United States. Congress. House. Committee on the J.

Taking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 online

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Online LibraryUnited States. Congress. House. Committee on the JTaking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 → online text (page 23 of 51)
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the criminal justice system is powerless is stop them. The murder
of even one citizen is too high a price for these foolish consent
decrees. We have seen over 100 persons in Philadelphia murdered by
criminals set free by the prison cap, including Officer Danny Boyle
whose father testified here today.



261



Unfortunately, the prison cap has also caused needless
financial losses to Philadelphia citizens and businesses.
Philadelphia businesses suffer thefts, losses not covered by
insurance deductibles, increased security costs, and increased
insurance premiums. How can we hope to attract retail businesses
to Philadelphia when store owners know that professional thieves
and burglars have a "get-out-of- jail-free card?" The prison cap in
Philadelphia is not simply a law enforcement issue — it is
inextricably tied to the financial viability of the City. The
perception by too many of our residents is that much of
Philadelphia law enforcement is ineffective - not because the
police are not trying — but because the judicial system is broken
beyond repair by the prison cap.

Philadelphia is, however, extremely attractive to the drug
business. The Philadelphia airport is now a favored location to
send out-of-state couriers smuggling just less than 50 pounds of
marijuana. Under the prison cap, we cannot hold a drug smuggler in
prison unless they are caught with more than 50 pounds of marijuana
(enough for over 200,000 joints with a street value of $224,000).
So the drug enterprise need not even bother with the inconvenience
of putting up any money to bail out the courier.

I remember one case involving a drug dealer out of jail
because of the prison cap. Undercover detectives from Montgomery
County, which is adjacent to Philadelphia, arranged a drug deal in
a parking lot along the road that forms the border between
Philadelphia and neighboring Montgomery County. Before the deal



262



took place, the defendant tried repeatedly to move the deal to the
Philadelphia side of the street because, the defendant explained to
the undercover detectives, he could go to jail in Montgomery County
but not in Philadelphia. The defendant nevertheless completed the
deal on the Montgomery County side of the street and, yes, he did
go to jail out there. He would not if he had completed his drug
deal on the Philadelphia side of the street.

while the prison cap has encouraged defendants to commit more
crimes and to thumb their noses at our court system, one must keep
in mind that individualized bail review - as opposed to the cap's
"charge-based" system — is essential for reducing the overall
costs to the criminal justice system. I would like to provide you
with an example that I believe demonstrates the problem. There
was a 29 year old trained helicopter mechanic with no prior record
who became involved with drugs and started committing burglaries in
Philadelphia. If processed under our state bail programs, he
probably would have been released without any bail for his first
and perhaps his second offense. But certainly by his third
offense, he would have been put in jail and then released promptly
through a conditional release prograim which would have required him
to participate in drug treatment and to stay out of trouble. If
this had happened, he would have been a candidate for probation at
sentencing. His total time in jail would have been a few days, and
he would still be working and paying taxes.

But this did not happen. This defendant could not be held in
jail under the federal prison cap until his tenth burglary. With



263



ten felonies, this defendant was no longer a candidate for
probation. Instead, he was convicted and sentenced to a maximum
term of ten years in the state prison, at a cost to the taxpayers
of approximately $30,000 per year. He can now get drug treatment
in prison, but it is less likely to be effective since he is
receiving it at a much later stage in his drug addiction.

The consent decrees in this case raise extremely disturbing
questions about whether a federal court ought to intrude so
unnecessarily into one of the most basic functions of state
government — its criminal justice system. In Philadelphia, the
prior mayoral administration agreed not only to release huge
numbers of pretrial defendants, it also handed over huge portions
of state governmental functions to the federal judge. This federal
judge now controls 224 million dollars in bond funds for the
construction of a new state prison and the new state courthouse.
Even though there is not a single prison bed in the courthouse,
every single construction change order requires federal court
approval. Recently, for excimple, the Philadelphia court system
wanted to expand one room in the courthouse for court interpreters.
This change, if done during the construction phase, would have cost
$5,000. But the federal judge did not like the proposal, so she
rejected it. This change will now be completed post-construction -
— at a cost to Philadelphia taxpayers of $30,000.

Quite frankly, this federal judge has micro-managed the
Philadelphia criminal justice agencies to death — there have been
debates over the placement of flag poles on our prisons, whether



264



the state judges' new chairs should be scotch-guarded, the candle
watt power of the light fixtures, and the choice of artwork at the
prisons. Even if some of these issues are important, the
fundamental question is who should be in charge of the debate —
the federal judge or state officials?

This raises a most disturbing aspect of federal consent
decrees in prison conditions lawsuits. With a consent decree, one
state political administration can arrogate unto itself powers it
does not have under state law. It can make political decisions,
embody them in the federal court order, and then insulate that
policy from change by the next duly elected mayor. Indeed, as it
stands now, prison caps can — and have been — unwillingly forced
upon states for as long as twenty years, with no power vested in
the state to be relieved of the burdensome weight of the decrees.

In Philadelphia, we are saddled with these incredibly
demoralizing and intrusive consent decrees that the present mayor
has never agreed to and that he has spent several years trying to
undo. Perhaps most egregious is the fact that because the prison
cap was part of an agreement between the prior mayor and the
lawyers for the inmates, the District Attorney has been held to
have no standing to challenge any of these issues.

While I, the current mayor, and other law enforcement
officials are committed to getting rid of the prison cap, we cannot
take the naive view that this step alone will solve the problem.
Elimination of the prison cap is the most immediate action that can
be taken to increase the effectiveness of law enforcement. Law

8



265



enforcement in a large urban area is tough enough; we cannot hope
to be successful with such the huge handicap of a federally-
enforced prison cap undermining our efforts. Individualized bail
review, and the power to punish those defendants who willfully
refuse to appear for their court hearings, are essential steps in
returning to our state court system the ability to dispense
justice.

In Philadelphia, we are committed to devoting adequate
resources to ensure humane prison conditions for inmates and safety
for our correctional officers. A new prison with 2,000 beds will
be completed in the next year. The City has committed itself to
building another new prison in the next few years. Humane
conditions are essential not only because they prevent a federal
takeover of our prisons but, more importantly, because we are
morally required to treat humanely all members of our society, even
those who break the law. But we must also recognize that resources
devoted for prisoners come at the expense of other programs
essential for our law-abiding citizens. Philadelphians do not have
the luxury of housing prisoners in conditions that far exceed the
standards of humane treatment at the cost of depriving needy, law-
abiding citizens of essential government services.

For these reasons, the National District Attorney's
Association, a bi-partisan organization of prosecutors from across
the country, has unanimously endorsed a resolution recognizing the
severe, adverse effects of federal prison conditions litigation and
strongly urging Congress to strengthen the provisions of last



266



year's Crime Bill limiting remedies in prison litigation. I
understand that Congressman Canady and Congressman Geren are
offering a new bill that would accomplish the major goals endorsed
by the National District Attorney's Association. I strongly urge
the Judiciary Committee to include provisions of the Canady-Geren
Bill as part of the 1995 Crime Bill.

I genuinely appreciate the invitation to speak here today.
For additional information on this problem, I have brought with me
a detailed history of the Philadelphia prison case, and copies of
the consent decrees. I strongly urge you to help all of us in law
enforcement with this overwhelming problem. With Congress' help we
can finally have the effective criminal justice system in
Philadelphia that our citizens have the right to expect but long
ago gave up hope of ever seeing.

Thank you.



267

Mr. SCHIFF [presiding]. Before turning to Mr. Bronstein, if I may
have your patience for 1 second. I would like to ask just one clarify-
ing point at this time, Ms. Abraham. Your testimony keeps refer-
ring to Philadelphia prisons, and I am not used to a city name
being attached to the word "prison." Usually cities or counties have
county jails, municipal jails, and State-run prisons. Could you just
take a brief moment and clarify?

Ms. Abraham. Philadelphia is a city and a county. The city and
the county are one in the same thing. So it is the county jail sys-
tem in the city and county of Philadelphia.

Mr. SCHIFF. But it is still the county jail for the holding in these
felony cases, the holding of the accused prior to felony conviction
in felony cases normally?

Ms. Abraham. And sentenced, even. We have both pretrial and
sentenced prisoners.

Mr. SCHIFF. Up to a year?

Ms. Abraham. Up to 2 years. But we also have an additional
problem, as was previously mentioned, that I had to go to court
and get a mandamus action to have our judges take prisoners with
multiple sentences all to the county and have them all aggregated.
Our judges wanted to keep them in the county prison. So it is up
to 2 years.

Mr. SCHIFF. But basically you are describing what we would usu-
ally term a county jail?

Ms. Abraham. County jail.

Mr. SCHIFF. All right. Thank you for that clarification.

Ms. Abraham. Thank you.

Mr. SCHIFF. Mr. Bronstein.

STATEMENT OF ALVIN J. BRONSTEIN, DIRECTOR, PRISON
PROJECT, AMERICAN CIVIL LIBERTIES UNION

Mr. Bronstein. Thank you, Mr. Chairman.

With your indulgence and the indulgence of the committee, I
would like to address a set of personal remarks to Detective Boyle
as a father.

I was very touched by his testimony. I am the father of five chil-
dren, and have three grandchildren. Two of my daughters have
been the victims of rather nasty muggings, one in the city of Phila-
delphia, one in the city of Boston. I felt anger and pain, not any-
where near what you felt given the loss of Danny. I just want you
to know I really feel for you.

Mr. Boyle. Thank you.

Mr. Bronstein. I think crime is a big problem in this country;
however, I am a little puzzled by the testimony of Detective Boyle
and District Attorney Abraham, because I thought we were here to
talk about H.R. 3, which has nothing to do with prison caps. Prison
cap legislation was passed last year by Congress, signed into law
by the President, and in fact the Philadelphia prison case and its
caps are currently the subject of litigation under that law in the
Federal court in Philadelphia. I thought we were here to talk about
title VII of H.R. 3, which has to do with amendments to the Civil
Rights of Institutionalized Persons Act, so-called frivolous prisoner
lawsuits and so on, I will address my remarks to those.



268

I want to first quote something by Prof. Norval Morris, who was
the former dean of the University of Chicago Law School, a long-
time advisor to the Federal Bureau of Prisons and the director of
the Center for Studies of Crime at the University of Chicago. He
wrote in his book, "The Future of Imprisonment," which I rec-
ommended to all of you and I quote, "Prison is, after all, the largest
power that the State exercises in practice on a regular basis over
its citizens. Perhaps if we can bring principle and justice to the ex-
ercise of the power of imprisonment, much else will improve in the
uneasy tension between freedom and authority in post-industrial
society. And that is what this is all about."

What is unique about the United States, and now joined by Can-
ada now that it has its own human rights charter, what has gen-
erally been unique about this country is our Constitution, our Bill
of Rights and the fact that the courts are there to protect us all,
all of us, not just prisoners, but all of us from the illegal use of
power by the State. And I use the term "State" broadly to mean
any part of the government. That is the great difference between
this country and most others, the role of the courts.

If you look at the history of the rise of fascism in Nazi Grermany
in the 1930's and in the Soviet Union in the 1920's and 1930's, the
first thing they did was to limit the power of the courts to review
the treatment of citizens by various government agencies and that
allowed fascism to rise.

The title of this section that we are here to address is stopping
abusive prisoner lawsuits. And one of the mythologies that persists
in this country is that the filing of prisoner lawsuits by prisoners
themselves is going off the scale, out of all control, increasing dra-
matically. And it happens not to be true.

Just a bit of data on that: There is no flood of prisoner litigation.
Prison population, to give you a sense of measure between 1982
and 1992, prison population in this country, just prisons, not jails,
increased 114 percent from 413,000 to 883,000. During that same
period, the filing of prisoner lawsuits increased only 65 percent. So
when you look at it on a per capita basis, the filing of prisoner law-
suits is not a flood. It is going down.

What is troubling about this piece of legislation, it seems to me,
is that the concept of justice is gone. In fact, in the amendments
to the Civil Rights of Institutionalized Prisons Act, the words "in
the interest of justice" are actually removed expressly by this legis-
lation. The advisory role for correctional employees and inmates
are removed expressly. Any attempt that existed in the law to fol-
low Democratic values has been excised.

Let me give you a little bit of reality and let me just question —
I know that the term "activist Federal judge" is much in use. It is
a popular phrase. It is like a song title.

It just isn't true. I have been a lawyer for 43 years. All of that
time doing civil rights and civil liberties litigation in Federal
courts. I believe I know more Federal judges in this country than
any other lawyer living today. And I have never met a Federal
judge who didn't hate prison litigation. It is their most feared,
feared kind of litigation. It is cumbersome. It goes on for a long pe-
riod of time, as Ms. Abraham has pointed out. It results in all
kinds of mail, personal mail to the judges by prisoners. They don't



269

like to do it. It is messy. They are forced to do it because of the
oath they take to uphold and defend the Constitution and Federal
judges intervene in State and prison and local prison and jails only,
only when the State and local prison officials and jail officials abdi-
cate their responsibility and allow their facilities to become uncon-
stitutional. But the judges don't like that litigation. So this activist
Federal judge thing is really in another sense a mythology.

A few pieces of data upon — because most of this legislation is ad-
dressing or is attempting to limit the filing of what we call pro se
lawsuits where prisoners file lawsuits themselves without lawyers.
That is what this legislation is intended to address.

We already have provisions in the law for the famous case that
Chief Justice Warren Burger used to talk about, the prisoner who
filed the lawsuit about four packs of cigarettes. That is covered by
existing law. So let's look a little more broadly at pro se litigation.

We do an annual study of State prisons and the courts and I
think the district attorney is familiar with that. There are 42
States today in which their entire State prison is under some form
of Federal court order or the major facilities in that State are
under Federal court order. Half of those cases were filed originally
by prisoners. In the famous Alabama case, a Republican judge,
Frank M. Johnson, a distinguished judge, entered an order finding
the entire State prison system unconstitutional. That lawsuit,
which I was privileged to be engaged in the trial of, was started
by the handwritten filing of an 80-year-old prisoner, Worley James,
to the judge complaining about some prison conditions in a very
inartful way that would have been dismissed under this legislation.
And that lawsuit ended the 19th century torture that was going on
in that prison system and brought that prison system into the 20th
century. And the same is true for half of the major litigation that
goes on in this country.

The Supreme Court, in the last 4 years — and this is not the War-
ren court. This is not what people would characterize as a progres-
sive or liberal court. I think it is an honest court. I think it is a
conservative court, but they are doing what they are supposed to
do generally. They have had four eighth amendment cases in the
last 4 years. Four of them: In 1991, Wilson v. Sider dealing with
prison conditions and the standard of proof there; in 1992, Hudson
V. McMillian, the standard of proof in a case where prisoners allege
beatings by prison officers; in 1993, Helling v. McKinney, a case
where a prisoner says he is being injured by secondhand smoke,
passive smoke in the prison; and in 1994, this past term. Farmer
V. Brennan, the rape of a prisoner in a maximum security prison
and the standard of proof of notice to prison officials.

Those are all of the eighth amendment cases decided by the court
in the last 4 years. Every single one of those cases was filed ini-
tially by a prisoner by him or herself pro se, without a lawyer. Two
of those cases, Farmer and Hudson, got to the Supreme Court sole-
ly on prisoner handwritten or, prisoner typed petitions, and in both
of those cases I was appointed to represent the prisoners in the Su-
preme Court. The other two cases were also pro se.

We were asked by the prisoner in one case to take it on and in
the other case we were amicus, or friend of the court. Four very



270

important eighth amendment cases which might not have reached
the court if this law were enacted.

So this concept that all prisoner lawsuits are frivolous is not
true. Current law takes care of the four packs of cigarette cases.
We don't need to expand those statutes and close the door com-
pletely to prisoners.

I would like to hear members of this committee, and I don't mean
to be disrespectful, to explain these provisions to my client, Keith
Hudson.

Hudson was the plaintiff in Hudson v. McMillian. He was a
young black man in prison in Louisiana. He is now out on the
streets because it turns out, by the way, that he had been in prison
illegally for 5 years. His sentence was illegal. He had served 5
years that he shouldn't have served.

During that time, he was — one night at 2 o'clock in the morning
after a verbal altercation with an officer about washing his clothes
in the toilet because he was not allowed out of his cell to get to
the laundry during the day, he was placed in leg irons by two ser-
geants. He was placed in a waist chain. He was then shackled to
the waist chain with handcuffs — 2 o'clock in the morning — removed
out of his cell, taken down a corridor where no one else could see
or hear them.

The two sergeants were each 6 feet tall and weighed over 200
pounds. Keith Hudson was a little taller than I am. For the record,
I am 5 feet 7, barely. Keith Hudson weighed 159 pounds. They took
him around this corner. And then in the sight of a lieutenant who
stood by, they beat him up. They didn't kill him. They didn't break
his bones, but they beat him.

Can you imagine the terror that that man felt? He filed a lawsuit
about that incident himself and could have been prevented from
having a day in court by this legislation.

Briefly, let me end by — and I wish the attorney general of Vir-
ginia was still here. A little more than 100 years ago, the Supreme
Court of Virginia in a case called Ruffin v. Commonwealth said,
and I quote, "at that time the prisoner is for the time being the
slave of the State."

Well, the law has changed. Our Supreme Court has said that is
not true. The prisoner is a citizen, has certain rights. The Bill of
Rights applies to the prisoner. Let us not march back. That is what
this legislation, this title does, it marches us back to the 19th cen-
tury. Thank you.

Mr. McCOLLUM. Thank you, Mr. Bronstein.

The Chair will yield my personal time and yield my time to Mr.
Scott of Virginia.

Mr. Scott. Mr. Chairman, I understand we have time con-
straints with other panelists so I will be extremely brief and —

Mr. SCHIFF [presiding]. You have the full 5 minutes, Mr. Scott.

Mr. Scott. I understand that we are pressed. So I will just make
a couple of comments.

Mr. Boyle's testimony has had the effect of reminding us that
when we make decisions on this panel it has an effect on real peo-
ple, and we need to do everything we possibly can to make sure
families in the future aren't afflicted with the kind of pain that you
have described today. And that is our challenge, to try to make



271

those decisions. And you have reminded us how real those deci-
sions are.

Mr. Boyle. I appreciate that. Thank you, sir.

Mr. Scott. Mr. Bronstein has indicated to us why we have a dif-
ficult situation. There are, in fact, some frivolous lawsuits filed, but
you don't know whether it is frivolous or not until it has actually
been heard. And you have to treat the frivolous lawsuits just like
the substantive lawsuits because you don't know which category a
particular lawsuit will be — which category it really fits under.

Ms. Abraham, I am a little — I am confused, as Mr. Schiff appar-
ently was, in the city and county and whatnot. With 50,000 out-
standing warrants, I assume the problem is overcrowding, is part
of the problem in Philadelphia.

Ms. Abraham. The allegation, Mr. Scott, is that the prison was
overcrowded.

Mr. Scott. How many cells would you need to alleviate over-
crowding?

Ms. Abraham. Well, let me put it this way

Mr. Scott. There are 50,000 outstanding warrants.

Ms. Abraham. Well, that depends a lot — remember, we are talk-
ing about a prison that has a dual function. A pretrial detection fa-
cility for those who cannot make bail

Mr. Scott. Rather than respond now, let me see if I can get

Ms. Abraham. Sorry.

Mr. Scott [continuing]. Some information from you for the
record after it is over. I would like to know how many beds you
have now and how many you would need to accommodate the de-
mand.

Ms. Abraham. Right now we have, if we permitted in Philadel-
phia — that is the county, city and county, if we could double cell
our present prison facilities, we would have 5,400 spaces. On top
of that, the Philadelphia city has just erected a new 2,000-bed facil-
ity and there are plans yet to build another facility of at least 1,000
beds or more within the next year or so. Now that assumes, how-
ever, that the present facility, Holmesburg prison, stays open.
There is a plan to demolish the oldest prison in Philadelphia, of
course Holmesburg prison.

Mr. Scott. Just to tie things up, that is 8,400 cells. You have
50,000 outstanding warrants.

Ms. Abraham, Yes. But many of them are not one-person bench
warrants. Some people have 10, 50. I think the figures are —

Mr. Scott. What is the population of Philadelphia?

Ms. Abraham. 1,600,000.

I think the figures, Mr. Scott, are really fairly plain in almost
every jurisdiction. The same people are arrested over and over



Online LibraryUnited States. Congress. House. Committee on the JTaking Back Our Streets Act of 1995 : hearings before the Subcommittee on Crime of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 3 ... January 19 and 20, 1995 → online text (page 23 of 51)