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A Comment on the Courage of Norma L. Shapiro – Part Two

Are There Really “Plenty of Shapiros Out There”? 
A Comment on the Courage of Norma L. Shapiro – Part Two

Let us begin with Harris v. Pernsley, the controversial case for which Judge Shapiro reluctantly attracted perhaps the most national attention. Harris was not a typical federal action, but rather, decades of litigation in which inmates challenged the problem of endemic overcrowding in the Philadelphia prison system.  

Harris originated in Pennsylvania’s state courts.  In 1971, the Pennsylvania Supreme Court described the condition of Philadelphia’s prisons as dangerous if not uninhabitable:

[T]he living conditions at Holmesburg [Prison, in particular, were] disgusting and degrading. The cells, originally built (between 1896 and 1920) to house one man, were seriously overcrowded. The physical condition of the cells is most unwholesome. Rainwater leaks into the cells through the skylights when it rains, soaking the bed coverings. The cells are infested with cockroaches and sometimes rats. Blankets, kept for six months at a time, become filthy. Prisoners charged with serious crimes may and frequently are confined with prisoners charged with much lesser offenses.”

For years, inmates had claimed such conditions violated the Eighth Amendment’s prohibition of cruel and unusual punishment. In the 1970s, the state courts repeatedly ordered the City to correct the problem to no avail.  State courts then appointed a special master to supervise the implementation of a series of consent decrees under which the City agreed to improve the conditions of confinement.  However, citing lack of resources to pay for the enormous cost of those reforms, the City again refused to act and the problem continued unabated. 

In 1982, Judge Shapiro was randomly assigned a class action filed by inmates housed at the notorious Holmesberg Prison.  Philadelphia and the Commonwealth, jointly moving to dismiss, asserted doctrines of res judicata, the 11th amendment, and federalist deference to pending state court proceedings. Judge Shapiro agreed and dismissed the action. But the Third Circuit reversed, over a dissent by Judge Garth 1, and the city and state defendants petitioned for rehearing en bancFive of eleven judges voted to rehear the case, which was one short of the majority required. The Supreme Court denied a petition for certiorari over the votes of Justices Berger, Rehnquist, and O’Connor, who would have granted it. Chief Justice Berger, in a rare written dissent on certiorari, stated that he would have reversed the Third Circuit, which had, in turn, reversed Judge Shapiro. 

This seemingly tedious dilation of procedure shows that Judge Shapiro was not alone in her reluctance for the federal courts to take on Harris. When it was forced back on her docket, she tried to settle the dispute.  In 1986, following a series of hard-fought negotiations, and over the District Attorney’s staunch objection, the City settled the matter by consent decree.   The court-approved settlement agreement imposed flexible caps on the City’s maximum inmate capacity and required the construction of new detention facilities over a multi-year period.  To ensure compliance, the consent decree included an inmate release provision that soon became the most controversial aspect of the proceeding:

If the population of any facility still exceeds its maximum allowable population twenty-one (21) days from the date on which the maximum allowable population has been exceeded for more than seven (7) consecutive days or for more than twenty (20) out of forty (40) days, a bar on admission of prisoners to such facility or facilities will go into effect. The bar on additional inmates will continue until the number of inmates housed is within the maximum allowable population and new admissions will not cause the maximum allowable population to be exceeded, except that persons charged with, or convicted of, murder, forcible rape, or a crime involving the use of a knife or firearm during the commission of an aggravated assault or robbery, may always be admitted notwithstanding this bar.”

As a direct result of the consent decrees approved by Judge Shapiro, the City eventually closed the Holmesberg Prison and made good on its promise to build new detention facilities to relieve the problem of overcrowding. But those improvements were hard fought and took decades to achieve. In the meantime, the City’s delay in carrying out its obligations triggered the court’s requirement to release inmates who would otherwise have remained in detention. Judge Shapiro was subject to an unrelenting, decade-long campaign mounted by opponents of the deal who wanted her to reverse course and permit the City to back out of its settlement.  The Philadelphia Daily News famously ran daily stories (and a sidebar) about the “victims” of Judge Shapiro’s orders:

Figure 1: Daily News Articles on the “Prison Cap” Litigation, Courtesy of the Archives of the Honorable Norma L. Shapiro, Biddle Library, University of Pennsylvania

Imagine, if you will, the kind of pressure such press exerted. And yet, permitting the City to escape the consequences of its own contractual commitments would have been worse because it would have immunized the legislative and executive branches from the unconstitutional consequences of their own mismanagement.  Judge Shapiro believed in honoring commitments. So, rather than walk away, she dug in. She continued to exercise supervisory authority over the prison system until new facilities were in place and the underlying constitutional infirmities, at least temporarily, cured. 

Donald Trump was but one of many harsh critics of Judge Shapiro for enforcing the inmate release provision. To be clear, judges are not—nor should they be—immune from criticism for their decisions and they remain bound by an ethical obligation to refrain from responding, even when targeted unfairly. 2 Judge Shapiro certainly did not agree with critics who used her as a scapegoat for the broader problems of crime and mass incarceration, but she understood that public rebuke was often an occupational hazard for judges when they are compelled by their conscience and the Constitution to make deeply unpopular decisions.



1 Judge Lenard I. Garth, a judicial giant on the Third Circuit, died September 22, 2016, two months after Judge Shapiro


2 Code of Conduct for United States Judges, Cannon 2A Commentary (“A judge must expect to be the subject of constant public scrutiny and accept freely and willingly restrictions that might be viewed as burdensome by the ordinary citizen.”).