The Prison Reform Litigation Era: Book-Length Studies and Lingering Research Issues

• Published date: 01 September 2003
• DOI: 10.1177/0032885503256467
• Date: 01 September 2003
• Subject Matter: Journal Article

10.1177/0032885503256467ARTICLETHE PRISON JOURNAL / September 2003Smith / THE PRISON REFORM LITIGATION ERA

THE PRISON REFORM LITIGATION ERA:

BOOK-LENGTH STUDIES AND

LINGERING RESEARCH ISSUES

CHRISTOPHER E. SMITH

Michigan State University

On September 21, 2001, the U.S. Court of Appeals for the 4th Circuit, sit-

ting en banc, issued a split decision permitting the Charlotte, North Carolina,

public schools to end their 30-year-old court-ordered busing plan for elimi-

nating racial segregation (“Court Rules Charlotte Can Halt Busing,” 2001).

Although the decision garnered merely summary announcements in national

newspapers (“End to Busing is Ordered,” 2001), it arguablyrepresented the

symbolic and practical end to an important era in institutional reform litiga-

tion. With its 1971 decision in Swann v. Charlotte-Mecklenburg Board of

Education, the U.S. Supreme Court had endorsed the use of court-ordered

busing plans for school desegregation. The Swann decision gave legitimacy

to the school desegregation plans ordered by federal judges throughout the

country. Moreover, it helped to make busing a national political and policy

controversythatinfluenced the outcomes ofelections, generated violent con-

flicts in some communities, and subjected the federal judiciary to political

attacks and scholarly investigationsabout the role of courts in policy making

(e.g.,Graglia, 1976). By ending busing in Charlotte, thefederal appeals court

has set the stage for comprehensive retrospective analysis of institutional

reform litigation and its consequences—or lack thereof—for racial segrega-

tion in public schools.

Obviously, school desegregation was not the only policy issue shaped by

constitutional litigation and court decisions. Although judicial policy mak-

ing concerning other policy issues, such as education financing and abortion,

ignited political controversies and spawned scholarly analyses, court deci-

sions concerning conditions in correctional institutions arguably made up,

along with school desegregation, the most important, active,and widespread

examples of institutional reform litigation. Prisoners’ lawsuits and federal

judges’decisions affected the policiesand practices in prisonsand jails in vir-

tually every state. Prison litigation cases may haveaffected the lives of fewer

individual human beings than court decisions concerning school desegrega-

THE PRISON JOURNAL, Vol. 83 No. 3, September 2003 337-358

DOI: 10.1177/0032885503256467

© 2003 Sage Publications

337

tion. However, prison reform decisions had broader geographic conse-

quences by affecting even relatively homogeneous states whose school sys-

tems did not reflect the racial separation problems posed by the country’s

diverse large and mid-sized cities and therefore remained untouched by

school desegregation litigation. Institutional reform litigation in corrections

was truly a national phenomenon with a universal effect.

The symbolic conclusion of judicial intervention in the figurative birth-

place of court-ordered busing (i.e., Charlotte) should set the stage for reas-

sessment of institutional reform litigation, not only with respect to school

desegregation butalso with regard to other issue areas in which litigation and

judicial outcomes shaped governing institutions. Prison reform litigation

stands out as an especially important subject for continuing examination.

Although racial separation remains prevalent within schools in urban areas,

the original impetus for using litigation to combat segregationhas been dissi-

pated by the end of formal policies to enforce segregation, the inclusion of

middle-class and affluent African American families in some suburbs, and

the new focus on policy disputes concerning standardized testing, school

vouchers, and charter schools. By contrast, the astonishing growth of prison

populations in the 1980s and 1990s, the budgetary constraints on state cor-

rections departments and local sheriffs, and the continuing manifestations of

the “penal harm” philosophy in corrections serve to raise continual questions

about the adequacy of conditions of confinement in the nation’s prisons and

jails (e.g., Clear, 1994; Vaughn & Smith, 1999). Readers of the Prison Legal

News are reminded of continuing issues concerning the Eighth Amendment

through stories on prisons throughout the country with such titles as “Ala-

bamaEnds Chain Gang Experiment”(Clarke, 2001), “Wyoming Prison Offi-

cials Settle Poisoning and Medical Suits for Over $200,000” (2001), and

“Arkansas Guards Indicted for Shocking Prisoners” (2001). Thus, constitu-

tional litigation may remain especially relevantfor the prison context even as

its importance diminishes for other issue areas in which new policy foci have

supplanted the original issues that attracted judges’ attention.

This article will review book-length studies of prison reform litigation to

raise questions that may serve as the basis for future research. Scholars have

examined institutional reform litigation in corrections through article-length

case studies (Cooper, 1988; DiIulio, 1990), judicial biographies (Kennedy,

1978; Yarbrough,1981), and studies of county jails (Welsh, 1995) as well as

book-length studies. However,this article will focus on book-length studies

concerning litigated reform of state prisons to limit attention to a common

subject of study that has served as the primary focus for efforts to synthesize

extant knowledge about institutional reform litigation. These studies provide

the most detailed information for scholars who seek to draw together the lit-

338 THE PRISON JOURNAL / September 2003