The law: a help or a hindrance to corrections?

Is the law corrections' friend or foe? It can be both. The Constitution is part of the law to which corrections is subject. While corrections professionals may, at times, disagree with the way in which a court has interpreted and applied the Constitution in a particular case, few would question the importance of operating a correctional facility in conformance with constitutional requirements.

More problematic are the laws that reflect policy decisions made by Congress and state legislatures. These laws, affecting both correctional and sentencing policies, can, depending on their content, either advance or undermine the work of those in the corrections field.

There are several steps that corrections professionals can take to help ensure that the law facilitates, rather than impedes, the advancement of the corrections profession toward standards of excellence. First, corrections personnel can ensure that policy decisions, such as those highlighted in this issue, that have an impact on corrections, are based on facts, not rhetoric or isolated anecdotes.

Several legal and legislative issues are particularly controversial. For example, should we be moving toward greater privatization of the field of corrections or less? Should the burdens of inmate litigation be limited by making it more difficult for inmates to obtain court-ordered relief (the approach of the Prison Litigation Reform Act, or PLRA) or by identifying and resolving problems that can culminate in litigation (the approach of the Constituent Services Office of the Missouri Department of Corrections)?

When collecting the facts related to these and other issues, corrections professionals should keep in mind that what is touted as a fact may not actually be one. Several years ago, while conducting a research project on a politically sensitive corrections topic, I asked to see and analyze the data underlying a cost figure that had been widely disseminated to the national media as part of one national organization's successful lobbying effort to move a piece of legislation through Congress. The organization refused to disclose the data, claiming that the data had been gathered only to provide feedback to its members. One can only wonder whether if corrections professionals and researchers were to scrutinize the data underlying this widely publicized figure, it would prove to be accurate or an affirmation of the saying, "There are lies, damn lies and statistics." The point to remember here is simple: Make sure that the "facts" presented to Congress or a state legislature are accurate.

The other step that corrections professionals can take to ensure that laws are the friend and not the foe of corrections is to become more involved in the legislative process. There are two facets to this involvement. First, individuals in the corrections field should be at the forefront in initiating legislation which reflects and advances best correctional practices. And corrections professionals must be actively involved in evaluating, and then responding to, other legislative proposals that could impact corrections.

Although the logic of this latter point would seem self-evident, the reality is that legislators often do not seek feedback from corrections professionals on legislation that will have a profound impact on the field. For example, this past May, the House of Representatives approved a bill which, if enacted into law, will set aside all conditions-of-confinement-related consent decrees that were in effect when PLRA was enacted in April 1996, even if corrections officials want a consent decree to remain in effect and even if conditions in a correctional facility currently are unconstitutional. Significantly, before the House approved this bill that could have far-ranging effects on corrections, no hearings were held during which corrections officials could present their views.

One of the articles in this issue profiles a bipartisan crime bill work group that has been established within the state of Texas to provide feedback to Congress regarding proposed legislation that will have an impact on the adult and/or juvenile correctional systems in Texas. The American Bar Association has endorsed another feedback mechanism - correctional management impact statements. When legislation is proposed that would affect correctional management, a correctional management impact statement analyzing the proposal's impact on correctional efficiency, workload, resources, and administrative and other costs would have to be completed. Through these and other means, corrections professionals committed to implementing best correctional practices can help steer the legislative train - instead of getting run over by it.

Lynn S. Branham is a lawyer, researcher and the American Bar Association's representative on the Commission on Accreditation for Corrections.