[Congressional Record (Bound Edition), Volume 149 (2003), Part 12]
[Senate]
[Pages 16080-16081]
[From the U.S. Government Publishing Office, www.gpo.gov]




           CONTROL OF STATE AND LOCAL POLITICAL INSTITUTIONS

  Mr. ALEXANDER. Mr. President, I recently had the opportunity to read 
a book cowritten by a friend and law school classmate of mine, 
Professor Ross Sandler. The book, ``Democracy by Decree,'' cowritten by 
Professor David Schoenbrod, is a fascinating discussion of an issue 
that has bedeviled our democracy since the 1960's: the control of State 
and local political institutions by the Federal courts.
  When I served as Governor of Tennessee, I had the opportunity to 
attend many meetings with my fellow Governors. I learned that at that 
time, the prisons in virtually every State were under the control not 
of the Governor but of the Federal courts, whose decrees governed 
almost all aspects of prison management. Many of these decrees had 
lasted for years and years, and most would continue in force past the 
time I left the Governor's mansion.
  Under our Federal system, the enforcement of criminal laws had been 
left to the States. With all of these decrees in force, however, 
instead of elected officials controlling a central aspect of law 
enforcement, a small group of lawyers and judges in each State could 
and would dictate penal policy by controlling the decrees. Nearly all 
these cases started out with the salutary purpose of protecting the 
constitutional rights of prison inmates to be free of prison brutality. 
They ended up going much further than the Constitution required or even 
permitted. Federal judges in some States were deciding how hot the 
coffee had to be in the prison commissary or how often the windows had 
to be washed. Judicial decrees of this nature had lasted so long that 
no one quite knew how to terminate them, and prison officials even got 
used to them. Not only had prison officials become comfortable with 
judicial management, they sometimes even colluded with litigants to 
force elected officials to provide a greater percentage of government 
resources to the penal system, even when the Constitution did not so 
require.
  When the situation of judicial abuse over the management of prisons 
came to the attention of Congress, this body responded effectively by 
enacting the Prison Litigation Reform Act, codified at section 3626 of 
title 18 of the U.S. Code. This law, largely developed by Chairman 
Hatch, Senator Specter, former Senator Abraham, and others, limits the 
period of time Federal judges could impose decrees managing State and 
local prisons. Under the act, a judicial decree governing prison 
conditions cannot remain in effect for more than 2 years, unless the 
issuing court reviews the conditions at the prison and affirmatively 
determines that the decree is still needed to remedy a current 
violation of law or the Constitution. The burden of proving the need 
for the continuation of the decree remains, as in the original suit, 
with the plaintiffs. The 2-year time limit applies equally to consent 
decrees and to decrees entered after trial.
  I believe the Prison Litigation Reform Act has been effective at 
restoring control of State and local penal facilities to the democratic 
branches of the States. According to Professor Sandler, many of the 20 
and 25-year-old decrees governing prison conditions have been 
terminated or modified. This very fact demonstrates that the 
constitutional shortcomings that had initially prompted many of the 
lawsuits had been fixed, but there was no effective mechanism for 
allowing political actors to resume control over these institutions. At 
the same time, however, there has been no evident impact on the ability 
of the Federal courts to protect prison inmates from current or ongoing 
violations of the law or the Constitution.
  What the Prison Litigation Reform Act accomplished so successfully 
and in a carefully balanced way should serve as a model for Congress to 
emulate in other areas of Federal law. Federal courts, prodded by 
activists and plaintiffs' lawyers, have taken control through 
negotiated consent decrees of multiple State and local social programs. 
The same problems that bedeviled Governors, State legislators, and 
prison administrators before the Prison Litigation Reform Act now 
confronts those democratically responsible actors who seek to manage 
foster care, special education, mental health services, Food Stamps, 
and welfare programs. In many States and local communities, any number 
of these programs is under direct judicial supervision. As was the case 
with prison decrees, many of the orders governing these myriad social 
programs have been in place for many years, binding elected officials 
to obligations imposed for a different set of circumstances, with no 
requirement that the court review the underlying facts to determine if 
continued judicial oversight is warranted or appropriate.
  As a former law clerk to one of this Nation's most eminent Federal 
judges, I know that judicial oversight can often be a crucial tool, 
sometimes the only tool, with which to vindicate people's 
constitutional or legal rights. I know that Federal judges did not seek 
to usurp the prerogatives of Governors, mayors, and legislators. Over 
time and often incrementally, however, they did so.
  Judges, in fact, were and are often reluctant to intrude into the 
operations of government programs. When they seek to encourage a 
negotiated resolution, however, they empower plaintiffs'

[[Page 16081]]

lawyers and government lawyers to negotiate and decide the outcome. 
Often, the parties to the negotiation find that they can make common 
cause, particularly in finding non-democratic means for improving 
programs and prying more money and authority from Governors, mayors, 
and legislators. Working behind closed doors, and unaccountable to the 
people, the lawyers and the activists negotiate elaborate decrees of 
hundreds of pages, often encrusted with horse trades that often have 
little or nothing to do with the law or the alleged violations but a 
lot to do with long-term agendas of the parties to the negotiations. 
Only a small cadre of people is involved behind these closed doors. And 
at the end of the process, these self-interested negotiators present 
the judge with a decree that reflects the ``consent'' of all parties 
but bypasses the democratic process. These decrees are put into effect, 
and often no one ever reviews whether the legal bases on which they may 
be founded remain viable. Instead, they remain in effect for years and 
years, tying the hands of elected officials, even if there is no 
violation of law to remedy.
  Building on the proven model of the Prison Litigation Reform Act, 
Congress can and should limit the harm that institutional reform 
decrees do to local democracy without precluding judges from 
vindicating legal and constitutional rights when necessary. Congress 
ought to consider legislation in different areas to limit judicial 
decrees in institutional reform cases to correcting only actually 
proven systemic violations of federal law or the Constitution. Further, 
Congress ought to allow courts to consider and make modifications of 
consent decrees in institutional reform cases any time a public 
official with an interest in the case has a good and compelling reason 
to seek changes. Finally, Congress should compel termination of decrees 
after a fixed time, unless plaintiffs demonstrate that current 
violations of law necessitating the continuation of the decree exist.
  Reform by Congress of the general procedures governing judicial 
decrees in cases seeking reform of State and local government 
institutions along the lines suggested by Professor Sandler in his book 
will strengthen our State and local democratic institutions while 
ensuring the continued protection of constitutional and legal rights. I 
hope to look for opportunities to pursue and effectuate some of the 
proposals I have outlined above as the Senate considers relevant 
authorizing legislation. I hope many of my colleagues will join me in 
this effort.

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