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NCJ Number: 52105 Find in a Library
Title: IMPLEMENTATION PROBLEMS IN INSTITUTIONAL REFORM LITIGATION
Journal: HARVARD LAW REVIEW  Volume:91  Issue:2  Dated:(DECEMBER 1977)  Pages:428-463
Author(s): ANON
Corporate Author: Harvard Law Review Assoc
Harvard Law Review
United States of America
Date Published: 1977
Page Count: 36
Sponsoring Agency: Harvard Law Review Assoc
Cambridge, MA 02138
Format: Article
Language: English
Country: United States of America
Annotation: SHORTCOMINGS IN THE IMPLEMENTATION OF REMEDIAL DECREES IN MENTAL HEALTH LITIGATION ARE ILLUSTRATED, AND AN ALTERNATIVE MODEL FOR JUDICAL IMPLEMENTATION OF INSTITUTIONAL REFORM ORDERS IS PROPOSED.
Abstract: THE DISCUSSION FOCUSES ON LITIGATION SEEKING REFORMS IN MENTAL HEALTH FACILITIES, BUT THE PROBLEMS IDENTIFIED ALSO PERTAIN TO REFORM LITIGATION IN HOSPITALS, PRISONS, AND SCHOOLS. THE NATURE OF RELIEF IN INSTITUTIONAL REFORM LITIGATION PLACES JUDGES IN A NEW ROLE. THEY BECOME RESPONSIBLE FOR IMPLEMENTING BROAD REFORMS IN COMPLEX ADMINISTRATIVE SYSTEMS, USUALLY WITHOUT THE BENEFIT OF EXPERTISE IN EITHER PUBLIC ADMINISTRATION OR THE PARTICULAR FIELD IN QUESTION. TO MONITOR AND ENFORCE REMEDIAL STANDARDS, JUDGES MUST PARTICIPATE SPORADICALLY IN THE ADMINISTRATION OF THE INSTITUTIONS WHOSE REFORM THEY MANDATE. IN GENERAL, THE COURTS HAVE BEEN RELATIVELY INSULATED AND NONPOLITICAL FORUMS AND ARE UNACCUSTOMED TO CONSIDERING POLICY OBJECTIVES AND TO DEVELOPING INFORMATION TO DEALING WITH OBSTACLES TO IMPLEMENTATION. OFTEN, THE INSTITUTIONAL PROBLEMS THAT HAMPER COMPLIANCE WITH REFORM DECREES ARE SO COMPLEX THAT BUREAUCRATS AND OTHER NONJUDICIAL EXPERTS IN THE FIELD HAVE FAILED TO RESOLVE THEM. AN ANALYSIS OF JUDICIAL ROLES IN IMPLEMENTING REFORM DECREES -- DECREE FORMULATION, MONITORING, DISPUTE RESOLUTION, ENFORCEMENT, RESOURCES, IMPLEMENTATION PLANS -- POINTS TO SEVERAL SHORTCOMINGS. THE IMPLEMENTATION PROCESS IN MENTAL HEALTH CASES TYPICALLY IS CHARACTERIZED BY THE FOLLOWING: (1) A CAREFUL DECREE FORMULATION PROCESS THAT GENERATES FAIRLY DETAILED, OFTEN CONSENSUAL POLICY OBJECTIVES, TYPICALLY BASED ON PROFESSIONAL NORMS; (2) MONITORING MECHANISMS THAT ELICIT FROM ADVERSARIAL SOURCES INFORMATION THAT IS ONLY OCCASIONALLY USEFUL IN PROMOTING ENFORCEMENT; (3) ENFORCEMENT MECHANISMS WHICH ARE TRIGGERED INFREQUENTLY AND ERRATICALLY, LEAVING MUCH OF THE INITIATIVE TO ACTORS WHOM THE JUDGE EXERCISES ONLY MODERATE CONTROL, AND WHICH ARE INSUFFICIENTLY SENSITIVE TO INFORMATION GATHERED IN THE COURSE OF COMPLIANCE AND TO BUREAUCRATIC OBSTACLES TO CHANGE; AND (4) RECOGNITION OF THE NEED FOR AN IMPLEMENTATION PLAN WITHOUT A CLEAR SENSE OF THE CONTENT OR ROLE OF SUCH A PLAN. AN ALTERNATIVE APPROACH TO INSTITUTIONAL REFORM LITIGATION FEATURES CONSIDERATION OF PRACTICAL MATTERS (COST, BUREAUCRATIC CAPACITY, POLITICAL VIABILITY, ETC.) DURING DECREE FORMULATION; MONITORING BASED ON STANDARDS AND OBJECTIVES SPECIFIED IN THE DECREE; DELEGATION OF CERTAIN MONITORING, DISPUTE RESOLUTION, AND ENFORCEMENT FUNCTIONS TO JUDICIAL SURROGATES (EXPERT PANELS, COURT-APPOINTED MASTERS); INDIRECT METHODS OF COMPELLING STATE EXPENDITURES TO IMPLEMENT REFORMS; AND COMPREHENSIVE IMPLEMENTATION PLANS. (AUTHOR ABSTRACT MODIFIED -- LKM)
Index Term(s): Injunctions; Mental health; Reform
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=52105

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