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Appendix A. “Prison Administration and the Eighth Amendment”
- University of North Texas Press
- Chapter
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“PRISON ADMINISTRATION AND THE EIGHTH AMENDMENT” [On November 9, 1991, less than one month before his death, Beto delivered this address at the Valparaiso University School of Law in Valparaiso, Indiana. This speech was part of a series of lectures given in celebration of the bicentennial of the Bill of Rights. This speech was Beto’s last formal speaking engagement.] Thirty Years of Criticism The past three decades have witnessed a consistent criticism of America’s prisons. In the 1960s, then Chief Justice Warren Burger, speaking before an annual meeting of the American Bar Association in Dallas, Texas, delivered a landmark speech on America’s prisons. He was highly critical of penal practices and concluded with the observation “there must be a better way.” In 1971, President Richard M. Nixon convened the first White House Conference on Corrections. In his opening remarks he referred to America’s prisons as “colleges of crime.” The once highly influential National Council on Crime and Delinquency ran an advertisement in popular magazines showing a young lad holding a smoking handgun, apparently as he was committing a crime. The picture carried the caption “Prisons do teach a trade.” 191 AppendixA The volume of prison litigation which began in the 1960s has continued to the present, when over thirty state prisons are either totally or partially under court order. Through the years Eighth Amendment cases under categories of solitary confinement or punitive segregation, inadequate medical care, the totality of conditions , and physical abuse have been brought against prison administrators , and in many cases the suits have been won in whole or in part by the plaintiffs. The publicity attendant upon these suits did not heighten the esteem in which prisons are held by the general public. On the contrary, the publicity regarding alleged or actual Eighth Amendment violations tended to confirm the public’s attitude toward prisons. Why do They Lose? It seems to me that the reasons prisons lose so many cases stems from four fundamental causes, which are as follows: poor cases; inferior counsel; failure to anticipate change; and excessive reliance on “expert witnesses.” Poor Cases I believe that the state or prisons and prison administrators frequently go into court with poor cases. They would be better advised not to litigate the issues raised. The facts frequently do not support the position held by the defense. A case in point is Jordan v. Fitzharris, a case originating in California and involving punitive segregation. Some years after the case was litigated, I read the facts and was appalled—appalled that a state presumably as enlightened as California would tolerate solitary confinement conditions so indefensible. For instance, there was no regular inspection of the occupants of the cells, nor any record kept of inspections made. Excrement was splattered on the walls day after day, occupant after occupant. California litigated the case from the district court level to the circuit level and on to the United States Supreme Court. 192 W A L K I N G G E O R G E [3.90.187.11] Project MUSE (2024-03-28 10:35 GMT) In the early days of the abandonment of the “hands off” doctrine prison administrators and assistant attorneys general would have been well advised to settle such cases. Inferior Counsel Secondly, it is my firmly held opinion that the state or prison administrators are usually represented by inferior counsel. This opinion is based in part on my experiences as a reluctant litigant in court and as an expert witness in at least eight jurisdictions. Penal institutions and prison administrators are usually represented by an itinerant assistant attorney general while the plaintiff or plaintiffs are represented by highly competent civil rights lawyers. A case in point is Gideon v. Wainwright. During the course of this litigation Louie Wainwright, then Florida’s correction director, was represented by three different assistant attorneys general , while Gideon’s attorney was the able Abe Fortas. His personal competency, coupled with the resources of his firm, made the outcome of the case almost inevitable. There was a period when I thought that my opinion of the state’s defense of prison cases was peculiar to me. However, in late 1974 I read a speech which Justice Powell delivered at a meeting of judges of the old federal Fifth Circuit Court of Appeals in New Orleans in May 1974. In that address he referred to the surprises which were his when he came to the United States Supreme Court. One of...