Leveraging maximum reform while enforcing minimum standards.

• Author: Gerhardstein, Alphonse
• Position: Conditions of Confinement Colloquium

Introduction I. Constitutional Standards Set a Low Bar; Enforcement Does Not Promote Public Safety A. Who is Incarcerated? B. What Helps Reduce Recidivism? C. What Does Conditions Litigation Traditionally Accomplish? II. Conditions Litigation Can Help Reduce Recidivism A. Seriously Mentally Ill Offenders B. Juveniles III. Strategies for Achieving Relief Beyond Constitutional Minima A. Public Acceptance of Broad Remedies Conclusion INTRODUCTION

People want to be safe from crime. Politicians must therefore deliver policies that promote public safety. For several decades that duty has translated into more prisons, but we know better. Research shows that prisons are effective at promoting safety (reducing recidivism) for only a small percentage of the offending population. Litigation that focuses only on conditions of confinement, therefore, misses an opportunity to promote public safety by requiring programming and supervision options that will truly help reduce recidivism. Policy makers need and often want the push that litigation addressing evidence-based programming can provide. Aligned on the other side is policy promoted by fear. Arguing that a state can be simultaneously smart and tough on crime can help change the debate. Success will result in expanded effective programming to those who are. incarcerated or under supervision.

This Article is not about litigating in environments where the defendant corrections officials have dug in and are committed to saving the status quo. Remedies in such cases will necessarily be limited to the proven violation. Rather, this Article focuses on those occasional opportunities when defendants can be persuaded to view litigation as an opportunity to support progressive policies that will reduce dependence on secure custodial options. This Article offers suggestions on how advocates for criminal justice reform can use litigation to promote effective crime reduction policies that also serve to maximize services to, and opportunities for, the offender. (1)

Part I reviews some of the problems facing efforts to improve rates of recidivism. A goal of simply achieving compliance with the Constitution will not serve to make the public safer or the offender less likely to commit an offense in the future. Part II will review examples of criminal justice reform litigation in which the remedy has moved past constitutional compliance to promote effective, evidence-based solutions to public safety problems. Part III will suggest strategies to achieve these broader remedial terms.

1. CONSTITUTIONAL STANDARDS SET A Low BAR; ENFORCEMENT DOES NOT PROMOTE PUBLIC SAFETY

   The clients in correctional litigation are the individuals in custody. Traditionally, such litigation is focused on securing constitutional compliance regarding the conditions of confinement. However, individuals in custody need more. They need an advocate for their success upon re-entry into society. To delay that advocacy until an offender is released misses an important opportunity to utilize the period of supervision in confinement or post-release to promote pro-social behavior. Confined clients deserve these opportunities and conditions litigation can be a vehicle for this advocacy.

   1. Who is Incarcerated?

      While the American violent crime rate has been falling in the past thirty years, the incarceration rate has increased. In fact, during this period, the prison population of the United States has qua drupled. (2) This relationship, however, is not causal. Prison beds are filled with more offenders serving mandatory terms, some triggered by "three-strikes" legislation which creates lengthy stays in prison for non-violent offenders. Because so many non-violent offenders have been incarcerated, the rising prison population from 1993 to 2001 accounted for only 2%-5% of the decline in serious crime in large cities like New York and Los Angeles. (3)

      The United States now leads the world with 2.4 million people in jail, prison, and detention facilities. This equates to approximately 738 prisoners for every 100,000 Americans. (4) Whether measuring per capita or raw numbers, no other country compares. (5) American incarceration rates are higher than any other Western nation. (6) The "Carceral State," as labeled by Marie Gottschalk, is now the status quo and mass incarceration is the norm. (7)

      The American corrections system, alone among civilized nations, considers punishment and confinement the correct response for even non-violent and low-risk offenders. (8) Other strategies, however, have proven to be both less expensive and more effective. (9)

      The racial disparity in prison population captures the difference in the social experience of black men in America better than any other socio-economic barometer. (10) Today's average young black male is more likely to go to prison than serve in the military or obtain a bachelor's degree. (11) One in every nine black males between the ages of twenty and thirty-four is in either prison or jail on any given day and that rate is rising rapidly. (12) If current trends continue, one third of black males born today will spend time in prison. (13)

      Racial disparity in the prison population exists in all age groups and levels of education, which has broad implications for black communities. One in fourteen black children has a parent who is incarcerated and unable to contribute to the household. (14) Because of laws that prohibit felons from participating in the democratic process, 13% of blacks are unable to vote. (15) This represents a significant portion of the community that has become disenfranchised. (16)

      Incarceration disrupts communities. While the offender is locked up, his family and community lose his services. Following release, the offender needs help establishing pro-social patterns. The current system of long sentences and little programming has caused recidivism to remain unacceptably high, now level at approximately 67%. (17) The weight of more than 700,000 persons who re-enter society each year is disproportionately placed upon the shoulders of the poorest neighborhoods. (18) While states spend millions on incarceration, little attention has been paid to re-entry strategies, creating a merciless and expensive revolving prison door. There are some bright spots, however, where policies promote effective institutional programming and help with re-entry for adults and teens alike, resulting in lower rates of incarceration. (19)

   2. What Helps Reduce Recidivism?

      Incapacitation through confinement does not lower recidivism. Researchers and public policy advocates have identified numerous strategies that do effectively lower recidivism. (20) These "evidence-based" programs and strategies are based on principles of effective intervention frequently summarized as "risk, need, treatment and fidelity." (21) "Risk" refers to the risk of re-offending. (22) Incarcerating low risk offenders has been shown to increase the risk of recidivism for that group. (23) "Need" refers to what an intervention should target, that is, crime-producing or criminogenic needs. (24) "Treatment" refers to how to address the offenders' needs. (25) For example, a behavioral program is a type of treatment. "Fidelity" refers to adhering to the principles of a strategy to ensure consistent results. (26)

      To determine which programming works, recidivism rates and the cost to taxpayers must be considered. The result is a cost-benefit analysis, framing prison reform (not construction) as an economic boon, which provides a political shield to government officials who want to appear "tough on crime" while evidence-based practices are implemented. (27) Evidence-based practices like vocational education programs, cognitive-behavioral therapy, and supervised treatment programs have been proven to be inexpensive and effective in reducing crime. For juveniles, the best practices are Functional Family Therapy, Multi-systemic Therapy, and Multidimentional Treatment Foster Care. (28) Other effective juvenile treatments create a connection between the offense and the damage it caused to the community through victim apologies, monetary restitution, and service projects. (29) Evidence-based practices can have an effect not only on life on the outside, but on the inside as well, lowering rates of inmate-on-inmate and inmate-on-staff assault, drug use, rape, and suicide. (30)

   3. What Does Conditions Litigation Traditionally Accomplish?

      Conditions litigation has long been focused on securing maximum rights for citizens who are incarcerated. Unfortunately, as the prison population in America has swelled the rights of the incarcerated population has been steadily diminished. For example, after incarceration, prisoners are only protected from excessive force that constitutes "unnecessary and wanton infliction of pain." (31) Inadequate medical care cannot be remedied unless it displays "deliberate indifference." (32) Arbitrary imposition of segregation can only be addressed if the deprivation "imposes atypical and significant hardship." (33) Denial of legal materials can only be remedied if the plaintiff shows "actual injury." (34) Prison regulations--even those that impact sensitive First Amendment matters--are all measured by "reasonableness." (35) Even safety from other violent inmates is only remedied if the failure of the staff is due to "deliberate indifference." (36)

      The substantive law challenges are just the beginning. A prisoner plaintiff cannot sue the state because of Eleventh Amendment immunity. (37) The individual defendants that can be sued are all cloaked with qualified immunity. (38) The Prison Litigation Reform Act (39) ("PLRA") further limits recovery to claims of physical injury, limits attorney fees, (40) and imposes administrative exhaustion requirements without mandating what administrative grievance procedures a state should provide. (41) The...