The primary title of the colloquium for which this paper was prepared is “The Prison Overcrowding Crisis.” Two aspects of this title deserve mention. First, it is widely acknowledged that our prisons are now in crisis. Apparently a relatively new addition to the English language, “crisis” is used in pathology to describe “[t]he point in the progress of a disease when an important development or change takes place which is decisive of recovery or death; the turning point of a disease for better or worse …. ,, In the mid-sixteenth century, Traheron defined the term thusly: “Crisis sygnifyeth judgemente, and in thys case, it is vsed for a sodayne chaunge in a disease.” Common usage now refers to “[a] vitally important or decisive stage in the progress of anything; a turning point,’ and, reflecting perhaps Traheron’s emphasis on “judgemente,” “a state of affairs in which a decisive change for better or worse is imminent; now applied esp. to times of difficulty, insecurity, and suspense ….” Thus, in the early seventeenth century Sir B. Rudyard reported that “this is the Chrysis of Parliaments; we shall know by this if Parliaments live or die.” A contemporary chronicler might well substitute “prisons” for “Parliaments.” We might also hope that decisions being made at this crucial time will better—not worsen—the monumental problems of prison crowding. The points to stress are that we are making decisions about prison crowding; that this is a turning point; and that we may change affairs, either for better or for worse.
A second striking point about the title of the colloquium is that we persist in addressing the problem of “overcrowding.” The term “over-crowding” strikes me as redundant, and quite possibly dangerous. Is prison crowding acceptable, only becoming unacceptable when the situation is so terrible as to require constitutional action? Consider an analogy: I may be bad, and you may be “more bad” than I; but that does not render me”good.” We are both unacceptable.
What exactly is the prison crowding problem? How large a problem is it? What can be done about it? What has been tried? What has worked, and what has failed? Is it possible to develop remedies that focus solely on the institutions themselves, or must we consider the problem of crowding in correctional facilities within the larger context of the entire criminal justice system? These are the issues addressed in this paper.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
DOJ guidance for mentally impaired detainees in immigration removal proceedings should be amended to provide counsel at earlier signs of incompetence.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.