CONSIDER these descriptions of prison conditions: Horses are used to herd inmates as if they were cattle, and a prisoner is forced to fight with dogs, then is beaten with a bullwhip.
Cells are filthy, dilapidated, and unfit for human habitation.
Medical facilities are the ``modern equivalent of a medieval pest house.''
Are these tales from Stalin's gulag or the Punishment Pavilion in Castro's Isla de Pinos? Unfortunately they relate to certain jails and prisons in the United States within the last 25 years. These ``sordid aspects of our prison systems,'' in US Chief Justice William Rehnquist's phrase, are not of course manifestations of totalitarian political brutality. They stem from the fact that our generally humane citizens simply do not know what goes on behind prison walls, and the keepers of the public treasury feel no great pressure to put tax dollars into improving, or even repairing, the prisons. Also, wardens and guards work under conditions of daily risk, and the constant tensions blur the boundary between necessary control and unnecessary brutality.
In recent years the courts have weighed in heavily to deal with prison abuses. In an era sensitive to civil rights it was inevitable that the awful deprivations inflicted in come penal institutions would stimulate the judicial conscience.
The Eighth Amendment forbids ``cruel and unusual punishment.'' The Supreme Court has ruled that the wanton infliction of pain and the deprivation of basic human needs amount to cruel and unusual punishment.
But critics see the judges as sentimental social engineers, destroying the ability of wardens and guards to deal with the realities of prison life. The other camp argues that judges have simply required obedience to the Constitution, a noble objective. So the courts are either blunderers or paragons, depending on which side you choose.
John J. DiIulio, a professor of politics at Princeton, has written extensively on these matters. He is editor and one of the authors of a new book, ``Courts, Corrections, and the Constitution,'' a collection of papers by social scientists and legal scholars.
Professor DiIulio's purpose is to show ``how to enhance judicial capacity'' to deal with prisons. He concludes that judges should proceed ``in an incremental but decisive fashion.''
Begging the professor's pardon, his advice is a bit superfluous. When a judge decrees drastic changes in a prison system, and meets typical resistance, he has no choice but to be patient and to proceed by slow steps. He cannot hire his own wardens or guards, or appoint his own governor or legislature. Incrementalism is not theory; it is instinct.
But this does not detract from the book's great value in providing histories of important prison litigations. The most controversial of these was set off by a crude handwritten petition addressed to federal district Judge William Wayne Justice in Texas in 1972. The plaintiff was David Ruiz, a chronic offender who stabbed several of his fellow inmates and had been placed in solitary confinement. Ruiz's petition grew into a lawsuit lasting more than 15 years, which affected the entire Texas prison system.
IN 1980, after a lengthy trial, the judge issued a detailed opinion finding rampant brutality by the guards, overcrowding so severe that a dormitory resembled ``one giant bed,'' assault and sexual abuse between inmates so terrifying as to drive some prisoners to self-mutilation to remove themselves from the general prison population.
The sweeping court-ordered changes went too far in the view of prison officials. Their resistance produced a partial vacuum in discipline and sharply increased violence. Fifty-two inmates were murdered. Over 700 were stabbed. However, the judge persisted in his demands. The turmoil subsided, and what emerged was a far more safe and humane prison system than Texas had in 1972.
If these are the results, judicial intervention should not occasion criticism. Ironically, DiIulio himself finds much to criticize. To him the Texas judge is a micro-managing meddler. But DiIulio's description of the case makes one think that he took a pair of scissors to the facts. He ignores the flagrant abuses that were the prime reason for the judicial remedy. The author of another chapter, equally vexed, largely dismisses the prison-case judges as headline seekers. These dissenting opinions are of little weight against the quantity of hard evidence found elsewhere in the book, which resoundingly supports court efforts in this field.
But there is another side and it deserves serious attention. A recent report issued by the US attorney general, while it approves judicial action to correct ``horrendous conditions,'' nonetheless complains that the courts have overshot their target and are now second-guessing competent and humane prison administrators in order to advance fine points of penological theory. The attorney general particularly warns about judges who seek to solve the problem of overcrowded cells by threatening to release ``excess'' inmates into the streets.
The DiIulio book and the attorney general's report, taken together, show what a difficult area of law this is. The judiciary must be willing to persevere in making sure we do not operate dungeons. At the same time it must maintain a deference toward the officials the people have elected. The judiciary must not imagine itself to constitute all three branches of government.