REVIEWS & COMMENTARY

Wall Street Journal

Closed Doors, Open Season
December 31, 2002
By Thomas J. Main

Ten prisoners in a Philadelphia prison sued Mayor Wilson Goode in the early 1980s claiming that conditions there violated their rights. The result was a consent decree, in 1986, that limited the number of prisoners who could be held in the city's jails.

And the result of the decree itself? "A blood-chilling crime wave," write Ross Sandler and David Schoenbrod. In 18 months, "police rearrested 9,732 defendants released because of the consent decree." They were charged with "79 murders, 959 robberies, 2,215 drug dealing crimes, 701 burglaries, 2,748 thefts, 90 rapes 14 kidnappings, 1,113 assaults, 264 gun-law violations and 127 drunk-driving incidents." This is only one of the hair-raising stories in "Democracy by Decree," (Yale, 280 pages, $30) a critique of astonishing efforts to govern society through the miracle of what the authors call "institutional reform litigation."

The tactic is simple: A crusading lawyer notices that some public entity -- a prison, a hospital, an environmental or child-welfare agency -- is performing below expectations, as the lawyer sees it. He then finds "parties" willing to say they have been injured and searches for a legal hook -- a statute, regulation or right whose violation offers the basis for a lawsuit.

And legal hooks abound. Congress regularly passes laws with sweeping guarantees vaguely phrased. Did the Americans with Disabilities Act (1990) really require curb ramps at every intersection within just five years? Did the Clean Air Act of 1970 really promise that the air will be entirely clean by the end of the decade? (And when, precisely, is air "clean"?) Can schools immediately offer a free and appropriate education to all children with learning disabilities, as the Education for All Handicapped Children Act (1975) seemed to require?

These may be worthy goals, if they are indeed required by statute. But they are not easily achieved. Indeed, state and local governments are likely to act on them as they act on everything else: incrementally, tentatively and piecemeal. Thus it is often possible for public-interest lawyers to make a prima facie case for one violation or another. Not that they need do much more than that. Many public officials -- rather than submit to trial and the risk, however slim, of draconian punishment -- settle such cases by entering into consent decrees with plaintiffs.


Consent of the sued? Public officials would rather settle than fight.

 
From this point on, as Messrs. Sandler and Schoenbrod show, the powers of elected officials "are eroded in favor of a negotiating process between plaintiffs' attorneys, various court-appointed functionaries, and lower echelon officials." This controlling group, as the authors call it, "works behind closed doors" to draft complicated decrees. Its members bargain, log-roll and cut deals, and the judges before whom the original suit was brought rarely intervene.

Under such circumstances, the concerns of ordinary public managers get short shrift. In Jose P. v. Ambach, for instance, a consent decree dictated the terms of "every aspect of [New York's] special education, from staffing to teaching and collecting data." With appendices, it filled 515 pages.

And once a consent decree is agreed on, it is very difficult to change, even in the face of dramatic developments. In 1971, for instance, the New York City Housing Authority was accused of failing to give rent-delinquent tenants due process. The city signed a consent decree that imposed elaborate, court-supervised procedures for eviction. Twenty years later, the crack-cocaine epidemic hit public housing, and everyone -- city officials and law-abiding tenants alike -- wanted to speed along the eviction of drug-dealers.

The decree's controlling group, however, objected to quicker procedures. Its members even disputed "whether living next door to a drug dealer actually increased the risk of criminal violence." It took two years of legal wrangling before the Housing Authority could make its changes, and by then the tenants had hired new lawyers to fight "against the lawyers who theoretically were representing them."

It should be said that Messrs. Sandler and Schoenbrod do not oppose all public-interest litigation. They note that lawsuits have helped put an end to racial segregation and to the abominable conditions in various prisons and mental institutions. They accept court intervention in even less dramatic cases, as long as some common-sensical reforms are put in place, like opening controlling-group meetings to the public and making it easier to change outdated provisions. They note as well that the rights asserted by Congress are too often "aspirations rather than practical possibilities." In any case, making minute policy adjustments is best left to the political branches of government, not the courts.

One of the book's most striking anecdotes illustrates this. In the early 1990s, New York tried to install sidewalk toilets, only to run into the problem of making them large enough for wheelchairs -- as required by regulators interpreting federal law -- without making them inadvertent criminal dens. At a public meeting, the spokesmen for the toilets' maker, whose designs were apparently not generous enough, found themselves confronted by angry citizens in wheelchairs. Then in walked another advocate, whose disability, the authors write, "was that he grew to be only about three feet high."

"I don't care about wheelchair accessibility," this man declared belligerently. "I can't reach the higher toilet seat in the wheelchair-accessible toilets. What about that?"

To this question, the law has no good answer.

Mr. Main is an assistant professor in the School of Public Affairs of Baruch College in New York.

©2003 Wall Street Journal