…Judicial oversight is markedly different from oversight in general, in that the former's limitations are substantial. By general oversight, we mean to keep a watchful eye on, to supervise, or even to manage. Courts are not in the business of watching, supervising, or managing state institutions. Court oversight, or supervision, arises only in those instances where there is a proven constitutional violation and, even in those instances, court oversight is legitimate only to the extent it is needed as part of the remedial process; once the violation is redressed, court oversight is not only not needed, it is inappropriate. Therefore, judicial oversight, unlike other forms of possible oversight, is there to redress a constitutional violation, not to prevent it.

Therefore, if you seek an approach that will prevent constitutional violations, you must look not to the judiciary but rather to the executive and legislative branches of government, for the latter are the ones that have the authority to set up, or create, groups, agencies and institutions to provide such broad, preventative oversight; only they can step in beforehand and actually prevent constitutional violations.

Moreover, judicial oversight looks to the floor (and, in the eyes of those who think that judicial oversight has been too weak, to the basement) of what is required constitutionally. …I would hope that those concerned about prison abuse and safety would want prisons that meet more than the constitutional floor, that is, they would want prisons that meet modern, if not advanced, penological standards for what a good prison should be. Those who see judicial oversight as a panacea for prison abuse and safety have their eyes planed too low.

Excerpted from a written statement submitted to the Commission