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

Richard D. Vogel is an independent socialist writer. He is currently working on a history of the U.S. conquest and exploitation of the Mexican people

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

Prisoners are silenced in many ways. One of the major vehicles of the latest campaign to silence prisoners in the United States is the Prison Litigation Reform Act of 1996 (PLRA). This law, which has been declared unconstitutional by several U.S. District Court judges but upheld on appeal, is helping to reverse the last 30 years of progress in giving prisoners a voice and is moving the nation still further away from democracy. Anyone who cares about the reactionary direction of politics in the United States needs to pay attention to the PLRA. When Attorney General John Ashcroft was a U.S. senator, he advocated that other state and local institutions adopt the premises and procedures of this law. This is exactly what is happening today.

To put the PLRA into its appropriate context, it is necessary to briefly review the 20th century history of incarceration in the United States (details are provided in the author’s article, “U.S. Capitalism and Incarceration Revisited,” Monthly Review, September 2003). Incarceration rates rose and fell between 1925 and 1974, hitting a peak of 137.1 per 100,000 persons in the Great Depression year of 1939 and averaging 108 per 100,000 over the entire period. Rates reached a low point at the end of the Second World War, rose after the war until 1961, and began to trend sharply downward after 1962, hitting a post-depression low of 94.3 per 100,000 in 1968. However, since the end of the Vietnam War, incarceration rates have skyrocketed, reaching an all-time high of 478 per 100,000 in 2000. Imprisonment in the United States is now at the highest rate of any country in modern history. At the beginning of 2002, close to two million persons were being held in federal and state prisons and local jails. This unprecedented period of mass incarceration is the setting for the PLRA.

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

Mass incarceration and overcrowding led to widespread and devastating prison riots and insurrections. Between 1968 and 1971, there were 40 major disturbances, including the historic revolt at Attica Prison in upstate New York, which resulted in 43 deaths. An accurate estimate of the monetary cost of these prison disturbances is impossible because the bills are still coming due. As recently as August 2000, New York agreed to pay former inmates of Attica up to $8 million to settle a class-action lawsuit resulting from the excessive use of force against prisoners during the 1971 assault to retake the prison.

Not surprisingly, the explosion in imprisonment produced a parallel trend in prison litigation. In 1972, David Ruiz and other inmates filed a lawsuit against the Texas DOC seeking relief from the prison conditions noted above. The case was tried six years later, and in 1981 U.S. District Judge William Wayne Justice ruled that confinement in Texas prisons constituted cruel and unusual punishment. He cited brutality by guards, overcrowding, understaffing, use of building tenders, poor medical care, and uncontrolled physical abuse among inmates.

Similar lawsuits were filed across the country and in increasing numbers. In 1970, some 2,200 civil rights cases were filed in federal courts, from a population of 360,000 inmates. By 1995, with a prison population of 1.6 million, nearly 40,000 new lawsuits were filed, about a fifth of the federal courts’ civil docket. In that same year, almost a third of all correctional institutions across the nation were under state or federal court orders to limit prison populations or improve the conditions of confinement for inmates under their jurisdiction.

By the middle of the 1990s, mass incarceration sparked both legal and penological crises. Despite the largest and most expensive prison-building program in history, correctional facilities continued operating at or above rated capacities, and, consequently, many DOCs remained in violation of court orders and consent decrees. As national and state economic problems mounted, even staunch conservatives were balking at the prospect of more prison expenditures. It was during the period of economic difficulties in the early 1990s that reactionary politicians drafted the PLRA and railroaded it through Congress. The PLRA grew directly out of the Republican Contract with America, a conservative agenda embracing all aspects of national life. The PLRA was not covert legislation—it openly addressed specific legal issues and only thinly disguised its reactionary goals.

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

The PLRA mandates three procedural changes that have affected inmate litigation significantly. First, the law imposes filing fees even on indigent inmates. This provision increases the financial burden on prisoners, most of whom are already poor at the time of their incarceration. Second, the law limits the damages and attorney’s fees that inmates can receive if they win their cases. Considering the low percentage of successful inmate cases and the small monetary damages awarded to plaintiffs, this limitation restricts prisoners’ access to legal representation by making prison litigation financially even less attractive to attorneys than it was prior to the enactment of the PLRA. Third, and with the greatest impact, the PLRA requires that inmates exhaust administrative remedies before filing lawsuits. Through this provision, authorities can block lawsuits by issuing complicated grievance procedures, by shortening deadlines, and by adding multiple layers of review.

These procedural reforms have produced the intended results. While the prison population rose steadily between 1970 and 2001, by a phenomenal 574 percent, court filings failed to match this growth trend after passage of the PLRA. Between 1970 and 1995, filings rose by 942 percent, growing considerably faster than total incarcerations. However, in the six-year period immediately following the passage of the act, there was a 43 percent decrease in court filings despite a 23 percent increase in the prison population. The act has definitely silenced a significant number of voices from the cells.

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

There is no doubt that the court judgments and consent decrees of the last 30 years have ameliorated some of the worst conditions and abuses in U.S. prisons. The results have been dramatic and much more expensive than damages awarded to individual inmates. The case of the Texas DOC is illustrative. The Ruiz lawsuit fundamentally changed the operations of Texas prisons. In 1981, after a lengthy trial in which 349 witnesses testified about prison conditions and practices, Judge Justice ordered improvements, set deadlines, and appointed a special master to supervise compliance. In 1982, the Texas DOC agreed to discontinue the building tender program and began to hire more guards, significantly expanding the state payroll. To address the issue of overcrowded and outdated buildings, Texas began a vast prison construction program in the late 1980s, which continued throughout the decade. During the 1990s alone, 70 new prison units were constructed, adding 108,597 beds to the system, and the DOC staff expanded from 22,332 to 40,081. The Texas DOC operating budget for 1990–1999 was $15.8 billion. This did not include an additional $1.8 billion in prison construction bonds that were passed by voters during the period. But despite these expenditures and because of rising incarceration rates, the Texas prison system continued to operate at or above capacity and was unable to meet many of the court-ordered improvements.

The Texas experience was not unique. The U.S. Department of Justice reported that in 1995 a total of 456 correctional facilities across the nation (31 percent of the total) were under state or federal court order for the totality of conditions, to limit population, or for specific conditions of confinement.

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

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

The state of Michigan offers a good example of what is at stake in the medical arena. In 1998, Michigan was appealing two ongoing consent decrees under PLRA, hoping to save money. For the fiscal year 1997–1998, the state budget appropriation dedicated specifically to cover the additional costs of the consent decrees was $100,627,800. Michigan legislators were eager to reclaim this money but were disappointed. The problem was that 79 percent of this money was spent on mental health care for inmates, and, even if both consent decrees were terminated, the state would still have to continue offering mental health services or risk a new round of litigation if it let psychiatric services deteriorate to a condition which violated the federal rights of prisoners. A fiscal analyst warned legislators that the actual savings from PLRA might be only a paltry $10 million, far less than the annual appropriations for consent decree operations. The fact that so many prisons have become de facto mental institutions for the poor has, so far, frustrated the purposes of the PLRA in this arena.

The restrictions on consent decrees and court judgments in the PLRA have affected inmate litigation beyond the procedural changes. For example, during the initial five-year period of the law, the number of state facilities under court order to provide library services dropped from 126 to 33. This was a devastating blow to prison litigators, 95 percent of whom represent themselves and must research and write their own legal papers. Several states have actually closed their law libraries and auctioned the books on eBay for a fraction of their value.

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

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

Political rhetoric aside, a serious analysis of the PLRA reveals the conservative victory for what it is—a legislative maneuver to raise the ceiling on incarceration and seriously restrict outside control over conditions of confinement in U.S. prisons. This legislation facilitates higher rates of incarceration at lower cost than during the pre-PLRA period with no regard for the human consequences. And the consequences will be dire—a return to a “hands off” prison policy will reverse the modest gains prisoners have won in the past 30 years and return the system to darker days. Progressive judges, like Justice and Shapiro, who have been monitoring U.S. prisons over these 30 years, already see the problems returning, but because of the PLRA they are powerless to intervene.

The PLRA is clearly a political vehicle for the powerful to continue using incarceration as a solution to the economic and social dislocations produced by postindustrial capitalism. The boast of “taking back the prisons” is a thin smokescreen for mass incarceration and intensified repression in the criminal justice system. Through the PLRA, the political right is silencing the voices of prisoners and tightening the hold of reactionaries on the machinery of government.

The PLRA, following 30 years of liberal judicial intervention in U.S. prisons, is a prime example of Marx’s observation that reform in the bourgeois state, including prison reform, is always reform by the bourgeoisie for the bourgeoisie. The PLRA illustrates for us the important lesson that bourgeois prison reform must never be confused with the revolutionary prison reform that will render the prison system we know today a grotesque relic of human history.

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