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NEW YORK — In 1972 Alvin Bronstein made a risky career move. The native of Brooklyn was living in New Orleans, working with a small law firm that he had formed the year before. The director of the American Civil Liberties Union, Aryeh Neier, called Bronstein and asked him to join the ACLU and take up the nascent cause of prisoner rights. It was a tempting offer. Bronstein had spent much of the �60s fighting for civil rights in the Deep South. He relished a new challenge but also realized that prisoner rights would be a tough assignment. At the time, American prisons were a legal black hole; citing federalism, and giving general deference to prison officials, federal courts had long refused to intervene in prison disputes. Still, Bronstein was inclined to get involved. He had seen the decrepit state of prisons firsthand, during his days counseling incarcerated civil rights protesters. So, in the spring of 1972, Bronstein loaded up his belongings and moved to Washington, D.C., where he formed the ACLU’s National Prison Project. The American prison population owes Bronstein a debt of gratitude for switching careers. In his 30-plus years as a prisoner advocate, he has filed scores of class actions that have forced government officials from Rhode Island to Hawaii to modernize their prisons. “[Bronstein] brought the deplorable state of our prison facilities to national attention,” says Michael Hamden, executive director of North Carolina Prisoner Legal Services Inc. “[Bronstein's] work has made a dramatic improvement for hundreds of thousands of prisoners.” Adds Stephen Bright, the director of the Southern Center for Human Rights: “Al has done as much . . . to improve prisons through litigation as anybody in the country.” Bronstein’s story is one of attorney-driven social reform on a grand scale. In the world of prisons, Bronstein and other attorneys (along with judges) have been the prime agents of change — they deserve much of the credit for prisons that are newer, cleaner and less crowded. Legislators and prison officials, meanwhile, have been swept along in the tide of reform, often unwillingly. But as sometimes happens when lawyers make waves, legislators have erected jetties. In 1996 Congress enacted the Prison Litigation Reform Act of 1995, which made it much harder to file prison lawsuits. Prisoner advocates have suffered yet another blow — America’s increasing devotion to a lock �em up penal philosophy. In the last 20 years, America’s prison population has exploded. This prompts a question: For all his success at improving prison conditions, has Bronstein lost the bigger war? No way, says the 75-year-old lawyer, who is far from giving up his decades-long battle. “Were it not for [the Prison Project's] litigation,” he says, “you would have 4 million [Americans] in prison today [instead of 2 million].” Bronstein’s crusade began with baby steps. At its launch, the Prison Project had only three lawyers — Bronstein and two part-time associates, one of whom hadn’t even passed the bar — and a budget of $90,000. Bronstein initially focused on filing modest, single-issue lawsuits. One of his earliest causes, for example, was freedom of religion. In the 1970s, many black prisoners were converting to Islam, and they had difficulty gaining access to the Koran and other religious materials. Bronstein intervened and won some key cases for Muslim inmates. Early on, he also turned his attention to due process, namely the lack of it in prisons. In the early �70s, for example, there were almost no rules governing parole procedures. Bronstein won a significant victory in Novak v. McCune, a 1973 Virginia federal court case, which resulted in the U.S. Parole Commission publishing a rule book setting out its parole procedures. Prison reformers gained firmer legal footing in 1974 with the U.S. Supreme Court’s landmark ruling in Wolff v. McDonnell. The plaintiffs, Nebraska prisoners, argued that they had been punished unfairly and arbitrarily. The court held that prison officials could not discipline inmates without first adhering to constitutional due process standards, such as allowing prisoners to call witnesses at disciplinary hearings and to cross-examine their accusers. Writing for the majority, Justice Byron White uttered what prisoner advocates say is the most important line in the history of the prisoner rights movement: “There is no iron curtain drawn between the Constitution and the prisons of this country.” Bronstein was thrilled with Wolff, but he also concluded that it was not enough –prison officials could issue stacks of rules, but all this process still would not ensure that prisoners lived in humane conditions. So, in 1974, Bronstein expanded his ambitions. “We began to look for a case that could really get at the heart of prison conditions and make a change in the lives of prisoners,” he says. Bronstein got his opportunity in 1974 when U.S. District Judge Frank Johnson, Jr., of Montgomery, tapped the Prison Project to represent Alabama prisoners who had complained to the judge about prison conditions. Bronstein filed a consolidated case, James v. Wallace, in Johnson’s court, which adopted a novel legal strategy. “We decided to look at Alabama’s prison system as a piece of pie,” he says. “Cut eight to 10 wedges in the pie. One wedge is overcrowding, one is visitation rights, another is sanitation. . . . Most of those [issues] have no constitutional significance by themselves. . . . But if you can prove that as a result of a totality of conditions, prisoners were being made less able to function when they left prison than when they went in, then you had violation of the Eighth Amendment [prohibition against cruel and unusual punishment], and a judge with broad equity powers could fix every wedge in the pie.” To attack the issues, Bronstein assembled a team unheard-of in prisoner litigation. He hired eight experts to analyze every aspect of the Alabama prison system, and he had a photographer rigorously document the deplorable conditions that the experts discovered, including rat infestation, overflowing toilets and prisoners forced to sleep standing up because of overcrowding. At the trial in 1975, Bronstein buttressed his expert testimony with firsthand tales from prisoners of rape and violence. One witness explained that prisoners performed dental extractions on each other, because trained dentists weren’t available. In August, Johnson sided with the prisoners, ordering a reduction in the state prison population, an improvement in medical care, and the introduction of a host of rehabilitative programs. The judge also ordered a particularly egregious building destroyed; images of prisoners taking sledgehammers to the building were broadcast about a week later on Walter Cronkite’s CBS evening newscast. “It was a great moment for us,” Bronstein recalls. And it led to other great moments. Bronstein’s “totality of conditions” approach in Alabama revolutionized prison litigation and became a model for prisoner advocates. The broad scope of the suits — which are often filed as a class action indictment of an entire state prison system –authorizes judges to enter equally broad, remedial reform, says Michele Deitch of Austin, who has been involved in prison reform as an attorney, court monitor and prison consultant. “The idea [with a totality case] is that after you win, the case just begins,” she says. “Judges will fashion a consent decree that can begin a 20-year process of [judicial] oversight.” Johnson’s order in Alabama, for example, lasted until the late 1980s. In the wake of totality litigation, judges, in effect, take the place of legislators and prison officials as they impose prison population limits, order prisons to be built or condemned, and generally monitor prison operations. “We began to see a lot of totality suits in the �70s and �80s,” says Pace University School of Law professor Michael Mushlin, who teaches a course on prisoner rights and has written a three-volume textbook on the subject. “At one time in the early �80s . . . there were 40 states under court order. Al served as a clearinghouse for [the totality cases]. A lot of those cases were his cases.” Twenty-eight of the cases, in fact, were handled by the National Prison Project. Indeed, Bronstein created a reform juggernaut. After Alabama, he turned his attention to Rhode Island. “We knew we had to go north or people would think this was a southern phenomenon,” he says. Bronstein won a totality case in Rhode Island in 1977, Palmigiano v. Garrahy, which capped the state prison population and instituted improved medical care and educational programming. The decree was largely vacated in the mid-’90s, but state prison officials still consult with Bronstein to ensure their compliance with Palmigiano. “Quite frankly, [Bronstein] brought about remarkable changes in the system here,” says Anthony Cipriano, chief legal counsel for the Rhode Island Department of Corrections. “We have great respect for Al.” After his Rhode Island victory, Bronstein opened totality litigation fronts in Tennessee, New Mexico, Colorado, Hawaii and beyond. He confronted every manner of neglect: rampant stabbings and rapes; inmates forced to use pails as toilets; prisoners assigned two to a cell in a space the “size of a Ping-Pong table” (according to one judge). In a Tennessee prison, according to a court order, a former crop duster, with no medical training, was acting as the prison doctor. Bronstein’s litigation would often lead to improvements in an entire state prison system. The project’s resources grew accordingly. By the �90s, the project’s staff had grown to nine full-time attorneys (its current staffing level), and its annual budget had mushroomed to $2 million. Vincent Nathan, an Ohio attorney who has served as a special master in many prison reform cases, says that Bronstein and other pioneering prisoner advocates achieved two major objectives: They established baseline standards for American prisons, and, equally important, they educated corrections professionals. In the early days of prison reform litigation, wardens strongly objected to court meddling, says Nathan, who teaches corrections policy at the University of Toledo. “No one [in the correctional establishment] objects anymore to running a reasonably fair prison,” he says, crediting prison litigation with this transformation. “Prisons have learned how to train their staff and learned that [proper training] didn’t impede their disciplinary systems.” Nathan adds, “Al Bronstein is a figure of historic importance. . . . He is a giant.” But Bronstein would be brought down to size with the Prison Litigation Reform Act. The legislation was aimed in part at limiting pro se prisoner suits, but it was also designed to clamp down on totality cases and to limit judges’ authority in such cases to issue sweeping consent decrees. “Many [critics] thought the use of consent decrees [in prison cases] had gone too far,” says Morris Lasker, a former U.S. district judge in New York, who has presided over prison reform class actions. He now sits as a visiting judge in Boston. “Bronstein and other prison litigators were victims of their own success,” says Stephen Bright, about the PLRA. The legislation dealt a blow to totality litigation in several key regards. First, it capped attorneys fees for prisoner advocates at $112.50 per hour (the statutory rate has since increased to $169). In 1995, the last year Bronstein actively litigated prison cases, he typically recovered $450 per hour in cases. Throughout the �90s, he says, he was taking in about $1 million in court-awarded fees per year, which accounted for about one-half of the Prison Project’s budget. But with Congress slashing compensation, attorneys say, prisoner advocates are now much less willing to take on totality class actions, which are complex and costly. “Lawyers can’t afford to work at [the statutory] rate even if they recover 100 percent of their time,” says Michele Deitch, “so many lawyers who used to handle those cases no longer do so.” Private attorneys have been forced to pick up the slack, she says, by handling prison cases on a pro bono basis. Congress erected yet another hurdle by stipulating in the PLRA that judicial consent decrees in prison cases must be terminated after two years unless a judge finds that continuing relief is necessary. In other words, Bronstein says, the PLRA forces lawyers who represent prisoners to come back to court after two years and essentially re-prove their cases. The prison litigation landscape has changed dramatically thanks to the PLRA. Says Bronstein: “The Prison Project is now back to handling narrow, usually single-issue cases.” And that’s a good thing, says Rep. John Culberson, R-Texas, who helped draft the PLRA. It allows state officials, he says, to reassert their proper Tenth Amendment authority over prisons. “The [PLRA] has successfully deterred liberal state attorneys general and their friendly plaintiffs and ACLU prison lawyers from entering into [prison] consent decrees,” says Culberson. It is a distressing development to Bronstein and others in light of the still troubling state of American prisons. Yes, they are now generally newer, tidier and less congested. But there are also a lot more of them. Pace law professor Michael Mushlin, who worked as a prisoner advocate in the seventies, says that many attorneys long assumed that reform litigation, by forcing prisons to be “more constitutional,” would make prisons costlier and thereby force governments to operate fewer prisons and warehouse fewer prisoners. “That could not be further from the truth,” Mushlin says. Politicians have been more than willing to pay for constitutional prisons, he says, and private, for-profit prison operators have also helped fuel prison construction. “We helped eliminate the 19th-century dungeons in this country,” says Bronstein. “Now you have lousy 21st-century prisons. Lousy because we still face overcrowding. We have one-fourth of the world’s prison and jail population. And you have supermax prisons, where there is minimum contact between prisoners and between prisoners and staff.” Bronstein is referring to the new breed of supermaximum-security prisons, where many inmates spend most of their days in solitary confinement; suits have been filed challenging the supermax prisons. Bronstein is no longer on the front line on prison litigation. He retired from the Prison Project in 1996, but he remains active in prison reform. He is still consulted about cases that he filed while at the project, and he is on the board of Penal Reform International, where he is trying to import international human rights standards into American prisons. He also travels frequently to speak on topics such as the evils of private prisons or alternatives to incarceration. Much work remains in the arena of prison reform, and Bronstein isn’t about to rest on his laurels. Nathan Koppel is a senior reporter for The American Lawyer, a Recorder affiliate based in New York.

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