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Alabama Federal District Court Judge Frank M. Johnson, Jr.

Judge Frank Johnson Interviewed by Bill Moyers.

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Bill Moyers: ...[The Federal Court] has no business running a state's prisons, tax systems, mental institutions and schools.

Judge Frank Johnson: Well, I'll answer the last part of that question first. I do think a federal judge has no business running a state institution such as prisons and schools and mental institutions. But the state has defaulted in those areas or federal judge wouldn't find it necessary to step in. But I haven't stepped in to the point where I have run, in...in the...the popular sense of the word, any of the institutions.

I've imposed minimum standards that it was necessary for them to comply with in order to eliminate the constitutional problems that necessitated federal court intervention to start with. Federal courts have not engaged in what I consider unwarranted judicial activism. And all of those decisions and the decisions, in the main with very few exceptions, they are discharging the constitutional duty that's imposed upon them. De Tocqueville put it in a very good way when...

Bill Moyers: A judge always comes with his precedents

Judge Frank Johnson: He a... (laughs) ...he wrote this. The French historian came over here and studied our constitutional system. He said, "The American judge is brought into the political arena independent of his own will. He only judges the law because he's obliged to judge a case. The political question which he's called upon to resolve is connected with the interest of the parties, and he cannot refuse to decide it without abdicating the duties of his post."

And then he said this, "The peace and prosperity and the very existence of the union," talking about our union, "are invested in the hands of the judges. Without their active cooperation, the constitution would be a...the constitution would be a dead letter. The Executive appeals to the court for assistance against encroachments of the Legislature. The Legislature demands their protection from the designs of the Executive. They defend the Union from the disobedience of the states. They defend the states from the exaggerated claims of the Union. The public interest against the interest of the private citizens."

And it should be added that the courts...the federal courts defend the interests of private citizens against the government.

Bill Moyers: Well, I concede that historical, that history, Judge. It's been an argument ever since the first days, as you said. But the reason you've become controversial and judges like you – you're not alone in this – has been because you've moved into what...into what the scholars call structural reform whereby a judge tries to reorganize a bureaucracy in the name of constitutional values which he believes have been threatened.

In particular, I'm thinking of Newman vs. Alabama, in which you actually took over responsibility for the state prisons, and Wyatt vs Stickney, in which you took over the mental hospitals. And the question is, had the constitution been so interpreted that way in the past where a federal judge actually assumes the administrative power over a state agency.

Judge Frank Johnson: We've moved from, litigation that was involved with, property rights and, capitalism to litigation that's involved with human rights and, civil rights. The, people in this country have, become conscious of the, many, many, additional governmental controls that are imposed upon them...

Bill Moyers: A regulatory society.

Judge Frank Johnson: ...and...and the environment and...and every aspect of life. And they seek refuge in the federal courts. I don't mean government controls imposed just by the federal government. I mean by...by the state government. Litigation is no longer a bipolar thing between two parties. It's class action that's brought to vindicate the rights of classes. Our federal procedures, have been changed to, recognize and even in proper circumstances, encourage class action litigation. The class action litigation such as you mentioned for the prisoners, challenging the, conditions in the Alabama prison system.

The Newman case was one that, alleged the deprivation of medical, care and treatment. Pugh against James, was one that alleged Eighth Amendment violations because of the general conditions in the Alabama prison system. Wyatt against Stickney was one that alleged, on the behalf of the class of over five thousand people deprived of their liberty through civil proceedings in the State of Alabama and incarcerated in state mental institution for treatment purposes that they were not receiving treatment.

And so, they raised constitutional issues, they presented them to the Federal court, and there's no way for a federal judge to discharge his oath of office if he, tells those people, "I'm going to award you some damages for the things that they've done to you in the past." That's not much solace to a prisoner that doesn't have a decent or safe environment. Award a mental patient damages for what they've done to him by depriving him of, treatment in the past, won't get him anything in the future. So the litigation has not stayed the type that asked for redress for past wrongs.

Bill Moyers: Which is the traditional way.

Judge Frank Johnson: That's right.

Bill Moyers: Two parties come together and you say, "You were wrong, pay this person accordingly."

Judge Frank Johnson: The litigation now seeks prospective relief. It seeks, ah, the elimination of conditions that exist. In, most of these cases, they aren't particularly interested in damages. You rarely ever have a claim for damages where, in the case of a suit like the prison suit, like the mental health suit.

Bill Moyers: In both...

Judge Frank Johnson: The judge is confronted with this new type of litigation, and there's no way –and he shouldn't – attempt to dodge it.

Bill Moyers: In both cases, you said conditions in the mental institution and conditions in the hospitals were intolerable. When you looked into them, what did you find?

Judge Frank Johnson: Well, I found that, in the Bryce facility located in the Tuscaloosa area, which is the largest for mental institutions in the State of Alabama, over five thousand people had been committed there for, treatment for their mental illness. They had been committed by the courts of the State of Alabama. They'd been deprived of their liberty for the purpose of giving them treatment.

And the evidence showed that they weren't getting any treatment at all. They were being warehoused. And so the constitutional issue was presented: Were they entitled to treatment? And I held as a basic principle before we ever got into the type of relief that they may have been entitled to, I held that people that are committed through a state's civil proceedings and deprived of their liberty under the altruistic theory of giving them treatment for mental illness and then warehousing them and not giving them any treatment at all strikes at the very core of a deprivation of due process.

And that they were entitled if they were deprived of their liberty for treatment purposes, then they're entitled to some treatment that is medically and minimally acceptable. They're not entitled to the best treatment, and I emphasized the word "minimally" and I used it in that.

Bill Moyers: But what criteria did you use? I remember Judge David Bazelon of the Court of Appeals...

Judge Frank Johnson: That's exactly right.

Bill Moyers: ...In Washington had said that his criteria for intervention goes beyond just minimum standards of, of justice and fairness. And he said his test was a gut reaction to a situation in which he said, "Does it make you sick?" Now when you went into those prisons and into those mental institutions, did it make you sick?

Judge Frank Johnson: I've never been in a prison. I've never been in an mental institution. I didn't find it necessary to go there.

Bill Moyers: Well, how could you...?

Judge Frank Johnson: I did not want to get a gut reaction. I did not want to base my decision on any emotional feeling I might get from visiting those places. I wanted to base it on the evidence that was presented in the court where in an adversarial proceeding where both parties had an opportunity to present evidence and be heard.

Bill Moyers: And the evidence...?

Judge Frank Johnson: And the evidence in this case, in the state mental case was overwhelming that they weren't getting any treatment, they were being warehoused.

Bill Moyers: Well, how...?

Judge Frank Johnson: You had sixteen hundred people out of five hundred [sic] that, wouldn't benefit from any treatment at all, that were taking space in this mental hospital. They were geriatrics. The only thing that they were suffering with was...were the ravages of old age. They should have been in a nursing home. You had a thousand of the five thousand that weren't mentally ill at all. They were retardates that should have been in an institution for...for retarded people and subjected to some program designed to habilitate them.

Bill Moyers: And you didn't need to go there to discover that?

Judge Frank Johnson: Absolutely not. I needed not to go there. A judge shouldn't go, visiting a place that he has under scrutiny in a lawsuit and base his decision in whole or in part on what he's observed, unless he's going to submit himself to cross-examination. He should do it on the basis of evidence that's presented during the adversarial proceeding. So I've been criticized for not going to Bryce Hospital. I've been criticized for not visiting the penitentiaries. But that's not the approach, in my judgment.

Bill Moyers: How did you determine what appropriate relief consisted of? I mean, the court order you issued from that bench was incredibly comprehensive. It covered everything from the amount of space allotted to each patient, the number of toilets, the frequency that each patient had to be bathed, down to requiring that toothbrushes be provided and toenails cut.

Judge Frank Johnson: Federal judges are trained in the law. They're not penologists, we're not psychiatrists. We're not educators that can run the schools, yet we've entered schools' orders setting forth in detail what your faculty ratio should be and what your pupil ratio should be, what kind of a facility you should have.

If you had an ideal situation, you would have these cases decided by the penitentiary penologist. And the mental institutions, psychologists and psychiatrists. In the school cases, by educators. But federal judges have the job of doing it. But we have, a tremendous number of aides. We don't fly blind in these. We have experts. For instance, in the Wyatt/Stickney case, I had experts – that's the mental health case...

Bill Moyers: Right.

Judge Frank Johnson: ...come to this court and testify from that witness stand from all over the United States, ranging from, the, ah, Karl Menninger from Topeka, Kansas, to, psychiatrist and psychologist and mental institution expert from California to Maine. And I based my decision and I based these minimal standards on their testimony.

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