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Pace Law Review Prison Oversight Sourcebook Article 2 Prison Reform Conferences 2010

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Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 2


From White Plains to Austin: The Road from the
Prison Reform Revisited Conference to the
Opening Up a Closed World Conference
Michael B. Mushlin
Pace University School of Law,

Recommended Citation
Michael B. Mushlin, From White Plains to Austin: The Road from the Prison Reform Revisited
Conference to the Opening Up a Closed World Conference, 30 Pace L. Rev. 1430 (2010)
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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
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From White Plains to Austin: The
Road from the Prison Reform
Revisited Conference to the
Opening Up a Closed World
Michael B. Mushlin
In 2003, from all parts of the country and from abroad,
leading experts in the field of correction including judges,
lawyers, corrections professionals and academics came to Pace
Law School in White Plains, New York, to attend a conference
entitled Prison Reform Revisited: the Unfinished Agenda.1
They did so because, at the beginning of the 21st Century, they
felt a need to be with other experts to take stock of American
prisons. It was not the artificiality of the turn of the calendar
that drew them to Pace. They came for far more substantial
reasons. The vast unprecedented growth of the American
prison population,2 the entry into the prison system of
populations with special problems including the mentally ill
and inmates with chronic and serious diseases such as AIDS
and Hepatitis B,3 and the invention of supermaximum security

Professor of Law, Pace University School of Law.
1. The conference took place on October 16-18, 2003, at Pace University
School of Law, in White Plains, New York. Twenty-three papers were
submitted in connection with the conference, covering a wide range of prison
reform issues. A full issue of the PACE LAW REVIEW was devoted to a
description of the conference and the publication of those papers. See
Symposium: Prison Reform Revisited: The Unfinished Agenda, 24 PACE L.
REV. 395 (2004).
2. The American prison system has expanded rapidly in the last thirty
years, growing from a population of 300,000 in the mid-1990s to over two
million at the time of the Pace conference. Michael B. Mushlin, Foreword,
Prison Reform Revisited: The Unfinished Agenda, 24 PACE L. REV. 395, 398
(2004) (citing statistics indicating that the United States’ jail and prison
population at the time of the Pace conference was slightly over two million






prisons4 all suggested that the American prison system was
undergoing major changes that required examination and
Participants came to the Pace conference because they
needed to find new ways to address these problems. By 2003,
when the conference was held, it no longer seemed possible to
rely on the courts to be the sole driving instrument of reform.5
Restrictive decisions by the U.S. Supreme Court6 and
Congress’s enactment of the Prison Reform Litigation Act7
meant that the legal receptivity to prisoners’ rights cases was
vastly different in 2003 than had been the case in the 1970s
and 1980s.8 It was clear at the time of the Pace conference that
ts/Mental-Health.pdf; Heather Barr, Connecting Litigation to a Grass Roots
Movement: Monitoring, Organizing and Brad H. v. City of New York, 24 PACE
L. REV. 721 (2004) (identifying the mentally ill as a rising population in
American prisons). For the unique health care needs of American prisoners,
4. See Leena Kurki & Norval Morris, The Purposes, Practices and
Problems of Supermax Prisons, 28 CRIME & JUSTICE 385 (2001). See also
Jennifer R. Wynn & Alisa Szatrowski, Hidden Prisons: Twenty-Three Hour
Lockdown Units in New York State Correctional Facilities, 24 PACE L. REV.
497 (2004) (describing the growth of supermaximum security prisons and
how they operate in New York).
5. For an insightful discussion of the difficulties lawyers faced when
litigating prisoners’ rights cases around the time the Pace conference was
held, see William C. Collins, Bumps on the Road to the Courthouse: The
Supreme Court and the Prison Litigation Reform Act, 24 PACE L. REV. 651
6. See, e.g., Lewis v. Casey, 518 U.S. 343 (1996) (holding that the right of
access to courts is not violated even if the law library is deficient unless the
inmate can show that the deficiency caused “actual injury”); Sandin v.
Conner, 515 U.S. 472 (1996) (holding that the procedural component of the
due process clause only applies to significant and atypical hardship); Hudson
v. McMillian, 503 U.S. 1 (1992) (holding that use of force is not
unconstitutional unless the force is applied maliciously and sadistically for
the very purpose of causing harm); Wilson v. Seiter, 501 U.S. 294 (1991)
(adding a subjective deliberate indifference test to the objective necessities of
life test in order to determine whether the Eighth Amendment has been
violated); Turner v. Safley, 482 U.S. 78 (1987) (imposing a reasonable
relationship test to determine whether restrictions on the constitutional
rights of inmates are lawful).
7. Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat.
1321 (1996) (codified in scattered sections of 11, 18, 28, and 42 U.S.C.).
8. While it has become more difficult in recent years to enforce rights in




[Vol. 30:5

if prison reform was to have vitality, new methods were
The conference was memorable not only because of the
topic; it was significant also because of the persons who
attended. At Pace, we endeavored to bring together wellintended people of all stripes whether they were prison officials
or prison reform advocates. This was a dramatic break from
precedent. In the past, prison administrators rarely, if ever,
voluntarily met with advocates. By the same token, advocates,
when they wished to discuss strategies for achieving change,
steered clear of prison administrators. Except during periods
of conflict, these individuals lived their professional lives
segregated from one another.
Those of us who organized the Pace conference had
another philosophy.9 We believed that despite the conflicts,
there was much more that united these people than separated
them. My colleague and fellow organizer of the Pace and
Austin conferences, Professor Michele Deitch, illustrated this
point well when she said: “Most correctional professionals and
most advocates for prisoners would find common ground in
their belief that prisons and jails should be safe and humane
places that respect inmates’ constitutional rights.”10
thought that a significant momentum for constructive change
could be unleashed if we could find a way to initiate a
constructive dialogue between prison reform advocates,
academics, prison administrators and government officials. We
were convinced that productive things could happen if we broke
the ice and brought the right people together. This simple—
and in many ways obvious—insight had not been put into
practice in the past. Before the Pace conference, as far as we
were aware, there had not been a national meeting premised
on the notion that good would come out of bringing all
court, the end of meaningful judicial oversight is far from over. See, e.g.,
Coleman v. Schwarzenegger, 2009 WL 2430820 (E.D. Cal. Aug. 4, 2009)
(three-judge court) (holding that California’s vast prison system was
unconstitutionally overcrowded and ordering the population reduced by tens
of thousands of inmates within two years).
9. In addition to myself, the organizers of the Prison Reform Revisited
conference were Fred Cohen, William C. Collins, and Michele Deitch.
10. Letter from Michele Deitch to the Comm’n on Safety & Abuse in





stakeholders together in a non- adversarial setting to discuss
prison reform.
There was a strong positive response to the invitation to
attend the Prison Reform Revisited conference. Over one
hundred experts from over twenty states and two foreign
countries attended.11 The participants at the Pace conference
included leading academics in the field,12 the nation’s foremost
human rights and prisoners’ rights lawyers,13 and prison
officials.14 In addition, several federal and state judges, and
11. Mushlin, supra note 2, at 399.
12. Academics included: Lynn Branham, Associate Dean, Thomas M.
Cooley Law School, Michigan; Joe Colquitt, Beaseley Professor of Law,
University of Alabama Law School; Brett Dignam, Clinical Professor of Law,
Yale Law School; David Dorfman, Professor of Law, Pace Law School;
Malcolm M. Feeley, Clearie Sanders Clement Dean's Chair, University of
California at Berkeley School of Law; Craig Haney, Chair, Department of
Psychology, University of California; Kay Harris, Professor, Department of
Criminal Justice, Temple University; Michael Jackson, Professor of Law,
University of British Columbia, Vancouver, Canada; James B. Jacobs,
Professor of Law, New York University School of Law; Michael Jacobson,
Professor of Law and Police Science, John Jay College of Criminal Justice;
Charles Lanier, Professor, School of Criminal Justice, State University of
New York at Albany ; Vincent M. Nathan, Professor of Criminal Justice,
University of Toledo; James E. Robertson, Professor, Minnesota State
University; Margo Schlanger, Associate Professor of Law, Harvard Law
School; and Hans Toch, Professor, School of Criminal Justice, State
University of New York at Albany.
13. Human rights lawyers included: Jamie Fellner, Director of U.S.
Programs, Human Rights Watch, New York; Lisa Kung, Staff Attorney,
Southern Center for Human Rights, Georgia; and Joanne Mariner, Human
Rights Watch New York. Prisoner’s rights lawyers included: Elizabeth
Alexander, Executive Director of the National Prison Project, ACLU,
Washington D.C.; Alvin J. Bronstein, Executive Director Emeritus of the
National Prison Project, ACLU, Washington D.C.; Rose Braz, Critical
Resistance, California; Eric Cadora, Program Officer, After Prison Initiative,
Open Society Institute, New York; Jonathan Chasan, Prisoner's Rights
Project, New York; Fred Cohen, Arizona; William C. Collins, Washington;
Michele Deitch, Center for Criminal Justice Initiatives, Texas; Charles A.
Fasano, Director, Prisons & Jail Program, John Howard Association for
Prison Reform, Illinois; David C. Fathi, Staff Counsel, National Prison
Project, ACLU, Washington D.C.; Jenni Gainsborough, Director, Penal
Reform International, Washington D.C.; Robert Gangi, Executive Director,
Correctional Association of New York; Steve Martin, Attorney, Texas; Marc
Mauer, The Sentencing Project, Washington D.C.; and Karen Murtagh,
Prisoners' Legal Services, New York.
14. Prison officials included: Anthony J. Annucci, General Counsel, New
York State Department of Corrections; Donna Clement, Arizona Department
of Corrections; Martin F. Horn, Commissioner, New York City Department of
Corrections; Gary Johnson, Executive Director, Texas Department of




[Vol. 30:5

state legislators attended.15 As I wrote in summarizing the
work of the conference, “[i]t is no exaggeration that this was as
knowledgeable and committed a group of prison reformers as
have assembled in this country in recent times.”16
At Pace, we took stock of the 21st century American prison
system. We learned from scholars who had studied the issue
closely, and from judges and participants who had first-hand
knowledge, that prisoners’ rights litigation before the federal
courts had led to amelioration of atrocious prison conditions in
many of the country’s prisons and jails.17 We were told that
one of the results of this unprecedented judicial involvement is
that prison administrators in the United States had become
more professional and many prisons operated more
effectively.18 Nevertheless, presentations at the conference and
the papers submitted by conference attendees demonstrated
that severe problems continued to plague American prisons. It
is hard to overlook, for example, that the United States prison
system is the largest in the world and that regardless of how it
is calculated, the United States is the world’s incarceration
leader.19 Judge Morris L. Lasker, the judge who issued the
Criminal Justice; Carl Reynolds, General Counsel, Texas Department of
Criminal Justice; Bruce Skolnick, Assistant Attorney General, Arizona; Greg
Trout, Department of Rehabilitations and Corrections, Ohio; Art Wallenstein,
Director, Montgomery County Department of Corrections and Rehabilitation,
Maryland; Reginald A. Wilkinson, Director, Department of Rehabilitation
and Corrections, Ohio; and Joseph Williams, Superintendent, Lincoln
Correctional Facility, New York.
15. These included the Hon. Harold Baer, United States District Judge,
Southern District of New York; the Hon. Morris E. Lasker, United States
District Judge, Senior Status, District of Massachusetts; and the Hon.
Richard F. Braun, New York State Supreme Court Judge, New York County.
16. Mushlin, supra note 2, at 400.
17. See, e.g., James B. Jacobs & Elana Olitsky, Leadership &
Correctional Reform, 24 PACE L. REV. 477 (2004); Hon. Morris E. Lasker,
Prison Reform Revisited: A Judge’s Perspective, 24 PACE L. REV. 427 (2004).
18. Malcolm M. Feeley & Van Swearingen, The Prison Conditions Cases
and the Bureaucratization of American Corrections: Influences, Impacts, and
Implications, 24 PACE L. REV. 433, 475 (2004).
19. MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS § 1:1 at n.4 (4th ed. 2009)
(“According to a comprehensive census of the world’s prison population
conducted by Kings College International Centre for Prison Studies in 2008
the United States had the highest prison population in the world and also
had the highest rate of imprisonment, 756 per 100,000 of any country in the
WORLD’S PRISON POPULATION LIST 1 (2009) (listing the United States first,
Russia second, followed by Rwanda)).





landmark “Tombs” opinions,20 spoke an important truth when
in an address to the conference he said that our country is in
the grips of an obsessive “love affair with imprisonment.”21 To
make matters worse, minority persons are incarcerated in our
prisons and jails in disproportionate numbers.22
American prisons are underfunded and understaffed, lacking
adequate programs and activities; problems of abuse, including
physical and sexual assaults, are unfortunately not unknown.23
In 2003, in addition to these problems, there was no regular
system of external oversight of the prison system had been
developed to supplement and continue the work begun by the
The Pace conference, of course, did not solve these
problems, but it did succeed in raising awareness, generating
useful discussion and establishing new lines of communication.
Because of it success pressure built quickly for another
gathering. One factor providing impetus was signs since the
Pace conference that there had developed a greater public will
to make changes. This can be seen in such developments as
Congress’s action in passing the Prison Rape Elimination Act,24
20. See, e.g., Rhem v. Malcolm, 371 F. Supp. 594 (S.D.N.Y. 1974), aff'd,
507 F.2d 333 (2d Cir. 1974).
21. Lasker, supra note 17, at 429.
22. For a graphic description of the disparate impact of imprisonment on
African-American and Latino Communities, see Vincent Schiraldi, Digging
Out: As U.S. States Begin to Reduce Prison Use, Can America Turn the
Corner on its Imprisonment Binge, 24 PACE L. REV. 563, 564 (2004) (“African
American and Latino males, the number one and two customers in our
nations’ prison supermarket are being incarcerated at numbers that are truly
abominable.”). See also Michael B. Mushlin & Naomi Roslyn Galtz, Getting
Real About Race and Prisoner Rights, 36 FORDHAM URB. L.J. 27 (2009).
(describing these problems in detail and thoroughly canvassing the literature
on these subjects).
24. Prison Rape Elimination Act of 2003 (“PREA”), Pub. L. No. 108-79,
117 Stat. 972 (2002) (codified at 42 U.S.C. § 15601 (2006)). The PREA
mandates a number of measures designed to address and eliminate the
horror of prison rape. To accomplish this goal, the Act requires annual
surveys to determine the scope of the problem, authorizes the creation of the
National Prison Rape Elimination Commission with authority to hold public
hearings, establishes a clearinghouse to aid prison officials, and provides
authorization for funding to local jurisdictions to implement measures
designed to lessen the possibility of prison rape. For a description of the Act,
see James E. Robertson, A Punk's Song About Prison Reform, 24 PACE L. REV.




[Vol. 30:5

The New York Times’ call for prison oversight and for national
standards for the operations of America’s prisons,25 the
convening of the Commission on Safety and Abuse in America’s
prisons,26 and the appointment of the ABA Task Force on the
Legal Status of Prisoners.27
The idea for the Austin conference grew out of these
developments. In light of them, and taking advantage of the
momentum generated by the Pace conference, we reasoned that
there was much to gain by convening another national
conference. However, whereas the Pace conference had a more
general approach, we thought that the time had now arrived
for a more focused conference—one that would concentrate on
the critical question of external oversight.
We were right about the desire for another conference.
The response to our invitation to the Austin conference was
even more dramatic than our invitation to the Pace conference.
Experts and practitioners from twenty-three states, the
District of Columbia, and four foreign countries attended. As
with the Pace conference, the persons attending the Austin
conference were leading academics, prisoners’ rights and
human rights lawyers, and corrections officials. The very
presence of such a prestigious and knowledgeable group sent a
powerful message to the nation that the time to begin to
develop meaningful prison oversight measures had arrived.
527, 551-57 (2004).
25. Editorial, Medical Inattention in New York Prisons, N.Y. TIMES,
Sept. 15, 2009, at A32 (calling for oversight of prison health care in New
York); Editorial, Rape in Prison, N.Y. TIMES, June 23, 2009, at A28 (calling
for national standards to combat prison rape).
26. The Commission on Safety and Abuse in America’s Prisons is
comprised of civil leaders, corrections administrators, scholars, advocates for
the rights of prisoners, law enforcement professionals, member of the
religious community, and former prisoners. It was established by the nonpartisan Vera Institute of Justice in the spring of 2005 with the goal of
examining the safety of America’s prisons.
The final report of the
Commission, entitled Confronting Confinement, was released on June 8, 2006
27. In 2004, the American Bar Association authorized the creation of a
Task Force to revise its criminal justice standards on the Legal Status of
Prisoners. The Task Force submitted its draft standards to the ABA in 2007.
On February 9, 2010 the ABA’s House of Delegates approved the standards
and promulgated them as the ABA Criminal Justice Standards on the





Why else would such an important group have traveled so far
to a conference entitled “Opening Up a Closed World: What
Constitutes Effective Prison Oversight?” if the persons
attending did not firmly believe that the public welfare
demanded that something be done to bring more openness and
accountability to America’s prisons and jails?28 The panel
discussions that took place during those eventful days in
Austin, as well as the papers presented, many of which are
published in this edition of the Pace Law Review, confirm that
real progress was made in Austin toward generating a national
consensus that the time has come for effective external
oversight of the nation’s prisons. This is all to the good. But if
meaningful change is to actually happen, Austin cannot be the
last station on this road.

28. To be sure, the timing for the Austin conference was right. But it
took more than timing to make an event possible. The Austin conference
would not have taken place had it not been for the drive, dedication,
intelligence, and magnetism of my colleague Michele Deitch.