The Real Governor

"Mattresses spread on floors in hallways and next to urinals. . .food often infested with insects . . . many toilets will not flush and are overflowing . . . overpowering odor . .. exposed wiring poses a constant danger . . . inadequately heated and ventilated . . . rampant violence and jungle atmosphere .. . wholly unfit for human habitation."

Such phrases ripped through the normal calm of U.S. District Judge Frank M. Johnson Jr.'s legal prose last week as he announced his findings in four lawsuits attacking the entire Alabama state penal system. To Johnson, the situation was so critical and responsible officials were so derelict that in the most sweeping order ever aimed at a state correctional system, he virtually took command of Alabama's prisons.

Judges have been imposing increasingly tough rulings on prison authorities in the past few years. But Johnson went well beyond his judicial confreres to lay down an extraordinarily detailed set of standards that Alabama's prisons and other penal facilities must meet--from a weekly change of bed linen and "three wholesome and nutritious meals" a day to almost halving the current 4,400 inmate population and nearly doubling the 383 guards at the state's four largest institutions. The judge ordered that every inmate be given "a meaningful job," a chance to take "basic educational programs," and an annual classification check to determine whether transfer to "a more appropriate facility"--perhaps a mental hospital--is necessary.

Enema Response. To make sure that his order is carried out, Judge Johnson in another unique act appointed a 39-member human rights committee and empowered it to hire a full-time consultant who will become the defacto superintendent of Alabama prisons. To eliminate any doubt, Johnson also warned state officials, including Governor George C. Wallace, that they could be held personally liable if they failed to carry out the directives "fully."

Wallace, presented with one of his favorite targets, fired back on national television that "thugs and federal judges have just about taken charge of this country." A big vote for Presidential Candidate Wallace, he helpfully added, might result in the "political barbed-wire enema" such judges need.

While Wallace was venting his dudgeon, state prison authorities and other officials were privately welcoming the Johnson order. Alabama's prisons are so bad that the state's counsel had admitted last August that conditions violated the Eighth Amendment's ban on cruel and unusual punishments. 'Concedes Robert Lamar, the Montgomery private lawyer representing the state of Alabama: "Many of the things the judge ordered are things the department of corrections has wanted to do for 50 years and couldn't because it was hamstrung by a lack of funds." Still, Lamar will appeal Johnson's ruling, contending that it exceeds his authority.

The prison takeover is only the latest of Johnson's encroachments on Alabama's power, and he has seldom been rebuffed by the Fifth Circuit Court of Appeals.* The result, say friends and critics alike, is that Frank Johnson is more the Governor of Alabama than George Wallace is. In response to various suits, Johnson has moved to overhaul and equalize Alabama's property-tax assessment system, reapportion legislative districts, and integrate schools and the state highway patrol. In 1971 the judge virtually took over the administration of state mental institutions. His broad and detailed decision led to a cut in mental-patient population from 10,000 to 4,255 and a jump in the budget for the institutions from $36 million before the suit was filed to $83 million.

Little Choice. The prisons, too, now seem certain to improve--at least somewhat. On the day Judge Johnson handed down his decision, Alabama voters approved a $6 million bond issue for new prison facilities, partly in response to earlier testimony and rulings in the cases Johnson has been hearing. But the new prison money will scarcely cover all of Johnson's requirements. The current state correctional budget is $15.7 million, and Alabama officials estimate it would take as much as $100 million more in the next four years to give Johnson what he wants.

Alvin Bronstein, executive director of the American Civil Liberties Union's national prison project, predicts that two of the state's four biggest prisons can never meet Johnson's standards and that the judge will almost certainly have to follow through on his threat to close them by year's end.

No one doubts Johnson's resolve.

He and Wallace--a classmate at the University of Alabama law school --have clashed before, and Wallace has frequently blinked. Author William Bradford Huie recently reported that in their first major confrontation, over a 1958 order to allow federal inspection of voter-registration rolls, then Circuit Judge Wallace had two county grand juries secretly turn over the records while publicly proclaiming he would never knuckle under to Johnson. Says retired U.S. District Judge Walter Hoffman, director of the Federal Judicial Center: "Frank constitutes the whipping boy down there. They beat up on him all the time; he's got sores all over his body. He's used to it. They like to leave the unpopular decisions to him."

But is that any way to run a state?

Despite legal scholars' concern over the recent leap in supervisory activity by the federal courts--in such cases as the Penn Central bankruptcy and the integration of Boston schools and the Chicago police force--they remain convinced that the judges have little choice about enforcing the law. "Judges like Johnson are reluctant to take on administrative activities because it involves them in detailed guidelines that require special expertise," says Stanford's Gerald Gunther. "But if Johnson is criticized for becoming an administrator, it is the lesson he was taught by a recalcitrant Governor Wallace in the school segregation cases." Where there is political reluctance to act, adds Yale's Thomas Emerson, "the court is the conscience of the community, enforcing its ideals." Prisons, in Alabama as elsewhere, have long been ignored by politicians, and judges have traditionally followed a hands-off policy. But now "we are emerging from that period," says Boston College Law Professor Sanford Fox, "and we are emerging with a vengeance."

*Last week that court upheld a ruling that had limited the number of inmates in Florida's prisons.

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