective from William Collins, formerly with the Attorney General's office in Washington State, tells of the road blocks put forth by the Prison Litigation Reform Act (PLRA), concluding that use of the federal court to bring about major prison reform is something whose heyday has passed.

David Fathi, senior counsel of the ACLU's National Prison Project, writes more encouragingly, noting that a whole new body of favorable supermax litigation cases has added to protection of prisoners' basic rights. Heather Barr, attorney for the Urban Justice Institute, recounts litigation victories for the mentally ill. William Dean, of Volunteers for Legal Services, notes the entrance of Wall Street firms to provide attorneys to aid prisoners' rights suits. The settlement of an Arizona protective segregation lawsuit is analyzed by both opposing attorneys and by the court's special master.

Carl Reynolds of the Texas Department of Criminal Justice discusses how a conscientious prison administrator should respond to court-ordered prison conditions suits, relying upon administrators good faith." Elizabeth Alexander of the ACLU retorts that this is simply inadequate.

International context of U.S. prison reform, in Chapter 4, reminds us of the impact of international human rights laws. Two guest speakers from Great Britain observed that the United States uses prisons not to control crime, but to control marginalized elements of society -- an expensive experiment in making bad people worse." Baroness Stern bluntly called the U.S. prison system monstrous, deformed and abnormal.

The concluding chapter's discussion of future prison reform efforts is personified in Alvin Bronstein's instruction, namely that prison reform is not about improving prison conditions, but is about reducing the use of imprisonment, taking a page from the book of progressive foreign nations. Michele Deitch closes the conference with a self-motivating talk entitled, Thinking Outside The Cell...," wherein she envisions a transformed prison." That is, while litigation is yet necessary for reform, a clean-slate reinvention of the prison model is what is actually needed.
In all, this is a fascinating, well documented reference, written by some of the best-informed minds in the business. Back copies of the Pace Law Review may be obtained by writing William S. Hein & Co., 1285 Main St., Buffalo, NY 14209 (

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