ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Sunday, December 8, 1996 TAG: 9612100169
SECTION: EDITORIAL PAGE: 3 EDITION: METRO
SOURCE: ROSS SANDLER AND DAVID SCHOENBROD
CONGRESS has presented municipalities across the country with an unexpected and much-needed legislative gift, the Prison Litigation Reform Act.
By placing strict limits on what federal courts can do to improve conditions in state and local prisons, the act is a watershed in the struggle over whether judges or elected mayors and legislators should have the power to make municipal policy.
In many of our cities, court decrees still control vast areas of municipal policy, from special education to housing for the homeless.
These judicial decrees undercut democracy and allocate huge chunks of municipal budgets for policies that elected officials haven't chosen and that have often proved counterproductive.
The Prison Litigation Reform Act provides an especially instructive model for what Congress and the state legislatures should do to restore authority to local officials. The act revolutionizes the administration of state and municipal prisons nationwide.
It is a revolution longed for by many localities. Twenty-four prison agencies across the country chafe under population caps imposed by the federal courts, and many more are subject to court orders regulating prison conditions in general.
In Michigan, for example, a federal court controls the warmth of prison food, the brightness of prison lights, the comfort of prison air and water, the availability of electrical outlets in prison cells and the professional credentials of prison barbers.
Michigan consented to the decree in 1982 and is still wrestling with it 14 years later.
The act makes two fundamental changes in the authority of federal courts over prisons.
First, it puts a stop to open-ended decrees by imposing a term limit. Now, unless plaintiffs can show ongoing violations of law, no prison decree can last more than two years if a local government objects.
Second, the act places boundaries on the content of decrees, forbidding them to impose obligations simply because judges, plaintiffs and officials think they are a good idea.
Federal courts now must gear decrees to fixing particular constitutional violations.
With breathtaking simplicity, Congress restored the prerogatives of local self-government. At the same time, it confirmed the courts' duty to uphold constitutional and statutory rights.
Congress should broaden the act to include other policy areas. Furthermore, legislatures across the country should enact similar laws for state courts, which also issue their share of overreaching decrees.
In the first place, such a change would make courts recognize the primacy of democratic decision-making. It would make courts recognize the bounds of their own authority and would be more consistent with deep-seated norms of judicial conduct.
Courts ordinarily refuse to take on political questions, even when invited to do so by the legislature. This respect for the doctrine of separation of powers should also lead them to curtail the damage that their decrees do to the democratic process.
Second, the making of government policy in a democracy should be open to all those affected by it.
In giving vast powers to plaintiffs' attorneys, decrees exclude a range of other concerned parties. In contrast with the rough and tumble of the normal political process, only official litigants get to speak or offer evidence in the courtroom.
Finally, policies need to change to meet changing circumstances.
Decrees that last for decades make it difficult for governments to solve new problems and to experiment with different means for solving old ones.
Placing term limits on all decrees would keep mistaken policies from being carved in stone. Even before Congress and the state legislatures get around to curbing the baneful effects of judicial decrees, the courts can do a great deal on their own.
There's no reason why judges today can't confine decrees to remedies for proven violations, provide for them to be reopened automatically on a fixed date and terminate them when plaintiffs can no longer show ongoing problems.
Again, such an approach would be far more consistent with our Constitution's strong emphasis on the separation of powers.
Courts should try to force policy choices back into the hands of elected officials, where they belong. Legislators may not always think this a favor, of course.
Decrees very often free them from responsibility for the most intractable problems, placing the burden of compliance on mayors or governors.
But legislators are the ones with the political and budgetary power to forge real solutions. They are far more likely than courts to appreciate both the limits of delivering on good intentions and the need to distribute limited resources reasonably among a wide range of worthy undertakings.
By exercising such restraint, judges would show a much deeper understanding of their constitutional duty.
Under the U.S. Constitution and its cousins in the states, government is directly accountable to the people. When a court goes beyond its responsibility to protect rights and needlessly constrains political officials in matters of policy, it undermines that accountability.
Whatever other rights a court protects, it must always consider the fundamental right of the voting public to elect officials who will have some room to deal with complex issues like crime and welfare, education and housing.
That is what democratic self-government means.
Ross Sandler and David Schoenbrod are professors at New York Law School. A longer version of this article appears in the autumn issue of the Manhattan Institute's City Journal. Knight-Ridder/Tribune
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