He wrote the Swann vs. Charlotte-Mecklenburg opinion, the 1971 Supreme Court ruling upholding busing and other efforts to promote school desegregation, gave at least limited support to the notion of affirmative action, and was with the majority in the 1973 Roe vs. Wade abortion decision. Not bad for a conservative appointed to the court by Richard Nixon to stem the tide of judicial liberalism.
But the thing I remember about former Chief Justice Warren Burger, who died Sunday at age 87, is what may have been his chief failure: prison industry.
It was his dream that America would one day see what had long been so obvious to him: that it made no sense (and did a great deal of harm) to warehouse prison inmates, virtually enforce their idleness and then release them _ penniless, skill-less and bitter.
Suppose instead inmates could work during their incarceration _ not in the "work release" programs available to a small number of prisoners nearing their release dates, but in prison industries.
Burger already was an experienced observer of international prisons _ in Scandinavia, in the Soviet Union and in the People's Republic of China _ when, in 1983 he put together a small group of Americans to visit prisons in Sweden and Denmark. I went with him, along with two members of Congress, a state representative, two industry leaders and an official of the AFL-CIO.
It was his hope that we would see for ourselves the miracle of prison industry _ "factories with fences," in his phrase _ and do what we could to help the idea take root in the United States.
We saw prisoners running commercial laundries whose customers included hospitals and government agencies. We saw inmates fashioning toys, or making furniture, or constructing modules for prefabricated houses. Their busy hands were a striking contrast to the mind-numbing inactivity so common to U.S. prisons, nor was it hard to figure out why they were willing to work so hard. They were earning an average equivalent of $2.50 an hour (out of which they paid some of the costs of their incarceration) and either helping keep their families off the dole or else putting away a little nest egg for their eventual release.
Burger, experienced as he was, knew just what questions to ask of our Scandinavian hosts to elicit the answers that would instruct us. Through his probing, we learned of the importance of gainful employment to discipline. We learned how the relatively short sentences of Swedish and Danish prisoners left control of the prisons not in the hands of the hardened inmates, as here, but in the hands of staff. We learned how easily the keepers and the kept got along with one another.
We learned the truth of what former D.C. corrections chief Kenneth Hardy used to say, that inmates are "in prison as punishment, not for punishment." The men we saw on our little trip were deprived of their liberty and precious little else.
Couldn't we build on the example? Couldn't we help the chief justice in his campaign to have inmates do decently paid, confidence-developing, skill-building work?
Well, less than we might have imagined. The labor unions, it turned out, saw prison industry as competition for their members. They might allow prisoners to go on making license plates or in-prison uniforms, but not anything that had the prospect of displacing garment workers or print-shop workers or the like. Private business executives took much the same attitude. Using prisoners to paint street and highway signs or to make uniforms for non-prison use would be a direct threat to their own bottom lines.
There have been, in the years since that trip, a few fledgling efforts at prison industry: a little telemarketing here, a little desk-refinishing there, and, very occasionally, a small amount of commercial assembly work. But mostly prisoners have been permitted to do only the jobs that nobody else wants to do, and in industries _ like license-plate making _ that no one else wants to own.
Incidentally, though it didn't occur to us then, there is another difference between the way we and the Scandinavians handle incarceration. They work at keeping sentences short and as unoppressive as possible, doing their best to return to the society people capable of thriving in it. We tend to imagine that every failure of our criminal justice system is the result of too little incarceration, which leads us to build more and bigger prisons with more and more people to work in them.
They promote prison industry. We promote prisons as industry.
Washington Post Writers Group