Capitol Chronicle

During the state Republican convention, Attorney General and U.S. Senate candidate John Cornyn was joking about the differences between Republicans and Democrats. "If you've actually used the phrase before, 'protecting prisoners' rights,'" Cornyn said, "you might be a Democrat." Cornyn was preaching to the choir, of course -- almost literally in this case -- and the bipartisan Texas devotion to slamming prison doors makes it hard to get too worked up about a bit of tasteless stump-speech humor. But the joke would be a good deal funnier if the attorney general weren't charged with protecting the rights of all the citizens of Texas -- even those incarcerated in the state's enormous prison system.

This month, Cornyn's sophomoric attempt at humor seems particularly untimely, as July 1 marks the end of the 30-year-long inmate lawsuit against Texas and its prisons, known originally as Ruiz v. Estelle and more recently as Ruiz v. Johnson -- Johnson being the current director of the Texas Dept. of Criminal Justice. At very long last, the inmate plaintiffs and the defendant TDCJ appear to have come to an agreement covering the last remaining issues concerning decades of abuse of inmates, and on Monday, federal Judge William Wayne Justice signed an order confirming the end of all direct federal supervision of the Texas prison system.

Justice's signature does not simply bring to an end 30 years of bitter legal conflict, but formally recognizes that after more than 100 years of institutionalized prison tyranny, the state of Texas is finally beginning to live up to its obligations under the laws and Constitution of the United States.

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Incomprehensible Fear

It's not entirely certain that Texas yet deserves this dispensation. Only three years ago, after hearing lengthy expert and inmate testimony concerning current prison conditions, Justice concluded that while the TDCJ had made much recent progress in lessening many of the system's worst brutalities, certain practices in TDCJ remained unacceptable -- that is, illegal. In particular, Justice pointed to the abuse of administrative segregation (i.e., solitary confinement) particularly against mentally ill prisoners, institutional indifference to prisoner-on-prisoner violence, and excessive use of force by guards. He concluded:

Texas prison inmates continue to live in fear -- a fear that is incomprehensible to most of the state's free world citizens. More vulnerable inmates are raped, beaten, owned, and sold by more powerful ones. Despite their pleas to prison officials, they are often refused protection. Instead, they pay for protection, in money, services, or sex. Correctional officers continue to rely on the physical control of excessive force to enforce order. Those inmates locked away in administrative segregation, especially those with mental illnesses, are subjected to extreme deprivations and daily psychological harm. Such practices and conditions cannot stand in our society, under our Constitution.

In 1999, the judge ordered that these particular elements of the system remain under federal control. That control is now being handed back to the state, with the reluctant acquiescence of the inmates' attorneys. After an investigation of current TDCJ conditions, attorney Donna Brorby said last week, "We found improvements in the areas currently under the court's jurisdiction. But we also found clear evidence of continuing violations of prisoners' constitutional rights in the form of malicious and illegal force by officers, a failure to protect prisoners from preventable rape and other victimization by prisoners, mutual abuse between prisoners and officers, and dehumanizing deprivation in maximum security 24-hour lock up."

As it did three years ago -- indeed, as it has since 1972 -- the TDCJ refused to acknowledge that these practices "rise to the level of unconstitutionality." But the prisoners' lawyers say they have seen sufficient improvement to rely on the state's promise to cooperate with the U.S. Justice Dept.'s National Institute of Corrections. Brorby acknowledged the insufficiency of such assurances, but said neither the lawsuit nor the institutions themselves can ever be sufficient to protect the basic human rights of those we incarcerate. "We are hopeful the progress we have witnessed since 1999 will continue," Brorby said, "but even the prison system's promise to hire experts to scrutinize its operations is not enough. The Texas prisons will never be safe and reasonable places for those who must live in them until the citizens of Texas exercise their rights and make the system more transparent, so they know what is happening inside their prisons."

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See No Evil

Which brings us back to John Cornyn, and the rest of us.

The attorney general's pandering to the worst in Texas voters is no surprise, because all too often it works. Cornyn's cynical dismissal of "prisoners' rights" as an oxymoron is commonplace in letters to the editor, and one of the reasons that Texas prisons have been this bad for this long is that all too many of us either think that's just fine, or else don't want to know about it. It's also true that the state has done its level best to make certain that Texas citizens know as little as possible about the actual conditions in our prisons.

A few months ago, the Austin American-Statesman published a distinguished series of investigative stories by Mike Ward and Bill Bishop about the dismal state of health care in the prison system. What the reporters were able to discover was outrageous in itself: systematic neglect and mistreatment of ill prisoners, the abuse of health care as a means of punishment, and stupidly dangerous mis-administration of medicines that can lead to viral and bacterial resistance and potential epidemics -- epidemics that will hardly remain within prison walls.

But Ward and Bishop also found themselves stymied at every turn for information about prison conditions -- information that should be public (and is in other states) but is kept secret in Texas by prison administrators, often with the cooperation of the Legislature. Asked to rule on the question of maintaining secrecy over this information, Cornyn -- who is generally more responsive on matters of open records -- routinely ruled against disclosure and in favor of prison administrators. It was as much this lack of information as the terrible conditions in the prisons that gave the reporters the title to their series: "Sick in Secret." After summarizing the continued stonewalling by the prison system and the UT System (whose Medical Branch is responsible for some of the worst prison health care), editor Rich Oppel wrote recently, "Any civilization is judged by how it treats its weakest."

It would be nice to believe, as the Ruiz settlement suggests, that the TDCJ and the state of Texas have finally learned their lesson, and that the state is civilized enough to monitor its own treatment of the people it incarcerates. The record is not encouraging. n