by Margo Schlanger
Editor’s Note: Margo Schlanger is Professor of Law, Washington University in St. Louis, and a member of the Commission on Safety and Abuse in America’s Prisons. She is a former trial attorney, U.S. Department of Justice Civil Rights Division. You can contact her at email@example.com
Chaired by former Attorney General Nicholas Katzenbach and former U.S. Circuit Judge John Gibbons, the Commission on Safety and Abuse in America’s Prisons opened shop in March and held its first public hearing in April in Tampa, Florida. The Commission is a private group, organized by the Vera Institute of Justice, in New York. It brings together 21 commissioners – civic leaders with law enforcement backgrounds, inmates’ advocates, former inmates, corrections professionals (from both jails and prisons), forensic psychiatrists, law professors, and others. Some of the commissioners are very high profile – they include William Sessions, former U.S. District judge and FBI Director; Marc Morial, former Mayor of New Orleans; Gloria Romero, California Senate Majority Leader; Gary Maynard, Director, Iowa Department of Corrections, American Correctional Association President-elect. Some are less well known – me, for example. Our common ambition is to understand the most serious problem in our nations’ nearly 5000 correctional facilities and recommend ways to make them safer for inmates, staff, and the public.
Both national and state blue ribbon prison reform commissions have a long history, of course. In the late 1960s, Chief Justice Warren’s interest in prisons led the American Bar Association to found a Commission on Correction Facilities and Services. One of its chairs, Robert McKay, also chaired a commission that examined the causes and course of the 1971 riot at New York’s Attica prison. The American Friends Service Committee produced an important set of prison reform recommendations in 1971 and its National Commission on Crime and Justice produced another set in 1993. ¹ In the late 1980s, California had its Blue Ribbon Commission on Inmate Population Management. More recently, the ABA had another commission, the Justice Kennedy Commission, whose recommendations were largely adopted by the ABA this summer.
Some of these and other prison commissions have accomplished a great deal; others less. In either event, history tells us that gains made are likely to erode over time. To the modern eye, jaundiced perhaps by truth in sentencing, the rise of supermax incarceration, and, most of all, by the increase of the number of incarcerated persons from about 360,000 in the early 1970s to over 2 million today, many of the Attica Commission’s recommendations – for example, to make confinement “the least that is administratively necessary,” including “the maximum amount of freedom, consistent with the security of the institution and the well-being of all inmates, for inmates to conduct their own affairs”, and to reform parole procedures ² – seem almost to come from another universe. And the Justice Kennedy Commission introduced its attempted intervention by looking back at its predecessor, writing in its final report that “for all of the resources and energy and talent devoted to its work, it appears that the ABA Commission on Correctional Facilities and Services left little lasting impression on the legal landscape, and its work was all but forgotten in the crime war of the 1980’s.” ³
But even a 10 or 20 year improvement seems to me extremely worthwhile. If this new effort is successful at identifying and promoting practicable ways to make correctional facilities more safe, humane, and effective, that could benefit millions of people in one year alone, and many more millions before it’s time for the next national prison commission. And perhaps the current climate – in particular, the huge modern inmate populations, the difficult budget situation in state governments, and the public outcry over rape in U.S. prisons and the maltreatment of prisoners of war abroad – is creating a perfect storm for reform. So from my perspective, blue ribbon commissions are looking pretty good, especially as litigated intervention in conditions of confinement grows more rare and more limited.
Our work is just starting. The first hearing was an introduction and overview. Commissioners heard testimony about what is known and unknown about the nature, extent, and causes of violence and abuse by and against inmates and staff in both jails and prisons. Some of the witnesses were former corrections officers, others former inmates, and still others were experts and advocates of various kinds. The second hearing, in New Jersey in July, will focus on medical care and on systemic and institutional problems (e.g., as overcrowding, the increasing use of isolation, and mental illness), that may or may not drive violence. The third hearing, in November, will examine the world of the corrections officer, looking at issues like recruitment, training, and support; the job stress and its consequences; and what happens to whistleblowers. A fourth and final hearing, in January, will hone in on oversight and standards issues. We aim to present recommendations to Congress, state governments, and corrections departments around March, one year after the Commission was formed.
More information about the Commission on Safety and Abuse in America’s Prisons can be found at www.prisoncommission.org
¹ Edwin C. Morgenroth [Chairman] et al., Struggle for Justice: A Report on Crime and Punishment in America (1971); National Commission on Crime and Justice, A Call to Action: An Analysis and Overview of the United States Criminal Justice System, With Recommendations (Linda M. Thurston, ed., 1993).
² New York State Special Commission on Attica, Attica (1972) , at xvi-xviii.
³ Report of the ABA Justice Kennedy Commission, at 4 (2004), available at http://www.abanet.org/media/jkcrecs.html.