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The Governance
of Corrections:
Implications of the
Changing Interface of
Courts and Corrections
by Christopher E. Smith
Judicial decisions established legal standards for prison conditions
and the treatment of prisoners. Prisoners used the litigation process to
seek judicial enforcement of these rights-based standards that restricted the autonomy previously enjoyed by correctional officials. Judicial
intervention into corrections transformed corrections by pushing all
correctional institutions to become professionalized, bureaucratic
organizations with formal procedures and legal norms. During the
1980s and 1990s, however, the U.S. Supreme Court and Congress
used their authority to force a deceleration of Federal judges’ involvement in correctional management. Court decisions and legislation
narrowed the definitions of prisoners’ rights, required greater judicial
deference to correctional administrators, and limited both prisoners’
effective utilization of civil rights litigation and Federal judges’
remedial authority. Despite these developments, the routinization of
institutional procedures under the supervision of trained correctional
administrators should preserve the changes initiated by court decisions. Moreover, the threat of future litigation continues to protect
against the abandonment of correctional standards. The future interface of courts and corrections depends largely on developments

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Dr. Christopher E. Smith is a Professor of Criminal Justice at Michigan
State University.
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affecting correctional law and shaping the environment of corrections. The
growth in prison populations and correctional personnel, the introduction of
new technologies, and the privatization of corrections are likely to produce
new issues that will attract judicial attention throughout the litigation
process.

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B

eginning in the 1960s, a new connection between courts and corrections
reshaped aspects of both institutional segments despite being unrelated
to their sequential proximity. Throughout the United States, judges in both
Federal and State courts asserted the authority to examine whether the conditions and practices in correctional institutions comport with constitutional standards for the protection of offenders’ rights. The use of litigation as a tool for
seeking civil rights for African-Americans, especially in areas such as school
desegregation, voting rights, and housing discrimination, provided a model for
policy activists pursuing the expansion and protection of constitutional rights for
others in society who lacked the political power to effect change through traditional legislative lobbying and voter mobilization. Because convicted offenders
constitute a politically powerless minority spurned by American society, individual prisoners and advocates for prisoners’ rights looked to the courts as the lawand policy-producing forum most accessible and receptive to claims of right.
Over a relatively brief timespan, from the mid-1960s to the mid-1980s, court
decisions played a catalytic role in altering correctional policies and practices.
Judicial intervention in prison administration was often controversial and
spawned reactions by legislatures and the U.S. Supreme Court. These reactions
limited the prospects for further judicial intervention, but they did not undo the
significant alterations in policies and procedures that were set into motion by
prior court decisions affecting corrections.
With the new century, correctional administration is
in many respects markedly different than it was just a
few decades ago. Judicial decisions imposed specific
requirements for policy and practices within correctional institutions. Moreover, administrators’ heightened
sensitivity to inmates’ constitutional rights and the
threat of litigation affects decisionmaking concerning
the training and supervision of correctional personnel.

Over a relatively
brief timespan, from
the mid-1960s to
the mid-1980s,
court decisions
played a catalytic
role in altering
correctional policies
and practices.

Prisoner litigation has affected courts as well as corrections. The receptivity of courts to legal actions
filed by or on behalf of convicted offenders permits
prisoners to pursue claims, legal and otherwise,
through judicial processes. The influx of prisoners’
cases in recent decades has added to the caseload burdens of judicial institutions that also have experienced increased workload
demands concerning a variety of issues unrelated to criminal justice. Because
corrections is affected by factors independent of judicial action, such as the
exponential growth in prison populations since 1980 due to changes in sentencing policies, uncertainty exists concerning the future impact of courts on corrections (and vice versa). If growing prison populations produce deleterious

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effects on conditions of confinement, avenues remain open for litigation that
could reinitiate judicial intervention into and supervision of correctional administration. At the same time, the rapidly growing population of potential prisonerlitigants creates the possibility of increasing caseload burdens that may impede
courts’ ability to fulfill effectively their responsibilities for processing legal
cases.
However, as this paper discusses in detail, developments during the 1990s
affecting the constitutional doctrines and statutes governing judges’ authority
to supervise correctional practices will limit the potential for a return to aggressive and pervasive judicial intervention into prisons. Similarly, legal developments in the 1990s made the courts less accessible to prisoner-litigants. The
ultimate impact of these limitations on the potential for future judicial policymaking in corrections will depend on developments affecting the environment
of corrections and the effectiveness of existing policies and practices—many
of which were judicially influenced—in responding to these developments.

Origins of Federal Judicial Intervention
Prior to the 1960s, 20th-century prisons and jails typically were closed institutions under the control of administrators who had significant discretion for
developing and employing various techniques, including violence, for maintaining offenders’ obedience and institutional order. Legislative bodies granted significant autonomy to such institutions. Elected officials manifested concerns
about minimizing the expense of operating such institutions and ensuring that
security and order were maintained. Although pioneering penitentiaries of the
19th century, such as those in Pennsylvania and New York, emphasized idealized visions of programmatic organization and design, most 20th-century
prisons emphasized secure custody without emphasizing particular objectives
for programs, standards of confinement, or legal protections for offenders. As a
result, there was limited supervision and accountability regarding conditions of
confinement and correctional practices employed by prison administrators. If
correctional institutions absorbed the sentenced offenders sent to them by the
courts, kept those offenders under control, and limited expenditures to meet the
expectations of elected officials, there was little reason for governors or legislators to devote attention to the operation of such institutions.
Individual and regional variations existed in prison management with, for
example, some States emphasizing agricultural productivity and profitability
as primary objectives. These States, primarily in the South, minimized public
expenditures on corrections by forcing prisoners to work under harsh conditions in agricultural labor, renting prisoners to local businessowners as laborers,

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and using prisoner-on-prisoner violence as the mechanism to ensure their obedience and productivity.
Such primary objectives raise questions about who
was responsible for maintaining security and order as
well about the techniques employed to achieve the
institutions’ goals. Many of these institutions had
relatively few paid staff members. Instead, prisoners
handled administrative tasks, including guarding cellblocks, supervising inmate labor, and enforcing discipline. Supervisory prisoners often could employ
weapons, sometimes including firearms, to enforce
order, and they received special privileges in return
for their service to the institution. They gained
opportunities to exploit other prisoners through
shakedowns, bribes, and their control of the prison
economy. They were also positioned to use their
authority to physically abuse the prisoners under
their supervision and control (see, e.g., Crouch and
Marquart 1989, 85).

The Hull decision
provided the foundational element for
prisoners’ right of
access to the courts.
By restraining correctional officials from
limiting prisoners’
ability to submit
pleadings to the
Court, the U.S.
Supreme Court
opened the avenue
by which prisoners
and their advocates
eventually gained
judicial assistance in
altering correctional
policies and practices.

In an environment of institutional autonomy, minimized expenditures, and limited objectives that were
directed at either secure custody or agricultural productivity, correctional personnel typically had minimal
qualifications and training. Positions as correctional
officers were low-wage jobs for people with limited
education and skills. As long as correctional officers were capable of enforcing
order, including the use of physical force, they were considered qualified.
Within institutions, administrators often either worked their way up through the
ranks or received patronage appointments through connections to elected officials and correctional administrators.

Prior to the 1960s, the correctional environment presented a serious risk to
offenders that they would be deprived of basic human needs (e.g., health care,
food, shelter) and would be the target of violence. Although a few State courts
intervened to stop abuses at specific institutions (Wallace 1997), courts are generally regarded as taking a hands-off approach to corrections prior to the 1960s
(Branham and Krantz 1997). The existence of State court decisions that sought
to prevent inhumane treatment in a few correctional institutions indicates that
not all institutions managed to close themselves off from judicial scrutiny. Most
institutions, however, remained autonomous and untouched by judicial scrutiny
or intervention. Because State judges were usually elected officials or otherwise dependent on local politics for their appointments and reappointments,

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they faced significant disincentives and risks if they contemplated decisions
that could arouse political controversy or public opposition. Moreover, even if
judges were interested in addressing problematic conditions and practices in
correctional institutions—and there is little indication that many judges were so
inclined—there were few legal bases for deciding in favor of prisoners’ claims.
Judges generally deferred to the expertise and authority of correctional officials
in claims about improper correctional practices.
Unlike State judges, whose close connections to and dependence on State and
local politics made their independence suspect, Federal judges enjoy protected
tenure in office. Because they are appointed by the President and removable
only through cumbersome impeachment processes, Federal judges’ protected
tenure positions them to make independent and potentially controversial decisions. Prior to the 1960s, however, Federal judges possessed limited authority
to examine cases from prisoners in State correctional institutions.
The 14th amendment protects individuals against actions by State and local
governments that violate due process and equal protection. The precise contours of the rights embodied in these vague terms developed through U.S.
Supreme Court decisions during the 20th century. Beginning in 1925, the Court
began to declare that specific rights within the Bill of Rights, such as freedoms
of speech, press, and religion, were included in the right to due process in the
14th amendment and therefore protected against adverse actions by State and
local government officials. This process of incorporating rights into the 14th
amendment’s due process clause continued through the 1960s, but it was not
until the final years of this process that the protection of constitutional rights
by Federal judges began to affect prisons’ policies and practices.
Several key U.S. Supreme Court decisions set the stage for the Federal judicial
intervention in prisons that began in the mid-1960s. In Ex parte Hull (312 U.S.
546 [1941]), the Court forbade prison officials to screen or intercept habeas
corpus petitions that prisoners sought to file in Federal courts. The Hull decision
provided the foundational element for prisoners’ right of access to the courts.
By restraining correctional officials from limiting prisoners’ ability to submit
pleadings to the Court, the U.S. Supreme Court opened the avenue by which
prisoners and their advocates eventually gained judicial assistance in altering
correctional policies and practices.
The eighth amendment’s prohibition against cruel and unusual punishment eventually became the basis for the judicial decisions that most significantly altered
correctional officials’ authority to operate prisons as they saw fit. The words of
the amendment make no reference to prisons, and, indeed, the words do not
even convey any definition of the policies, practices, and conditions in any con-

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text that may constitute rights violations. By defining the term “cruel and unusual punishment” in Trop v. Dulles (356 U.S. 86 [1958]), the U.S. Supreme Court
opened the way for Federal judges to use the eighth amendment to supervise
and remedy perceived constitutional violations in correctional institutions. In
Trop, a case concerning a World War II soldier who lost his American citizenship after being convicted of desertion, the High Court declared that the cruel
and unusual punishment clause must be interpreted flexibly in light of changing
societal standards. In the words of Chief Justice Earl Warren, “[T]he words of
the [eighth] Amendment are not precise, and . . . their scope is not static. The
Amendment must draw its meaning from the evolving standards of decency
that mark the progress of a maturing society” (p. 100). Because of the eighth
amendment’s vague language, Malcolm Feeley and Edward Rubin (1998) characterized it as a “grant of jurisdiction” rather than an amendment that gives
meaningful guidance to judicial decisionmakers about its proper interpretation.
In effect, Trop’s endorsement of a broad, flexible constitutional interpretation
gave Federal judges significant discretionary authority over how to interpret and
apply their grant of power under the eighth amendment.
In 1962, Federal judges gained the possibility of applying interpretations of the
eighth amendment to State criminal justice institutions and processes when the
Court decided in Robinson v. California (370 U.S. 660 [1962]) that the constitutional protection against cruel and unusual punishment applied to State and
local actions through the due process clause of the 14th amendment. The case
concerned the constitutionality of a narcotics law, but it served to enable
Federal judges to apply the eighth amendment to States in various contexts,
which eventually came to include prisons.
A fourth key Supreme Court decision came in Cooper v. Pate (378 U.S. 546
[1964]), in which the Justices decided that prisoners could file civil rights
actions under title 42, section 1983, of the United States Code. Section 1983
enables individuals to file lawsuits against State and local government officials
for violating their Federal constitutional rights. Such lawsuits may produce
judicial orders commanding government officials to change their policies and
practices. These lawsuits also can provide the basis for monetary awards to litigants who demonstrate that their rights were violated. By declaring that State
prisoners and local jail detainees could use the Federal civil rights statute as the
basis for filing lawsuits, the Court provided a vehicle through which incarcerated individuals could challenge correctional practices and the conditions of confinement within institutions.
The Court’s opinions provided the necessary elements for judicial decisions
affecting corrections: a vehicle for litigation challenging correctional administration (section 1983), access to the courts (Ex parte Hull and later decisions),

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and a legal basis for judges’ intervention in corrections (the eighth amendment
and other elements of the Bill of Rights incorporated into the due process
clause of the 14th amendment). In the 1960s, individual judges in the lower
Federal courts began to consider claims from prisoners and use those claims
as a basis for scrutinizing corrections. Most notably, a Federal district court in
Arkansas considered prisoners’ challenges to conditions and practices within
State prisons. State officials initially cooperated in changing some aspects of
prison conditions, but the litigation eventually led to judicial decisions barring
the use of corporal punishment (Talley v. Stephens (247 F. Supp. 683 [E.D. Ark.
1965]) and Jackson v. Bishop (404 F. 2d 371 [8th Cir. 1968])) and generating
the Court’s endorsement of the authority of lower Federal courts to remedy
unconstitutional conditions of confinement within correctional institutions
(Hutto v. Finney (437 U.S. 678 [1978])). Emulating the litigation strategy
employed to advance racial equality through judicial enforcement of constitutional rights, prisoners and prisoner advocates throughout the country recognized and pursued the opportunity to seek Federal judicial assistance in altering
the practices and conditions in correctional institutions. In the late 1960s, these
efforts produced further gains for prisoners’ legal protections by, for example,
gaining a Supreme Court decision that barred racial segregation and discrimination within prisons on the grounds that they violated the right to equal protection (Lee v. Washington (390 U.S. 333 [1968])). The Court also declared that
prison officials could not bar prisoners from helping each other prepare legal
filings unless the prison provided an alternative means of legal assistance
(Johnson v. Avery (393 U.S. 482 [1969])).

Prison Reform Litigation
in the 1970s and 1980s
During the 1970s, prison reform lawsuits drew the attention of Federal judges
across the Nation. These lawsuits challenged a variety of practices and conditions.
Prisoners sought vindication of various constitutional rights, including those concerning religious practices, access to legal materials, disciplinary proceedings, and
living conditions. As lower court judges issued rulings addressing these matters,
appeals by disappointed parties pushed prison reform litigation to higher courts
so that the U.S. Supreme Court and Federal appellate courts eventually clarified
many issues and provided guidance to Federal district judges about the contours
of constitutional protections possessed by incarcerated individuals. In Wolff v.
McDonnell (418 U.S. 539 [1974]), for example, the U.S. Supreme Court provided
guidance about the due process rights possessed by prisoners facing prison disciplinary proceedings. Minimum standards for medical care emerged from Estelle v.
Gamble (429 U.S. 97 [1976]), when the Court announced that prison officials vio-

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late the eighth amendment prohibition on cruel and unusual punishments if they
are deliberately indifferent to the serious medical needs of prisoners. In Procunier
v. Martinez (416 U.S. 396 [1974]), the Court found that excessive censorship of
prisoners’ outgoing mail violated the first amendment rights of people outside the
prison to whom letters were addressed. The results of such decisions forced concrete, albeit comparatively inexpensive, changes in practices within institutions
that did not already have proper disciplinary hearing procedures, medical staff and
procedures, and procedures for appropriately handling prisoners’ incoming and
outgoing correspondence.
The Court’s decisions establishing that the equal protection clause covered sex
discrimination as well as racial discrimination provided a basis for litigation
asserting that correctional institutions for women improperly lacked facilities
and programs equivalent to those provided for male prisoners (see, e.g., Craig
v. Boren (429 U.S. 190 [1976])). These lawsuits provided a basis for judicial
interventions that led to the establishment of broader educational, vocational,
and other programs at women’s prisons.
Although the Court decided only a small number of cases concerning prisoners’ rights and correctional management, its endorsement of constitutional protections for incarcerated individuals permitted lower court judges to consider a
wide array of issues while feeling confident that the general enterprise of judicial supervision and intervention in corrections enjoyed support from Federal
appellate courts. The appellate courts did not endorse every district court decision, but it was quite clear that the judiciary’s perspective on the scope and
legitimacy of prisoners’ rights had changed drastically since the hands-off era
of the early 1960s.
The Court and lower courts rapidly identified constitutional protections possessed by incarcerated individuals, but it should be noted that these protections
are limited in number and scope. A consistent theme in judicial decisions
affecting corrections is the paramount need for institutions to maintain order,
security, and safety. Many correctional officials may argue that specific judicial
decisions placed inadequate emphasis on order and security. This assessment
is a matter of personal judgment about which reasonable people may differ. It
seems quite clear, however, that whether judges accurately anticipated the consequences of their decisions for order and security, they did not dismiss these
considerations as central priorities for correctional institutions. Judges consistently balanced the scope of prisoners’ rights against the institutions’ interests.
Thus, prisoners gained recognition of their particular religious practices and
access to legal materials—rights that generally can be exercised without disrupting order and security. By contrast, prisoners’ fourth amendment protections against unreasonable searches and seizures are necessarily almost nonexistent

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(except with respect to some aspects of intrusive and humiliating body cavity
searches) because of the judicially recognized need to permit correctional officials to search for weapons and other contraband.
The most dramatic and expensive judicial interventions into corrections came
through decisions applying the eighth amendment. Two Court decisions in the
1970s confirmed for lower court judges that the eighth amendment provides a
permissible basis for judicial decisions commanding correctional officials to
change policies and conditions within their institutions. When the Court interpreted the eighth amendment in such a way as to establish prisoners’ limited
right to medical care in Estelle v. Gamble (429 U.S. 97 [1976]), the Court
made it clear that the cruel and unusual punishment clause was applicable to
conditions of habitability within correctional institutions and not just to measures formally inflicted as specific punishments for criminal behavior or institutional rule violations (e.g., isolation, corporal punishment, denial of privileges).
Moreover, the Court’s decision in Hutto v. Finney (437 U.S. 678 [1978]) concerning the Arkansas prison system clearly endorsed district judges’ authority
to issue remedial orders directed at conditions of confinement within correctional institutions.
With the apparent support of the Nation’s highest court, Federal judges
throughout the country continued to examine conditions in correctional institutions. Although litigation that spurred judicial intervention was typically initiated by individual prisoners or prisoner advocates within the legal profession,
some judges, as documented by Feeley and Rubin (1998, 81), actively shaped
the litigation process by recruiting lawyers with special expertise to present the
prisoners’ claims in the most effective manner. Lawsuits challenging conditions
of confinement resulted in litigation that frequently dragged on for years and
involved judges in the day-to-day details of correctional management. In one of
the most famous cases, for example, Judge Frank Johnson assumed significant
control over Alabama’s prisons and issued detailed remedial orders requiring,
among other things, a specific minimum living space for each prisoner, a certain number of bathing opportunities per week, and a certain number of toilets
per cellblock (Pugh v. Locke (406 F. Supp. 318 [M.D. Ala. 1976]); see also
Yackle 1989). Critics pointed to Johnson and others as examples of judges who
had exceeded their legitimate authority by interfering with the operations of
government agencies under the supervision of elected officials (see, e.g., Cripe
1990). However, Johnson and other judges were confronted with prisons in
which legislators, governors, and correctional officials failed to provide working toilets, heat, nutritious food free of insects and rodents, toothpaste and
other items necessary for personal hygiene, and, most strikingly, protection
against rape, robbery, and other violent predatory activities by fellow inmates,

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including those entrusted with maintaining order and security at some institutions (Pugh v. Locke (406 F. Supp. 318 [M.D. Ala. 1976])). Judge Johnson
acted to reform Alabama’s prisons after cataloging the details of “the rampant
violence and jungle atmosphere existing throughout Alabama’s penal institutions” and noting that “[o]ne expert witness, a United States public health
officer . . . testified at trial that he found these facilities wholly unfit for human
habitation according to virtually every criterion used by public health inspectors” (Pugh v. Locke (406 F. Supp. 323, 325 [M.D. Ala. 1976])).
Although judges found prisons in numerous States had specific problems
requiring remedial orders, many of the most extensive and intrusive judicial
orders were directed at States such as Alabama, Arkansas, and Texas that had
fostered myriad multidimensional problems because of their reliance on agricultural prison labor, prisoner “trusties” as guards, and minimal expenditures
of public funds. According to Feeley and Rubin (1998), the core development
generated by judicial policymaking in prisons was the transformation of these
Southern prisons, with their plantation-style structure, into modern penal institutions with professional management, paid custodial staff, and adherence to
national standards for policies and practices.
When Federal judges intervened in public schools to end racial segregation,
they confronted a significant resource allocation issue. Often, schools to which
African-American children had been assigned did not receive an equitable
share of resources until judicially ordered school desegregation plans sent
white students to those schools. Conversely, many African-American students
did not enjoy the benefits of equitable resources until they were sent to previously all-white schools.
By contrast, judicial reform of correctional institutions faced a different
resource problem. Rather than an inequitable distribution of resources among
institutions, there was simply a lack of the resources necessary to implement
and maintain the policies and conditions that judges viewed as required by the
eighth amendment. The lack of public expenditures on corrections was most
stark in the Southern States that sought to make prisons nearly self-supporting
through prison labor and the employment of relatively few paid staff. The minimal funding for corrections in other States also produced constitutional deficiencies in conditions and programs. It was not easy for judges to issue orders
requiring specific changes and automatically expect that those changes would
take place in compliance with the judicial order. The forced alteration of conditions within correctional institutions can require significant expenditures while
simultaneously generating vocal political opposition from elected officials and
members of the public who perceive upgrading prison conditions as coddling

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criminals. Thus, the actual role of judges in prison reform litigation was often
quite different from the traditional conception of judges as detached officers
presiding over formal adversarial proceedings in a courtroom. In Colin Diver’s
(1979) well-known characterization of judges involved in institutional reform
litigation as following either an adjudicative model or a political bargaining
model, the course of prison reform litigation necessarily assumed attributes of
the political bargaining model. To effectuate reform, judges were forced to be
creative in pressuring and negotiating with State officials over lengthy periods.
Depending on the case, the process of pushing, accommodating, and pushing
officials again might have consumed more than a decade before fundamental
changes were implemented and institutionalized. Several States, including
Alabama, acknowledged that conditions within their prisons fell short of constitutional standards. Even in the aftermath of such admissions, which sometimes
produced consent decrees rather than a complete adjudication of issues, deficiencies were not automatically and instantaneously remedied because of the
need to agree on appropriate corrective measures and the difficulties involved
in gaining necessary resource allocations from State legislatures.
Contrary to the image of judicial processes involving formal legal combat
between adversarial parties, there is often significant cooperation between
judges and correctional officials. Many correctional administrators recognized
deficiencies in their own institutions. However, they had no mechanism to
obtain needed funding from legislatures composed of representatives responding to perceptions about the public’s desire for low taxes and harsh prisons
rather than to entreaties from correctional professionals wanting to attain
appropriate standards for conditions and programs within their institutions.
These correctional officials often welcomed and assisted with prison reform
litigation because they saw judicial intervention as the means by which they
would finally be able gain the resources necessary for fulfilling their own
vision of a proper, effective correctional institution.
In addition to behind-the-scenes assistance from correctional administrators,
judges also relied on other available mechanisms for creatively remedying
deficiencies and monitoring the process of implementing mandated reforms.
In Alabama, Judge Johnson appointed the Human Rights Committee for the
Alabama Prison System, a citizens’ committee charged with overseeing the
implementation of reforms (Pugh v. Locke (406 F. Supp. 318 [M.D. Ala.
1976])). In other States, judges appointed “special masters” or “compliance
coordinators” to monitor institutional responses to judicial orders and ensure
that States properly implemented reforms (see, e.g., Chilton and Talarico 1990).
Other judges mandated that the State’s attorneys and the prisoners’ attorneys
meet with the judge in a series of regular conferences that continued from the

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initiation of litigation all the way through the lengthy implementation process.
At such conferences, the judge could facilitate negotiations between the parties
and hear feedback from each side about the feasibility, desirability, and consequences of various remedial measures. It was even possible for judicial officers
to preempt litigation by sponsoring and facilitating discussions between prisoner advocates and those correctional administrators who agreed on the existence
of specific problems but who wanted to work informally toward a remedy
without arousing the opposition of elected officials who might use public statements against correctional reform as a means to seek electoral support (Smith
1990).

Consequences of Reform Litigation
Judicial reform of corrections produced a variety of consequences for correctional institutions as well as for the people who work and are confined in those
institutions (see Jacobs 1997). Some of those consequences were intended by
the judges whose orders or oversight of negotiations shaped the reforms. Other
consequences were unanticipated, and their emergence produced new issues for
correctional officials.
Prison litigation affected the allocation of government expenditures in many
States. These expenditures fell into two categories. First, litigation is an expensive process, especially when it is complex and requires numerous pretrial proceedings and motions, expert witnesses, and several years of attorneys’ time
and effort. Although State governments can, relative to other litigants, economize by using salaried attorneys already on the payroll, the use of these attorneys on prison reform cases takes some (or all) of their time away from States’
other needs for legal counsel. Moreover, under the Civil Rights Attorneys’ Fees
Awards Act of 1976 (U.S. Public Law 94–559, 90 Stat. 2641, 42 U.S.C. §
1988), judges could order States to pay the fees for the prisoners’ attorneys
when the prisoners prevailed in establishing that their constitutional rights had
been violated. These fees could amount to hundreds of thousands of dollars for
litigation stretching over several years. In addition, when States indemnify their
officials who have been named as defendants in section 1983 lawsuits, the
States will pay any monetary judgments against those officials when the court
finds that monetary damages are an appropriate remedy for constitutional
violations.
Although litigation expenses can be significant, they may pale in comparison
to the second category of expenses—the millions of dollars that many States
may spend in order to bring their correctional institutions into compliance with

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judges’ interpretations of the eighth amendment (Feeley 1989). States built new
prisons or substantially renovated old prisons in order to upgrade plumbing and
heating systems, improve housing areas, and provide adequate space for prisoners. In addition, many States hired and trained hundreds of new staff members
to take over security and maintenance functions previously handled by prisoner
“trusties.”
Prison reform litigation established specific rights for incarcerated individuals
and thereby diminished the ability of government officials to operate prisons
and jails in any manner they wished. Prisoners gained limited rights related to
religion, due process, access to the courts, conditions of confinement, and other
matters. The establishment of these rights effectively imposed national standards on prisons throughout the country. Correctional institutions could no
longer operate quietly, according to the whims and predilections of individual
wardens. States could no longer run prisons and jails according to their own
values and for their own convenience. Instead, judicial decisions provided minimum standards for living conditions and disciplinary processes—standards that
could be monitored and enforced through the litigation process.
Judicial action contributed to making prisons both more professional and more
bureaucratic. Because courts ordered prisons to stop relying on prisoners to
maintain order and supervise prison work details, correctional institutions were
forced to hire additional staff. These staff members entered a new world of corrections in which they needed to learn about rules and regulations instead of
relying solely on their own discretionary applications of brute force and coercion to maintain order. To comply with judicially imposed standards, State
departments of corrections and individual prisons and jails created policies and
procedures to cover every anticipated situation in which institutional practices
might collide with a prisoner’s constitutional rights. Institutions created
detailed regulations to give prisoners notice of rules and procedures governing
discipline, visitors, correspondence, and other matters. These regulations also
provided guidelines to instruct correctional staff about proper procedures to follow in each situation. The development of policy- and rule-based governance
moved correctional institutions away from the old management style that was
often based on ad hoc rules developed at the warden’s discretion and enforced
through coercive measures, including violence.
Under the new regime, judicial decisions limited officials’ use of force to
specific situations involving self-defense, defense of third parties, last-resort
measures to enforce rules, and the prevention of crimes and escapes (Palmer
1997). The removal of the traditional means of prisoner control, namely discretionary employment of force, meant that correctional officers needed to be

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trained to utilize planning, communication skills, psychology, and other tools
of modern management in order to control difficult populations. The staff
members’ development of such skills required the introduction of training
programs that contributed to the professionalization of prison management.
Departments of corrections turned increasingly to college-educated administrators rather than managers who had worked their way up from the custodial staff
or gained political appointments to correctional posts. Educated professionals
were viewed as better equipped to fulfill judicially imposed standards, develop
proper policies and regulations, design training programs, and supervise
expanding staff within prisons. Correctional administration became a profession that used theories of management and social science research to develop
effective policies and programs. This professionalization of corrections developed partly in response to higher education’s increased emphasis on criminal
justice and public administration, but it was further enhanced by the requirements for institutional performance dictated by judges through prison reform
litigation.
The threat of litigation and judicial intervention pushed institutions to develop
grievance procedures. If prisons could implement their own mechanisms for
investigating and addressing prisoners’ complaints concerning rights and other
matters, they create the possibility that some legal actions could be prevented.
Although many prisoners view institutional grievance procedures with great
suspicion, it is possible for such procedures to gain a measure of legitimacy
and acceptance if the individuals in charge—whether ombudsmen, hearing officers, or assistant wardens—earned credibility in the eyes of the complainants.
Congress sought to encourage the development of institutional grievance procedures through the Civil Rights of Institutionalized Persons Act (CRIPA) of
1980 and apparently hoped that prisoner litigation would decrease as more
institutions made effective procedures available to prisoners.
Judicial intervention in prisons and the development of defined rights for prisoners raised incarcerated individuals’ expectations about their legal entitlements
and the willingness of the courts to protect their rights. Prisoners no longer passively endured the policies and practices governing their lives in correctional
institutions. Instead, they had the possibility of challenging policies and practices through the judicial process. As indicated by the 95-percent rate of case
dismissals prior to pretrial hearings for prisoners’ civil rights lawsuits (Hanson
and Daley 1995), many prisoners apparently have little ability to accurately
identify and effectively present claims that judges can recognize and vindicate
through the judicial process. However, even if prisoners do not understand the
definitions of their rights and the difficulties involved in successfully pursuing
claims in the Federal courts, their belief in the existence of their rights and the

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Although prisoners’
filings have not
increased at the
same dramatic rate
as increases in
prison populations
since 1980, they
have steadily
increased. There
were 12,395 civil
rights cases filed in
Federal courts by
State prisoners in
1980. By 1996, that
number had climbed
to 39,996.

OF

CORRECTIONS

accessibility of the courts to them can encourage
greater assertiveness and challenges to authority.
Moreover, prisoners are well aware that correctional
officials cannot freely use force against them or
deprive them of privileges without valid justifications
and adherence to proper procedures. Thus, prisoners’
heightened expectations and increased willingness to
question the actions of staff members can make it
more difficult to control the attitudes, statements, and
behavior of incarcerated individuals. In fact, some
researchers have reported increases in prison violence
as an immediate consequence of judicial intervention
because prisoners become less fearful of and deferential to correctional officers and because officers have
less discretionary authority to choose the means to
enforce rules and maintain discipline (Crouch and
Marquart 1989).

Because of officers’ loss of discretionary authority,
the increased assertiveness of prisoners in demanding
legal protections, and the pressures of administering
increasingly detailed rules and regulations, there are
risks that the new order established within prisons as a result of judicial intervention may adversely affect staff morale. Certainly, a well-run institution need
not necessarily experience morale problems among staff. However, in specific
institutional contexts, correctional officers may suffer significant stress because
of their limited options for dealing with uncooperative prisoners and the
prospect of being sued by prisoners if they take actions that violate prisoners’
expectations about protected rights. Prior to judicial intervention, many correctional officers could use physical force with impunity whenever they believed
that a prisoner should be disciplined or intimidated. After prison reform, officers faced the prospect of criminal charges and civil lawsuits for improperly
employing force to control prisoners. Even if correctional officers receive legal
representation and indemnification from the State, they run the risk of significant inconveniences if they must sit for depositions, attend pretrial hearings,
and face the prospect of cross-examination on the witness stand in the event
that a case makes it to trial. Officers also can worry about unlikely worst-case
scenarios that may weigh heavily on some officers’ minds. In the back of their
minds, officers in many States must realize that the government will not indemnify them in all circumstances. Thus, if an assistant attorney general determines
that an officer violated a prisoner’s rights intentionally or maliciously, the officer faces the possibility of assuming personal responsibility for litigation costs

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and the risk of losing his or her home, life savings, or even more if the court
case produces a judgment against him or her. Such concerns cannot be taken
lightly by correctional officers, whose compensation is typically relatively
modest.
An additional consequence of judicial action affecting prisoners’ rights has
been the influx of prisoners’ cases in the Federal courts. Although prisoners’
filings have not increased at the same dramatic rate as increases in prison populations since 1980, they have steadily increased. There were 12,395 civil rights
cases filed in Federal courts by State prisoners in 1980. By 1996, that number
had climbed to 39,996 (Scalia 1997, 4). As a result, the Federal judiciary points
to the steady flow of prisoners’ cases as a justification for seeking increased
resources from Congress. In addition, there are risks that prisoners’ cases do
not receive sufficiently careful consideration in some courts. Because such
cases are seldom successful and are filed by individuals who have been spurned
by society, prisoners’ cases may be presumed to be frivolous by the law clerks,
U.S. magistrates, and district judges responsible for reading and evaluating
petitions filed by prisoners. Unless a district judge conscientiously emphasizes
the importance of prisoner cases and provides adequate supervision of subordinates, personnel who assist judges may reflexively recommend dismissal of
such cases in assembly-line fashion (Smith 1988). There is a risk that dismissal
recommendations can be produced without judicial subordinates adequately
examining whether the petitions, which often are poorly prepared by uneducated prisoners, actually contain the elements of a potentially valid claim.

Deceleration of Judicial
Policymaking in Prisons
Prison reform litigation and the implementation of judicially initiated reforms
continued in the 1980s and 1990s. Prisoners continued to file legal actions
under section 1983 asserting that correctional policies and practices had violated their constitutional rights. Some of these lawsuits concerned specific rights
violations affecting a single prisoner. Other cases concerned widespread policies and practices in a correctional institution or a State’s entire correctional
system. Although judges continued to review prisoners’ petitions and provide
remedies when prisoners established the existence of unconstitutional actions
or conditions, the pace and scope of judicial reforms began to diminish. Several
factors contributed to the deceleration of judicial policymaking, including
external influences stemming from political and institutional reactions to developments in prison reform litigation during the 1970s and 1980s.

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In the judicial hierarchy, appellate courts determine the range of freedom of
lower court judges in making decisions and implementing remedies. If Federal
district judges’ decisions are out of line with higher courts’ conceptions of legal
definitions and judicial propriety, the lower court decisions can be overturned on
appeal. Appellate courts also shape the legal doctrines that establish precedents
for lower courts to follow. District judges cannot freely base their decisions on
interpretations of constitutional provisions and statutes that are contrary to the
interpretations pronounced by the U.S. Supreme Court and circuit courts of
appeals. District judges are aware of the risk that their decisions may be overturned. If their decisions concern areas of law in which higher courts have not
yet developed doctrine and precedents, such as prisoners’ rights, they may move
forward in shaping the law themselves with the hope that appellate judges will
support their efforts. However, if precedents and controlling doctrines have been
established, then district judges are forced to follow even those precedents with
which they disagree unless they are willing to use their own judicial resources
by openly inviting a higher court to overturn their decisions. The U.S. district
judge’s opinion in Falzerano v. Collier (535 F. Supp. 800 [D.N.J. 1982])
provides a good example within prison litigation of the effects of limitations
imposed on lower court judges by appellate decisions. In Falzerano, the district
judge criticized legal doctrines developed by the U.S. Supreme Court that granted prisoners access to law libraries but did not guarantee them assistance from
legal professionals when they sought to fulfill their right of access to the courts.
According to the judge,
In this court’s view, access to the fullest law library anywhere is a useless
and meaningless gesture in terms of the great mass of prisoners. . . . To
expect untrained laymen to work with entirely unfamiliar books, whose
content they cannot understand, may be worthy of Lewis Carroll, but hardly satisfies the substance of constitutional duty. Access to full law libraries
makes about as much sense as furnishing medical services through books
like “Brain Surgery Self-Taught,” or “How to Remove Your Own Appendix,”
along with scalpels, drills, hemostats, sponges, and sutures. (p. 803)
Although the judge castigated the existing doctrine, he ultimately followed the
Court’s precedents. Appellate courts cannot control lower courts in an absolute
sense because they do not have the resources to review all trial court decisions
and because not all lower court decisions are appealed. Appellate courts can,
however, assert significant influence over decisions by trial court judges by
threatening to overturn decisions on appeal. Moreover, appellate courts’ influence is enhanced through the acceptance by many lower court judges of a perceived judicial obligation to respect and obey precedents established by higher
courts—even when they disagree with those precedents.

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U.S. district judges in the 1960s and 1970s who
looked to the U.S. Supreme Court for cues about how
The Supreme Court’s
to handle prison litigation could readily perceive that
decision in Bell v.
they enjoyed significant freedom to intervene and
Wolfish is often
remedy problematic conditions of confinement and
regarded as an
other constitutional rights violations in correctional
important signal to
institutions. Warren Court Justices had defined “cruel
the lower courts that
and unusual punishment” broadly and flexibly (Trop
v. Dulles (356 U.S. 86 [1958])). They had incorporatthere would be no
ed the 8th amendment into the due process clause of
further expansion of
the 14th amendment so that Federal courts could stop
constitutional rights
State and local government officials from taking any
for incarcerated
actions that would violate the constitutional prohibiindividuals.
tion against cruel and unusual punishments (Robinson
v. California (370 U.S. 660 [1962])). They had permitted prisoners to file civil rights lawsuits under section 1983 (Cooper v. Pate (378 U.S. 546 [1964])). During the initial years of
the Burger Court, the Justices—several of whom were holdovers from the
Warren Court—supported the authority of lower court judges to examine
conditions of confinement in prisons and use the eighth amendment as a means
to create and enforce minimum standards for living conditions and medical
care (Estelle v. Gamble (429 U.S. 97 [1976]); Hutto v. Finney (437 U.S. 678
[1978])). The Warren Court’s decisions affecting criminal justice generally
tended to broadly define and protect the rights of individuals and create clear
rules to limit the authority of criminal justice officials to use discretion in
developing policies and practices. The Burger Court appeared to continue this
trend with respect to prison litigation during most of the 1970s, so district
judges intervened extensively in corrections with little fear that the Supreme
Court would overturn their decisions.
Beginning in the late 1970s and continuing through the 1990s, the Court’s
orientation toward prison litigation changed. Instead of continually endorsing
the identification of broad new rights for incarcerated individuals, the Justices
began to place limits on the district judges’ efforts to intervene in correctional
institutions. The Court’s new orientation was partly attributable to changes
in its composition. By 1981, six Warren Court Justices had retired and been
replaced by appointees of Presidents Nixon, Ford, and Reagan—Republicans
who were critical of Federal judicial decisions in the 1960s and 1970s that
expanded rights for criminal suspects and offenders. In general, the new
Justices were less inclined than their predecessors to support broad constitutional rights in criminal justice. Instead, they manifested greater concern for

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providing criminal justice officials with flexibility, discretionary authority, and
autonomy in developing policies and practices. These new Justices also came
to the Court at a time when significant public commentary and academic criticism focused on the Federal judiciary’s allegedly excessive judicial activism in
shaping various areas of public policy, including broadening criminal justice
rights and ordering the desegregation of school systems in the North (see, e.g.,
Graglia 1976; Horowitz 1977; Morgan 1984). These criticisms stemmed from
and contributed to a political backlash against the courts by elected officials
who opposed the Federal judiciary’s active role in public policy.
By the 1980s, many of the worst conditions in State prison systems had begun
to be corrected. Some States increased expenditures on corrections and made
improvements because they were ordered to do so by judges. In other States,
governors and State legislators could observe the course of litigation elsewhere
and reacted by negotiating consent decrees or taking action on their own to
remedy perceived deficiencies in prison conditions. In addition, correctional
officials were positioned to persuade elected officials of the need to improve
prisons and jails to avoid the risk of expensive litigation. In effect, judicial
intervention provided leverage for correctional administrators to seek the
resources they needed to upgrade and professionalize their institutions.
The Court’s contribution to the reduction of the judiciary’s role in shaping correctional policies and practices appeared in two forms. In the first form, the
Justices issued decisions indicating that they were unwilling to expand further
the definitions of constitutional rights possessed by incarcerated individuals.
From the 1960s through the 1970s, Federal courts steadily expanded the definitions of prisoners’ rights with respect to issues such as religion and access to the
courts as well as to eighth amendment conditions of confinement. The expansion of recognized rights for prisoners provided both obligations and opportunities for Federal judges to scrutinize policies and practices in corrections. By
limiting the expansion of prisoners’ rights, the Court defined the minimum standards that prisons and jails must fulfill and simultaneously limited the bases for
judicial intervention. In the second form, the Justices imposed more direct limitations on the authority of Federal judges to intervene in and maintain control
over corrections. These limitations developed from decisions defining the standards to be applied by judges before ordering remedies. The Justices also permitted greater flexibility in the reconsideration of consent decrees.
The Supreme Court’s decision in Bell v. Wolfish (441 U.S. 520 [1979]) is often
regarded as an important signal to the lower courts that there would be no further
expansion of constitutional rights for incarcerated individuals. At the time of
the decision, the title of a scholarly article—“The Cry of Wolfish in the Federal

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Courts: The Future of Federal Judicial Intervention in Prison Administration”—
captured the notion that the Supreme Court had begun to send a new message to
Federal judges about the permissibility and extent of their continued involvement
in prison reform litigation (Robbins 1980). Bell v. Wolfish concerned conditions
and practices at the Federal Metropolitan Correctional Center in New York. The
facility housed pretrial detainees, who alleged the existence of unconstitutional
overcrowding and who challenged practices concerning searches and access to
books and packages. Justice William Rehnquist’s majority opinion for the divided
Court rejected the court of appeals’ application of a “compelling necessity” test
that would have required the government to provide significant justifications for
policies and practices that limited the liberty of detainees. Instead, Rehnquist
announced that judges should apply a “rational basis” test that gave correctional
officials substantial flexibility and discretionary authority in determining policies
and practices. According to Rehnquist, “If a particular condition or restriction of
pretrial detention is reasonably related to a legitimate governmental objective,
it does not, without more, amount to ‘punishment’” (p. 539) and thereby violate
the due process rights of pretrial detainees.
After announcing the test, Rehnquist was deferential to the government’s
claimed concerns about institutional security. Among the practices approved by
the Court (over the vociferous objections of Justice Thurgood Marshall) was
body cavity inspections of detainees who had contact visits, performed without
suspicion of wrongdoing—even when those detainees wore difficult-to-remove,
one-piece jumpsuits, were under constant observation by staff, and thus were
extremely unlikely to be smuggling contraband in body cavities. Because the
Court’s apparent deference to correctional officials in Bell v. Wolfish limited the
defined rights of presumptively innocent pretrial detainees, it was not surprising that observers, including lower court judges, might infer the expectation of
parallel limitations for the rights of demonstrably guilty convicted offenders in
prisons.
The Supreme Court addressed the rights of convicted offenders in Rhodes v.
Chapman (452 U.S. 337 [1981]). The Rhodes case involved a claim that placing
two prisoners in cells designed to house one prisoner amounted to overcrowding
in violation of the eighth amendment prohibition on cruel and unusual punishment. The Court rejected this claim, noting that to avoid eighth amendment
violations, prison “[c]onditions must not involve the wanton and unnecessary
infliction of pain, nor may they be grossly disproportionate to the severity of the
crime warranting imprisonment” (p. 346). The Court did not regard two prisoners to a cell as a violation of either aspect of eighth amendment standards. After
analyzing and rejecting the prisoners’ claim, Justice Lewis Powell’s opinion
included an additional comment that was regarded as a message warning lower

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court judges to be less assertive in intervening in correctional institutions.
Powell wrote in Rhodes v. Chapman (452 U.S. 352 [1981]):
In discharging this oversight responsibility, however, courts cannot
assume that state legislatures and prison officials are insensitive to
the requirements of the Constitution or to the perplexing sociological
problems of how best to achieve the goals of the penal function in the
criminal justice system.
In light of the Court’s prior adoption in Bell v. Wolfish of a legal standard
deferential to the decisions of correctional officials, Powell’s comment
appeared to reiterate the Court’s desire for a new, less intrusive approach to
prison litigation. The potential implications of Powell’s warning were so obvious that Justice William Brennan attempted to counteract the Court’s apparent
message by writing a concurring opinion in which he said, “I write separately,
however, to emphasize that today’s decision should in no way be construed
as a retreat from careful judicial scrutiny of prison conditions. . . . ” (Rhodes v.
Chapman (452 U.S. 353 [1981])). Whether the Court’s decision in Rhodes constituted a “retreat from careful judicial scrutiny of prison conditions,” as feared
by Brennan, it certainly seemed to tell lower court judges to “go no farther than
you have already gone” in identifying and protecting prisoners’ rights.
During the 1980s, the Court’s inclination to encourage increased judicial deference to correctional officials appeared in decisions addressing the definitions
of and legal standards for protecting various specific rights for prisoners. In
Whitley v. Albers (475 U.S. 312 [1986]), the Court examined an alleged eighth
amendment violation for excessive use of force in which a prisoner was shot by
correctional officers who were quelling a disturbance and attempting to free a
hostage. The wounded prisoner was not involved in the disturbance and was
attempting to run to his cell to stay out of the way of correctional officers entering the cellblock when a shotgun blast hit him in the legs and caused serious
injuries. In determining the legal standard to apply when prisoners assert a constitutional claim of excessive use of force, the deeply divided Court concluded
that prisoners must show that the force was used “maliciously and sadistically
for the very purpose of causing harm” (pp. 320–321). This difficult-to-prove
standard required prisoners to establish that the officers had a specific, unlawful
intent in using force that caused injury. Such a standard gives correctional officials much more flexibility in the use of force than the four dissenters’ preferred
approach of looking for “unnecessary and wanton infliction of pain” without
regard to the existence of a specific intent to cause harm.
In O’Lone v. Estate of Shabazz (482 U.S. 342 [1987]), the Court applied a
deferential approach to the issue of prisoners’ first amendment right to the free

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exercise of religion. In O’Lone, Muslim prisoners on a work detail outside the
prison wanted to return to the prison at midday on Friday for a weekly prayer
service. They asserted that they possessed a constitutional right to participate
in the religious service. A sharply divided Court rejected their claim and adopted a legal standard deferential to correctional officials’ asserted interests in
institutional security and efficient management. According to Chief Justice
Rehnquist’s majority opinion, “We have determined that prison regulations
alleged to infringe constitutional rights are judged under a ‘reasonableness’ test
less restrictive than that applied to alleged infringements of fundamental constitutional rights [for people outside of prisons]” (p. 349). Again, the Court’s
approach gave correctional officials greater administrative flexibility and discretionary authority in the development of institutional policies and practices.
The trend in Supreme Court decisions limiting lower court judges’ authority
to intervene in prisons significantly affected eighth amendment conditionsof-confinement claims after Wilson v. Seiter (501 U.S. 294 [1991]). Wilson
involved myriad claims about alleged unconstitutional conditions in an Ohio
prison. The lawsuit alleged overcrowding, excessive noise, inadequate heating,
unsanitary dining facilities, and other improper conditions. In rejecting these
claims, a five-member majority opinion enunciated a new legal standard for
judges to follow in evaluating eighth amendment claims. Justice Antonin
Scalia’s opinion for the Court concluded that determinations of unconstitutional
conditions of confinement must rest on a finding that correctional officials were
“deliberately indifferent” to the development and existence of inadequate conditions. In asserting the primacy of this subjective test, Scalia relied on precedents concerning medical care (Estelle v. Gamble) and excessive use of force
(Whitley v. Albers). Strangely, Scalia did not emphasize the Court’s precedents
addressing conditions of confinement (Hutto v. Finney; Rhodes v. Chapman)—
precedents that appeared to emphasize an objective evaluation of whether
prison conditions constitute “wanton and unnecessary infliction of pain.” After
Wilson, prisoners were required to prove the intent of correctional officials in
permitting poor prison conditions to develop. It was no longer adequate to
merely establish the existence of conditions falling below standards for human
habitation. Because it is difficult to prove intent, especially when correctional
officials might assert that inadequate resources or factors other than their own
“deliberate indifference” produced the challenged conditions, it became much
more difficult for prisoners to provide sufficient evidence to justify remedial
intervention by Federal judges.
The Court reinforced and clarified its subjective test for eighth amendment violations in Farmer v. Brennan (114 S. Ct. 1970 [1994]). Farmer was a transsexual male prisoner who “project[ed] feminine characteristics” and had attempted

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to use hormone treatment and (unsuccessful) surgery to undertake an anatomical transformation from male to female to match his psychological gender identification. He was serving time in Federal prison for credit card fraud. Because
of his prison disciplinary record, he was transferred to a high-security men’s
prison where he was allegedly beaten and raped. He sued under the eighth
amendment, claiming that prison officials were deliberately indifferent to the
physical threats he faced in a high-security prison population because they
should have known that a transsexual prisoner who “project[s] feminine characteristics” was a likely target of sexual assaults when placed among violent
offenders. In effect, Farmer’s attorney argued for an objective test of “deliberate indifference” by urging the Court to hold prison officials liable for what a
reasonable correctional administrator should have known about the risks in
light of the available facts. The Court, however, rejected this argument and
adopted a more difficult-to-prove, subjective test of “deliberate indifference.”
According to Justice David Souter’s majority opinion (Farmer v. Brennan
(114 S. Ct. 1979 [1994])):
[A] prison official cannot be found liable for denying an inmate humane
conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a substantial risk
of serious harm exists, and he must also draw the inference.
In other words, prisoners bear a significant and specific burden of proof concerning prison officials’ knowledge and intent in order to successfully assert
eighth amendment claims.
In Rufo v. Inmates of Suffolk County Jail (502 U.S. 367 [1992]), the Court
granted more flexibility to correctional officials wanting to challenge consent
decrees. Massachusetts officials had entered into a consent decree intended to
remedy constitutional deficiencies at the Suffolk County Jail in Boston. The
consent decree included a provision for single-occupancy cells. However, the
jail population’s growth outstripped projections so that officials sought to have
the consent decree modified to permit double occupancy. The Court rejected
the lower court’s requirement that officials demonstrate a “grievous wrong” to
modify consent decrees. Instead, the Court said that consent decrees can be
modified in institutional reform litigation when there is a significant change
in the facts or law affecting the case.
Many correctional officials had long argued that consent decrees imposed
unreasonable burdens because they could not be readily adjusted to account for
changing circumstances or because they were the product of agreements made
by departing correctional officials and governors who did not bear the burden

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of fulfilling the continuing and arguably excessive requirements for compliance
(Cripe 1990, 275). In Rufo, the Supreme Court took a step toward alleviating
correctional officials’ concerns, but, in the eyes of critics, this step came at the
expense of judges’ authority to maintain oversight of the implementation of
reforms. Moreover, critics feared that the decision would encourage correctional officials to stall during the implementation phase of consent decrees with the
knowledge that the changing environment of corrections would likely provide
an eventual justification for seeking alteration of the decree.
The Court’s decision in Lewis v. Casey (116 S. Ct. 2174 [1996]) limited the likelihood that Federal judges could order prisons to provide legal assistance and
specific legal resources for prisoners seeking to prepare civil rights lawsuits and
habeas corpus petitions. Under the doctrine established in Bounds v. Smith (430
U.S. 817 [1977]), prisons bore the obligation of providing prisoners with access
to a law library or assistance from people trained in law to fulfill the prisoners’
right of access to the courts. Because the sixth amendment right to counsel does
not apply to prisoners’ civil rights lawsuits (or to habeas corpus petitions), prisoners must generally prepare and present their own lawsuits alleging that correctional policies and practices violate their constitutional rights. Some prisoners
may receive representation from civil rights organizations or prisoner advocacy
groups, and a few prisoners may possess the resources to retain counsel. Most
prisoners, however, are on their own and must proceed as pro se litigators.
Although effective pro se litigation is extremely difficult for anyone (including a
highly educated person) who lacks professional training in legal research and trial
advocacy, it is virtually impossible for prisoners who are illiterate, mentally disabled, mentally ill, not fluent in English, or otherwise hindered by limitations that
impede their ability to read, comprehend, and present legal arguments.
To address the difficulties faced by prisoners with special, identifiable limitations on their ability to utilize a law library, some Federal judges ordered State
prisons to provide extra legal assistance (e.g., trained paralegals) for the benefit
of these prisoners. Other judges closely scrutinized the policies and procedures
of prison law libraries and issued orders designed to ensure that prisoners in
administrative segregation, on death row, and in other special confinement settings had adequate access to materials from the prison law library. In Lewis v.
Casey, the State of Arizona challenged a U.S. district judge’s order specifying
in minute detail the times that prison libraries were to be kept open, the number
of hours each prisoner was entitled to use the library, the direct assistance by
lawyers and paralegals to be provided to illiterate prisoners, and other aspects
of the prison system’s policies affecting prisoners’ right of access to the courts.
The U.S. Supreme Court rejected the district court order and criticized the district judge on several grounds: “fail[ing] to accord adequate deference to the

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judgment of prison authorities,” issuing an order that was “inordinately—
indeed, wildly—intrusive,” and developing an order through a process that
“failed to give adequate consideration to the views of state prison authorities”
(Lewis v. Casey (116 S. Ct. 2185 [1996])).
In addition, Justice Scalia’s majority opinion emphasized the need for prisoners
to demonstrate an “actual injury” to have legal standing to challenge a prison’s
policies concerning access to law libraries and legal assistance. Thus, district
judges are not permitted to issue remedial orders concerning prisoners’ right of
access to the courts unless prisoners can prove that prison policies have harmed
their right in some concrete fashion. Although the concepts of “actual injury”
and standing as the proper person to initiate a lawsuit are important in many
areas of law, they potentially pose special problems when applied to prisoners’
right of access to the courts. For example, is an illiterate prisoner required to
draft and successfully file in court a complaint alleging that he or she possesses
literacy skills that are too inadequate to permit him or her to draft and file a
complaint successfully? In the “catch-22” situation that appears to emerge from
Lewis v. Casey, it would seem that only prisoners who are incapable of using
law libraries have suffered an actual injury, yet their inability to use the law
library would presumably prevent them from being able to demonstrate that
injury to a court to seek a judicial remedy for the violation of their right of
access to the courts. Although the ultimate consequences of Lewis v. Casey
remain to be seen, the decision seems to provide an additional impediment for
some prisoners who may want to file lawsuits alleging violations of constitutional rights within correctional institutions.
The Court’s opinion in Lewis v. Casey provides a strong, clear message that
lower court judges should show deference to the judgment of prison authorities
and that they should avoid imposing intrusive remedial orders. This message
is far different from the messages conveyed by the Court’s decisions prior to
1979, in which the Justices endorsed and encouraged active judicial scrutiny
of alleged rights violations in correctional institutions. By the late 1990s, the
Court had clearly limited Federal judges’ authority to impose remedial orders
and maintain consent decrees affecting the policies and practices at prisons
and jails. Moreover, the Court had arguably reduced the scope of prisoners’
rights affecting religion, access to the courts, and conditions of confinement
and thereby relaxed the requirements imposed on correctional administrators
for maintaining compliance with constitutional standards.
The Court was not alone in decelerating judicial intervention in prisons.
Congress also acted to limit the authority of Federal judges. Congress sought to
limit the ability of Federal judges to intervene in prison operations as well as

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the number of prisoner cases filed in the Federal courts. Federal judges had
complained since the 1960s about the burdensome nature of the caseload of
prisoners’ filings. In fact, the growth of prisoners’ cases was used as a justification for the creation of the office of the U.S. Magistrate Judge, a judicial officer
who assists Federal district judges and, in many districts, specializes in evaluating prisoners’ claims (Smith 1990; Seron 1985). Many legislative proposals to
limit Federal judges’ authority over prisoners’ cases initially focused on habeas
corpus petitions (Yackle 1993) but eventually also addressed prisoners’ civil
rights lawsuits. Although there was widespread criticism of Federal judges’
involvement in prisons, Congress did not act until the 1990s. In 1994, a provision of the Violent Crime Control and Law Enforcement Act required individual prisoners to prove that crowded conditions violated their eighth amendment
rights before Federal judges could order remedies for prison overcrowding
(Call and Cole 1996). In other words, judges were not to reach a general conclusion that prison overcrowding was in violation of the eighth amendment.
First, a prisoner needed to prove that the conditions produced by population
pressures on the prison’s capacity caused specific violations of that prisoner’s
eighth amendment rights.
The Prison Litigation Reform Act (PLRA) of 1996 took broader aim at judges’
authority and prisoners’ access to the courts. PLRA attempted to limit the
remedial authority of Federal judges by requiring that prospective relief granted
in prison cases “is narrowly drawn, extends no further than necessary to correct
the violation of the Federal right, and is the least intrusive means necessary to
correct the violation of the Federal right” (18 U.S.C. § 3626(a)(1)). The law
required preliminary injunctive relief to be similarly narrow and, moreover,
mandated that such injunctive relief would automatically expire after 90 days
unless the court made findings that satisfied the requirements for prospective
relief under PLRA. PLRA limited judges’ ability to issue prisoner release
orders as a means to combat prison overcrowding. Prisoner release orders can
only be issued after “clear and convincing” evidence is presented to a special
three-judge district court that crowding is the primary source of a Federal rights
violation and that nothing other than the release of prisoners can remedy the
violation. Congress also mandated that judicial orders in prisoner cases terminate
after 2 years unless the court makes additional findings to justify the continuing
necessity of the court-ordered relief. In addition, PLRA sought to limit and
control Federal judges’ use of special masters in prison reform cases by mandating both parties’ involvement in the selection—and veto—of potential special masters and by requiring such special masters to receive compensation
from the court’s budget rather than from the State’s department of corrections
(Solano 1997).

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With respect to prisoners’ access to the courts, PLRA made it more difficult for
prisoners to have filing fees waived by requiring partial payments and extendedtime payments from their prison account. Moreover, prisoners who have had
three civil rights lawsuits previously dismissed as “frivolous, malicious, or
fail[ing] to state a claim” are barred from filing any more civil rights actions
unless they are under “imminent danger of serious physical injury” (28 U.S.C.
§ 1915(g)). Frivolous lawsuits typically are defined as those dismissed for deficiencies in the definition of the legal claim or for allegations based on an inappropriate factual situation rather than for asserting a contrived or imaginary
grievance (Fradella 1998). For example, a prisoner may complain of genuine
discomfort when a prison doctor prescribes only aspirin for a painful skin rash,
yet such incomplete medical treatment would not violate the limited constitutional right against correctional officials’ deliberate indifference to medical
needs. In effect, Congress increased the cost to prisoners of filing lawsuits over
alleged rights violations in prisons. Prisoners must use their own financial
resources, no matter how modest, to initiate the case, and each case filed poses
a risk that it will effectively “use up” one of the finite opportunities available
for individual prisoners to raise rights claims not based on a risk of serious
physical injury. Although the initial litigation concerning PLRA caused confusion as courts struggled to interpret the statute (Bennett and del Carmen 1997),
presumably the new rules imposed by PLRA will ultimately deter some prisoners from filing cases that they would have previously submitted for consideration by a Federal court. Indeed, in the year following implementation of
PLRA’s new requirements, the Federal district courts experienced a drop in
prisoners’ civil rights lawsuits despite the continued growth in the number of
potential claimants committed to incarceration (Administrative Offices of the
U.S. Courts 1998, 1999).
Except for the decline in prisoner civil rights lawsuits, the specific consequences of PLRA are still developing and have not been studied systematically.
Comments from States’ assistant attorneys general responsible for defending
against prisoners’ lawsuits provide early anecdotal evidence that PLRA is substantially fulfilling congressional intentions.1 State’s attorneys note significant
declines in prisoner civil rights lawsuits but observe that those cases that survive initial dismissal often involve complex issues that require significant
defense efforts on their part. States have succeeded in employing PLRA to terminate consent decrees. Such terminations can be easier when new judges have
no vested interest in protecting the judicial interventions in corrections undertaken by their predecessors. Some attorneys perceive that judges are reluctant
to intervene with formal judicial orders in corrections because PLRA’s sunset
provisions limit the duration of orders and require new presentations of proof

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to maintain judicial supervision. Thus, some judges increasingly push for and
facilitate private settlements between prisoner-claimants and the State instead
of imposing judicial orders and consent decrees of the sort limited by PLRA.
As PLRA pushes prisoners to seek alternative means to raise claims that previously would have been filed in Federal courts, there can be increases in complaints filed under institutional grievance procedures. Some prisoners try to
develop creative ways to present their constitutional claims through habeas corpus petitions. Others attempt to file their claims in State courts. However, the
State court alternative is increasingly less available, as State legislatures have
emulated Congress in enacting statutes to limit prisoners’ opportunities to file
civil rights lawsuits. For example, under Georgia’s Prisoner Litigation Reform
Act of 1996, prisoners who cannot pay filing fees have their inmate accounts
frozen, and all moneys deposited in those accounts must be forwarded to the
clerk of courts until the filing fees are fully paid. Moreover, the Georgia statute
imposes a fine amounting to 50 percent of the prisoner’s inmate account for
filing a false or malicious claim, delaying judicial proceedings, providing false
evidence, or abusing the discovery process. The payment of past due court
costs and fees can become a condition for parole eligibility, thus making
Georgia prisoners think long and hard before filing civil rights cases in State
court (Georgia Code, §§ 42–12–4 and 42–12–7). Similarly, other States, such
as Michigan and Florida, have statutes that emulate PLRA by imposing greater
burdens on prisoner-claimants for filing fees and court costs. Initial experience
with PLRA and State laws indicates that trial courts may vary in their diligence
in ensuring that inmate account records are carefully checked before indigency
status is granted and filing fees are waived.
Feeley and Rubin (1998, 383) argue that Congress’ actions merely validated
rather than counteracted the impact of Federal courts on correctional institutions’ policies and practices. In their study of prison litigation, they conclude
that Federal legislation went no further than the Court had already gone in
limiting Federal judges’ authority over prison litigation. Moreover, they note
that Congress did not act until after courts no longer needed to be controlled
because the most significant constitutional problems in prisons had already
been remedied and judges less frequently found themselves issuing orders
affecting the daily operations of correctional institutions. Although Feeley and
Rubin’s retrospective assessment of Federal legislation may accurately describe
the established impact and systemic acceptance of the consequences of judicial
intervention, it should be noted that PLRA remains an impediment to judicial
intervention if developments in the environment of corrections produce circumstances in which claimants seek to raise new constitutional issues.

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The overall deceleration of judicial intervention in prisons stemmed from Supreme Court decisions limiting
The actual level of
judges’ authority and opportunities to identify rights
judicial activity
violations and impose remedies. Congress reinforced
affecting corrections
the Court’s actions by formalizing limitations on
will depend heavily
Federal judges through statutes enacted in the 1990s.
on two important
Whereas these institutional responses to two decades
factors: the state of
of prisoner litigation were important as limiting factors, judicial intervention also slowed because much
the laws governing
had already been accomplished through the litigation
corrections and
processes initiated in the 1960s, 1970s, and 1980s.
developments affectJudges and correctional administrators used their influing the environment
ence to push legislators to provide sufficient resources
of corrections.
to permit prisons and jails to achieve minimum constitutional standards for conditions and practices. In addition, because of the difficult and protracted nature of
prison litigation, many judges sought ways to limit their own involvement in
developing and implementing remedies. Instead of issuing detailed orders about
myriad aspects of correctional conditions and practices, these judges came to prefer a more restrained role in which they merely identified unconstitutional conditions that must be remedied. The judges then required correctional officials to
develop their own remedies under the court’s supervision. In effect, the judge
could employ an interactive process involving pressure and negotiations to push
officials to develop and implement feasible solutions to the problems identified
through the litigation process. As the constitutional problems presented to judges
became less frequently egregious and systemic, there was less need for judges to
scrutinize, monitor, and control various aspects of prison operations. Thus, prisoner litigation continued through the 1990s, but it often was focused on narrower
issues and involved less intrusive judicial action than the systemwide institutional
reform cases undertaken in the 1970s and 1980s.

The Posttransformation Era in
Correctional Reform
Prisoner litigation from the 1960s through the 1980s contributed to significant
changes in the policies and practices of correctional institutions. Not all of
these changes are attributable to judicial decisions because the professionalization of correctional administration produced a new breed of prison manager
who sought to introduce American Correctional Association (ACA)-based and
other national standards for governing prisons and jails. Although judges cannot claim credit (or garner blame) for all reforms that occurred, reforms not

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attributable to judicial action occurred in the shadow of litigation. The threat of
judicial action prodded legislators to act when pushed by correctional officials.
In addition, correctional officials could use litigation processes to introduce
their own ideas about reform, either by informally advising and supplying
information to judges or by formally submitting proposals for consent decrees
and suggestions for feasible judicial orders. The actions undertaken by judges
and correctional officials transformed American corrections. In some States,
correctional institutions were literally remade into new entities by shifting from
plantation-style organizations that relied on minimal public expenditures and
significant prisoner labor to secure and professionally staffed facilities that
emphasize custody and prisoner programs (Feeley and Rubin 1998, 367).
In other instances, the transformation was less apparent because institutional
organization did not seem to change. However, transformation did occur in
these institutions because of the intrusion of legal norms and court-mandated
minimum standards for conditions and procedures. Instead of vesting nearly
unlimited power in the discretionary commands of wardens and correctional
officers, judicial intervention pushed institutions to develop policies, procedures, and training that cover nearly every aspect of prison management—from
food quality and preparation to disciplinary procedures and use of force. From
the 1960s onward, prisons were transformed into bureaucratic institutions
governed by formal rules and professional management principles.
The establishment of minimum standards, professional policies and practices,
and significant changes in organization and authority has not eliminated the
possibility of further judicial impacts on correctional management. The courts
remain available as a forum for the pursuit of grievances. The nature and likelihood of judicial intervention have changed as a result of the transformative
developments in corrections, the Court’s new orientation toward judicial intervention in corrections, and the political reactions resulting in legislative limitations on Federal judges and prisoner-litigants. However, the litigation process
remains available as a familiar avenue for seeking reform, and section 1983
still provides a vehicle for asserting constitutional violations claims through
that process. The actual level of judicial activity affecting corrections will
depend heavily on two important factors: the state of the laws governing corrections and developments affecting the environment of corrections.

State of the laws
As detailed in prior sections of this paper, the Court’s decisions have halted
further movement toward broadening the definitions of prisoners’ constitutional
rights. The Court has not eliminated the rights developed during the 1960s and
1970s. Instead, it has narrowed the contours of those rights and made it more

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difficult for prisoners to prove that their rights have been violated. The Court’s
decisions have, in effect, stabilized the legal expectations and diminished the
judicial pressures imposed on correctional administrators. Barring significant
changes in the Supreme Court’s composition, correctional administrators have
no reason to fear that the Federal judiciary will impose unexpected new rules
for them to follow. With respect to constitutional law, corrections has reached a
point of relatively stable standards and expectations. Correctional officials can
rely on the current stability in legal standards to develop policies, practices, and
staff training that fulfill institutional obligations for achieving the goals of corrections while respecting the recognized constitutional protections possessed by
prisoners.
The fact that correctional officials have little reason to fear the imposition of
new constitutional standards does not mean that they can ignore the threat of
judicial action that will hold them accountable for standards and practices within their institutions. In other words, the relaxation of Federal judicial standards
and scrutiny over corrections should not be misperceived as a complete withdrawal of judicial authority or abdication of judicial responsibility. The Court
has clarified constitutional rights in a fashion favorable to correctional officials,
thereby making it more difficult for prisoners to allege and prove the existence
of constitutional rights violations. However, section 1983 remains viable and
available as a mechanism for judicial intervention that will hold correctional
officials accountable for constitutional rights violations, especially if those
violations result in injuries, health damage, or death.
Research indicates that police executives are more concerned about the risk of
expensive jury verdicts in civil rights lawsuits impacting their departments than
about the possibility that the Court’s decisions will impose new constitutional
requirements on their policies and practices (Smith and Hurst 1997). Although
correctional officials’ perceptions about legal threats have not been studied in a
comparable fashion, sheriffs and local jail administrators have every reason to
share the same fears as police executives. If they use excessive force or otherwise violate the rights of detainees, they face the prospect of significant jury
verdicts, including millions of dollars in awards, through section 1983 litigation.
For example, a Federal court jury in Michigan awarded $13 million to the family of a man who died in custody at the Lansing City Jail (Martin 1998). Such
awards can impose significant costs on local taxpayers when juries impose liability at levels that exceed a municipality’s insurance coverage. The imposition
of such costs can lead to significant political backlash against responsible officials, especially when budget cuts or tax increases are required to pay the judgment. Moreover, such cases can also expose correctional officials to the risk of
personal liability if they are not indemnified by their employer.

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State correctional officials may have less reason to fear the threat of successful
lawsuits. When such officials are indemnified, they are represented by the
State’s attorneys and the State pays any judgment. Individual adverse judgments have less impact on State governments because they can be paid from a
larger budget and, in effect, the financial burden can be spread among taxpayers across the State.
The fact that administrators in State prisons may have less reason to fear litigation does not mean that they are free to ignore the threat of legal action. If prisoners’ allegations are supported by sufficient evidence to avoid dismissal in the
early stages of litigation, the litigation process itself begins to impose costs on
the correctional institution. Administrators and staff members will be called to
sit for depositions and answer interrogatories as part of the pretrial discovery
process. If the case proceeds to trial, institutional staffing will be affected by
the need for personnel to appear in court as witnesses. Moreover, correctional
administrators are accountable to officials in centralized State correctional
departments. The State officials’ assessments of the causes of the litigation may
adversely affect institutional managers’ prospects for promotions and favorable
performance reviews.
Thus, the threat of judicial intervention continues to exist and place limits on
the range of decisions and actions correctional officials are permitted to undertake. Because of the relative stability and clarity in constitutional standards, the
most significant threat that deters abusive behavior and standards violations by
correctional officials may have shifted from judges, who previously intervened
in prison management, to the sometimes unpredictable jurors in civil rights
lawsuits. This threat is most significant in cases concerning physical injuries
or damage to prisoners’ health.
The threat of adverse jury verdicts depends on the continued existence of constitutional standards defining rights for incarcerated individuals. Shifts in the
Supreme Court’s composition could disrupt the recent doctrinal trends toward
stable standards favoring judicial deference to correctional administrators’
decisions about policies and practices. Because several of the Court’s cases
narrowing the scope of prisoners’ rights and placing greater burdens on prisonerlitigants involved divisions among the Justices concerning the appropriate reasoning and constitutional standards (e.g., Wilson v. Seiter; O’Lone v. Estate of
Shabazz), it is possible that changes in the Court’s composition will lead to
broadened rights and increased expectations and standards for correctional
institutions. Advocates for prisoners will continue to develop constitutional
arguments for new bases of judicial protection for incarcerated individuals,
such as the recent argument that institutional toleration of sexual harassment

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by male prisoners against other male prisoners should constitute a violation of
the eighth amendment (Robertson 1999). Alternatively, it is also possible that
changes in the Court’s composition could lead to a further diminution of the
rights of incarcerated individuals. This alternative is particularly intriguing
because two of the Court’s youngest Justices, Clarence Thomas and Antonin
Scalia, who presumably may remain on the Court for several decades, strongly
advocate significant reductions in constitutional protections for prisoners. If
they should be joined by at least three like-minded newcomers on the Court,
the possibility exists that bases for judicial supervision and lawsuits, especially
with respect to the eighth amendment, may be eliminated entirely.
By relying on an original intent approach to constitutional interpretation,
Justice Thomas, joined by Justice Scalia, has indicated that the eighth amendment does not apply to conditions and practices in prisons. They argue, in
effect, that the eighth amendment prohibition on cruel and unusual punishment
applies to the sentence announced by the judge in court but not to the conditions under which the sentence is carried out. According to Thomas, “The text
and history of the Eighth Amendment, together with pre-Estelle [v. Gamble]
precedent, raise substantial doubt in my mind that the Eighth Amendment
proscribes a prison deprivation that is not inflicted as part of the sentence”
(Helling v. McKinney (133 S. Ct. 2475, 2485 [1993] [Thomas, J., dissenting])).
If the Thomas-Scalia interpretation of the eighth amendment had prevailed
throughout the 20th century, lower Federal judges would have had no basis for
intervening to change conditions in correctional institutions even when those
conditions fell below established public health standards for human habitability.
Thomas also advocates the narrowest possible definition of prisoners’ right of
access to the courts. Thomas believes that correctional officials cannot prevent
prisoners from mailing letters to the court. He does not believe, however, that
correctional officials must provide law libraries or even pencils and paper as
part of a broader right of access to the courts. In Thomas’ words, “That right
. . . is a right not to be arbitrarily prevented from lodging a claimed violation of
a federal right in a federal court. . . . There is no basis in history or tradition for
the proposition that the State’s constitutional obligation is any broader” (Lewis
v. Casey (116 S. Ct. 2174, 2195 [1996] [Thomas, J., concurring])). If Thomas
were to gain additional votes to support his positions, there might be significant
reductions in the level of constitutional protections for incarcerated individuals,
both because of the withdrawal of eighth amendment rights and because of the
risk that prisoners would no longer have access to the legal resources necessary
for the preparation of legal claims. A shift in favor of Thomas’ perspective
would not necessarily reduce legal protections in all prisons, because current
practices and standards may have become so thoroughly institutionalized that

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administrators would continue to employ them even if they were not constitutionally obligated to do so. However, if administrators were to face choices
about resource allocations, even institutionalized practices may subside when,
for example, money currently spent on the maintenance of an up-to-date law
library is shifted to another purpose because the courts cease to insist that
the law library be maintained to meet specific standards. Such developments
depend on either a change in the Court’s composition or changes in the decisionmaking patterns of Justices who currently do not agree with Thomas. Thus,
it is uncertain whether law and policy will ever move in this direction.
As indicated by the foregoing discussion, the Court currently treats constitutional law concerning corrections as relatively settled, stable, and oriented
toward correctional managers’ interest in emphasizing order, security, and
administrative efficiency. Although the Court’s actions effectively limit the
potential for Federal judges to intervene in prisons in the name of constitutional
rights, there are several other bases for judicial intervention that may have continuing impacts on correctional institutions: (1) legal actions for application to
the correctional context of statutes enacted to address issues outside of corrections, (2) legal actions to force correctional officials to obey their States’ laws
and their own policies and procedures, and (3) legal actions based on State
constitutions and statutes.
Prisoners will continue to initiate legal actions to ask judges to apply statutory
rights and privileges for the benefit of incarcerated individuals, even if the
statutes in question were not enacted with prisoners specifically in mind. For
example, in 1998, the Court decided in Pennsylvania Department of Corrections
v. Yeskey (118 S. Ct. 1708 [1998]) that the Federal Americans With Disabilities
Act (ADA) included coverage for prisoners who, like other people with disabilities, cannot be excluded from governmental programs because of their disabilities. In the case in question, because of his high blood pressure, Yeskey was
denied entry into a prison boot camp that might have facilitated an accelerated
release from custody. The Court said that ADA’s requirements applied to prisoners because the statute clearly covered State governments without providing any
exclusion for State departments of corrections. The Court’s decision was unanimous and, moreover, was written by Justice Scalia, one of the Justices most
active in seeking to limit the scope of recognized legal protections for incarcerated individuals. However, because of the clarity of the statutory language, Scalia
and Thomas joined the other Justices in applying the legislation to prisoners.
Other kinds of statutes may also provide opportunities for similar judicial
impacts on correctional policies and practices. In the wake of the Court’s invalidation in 1997 of the Federal Religious Freedom Restoration Act (City of

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Boerne v. Flores (117 S. Ct. 2157 [1997])), a statute intended to limit the ability of governments to implement laws and policies that interfere with the free
exercise of religion, many State legislatures have considered enacting their own
statutes to protect free exercise of religion (Guest 1997). The Federal statute
included protections for prisoners, so it is likely that courts will be called upon
to examine State religious freedom statutes unless those statutes explicitly
exclude correctional contexts from their coverage. With respect to the free exercise of religion, States are likely to self-consciously consider whether to provide statutory protections to prisoners because of their own experiences in
dealing with the now-defunct Federal statute. However, the example helps to
illustrate that there may be other kinds of statutory enactments at the Federal
and State levels to provide unanticipated opportunities for prisoners to seek
judicial assistance in applying the statutes to correctional institutions.
Opportunities always exist for prisoners to seek judicial orders to force correctional officials to obey State statutes and department regulations. If, for example, regulations promulgated by a department of corrections require that certain
procedural steps occur in prison disciplinary processes and officials in one
institution omit a step, the prisoner may seek to have the institutional officials
comply with the regulations. Prisoners may be forced to exhaust administrative
appeals processes before they can seek judicial action, but the threat of judicial
intervention hangs over each situation and provides a source of pressure to
encourage correctional officials to obey relevant laws and regulations. Because
prisons were transformed into bureaucratic institutions as a result of judicial
intervention and professionalization trends during the 1960s, 1970s, and 1980s,
staff members in prisons and jails are responsible for knowing and adhering to
many rules and regulations. Policies and procedures manuals in prisons often
are so thick and detailed that it would be nearly impossible for most personnel
to memorize and comprehend the nuances of every rule. Thus, it is inevitable
that situations arise in which prisoners seek to force correctional personnel to
comply with departmental regulations and institutional rules. Challenges to
compliance by prisoners may be based on either intentional omissions or inadvertent oversights on the part of personnel. Prisoner challenges may also arise
when there are disputes about how to interpret and apply statutes and rules in
corrections.
Litigation based on State constitutions and statutes may provide an avenue for
judicial intervention even as Federal judges appear less likely to utilize constitutional claims as the basis for issuing orders affecting prisons and jails. As
the Court in the 1970s and 1980s became less receptive to all kinds of constitutional rights claims, not just those concerning prisoners, civil rights lawyers
increasingly explored possibilities for using State court litigation as a means

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to vindicate individuals’ rights. State constitutions often contain different
provisions than those in the U.S. Constitution. Moreover, State supreme courts
frequently interpret their constitutions’ provisions differently than the U.S.
Supreme Court’s interpretations of parallel provisions in the U.S. Constitution.
Thus, the potential for interventions in corrections by State judges depends on
the particular legal language and case precedents applicable within each State.
Hypothetically, the potential for State court litigation concerning correctional
issues may also be affected by the structure of State court systems, particularly
the electoral accountability applied to elected State judges, who may be less
willing than life-tenured Federal judges to apply judicial power in controversial
circumstances on behalf of unpopular litigants. Moreover, because State governments feel burdened by prisoner litigation, there is a significant likelihood
that State legislatures will act to limit opportunities for such litigation in State
courts, especially if legislators perceive State judges as being increasingly
receptive to prisoners’ lawsuits. For example, the Michigan legislature in 1999
considered several bills modeled on the Federal PLRA that were proposed with
the intention of limiting the number and nature of legal actions that could be
filed in State courts by prisoners (Johnson 1999).

Developments affecting the environment
of corrections
The most notable development affecting the environment of corrections is the
continuing increase in prison populations. In 1979, at the moment when the
Court began to decelerate Federal judicial intervention in corrections with its
decision in Bell v. Wolfish, there were 301,470 convicted offenders incarcerated
in Federal and State prisons (Maguire and Pastore 1998, table 6.35). By June 30,
1998, that number had grown exponentially to 1,210,034 (Gilliard 1999, 1). The
1998 figure represented a 4.8-percent increase over the total from 12 months earlier, and only the District of Columbia and three States (Idaho, Massachusetts,
and Wyoming) failed to increase their prison populations between midyear 1997
and midyear 1998. Moreover, jails showed a 4.5-percent annual increase in their
populations, for a total of 592,462 inmates. Thus, 1.8 million people were in
custody in prisons and jails when the midyear census was conducted in 1998
(Gilliard 1999). These increases are generally attributed to increased severity in
sentencing beginning in the 1980s, especially because prison populations continued to increase even as crime rates for many serious offenses decreased during
the 1990s.
Rising prison and jail populations automatically increase the prospects for litigation because there are more potential litigants interacting daily with correctional personnel and more potential moments in which disputes can develop

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about whether constitutional and statutory protections are being maintained.
The potential for litigation is even greater because governments’ efforts to build
and expand correctional facilities have not kept pace with the growth in inmate
populations. The Bureau of Justice Statistics reported that, as of December 31,
1997, “State prisons were operating at between 15 [percent] and 24 [percent]
above capacity, while Federal prisons were operating at 19 [percent] above
capacity” (U.S. Department of Justice 1999). Overcrowding increases the
potential for conflicts between prisoners and for greater difficulties in maintaining order and security. As a result, there is a risk of lawsuits against correctional institutions for injuries suffered by prisoners at the hands of other prisoners
because the law imposes obligations on correctional officials to maintain order
and keep prisoners safe and healthy. There is also a risk that a tense environment and overtaxed resources will lead correctional personnel to “cut corners”
on policies and procedures and otherwise overreact (or underreact) under pressure in their efforts to maintain order and ensure the safety of themselves and
others.
The environment of correctional institutions imposes inherent difficulties and
pressures upon staff. There is an ever-present (albeit not necessarily highly
probable) threat of attack. There is the constant challenge of maintaining cooperation from and control over a difficult “clientele,” among whom are people
who lack self-control, suffer from mental illnesses that affect their behavior, or
perceive few incentives to cooperate with the institutional goal of establishing
order and security. These pressures may mount significantly when institutions
operate above capacity. The risk of conflict is well illustrated by the testimony
of Georgia correctional officer Ray McWhorter in a lawsuit alleging that correctional officials attacked and brutally beat prisoners at the behest of top officials from the State department of corrections:
We have put up with a lot. In the years I have been working, I have been
spit at. I have had urine thrown on me. I have been kicked. I have been
punched. When you are dealing with that over and over and over and you
are trying to restrain yourself year after year, and all of a sudden they are
saying “Get them, boys,” well, hell, you go in there and you get them.
(Bragg 1997)
Because overcrowding can increase conflicts among prisoners and between
prisoners and staff, the continuing expansion of prison and jail populations
beyond institutional capacity creates an environment with the potential for litigation that will lead judges and juries to make judgments about the fulfillment
of legal standards in the management of correctional institutions. In addition,
scholars who studied the initial impacts of Supreme Court decisions and congressional legislation designed to limit Federal judicial authority concluded that
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changes in the law had not stopped Federal district
judges from looking closely at prison overcrowding
(Call and Cole 1996; Call 1995).
Changes in the composition of prison populations
may also provide a basis for litigation and judicial
intervention. For example, rising numbers of women
sentenced to incarceration increase the risks of claims
alleging sexual abuse and assault, denial of proper
medical care, and other issues that arise in women’s
prisons, especially when a majority of correctional
officers are men (Collins 1997; Amnesty International
1999).

Two elements that
may have countervailing impacts on
the prospects for litigation and judicial
intervention are the
institutionalization
of standard policies
and procedures and
the systematic training of correctional
personnel.

In another example, the deinstitutionalization movement in mental health led to the closing of many
facilities that traditionally housed people with mental
illnesses. Coinciding with cutbacks in mental health
facilities and services in some jurisdictions has been an increase in the number
of mentally ill people held in jails and prisons. In some States, county jails detain
mentally ill people who have committed no crimes but are merely behaving
strangely or waiting for a bed to become available at a mental hospital (Saul
1997). After Michigan shut down six hospitals serving the mentally ill in the
early 1990s, the State prison system experienced a 23-percent increase between
1993 and 1997 in inmates who were formerly mental patients, a growth rate more
than double the 11-percent rate for the prison population generally (Hornbeck
1997). An increase in inmates with special needs, especially in small county
jails that are particularly ill-equipped to provide special resources or programs,
increases the risk that these inmates will cause conflicts or be harmed in circumstances that could generate litigation.
Similarly, institutional responses to other demographic developments in prison
populations, such as changing racial and ethnic compositions that have exacerbated racial tensions and problems with ethnicity-based gangs, may produce
litigation on equal protection grounds or raise due process concerns when policies call for swift institutional intervention to preempt threats and conflicts
within a prison’s population. There are many projections being discussed about
how the country’s ethnic and racial composition will evolve to produce a white
minority by the mid-21st century. Changes in the general population are likely
to produce changes in the demographic composition of prison populations. New
circumstances and conflicts produced by them and the institutional responses to
them may create opportunities for litigation and judicial intervention.

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Two elements that may have countervailing impacts on the prospects for litigation and judicial intervention are the institutionalization of standard policies
and procedures and the systematic training of correctional personnel. Judicial
intervention and trends in professionalization since the 1960s have turned correctional institutions into bureaucracies permeated by the influence of legal
norms (Jacobs 1977). Institutions need well-developed and clear policies
to diminish the risk that staff will violate prisoners’ rights or otherwise fail to
comply with legal requirements imposed on correctional management. The
existence of up-to-date written policies helps to protect State correctional officials’ qualified immunity from civil rights lawsuits in cases alleging that correctional officers violated constitutional rights about which the officials should
have known. Without the existence of written policies, correctional officials are
at greater risk of violating and being found liable for the violation of prisoners’
constitutional rights. Thus, State departments of corrections, county jails, and
individual State prisons typically have thick policy manuals detailing the proper
procedures for a wide range of predictable circumstances that may arise. The
development of standards and policies has been guided and assisted by ACA,
the American Jail Association, the U.S. Department of Justice, and other organizational entities that disseminate publications concerning research, standards,
and model policies (see, e.g., Lauen 1997; American Correctional Association
1993, 1991).
Policy manuals provide guidance to correctional staff and help establish the
expectations of both staff and prisoners about the rights of the incarcerated
population and the obligations of institutional personnel. These policies are
shaped by legal requirements drawn from court decisions and relevant statutes
and regulations. As a result, policies about body cavity searches, the use of
force, and other issues can direct correctional personnel to conform to the
requirements of the law. The policies help establish routines of behavior that
enhance order and security while reducing the risk that prisoners will be subjected to excessively arbitrary treatment. The policy-mandated routinization of
body frisks and cell searches, for example, can diminish the potential perception that officers wield their search authority arbitrarily or for the purpose of
harassing inmates. Well-developed policies also help diminish the risk that staff
members will make inappropriate or uninformed discretionary judgments about
how to deal with specific situations that may arise. Moreover, the establishment
and routinization of policies based on existing legal standards may serve to
keep those standards in place even if subsequent judicial decisions and statutory enactments reduce the scope of legal protections for prisoners and thereby
permit a wider range of restrictive, discretionary practices by correctional officials. Unless there are specific resource utilization gains or other foreseeable
benefits from changing policies, institutions may simply keep in place practices

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that are familiar and effective even when those precise practices are no longer
legally required. Depending on the nature of the policies and practices at issue,
the risk of upheaval and uncertainty from changing established routines may be
more undesirable than the thought that prisoners are receiving more extensive
protections than those required by law.
The existence of written policies does not immunize correctional officials
against civil rights litigation. Policy manuals are often so extensive and detailed
that it is difficult to know, let alone understand, their entire contents. Thus, correctional administrators have a great incentive to train and retrain staff members about existing policies and procedures. Moreover, the failure to train staff
properly is a recognized basis for finding a local government agency, such as
a county jail, liable for constitutional rights violations by its officers (City of
Canton v. Harris (489 U.S. 378 [1989])). The institutionalization of systematic
training helps to alleviate the risk that actions taken by correctional staff will
violate legal standards and produce litigation.
There are questions, however, about the extent to which various jurisdictions
have developed and fully implemented training programs. It was not until 1999,
for example, that the Mississippi legislature sought to require extensive training
for all correctional personnel to reduce correctional agencies’ exposure to the
risk of lawsuits (Corrections Digest 1999c). Training for jail personnel may be
especially problematic because its existence and content are often under the
control of county sheriffs who emphasize law enforcement rather than correctional responsibilities. Some sheriffs may place newly hired people on jail duty
for on-the-job training while they await the opportunity to become deputies
with road patrol responsibilities (Kerle 1998). Inadequate training can create
situations that could subsequently invite litigation.
Obviously, the existence of policies and training does not guarantee that correctional officials will properly respect legal protections for prisoners. Personnel
training must be reinforced by effective supervision and accountability mechanisms. If there are inadequate supervision procedures or deficiencies in the
recruitment and selection of correctional personnel, then high-quality training
will have limited effectiveness in preventing situations that produce litigation
and the prospect of judicial intervention.
An additional element of concern is the extent to which the penal harm
philosophy may become incorporated into the daily decisions and actions of
correctional personnel. As Clear (1994) discussed, many aspects of criminal
punishment since the 1970s have moved beyond such limited goals as incapacitative custody and retributive loss of liberty to compound punishments of
offenders by inflicting additional pain and discomfort. In corrections, the penal

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harm philosophy may affect not only the length of sentences and conditions of
confinement, but also the attitudes and actions of correctional personnel in their
daily interactions with prisoners. Recent research documenting the extent to
which medical personnel in corrections manifest the penal harm philosophy,
which diminishes their concern for the quality of medical care provided to and
the amount of pain experienced by prisoners, illuminates the risk that staff
members’ attitudes may counteract the intentions of policies and training and
thereby produce situations that generate litigation (Vaughn and Smith 1999).
Increasing prison populations have led Federal and State governments to build
new correctional institutions. From 1990 to 1995, for example, States opened
168 new correctional facilities and the Federal Government added 45 facilities
(Stephan 1997, 1). The creation of new facilities to hold steadily increasing
inmate populations necessarily requires the addition of new personnel. By
1995, there were 347,320 staff members employed at Federal and State correctional facilities, including 220,892 custody/security
personnel whose jobs are devoted solely to maintaining order within institutions (Maguire and Pastore
Although judicial
1998, table 1.74). Because the healthy economy and
intervention in
employment rates of the 1990s created a relative
corrections is usually
abundance of job opportunities in some regions, there
discussed in terms of
are risks that correctional departments may not have
been positioned to be as thorough and selective as
prisoner litigation,
they wanted to be in screening and hiring personnel
future judicial decito staff new facilities. In addition, quick infusions of
sions affecting correcnew personnel, especially in custody/security positional management
tions, can dilute the average levels of experience
may increasingly
possessed by the officers in direct daily contact with
concern legal issues
prisoners. Because correctional officers, like other
“street-level bureaucrats” carrying out rules and poliinitiated by institucies in difficult environments, must learn to be effectional personnel.
tive through on-the-job experience, an increase in
newcomers may increase the risk of errors in judgment and inadvertent (or intentional) rule violations
that produce conflict and the potential for litigation. If any departments of corrections are forced to lower their hiring standards or are unable to screen applicants thoroughly amid the pressure to find and train new staff quickly, these
risks may be exacerbated.
The problems of hiring new personnel are illustrated by the situation in Texas
in 1999. The rapid expansion in the number of Texas prisons, along with the
favorable economy, made it difficult for the State to recruit and retain person-

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nel. In fact, the State reportedly lowered its hiring qualifications and shortened
training to combat staff shortages. As a result, more than 40 percent of Texas
correctional personnel had less than 3 years of experience (Corrections Digest
1999f). The difficulties involved in properly hiring and training staff may
produce problems that spawn litigation and judicial scrutiny. This problem
is especially troubling in light of the increasing range and sophistication of
responsibilities of correctional officers. Effective officers need comprehensive
knowledge of law, policies, procedures, and new technologies in addition to
skills in interpersonal communication and psychology (Josi and Sechrest 1998).
The growing numbers of correctional personnel also increase the likelihood of
judicial interventions initiated by staff members seeking to challenge the nature
or application of rules and regulations affecting employees. In the difficult and
pressure-filled workplace environment within correctional institutions, staff
members may want to challenge regulations affecting their working conditions,
such as institutional rules concerning searches and disciplinary procedures
aimed at employees (see, e.g., Associated Press Wire Service 1998) or the
inadequacy of safety equipment and procedures (Corrections Digest 1999d).
The special requirements of correctional occupations also may produce conflicts
that could lead to litigation. For example, male correctional officers who belong
to religions that expect men to grow beards may find their religious practices in
conflict with institutional rules requiring officers to be clean shaven so that gas
masks fit properly (Schneider 1995). In addition, the influx of female correctional personnel—who numbered 100,659 in 1995, including 41,857 custody/security officers—increases the likelihood of legal actions concerning employment
discrimination and workplace sexual harassment. For example, if correctional
institutions impose limitations on female officers’ authority to search male prisoners or supervise their living quarters and shower areas, there are risks that
those limitations will be challenged in court as impediments to equal employment opportunity (Bennett 1995). Although judicial intervention in corrections is
usually discussed in terms of prisoner litigation, future judicial decisions affecting correctional management may increasingly concern legal issues initiated by
institutional personnel.
New strategic or technological innovations can provide a source of litigation
that invites judicial scrutiny of correctional practices and procedures. The
remote-controlled REACT (Remote Electronically Activated Control Technology)
stun belt, for example, which delivers 50,000 volts of electricity at the push
of a button to prisoners being transported to court and elsewhere, is reportedly
used by 25 State departments of corrections and 100 counties across the country. As a result of its use on a jail inmate who interrupted a judge during a sentencing hearing, it became the subject of a lawsuit (Canto 1998). Some future

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innovations may merely be efforts to return to past practices that appeal to the
public’s perceived desire to punish in harsh or specialized ways. Thus, there
has been talk in recent years of a return to corporal punishment as a criminal
sanction. In another example, Alabama’s rediscovery in the 1990s of the practice of shackling prisoners outdoors to an iron bar was barred after a legal challenge because of testimony indicating that the prisoners suffered pain and were
not given proper access to drinking water and sanitation facilities (Southern
Poverty Law Center 1997). As innovations in devices and techniques to control
prisoners are developed, it seems likely that they will face eighth amendment
challenges in court if they inflict physical pain or excessive psychological harm.
Technological innovations may also face challenges from correctional personnel.
The development of new search technology, such as electronic drug detectors that
identify particle traces of narcotics on clothing, will undoubtedly produce litigation when applied against correctional officers who may claim that the devices
made erroneous readings or that the particles came from inadvertent contact with
other people’s clothing (Penn 1997). Similarly, opportunities for judicial intervention will emerge from the application of new technologies to prison visitors.
There are already controversies about prison systems that require certain visitors
to submit to x-ray-based devices to detect the presence of weapons and other
contraband. Because exposure to x-ray radiation may be harmful to people’s
health, especially if the machine malfunctions or if the visitors are especially
vulnerable because of pregnancy or other medical conditions, there is a basis for
initiating legal challenges. It is difficult to predict what new technologies will
emerge and how they will used, but it is relatively easy to anticipate that some
applications of new technologies will be challenged in court by prisoners, correctional personnel, and prison visitors.
Another development affecting the potential for litigation and judicial intervention in corrections is the operation of private prisons. By the end of 1997,
private correctional facilities existed in 30 States and held more than 60,000
prisoners (Maguire and Pastore 1998, tables 1.77, 1.78). Additional facilities
continue to be built as various State and local jurisdictions utilize this privatesector option for handling burgeoning prison and jail populations. These
facilities are obligated to fulfill legal standards concerning the treatment of
and living standards for prisoners. Because they are privately managed and
necessarily emphasize cost-effective policies and practices to enhance
profitability, there are risks that their policies and practices based on these
priorities may be a source of new litigation and judicial scrutiny. In addition,
opening new facilities and hiring new staff without the professional experience
and supportive infrastructure of a State department of corrections may pose
additional risks of problems that will produce litigation.

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Some private facilities have experienced problems, such as escapes from private
facilities in Texas by convicted murderers and sex offenders sent to serve sentences from other States (Thompson 1996). The first private prison in Ohio
agreed to a $1.6 million settlement in 1999 because, within 2 years after opening, 6 prisoners reportedly died while under prison medical care, 20 prisoners
were stabbed, 2 prisoners were murdered, and the Federal Government criticized
the institution for its harsh and humiliating search procedures (Corrections
Digest 1999c). Also during 1999, correctional officers in a private facility in
New Mexico reportedly covered up their involvement in an assault on a prisoner,
and an employee of a private prison in Tennessee helped a confessed murderer
to escape (Corrections Digest 1999a, 1999b). When correctional facilities fail so
dramatically in fulfilling their custody and security obligations, they invite lawsuits by members of the public as well as by prisoners.
Private correctional facilities and their staff members are especially vulnerable
to civil rights lawsuits because the Court determined that employees of private
prisons do not benefit from the qualified immunity bestowed by the law upon
governmental correctional personnel through section 1983 litigation (Richardson
v. McKnight (117 S. Ct. 2100 [1997])). As cost-conscious institutions whose
continued existence may depend on demonstrating satisfactory performance in
the eyes of State and local officials, private correctional institutions have especially strong incentives to avoid problems that will produce litigation and judicial scrutiny. Thus, the threat of lawsuits and possible judicial intervention may
have an especially powerful impact on private correctional managers’ efforts and
effectiveness in complying with legal standards.
The expense of providing facilities for mushrooming prison populations has
encouraged consideration of alternative punishments. Thousands of offenders
have been placed in alternative settings of confinement and supervision,
including boot camps, electronic monitoring, home detention, day reporting
centers, and community-based programs. In addition, 3.9 million offenders
were on probation and parole at the end of 1997 (U.S. Department of Justice
1998). This figure represents an increase of 110,000 offenders over the prior
year. The growing number of convicted offenders under confinement and supervision in contexts other than traditional custodial incarceration provides an
additional population that can initiate litigation. Moreover, because many of
these offenders have contact with or opportunities for contact with the public,
any problems caused by interactions between offenders and citizens, including
criminal acts committed by sentenced offenders while under correctional supervision, may provide a source for additional lawsuits and judicial scrutiny of
correctional policies and practices. Inevitably, courts will be called on to clarify

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how established legal standards and constitutional rights apply to new or
different correctional contexts. For example, in 1998, the Court addressed the
applicability of the exclusionary rule when government officials seek to use
improperly obtained evidence at parole revocation hearings (Pennsylvania
Board of Probation and Parole v. Scott (118 S. Ct. 2014 [1998])).
Some State responses to the expense of expanded prisons will simply amount
to burden shifting from States to counties and cities. For example, States may
reduce mandated sentence lengths and thereby increase the number of offenders serving sentences in county jails rather than State prisons. The jails may not
have adequate funds, equipment, and staff training for handling larger numbers
of offenders, and conditions and practices in increasingly overburdened jails
may produce new litigation. Although litigation will lead judges to scrutinize
specific aspects of nonincarcerative and other alternative sentences, their decisions in these cases seem much less likely to impose major changes on correctional policies and practices than did court decisions in the institutional reform
cases of the 1960s, 1970s, and 1980s.

Conclusion
The courts have played an integral role in shaping modern correctional institutions and correctional practices. Judicial decisions established legal standards for prison conditions and the treatment of prisoners. Moreover, judicial
processes provided an avenue by which prisoners could employ litigation to
force correctional officials to comply with developing legal standards. These
developments coincided with judicial decisions affecting policies and practices
throughout the criminal justice system as judges followed the patterns established by the Warren Court and defined individuals’ constitutional rights more
clearly and broadly. The veritable explosion of prisoner litigation and judicial
intervention into corrections during the 1960s, 1970s, and 1980s transformed
corrections by forcing an end to regional differences in the organization of
institutions and by pushing all correctional institutions to become professionalized, bureaucratic organizations with formal procedures and legal norms. These
changes were largely beneficial. Although they did not extinguish opportunities
for abusive behavior by correctional officials, the changes in law labeled such
behavior—which was previously overt and officially encouraged in many institutions—as unacceptable and remediable under the law. The development of
standards and procedures created greater predictability in the expectations for
and behavior of staff and prisoners, thereby reducing opportunities for unbridled discretion and unremediable inflictions of pain or deprivations of basic
human needs.

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During the 1980s and 1990s, the U.S. Supreme Court and Congress used their
authority to force a deceleration of Federal judges’ involvement in correctional
management. Supreme Court decisions and Federal legislation narrowed the
definitions of prisoners’ rights, required greater judicial deference to correctional administrators, and limited both prisoners’ effective utilization of civil rights
litigation and Federal judges’ remedial authority. These new directions did not
negate all of the rules and practices developed during the Court’s interventionist years; however, they clearly signaled that judicial and legislative decisionmakers believed that the formalization of correctional procedures and the
professionalization of correctional officials had progressed sufficiently to permit a relaxation of judicial scrutiny. Moreover, political and governmental
trends advancing the enhancement of federalism and the diminution of judicial
control over various public policy issues during the 1980s and 1990s reinforced
the changing boundaries of courts and corrections. Because of widespread dissatisfaction at the State and local levels with many policy declarations from the
Federal Government, the political values advancing the decentralization of policymaking and public administration are likely to perpetuate these boundary
changes unless new problems emerge that are perceived as requiring nationwide
remedial initiatives. As a result, the interventionist years in which courts played
a significant hand in producing major changes in correctional systems throughout the Nation can probably be regarded as a unique era that is unlikely to be
reproduced in the foreseeable future.
A simple causal model that characterized judicial intervention and supervision
as the sole forces for transforming corrections and maintaining desirable
changes in institutions’ policies and practices would necessarily raise fears that
the deceleration in Federal judicial intervention might mean a return to the abusive practices and inhumane conditions of the past. However, the transformation of corrections did not rest solely on judicial action. The rise of professional
public administrators and the application of management theories and social
sciences research in corrections also shaped the transformation of policies and
practices. The continued presence of professionally trained administrators and
their utilization of modern management principles provide sources for the
maintenance of policies and procedures developed during the transformative
period beginning in the 1960s and lasting through the 1980s. In addition, standardization and routinization of policies and systematic staff training may
operate to preserve and reinforce practices that comply with established legal
norms. Moreover, the deceleration of judicial intervention led by the Court and
Congress cannot be accurately characterized as an end to judicial authority over
corrections. Legal standards have been established, and courts retain the authority to examine and enforce those standards. Thus, it is neither inevitable nor
even probable that correctional institutions will return to the problematic practices and conditions of their pretransformative decades.

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From the prisoners’ perspective, does the current state of affairs ensure that
rights will be protected and proper procedures will be followed within the
professionalized, bureaucratic environment of contemporary corrections? Of
course not. There are opportunities for legal standards to be violated in circumstances in which prisoners are unable to provide sufficient evidence to prove
what transpired. Litigation is an awkward, expensive, time-consuming, and
unwieldy process that cannot be utilized quickly, easily, or flawlessly as
a means to vindicate rights and uphold legal standards. In many respects,
prisoners’ interests in appropriate daily treatment may be better served by
the standardization and routinization of policies and practices compliant with
laws and regulations rather than by reliance on the prospect of litigation to remedy individual rights violations. If the potential threat of litigation motivates
correctional administrators to develop proper policies and provide effective
training, supervision, and accountability mechanisms for employees, then the
most significant role for courts may be in casting a shadow over corrections as
a perceived source of possible authoritative intervention—even if actual successful litigation by prisoners is infrequent or unlikely.
The future interface between courts and corrections depends largely on developments affecting the laws governing correctional institutions and shaping the
environment of corrections. There are prisoner advocates and academics who
call for expanded definitions of prisoners’ rights and increased bases for judicial supervision of and intervention in correctional management. Conversely,
there are others, including Supreme Court Justices Thomas and Scalia, who call
for further diminution of prisoners’ rights and increased limitations on the ability of Federal judges to hear prisoners’ civil rights cases and impose judicial
orders upon prisons and jails. Although it is difficult to predict how future
political and social developments in American society will affect the composition and viewpoints of the Court and Congress, for the foreseeable future, it
appears that the laws affecting corrections have reached a point of relative stability. It is acknowledged that prisoners possess specific rights concerning religion, access to the courts, conditions of confinement, and a limited list of other
rights. The definitions of these rights are relatively narrow, and the balances
struck between prisoners’ rights and institutional interests in security and order
tend to favor the preservation of policies and practices developed by correctional administrators. Prisoners are less able to demand legal resources and freely
file legal actions, but the courthouse door has not been closed to prisoners’ filings, and judges retain authority to examine whether institutions are upholding
constitutional and statutory standards.
A continuing role for courts, either directly through litigation and court orders
or indirectly through the threat of possible judicial intervention, is assured by

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visible, predictable developments affecting the environment of corrections. The
growth in prison populations, prison personnel, innovative strategies and technologies, private prisons, and alternative sanctioning methods will produce
litigation that draws judicial attention to correctional policies and practices.
This litigation may increasingly concern either employee issues or narrow prisoners’ rights questions rather than efforts to significantly alter conditions of
confinement. The deceleration in judicial intervention does not necessarily
translate into a reduction in the judicial system’s prisoner litigation cases.
Continued increases in prison populations are projected to produce increases in
prisoners’ cases filed in Federal courts (Cheesman, Hanson, and Ostrom 1998).
One unknown factor that will affect the nature and extent of judicial involvement in correctional cases is the uncertain capacity of heavily burdened courts
to carefully review and consider increasing numbers of cases from prisoners
without an infusion of new resources.
The most difficult questions concerning the future interface of courts and corrections concern unpredictable developments that could affect the environment
of corrections. In light of the contemporary penchant for significant incarcerative sanctions during an era of declining crime rates, what would happen if the
United States experienced a dramatic increase in crime rates? Moreover, what
if this increase in crime rates coincided with a significant downturn in the
national economy so that government budgets had fewer resources to spend on
corrections? Would incarceration rates increase in a manner that would significantly outstrip prison capacity at a moment when governments could not afford
to maintain minimum conditions and amenities within correctional institutions?
Such a hypothetically plausible scenario could sorely test both correctional
administrators’ commitment to professional standards and the power of standardization and routinization as means to maintain standards. Courts would
inevitably be called on to examine alleged problematic conditions and practices
in prisons. There may be questions about whether the Court and Congress went
too far during the 1990s in limiting the remedial authority of Federal judges in
prison cases. Law is adaptable and malleable, however, especially in the hands
of judges, so the opportunity could undoubtedly be created to permit judges to
issue orders addressing problems in corrections.
The real uncertainty about judicial action would probably concern social and
political values possessed and applied by the judiciary. Are the judicially developed standards for correctional institutions so thoroughly established from
litigation during the latter decades of the 20th century that judges would intervene and push Federal, State, and local governments to uphold standards for
conditions and practices? Alternatively, could a sense of crisis concerning the
crime problem permeate the thinking of judges and thereby attract judicial

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decisionmakers to the arguments of Justices Thomas and Scalia about the
inapplicability of the eighth amendment to questions about the conditions of
confinement in correctional institutions? This approach would constitute a
withdrawal of judicial scrutiny and involvement from many areas of prison
operations. Such speculative questions cannot readily be answered, but they
help to illustrate the uncertainties involved in predicting the future impact of
courts on corrections.
Courts and corrections seem inextricably linked together because of the established avenues for prisoners (e.g., section 1983 litigation) and prison employees
to seek judicial consideration of challenged conditions and policies in correctional institutions. Despite the deceleration of judicial intervention in the
posttransformative era of corrections, current developments affecting the environment of corrections ensure that courts will continue to be called on to examine specific aspects of correctional management. The actual nature and extent
of future judicial impact on corrections necessarily depends on the course of
developments shaping correctional law and the environment of corrections
from which legal issues spring.

Note
1. Based on author’s conversations with assistant attorneys general from several States.

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