John Hill for the State of Texas

(9)Managing the Reform of Prisonsand Youth Detention Schools

(9) Managing the Reform of Prisons and Youth Detention Schools When I included in my death penalty argument before the Supreme Court of the United States a reminder to the justices they were not a “superlegislature ,” I was referring to more than just Texas’ death penalty laws, and I was referring to more than just the Supreme Court. I was also expressing my frustration and concern over federal judges’ newfound eagerness to expand the U.S. Constitution to justify substituting their personal vision in place of our legislature’s judgment on how a government agency should operate. The source of that frustration was federal court litigation attacking our state’s four largest programs involving institutional care: the prison system , young offender facilities, mental hospitals, and facilities for the mentally disabled. Any one of these cases would have been a massive litigation load—the prison case by itself became the most comprehensive civil action suit in correctional law history.1 To have four of them hit my office at the same time was an unprecedented call on the resources of the attorney general’s office. The goal of these cases was to establish a new constitutional right. The people who were the intended beneficiaries of this legal right were criminals sentenced to prison time or committed to mental hospitals, juveniles committed to state facilities by a juvenile court judge, and persons suffering from mental illness or congenital mental disability who were committed by civil courts to state facilities. The new right being sought was a right to treatment, a right that would impose on institutions housing these people a level of care to be established by judicial decree. Determining what level of treatment to provide inmates historically was the province of our legislature. An institution created by the legislature would have its mission defined by law, its operation reviewed each (192) Chapter 9 legislative session as part of the budgeting process, and its governing board members held accountable through the confirmation process when the Texas Senate reviewed a governor’s appointees. That is the way the system had operated since our legislature began establishing these facilities 120 years earlier. The notion that criminals, juvenile offenders, and people with mental deficiencies could demand a certain type or level of treatment or care from the government was, to most adult Americans in the 1960s, unthinkable. It conjured up the humorous aphorism “the inmates are running the asylum ,” which expressed the generally held belief that people being confined in any sort of government facility were not entitled to any say in how the institution was operated. Any constitutional rights they enjoyed before incarceration were believed to be severely limited when they entered the institution, and they were not expected to enjoy free contact with the outside world. Prison wardens and superintendents of juvenile and mental facilities censored incoming and outgoing mail and telephone calls, limited visitors’ access, and filtered news available from newspapers, radio, or television. Books with information about the laws governing their condition could be viewed only in the library. Texans, through their elected legislators and other officeholders, accepted —as did most Americans—these restrictions as necessary components of a system designed to isolate criminals, juvenile delinquents, and mentally unstable people. However, like the ambivalence in most of our public policies, Texans and Americans were repelled by the notion of these outcasts being physically abused. Keep them locked up, yes, but don’t take advantage of their defenseless status by torturing or beating them. To this unstable balancing act were generally added two other admonitions : minimize the costs and prevent escapes. On top of those layers of self-protective public sentiment was added an even more ambivalent commandment that derived from our religious and enlightened cultural heritage—rehabilitate these confinees, help them overcome their weaknesses . Unfortunately for the managers of these institutions, that last commandment was put into written law, while the public’s sentiments were not. Our legislators and state government leaders on one hand wrote into the law a caring and humane vision. But when it came time to spend public funds on facilities to house these unfortunates and on staff to carry out the law’s demands, the message was “keep costs low.” It was this gap between lofty ideals in the law and the grubby reality Prison and Youth Detention Reform (193) of applying the law that created an opportunity for a small group of lawyers...