WHAT THE RUIZ RULING WROUGHT

New challenges confront prison system that has undergone profound changeover

AUSTIN -- Wayne Scott can recall the early days of prison life in Texas,
nearly three decades ago when he was a new guard.

It was just before a federal judge's decision to intervene in the
operations of Texas prisons and order the most extensive penal reforms in
U.S. history.

"We had one doctor for the entire prison system," said Scott, who hired on
as a guard in 1972, the same year inmate David Ruiz filed a complaint that
launched the reforms.

"Of course, the system was a lot smaller then, but it's still hard to
imagine that you would have one doctor for an entire prison system," said
Scott, who now is executive director of the Texas Department of Criminal
Justice.

Having just one doctor meant that sometimes inmates performed surgery on
each other. But that was just one of the inhumane conditions that existed.

Inmates also were crammed into 45-square-foot cells, sometimes three or
four to each one. While staffing varied widely, Scott remembers that when
he was a captain at the Wynne unit in Huntsville there were only 17 guards
on the day shift for 2,600 prisoners. To keep control, the guards enlisted
"building tenders," a hierarchy of inmates who helped maintain order
through brutality and threats.

Today, thanks to U.S. District Judge William Wayne Justice, prison cells
hold no more than two inmates each. There is a medical staff of hundreds of
doctors, nurses, psychiatrists, dentists and other specialists available to
prisoners through managed-care contracts with the University of Texas
Medical Branch and the Texas Tech University Health Science Center.
Prisoners visit clinics an average of 24 times a year -- three times the
number of doctor visits that auditors say some state employees make.

Staffing ratios are twice as high as they were in the pre-Ruiz era, with an
average of one correctional officer for every six inmates, according to
TDCJ figures.

Educational, vocational and recreational programs are provided, as is
counseling for everything from alcohol abuse to sexual perversions.
Prisoners have access to televisions, radios, weight-lifting machines,
basketball courts and classrooms, some of which put Texas public school
facilities to shame.

Getting to that point has cost billions of dollars and wrenching changes.
But Scott says that in retrospect, the changes have been good.

"At the time, they were a little hard to stomach. But looking back over the
years, as we've institutionalized all those reforms, I think it's been good
for us."

Some of the changes and the efforts to minimize future costs, however, have
raised a whole new challenge.

New high-security prisons in Texas and other states are designed as stark,
high-tech, super-secure facilities that house a growing number of inmates
in solitary cells with almost no human contact. Texas prison officials
characterize the practice as a way to keep predatory inmates and gang
members away from guards and other prisoners, although at times the
potential victims are housed in solitary, too.

Judge Justice says the practice is unconstitutional.

On March 1, writing in his latest court order, Justice said, "The extreme
deprivation and repressive conditions of confinement of Texas'
administrative segregation (solitary confinement) units have been found to
violate the prohibition against cruel and unusual punishment."

In his ruling, the judge refused to relinquish oversight of the last
elements of the prison system still under his grip. The state plans to
appeal to the 5th U.S. Circuit Court of Appeals in New Orleans.

But the issue of solitary confinement is emerging as, perhaps, the next
federal battleground over prisoner treatment, particularly given the
national trend toward building such prisons.

To understand how Texas reached this point, it is important to understand
what it took to get here.

In the early 1980s, Justice first ruled that Texas' overcrowded prisons
were unconstitutional, and he set population limits. He also banned the use
of building tenders, the inmate overseers. Justice's action created a
vacuum in prison management.

Inmate gangs sprang up. Violence soon followed, and by the mid-1980s prison
officials came close to losing control of the entire system when the number
of inmate killings spiraled. The department recorded 25 slayings in 1984
and 27 in 1985. Nearly all of the killings were attributed to gang warfare.
At that point, prison officials began using administrative segregation to
maintain control and minimize the violence. By comparison, in 1998 there
was only one homicide within the system.

As violence escalated in the '80s, state lawmakers, responding to their
constituents' anti-crime fervor, began ratcheting up penalties for crimes
- -- putting more people in prison for longer periods of time, but without a
commitment to build more prisons.

To outsiders, the Texas criminal justice system seemed to be in chaos.
Faced with a court-imposed population cap, TDCJ began refusing to accept
new prisoners.

A backlog quickly swamped county jails around the state; the counties sued
the state, and prison administrators found themselves facing the wrath of
yet another federal judge who ordered them to pay the counties millions of
dollars a day for housing state felons.

Bursting at the seams, roiling with violence inside, the prison system
responded with a revolving-door policy of corrections management -- all
with legislative approval. Convicts were paroled out the back door so fast
that many offenders served only a minuscule portion of their sentences so
that TDCJ could take more prisoners in the front door.

Doing time became so easy, many criminologists said, that imprisonment was
a calculated risk well worth it to many criminals. And violence on the
streets escalated.

It would be several years and billions of dollars in taxpayer commitments
before Texas recovered from years of ignoring the need for more space.

Largely because of the reforms from the Ruiz suit, the Texas Department of
Criminal Justice today is an industry whose growth has been nothing short
of staggering. TDCJ has seven times the number of lockups it had before
Ruiz and 15 times as many guards.

The number of adults doing time is more than 146,000 -- the highest per
capita incarceration rate in the nation. And even when adjusted for
inflation, the agency's $1.6 billion current annual budget has greatly
outpaced the fourfold increase of the state's economy for the same time
frame. Health-care costs have grown exponentially, topping $266 million a
year.

Allen Hightower, the former state representative from Huntsville who
chaired the House Corrections Committee during most of the Ruiz-reform
years, said no one has put a pencil to what the changes cost taxpayers. He
estimates the cost at more than $10 billion; more than $2 billion paid for
new prisons.

Justice's mandates were so extensive that his handprint is clearly evident
in every area.

It was Justice who set the minimum square footage for cells and minimum
staffing ratios. His rulings on what types of inmates could and could not
be housed together, as well as the numbers of showers, kitchens, day rooms
and the like -- even softball fields -- have affected the size and design
of prisons.

Likewise, his orders for better medical care and access to law books have
not only bloated the budget but also the bureaucracy. The list goes on.

"That was a reform period in our history, as it was for a lot of the
country," Scott said. But the Texas reforms were far more comprehensive
than in other states, he added.

Both he and Hightower said the lawsuit unequivocally was the impetus for
change, that without being hauled into court Texas likely would not have
altered its way of doing things.

"I would not have carried the bond packages to build all those new prisons
and hire these employees if we were not under court order, because my
constituents were not asking for them," said Hightower, who retired from
the Legislature in December and now heads the state's health maintenance
plan for inmates.

Despite the billions of dollars in improvements TDCJ has made, Judge
Justice earlier this year refused to relinquish final control over some
aspects of prison management. And his voluminous order indicates that while
much has changed for those doing time, much remains the same.

After three weeks of testimony in February, Justice found that medical and
psychiatric care of inmates -- though at times plagued by negligent and
inadequate treatment -- was not unconstitutional.

But as reluctant as Justice may have been to let go of his supervision of
inmate medical care, he left no doubt that he finds grave problems with the
state's use of "administrative segregation." Commonly referred to as "ad
seg," the practice is one that TDCJ characterizes as a security measure in
which predatory felons are placed in what amounts to solitary confinement
to protect guards and other prisoners from their violence.

Inmates housed in such facilities, Justice wrote, still live under
conditions allowing a substantial risk of physical and sexual abuse from
other inmates, as well as malicious and sadistic use of force by
correctional officers.

"Despite its institutional awareness of these conditions, TDCJ has failed
to take reasonable measures to protect vulnerable inmates from other,
predatory prisoners and overzealous, physically aggressive state
employees," the judge wrote.

Nearly three dozen prisoners testified about the violence behind bars.
Although TDCJ rebutted the claims, Justice found them "vivid and gruesome"
and credible.

One inmate told of being hospitalized nine days with a ruptured spleen
after three convicts beat him in his cell. Another told of being attacked
in the cell of the prisoner he was paying for protection. Another testified
that a guard had offered to supply the razor blade when the inmate
threatened suicide.

Several others described how they had been repeatedly raped -- sometimes by
gangs or other groups of predatory inmates -- after repeatedly being
rejected for protective custody by prison staff.

Citing testimony from experts speaking on the inmates' behalf and other
court rulings on unconstitutional incarceration, Justice described ad seg
as a "frenzied and frantic state of human despair and desperation."

They are, he suggested, places of torture -- particularly for mentally ill
prisoners. "Texas administrative segregation units are virtual incubators
of psychoses-seeding illness in otherwise healthy inmates and exacerbating
illness in those already suffering from mental infirmities," the judge wrote.

And despite all the state's efforts to provide an intricate bureaucracy of
policies and procedures meant to address the court's concerns, Justice
said, its efforts failed to transcend to quality of care.

While recognizing the necessity for some use of ad seg as a means of
discipline and security, he said that TDCJ's use of it is unconstitutional
because it is being used "to house mentally ill inmates whose illness can
only be exacerbated by the depravity of their confinement."

"Whether because of a lack of resources, a misconception of the reality of
psychological pain, the inherent callousness of the bureaucracy, or
officials' blind faith in their own policies, TDCJ has knowingly turned its
back on (the most) needy segment of its population," he wrote.

Yet prison officials and most criminologists note that today's offenders
are considerably different from those who populated penal institutions
three decades ago. They are younger, angrier and far more violent.

Those characteristics, coupled with very lengthy sentences and restrictive
parole policies, are turning the population violent inside, experts say.

All of which points to a growing need for more administrative segregation
cells, according to prison administrators. Wesley Johnson, a criminal
justice professor at Sam Houston State University, said he is completing a
survey of all wardens of maximum security facilities in Texas on their
perception of the need for more ad seg units.

No fan of high-security facilities, Johnson said preliminary data indicate
that the vast majority of wardens believe more such prisons should be built.

"They're very concerned with safety and the isolation of troublesome
inmates," Johnson said.

At the same time, experts question whether such "super-seg" units are
making prison life safer. He points to figures showing that violence inside
prisons continues to escalate, despite a greater number of prisoners being
held in lock-down status.

"It's the byproduct of a bad approach," Johnson said.

The physical design of the units creates more isolation, and there is less
interaction among inmates and between inmates and staff.

These facilities are not designed for personal growth, he added.

"In essence, we are creating monsters who eventually will be released back
to the streets," he said. "It's not a bright future."

The future for taxpayers is not all that bright, either. Policy analysts
with the Nelson A. Rockefeller Institute of Government at the State
University of New York expect more growth in inmate populations, primarily
because of public sentiment to crack down on criminals.

In Texas alone, institute researchers found, criminal justice spending grew
at a faster rate than national spending overall, which doubled between 1983
and 1995, the time period covered in their study.

And while Florida was the only state whose growth rate exceeded that of
Texas, the Lone Star state still has the highest per capita spending on
criminal justice.

California, which is the only state with a larger inmate population than
Texas has, ranked a distant 19th in per capita spending, according to the
Rockefeller Institute.

Prisons chief Scott also sees no chance of the prison system shrinking,
even as crime falls.

"I think if you look throughout the history of the prison system in the
state of Texas, I don't think you've ever seen it shrinking," he said.
"It's the will of the people of the state, and they have made it very clear
and I hear it over and over again: They want people locked up."

Philosophically, though, Scott thinks that if Texans want to address the
problem of crime in the long term, they need to focus on the education of
young children at risk of turning to crime.

"I like what I see the Legislature doing this time in regards to education
and early intervention in education," he said. Referring to Senate Bill 1,
Gov. George W. Bush's initiative to end social promotion, Scott said he
thinks the effort will pay "big dividends in the future."

Hightower, the former state representative from Huntsville, also ponders
the what-ifs.

"Had we spent all that Ruiz money in education, we might not have near as
many gang-bangers and undereducated kids."

Or nearly as many prisoners.

"That," he added, "will be an age-old argument."

Monday: Quality of guards suffers from high turnover and inexperience.