U.S. Backs States in Lifting of Prison Caps : Crime: Barr says the federal government will help in efforts to eliminate court-ordered population limits at overcrowded facilities.

Outlining a major policy shift, Atty. Gen. William P. Barr said Tuesday that the Justice Department will be “receptive” to states’ efforts to remove court-ordered population caps at overcrowded prisons.

Barr, in a hard-line speech to the California District Attorneys Assn. in Palm Springs, said that many federal judges went too far in the 1970s and 1980s in deciding what the Constitution requires to remedy purported “cruel and unusual punishment” in prisons.

“If we want to reduce violent crime, we must press ahead unrelentingly with the policy of incapacitating violent criminals through incarceration,” Barr said. “The choice is clear: More prison space or more crime.”

The speech, a copy of which was made available here, was delivered at a time when President Bush has seen his popularity fall as Democratic opponents have questioned his ability to solve domestic problems, including crime. His critics have noted that even as prison populations have set new records, the nation’s crime rate has continued to rise.

Barr’s policy shift drew immediate criticism from Elizabeth Alexander, associate director of the American Civil Liberties Union’s national prison project, which litigates on behalf of prisoners’ rights.

“He is wrong about the law, but more importantly he’s wrong on the humanity of it,” she said.

Alexander expressed concern that Barr’s speech “may forecast a return to the days” of William Bradford Reynolds, the former assistant attorney general for civil rights, who had stopped the federal government from intervening on behalf of prisoners.

In the past, the Justice Department frequently has sided with inmates in cases alleging poor prison conditions. The Justice Department’s civil rights division has taken part in obtaining consent decrees to correct prison conditions in Texas, California, Michigan, Guam, the Virgin Islands and three local jails, said Assistant Atty. Gen. John R. Dunne.

The department’s role has been even greater because of the threat that the federal government would enter the case if state authorities refused to improve conditions, Dunne said.

But Barr said that the department now will be more sympathetic to state attempts to lift population caps not essential to remedy constitutional violations. He said that the federal courts had gone too far in ruling on “the particulars of prisoners’ diets, exercise, visitation rights and health care.”

“Most burdensome of all, these decrees imposed limitations or caps on the population of state prisons,” Barr said, adding that the caps in some cases “have wrought havoc with the states’ efforts to get criminals off the street.”

He contrasted the states’ prison situation with that of the federal government. In January, 1991, federal prisons housed about 65% more inmates than the capacity for which they were designed. State prisons overall had populations of about 15% above mandated capacity. But many of them were operating under federal court orders that kept their populations near or below design capacity.

Barr said that, if states could operate at the levels of federal prisons, “that would mean an additional 286,000 inmate beds, which translates into savings of $13 billion in construction costs.”

Barr stressed that the policy shift he was announcing did not apply to mentally or physically disabled or other institutionalized persons.

“These persons are obviously not to be subjected to a punitive environment and their basic rights are controlled by other constitutional and statutory provisions--not by the cruel and unusual punishment clause of the Eighth Amendment,” Barr said.

Barr listed several elements that will govern the Justice Department’s participation in prison litigation:

--The department will initiate or intervene in prison cases only to remedy “specific deprivations of a prisoner’s basic human needs”--those which amount to cruel and unusual punishment.

--In seeking to remedy constitutional violations, the department should not seek to impose on states additional burdens not required by the Constitution or applicable federal law.

--In the case of consent decrees or other judicial orders still in effect, the department should consider supporting a state’s move to modify the ruling to remove restraints not constitutionally required.

--The department should not encourage continuing court supervision of state prisons unless the supervision is “plainly required to remedy a continuing constitutional violation.”