BILL IMPERILS JUDGE'S GRIP ON PRISONS

Delay Acts To Boost State

By Greg McDonald
Copyright 1997 Houston Chronicle Washington Bureau

WASHINGTON A lastminute provision added to the 1998 Justice Department
spending bill could hasten the end of the federal court's control over the
Texas prison system if President Clinton signs the legislation into law as
expected next week.

The provision clarifying language in the 1995 Prison Litigation Reform Act
is designed to make it clear that state lawmakers do have legal standing to
challenge the court's supervision of prisons and to force judges to act
within 30 to 90 days on motions to terminate their jurisdiction. It would
also require federal judges to accept that state legislatures have ultimate
authority over state prisons.

The changes, which were quietly slipped into the appropriations bill by
House Majority Whip Tom DeLay, R Sugar Land, are designed primarily to
force an end to federal District Judge William Wayne Justice's 25year
control over Texas prisons. But they could affect federal court
jurisdiction cases in 30 states where legislators have been prevented from
challenging court supervisions.

"These new amendments should end William Wayne Justice's reign of error
over the Texas prison system," DeLay said in a statement Thursday. "The
intention of the Congress is now unmistakable Texas should be in control
of its prison system, not a federal judge."

DeLay has taken aim at Judge Justice before. He recently cited him as one
of several "activist" federal judges who he said should be impeached by
Congress for taking positions contrary to popular views.

A Justice Department official said the changes in the litigation reform act
contained in the bill are under review, and no decision has been made about
whether to recommend that they be accepted or rejected by Clinton. But a
White House official said the possibility that Clinton will veto the
spending measure based solely on the DeLay provision "are slim."

But the Justice Department official, who asked not be named, said if the
department believes the changes aren't constitutional, it would not support
them if they're challenged in court.

Moreover, this official said, there also is some concern that the language
change could be an effort by Congress "to impede the ability of federal
courts" to intervene in state matters where important constitutional issues
are at stake. "In many ways this gets to the heart of the separation of
powers issue" between the judicial and legislative branches of government,
the official said.

Justice took control of the Texas prison system following a 1972 lawsuit by
inmate David Ruiz charging that the crowded and inhuman conditions
prisoners were forced to live under were unconstitutional. The federal
courts agreed, forcing the state to spend billions over two decades making
improvements.

Many of the issues raised in the Ruiz lawsuit were settled in 1992 and
Justice ended the court's daytoday monitoring authority over the state
prison system at that time. But he still enforces some restrictions on the
state, including a cap on the number of inmates housed in older facilities.

Attorney General Dan Morales asked the court in a motion last year to end
its oversight authority completely. But Justice has yet to rule on the motion.

In the meantime, state Rep. John Culbertson, RHouston, and state Sen. J.E.
"Buster" Brown, RLake Jackson, sought to intervene in the case, last year
arguing that Morales had failed to assert the state's 10th Amendment
sovereignty over the prison system and that Justice had no basis for
continuing any form of supervision. Justice has never ruled on the
CulbertsonBrown motion. But the 5th U.S. Circuit Court of Appeals in New
Orleans ruled earlier this year that the two lawmakers probably did not
have legal standing to intervene. In any event, the threejudge panel said
Justice would have to act on the lawmakers' motion before they would
consider an appeal.

The 5th Circuit ruling, with some urging from Culbertson and Brown, is what
prompted DeLay to insert clarifying language to the litigation reform act
into the Justice Department appropriations bill.

"The effect is to make it absolutely clear that Judge Justice must rule
promptly, that he's got to grant our intervention and rule rapidly on our
motion to terminate and return control of the prisons to the Legislature as
quickly as possible. And it essentially leaves him no discretion," said
Culbertson.

Culbertson and Brown have long argued that Justice's control over the
prisons has prevented the Legislature from enacting a plan to save millions
in new construction and operating costs by housing 5,500 inmates in some of
the older facilities, where the judge has imposed a population limit.

DeLay, along with House Ways and Means Chairman Bill Archer, RHouston, and
Republican Sens. Kay Bailey Hutchison and Phil Gramm, have made that
argument as well, in repeated attempts to pass legislation that would
severely limit federal authority over the prisons.

The American Civil Liberties Union intends to challenge DeLay's changes to
the 1995 Prison Litigation Reform Act if they become law. Jenni
Gainsborough, with the ACLU's Prison Project, described the changes as
"part of a trend" by Republican conservatives to limit the authority of the
federal courts.