an Interview with Judge Norma Shapiro

Vol. 51 No. 4

By

Judge Stephanie Domitrovich has served on the bench for over 21 years as an elected general jurisdiction state trial judge for the Sixth Judicial District of Pennsylvania. She is also chair of the National Conference of State Trial Judges.

Judge Norma Shapiro was the first woman to be appointed to the federal district court in the federal Third Circuit, the eighth female judge in the United States in 1978, and only the 12th female judge in the history of the United States. Although her gender initially made her an outsider among her fellow federal judges, Judge Shapiro, through her endeavors both inside and outside the courtroom, became a person who her colleagues on the bench are proud to call, simply, “their Norma,” and legions of her law clerks call “our Judge.” As a presiding federal judge for over 30 years, Judge Shapiro has seen and heard it all from admiralty and antitrust to civil rights cases. Judge Shapiro’s numerous contributions to the law and society have not gone unnoticed, signified by her receiving such accolades as the American Bar Association John Marshall Award, which recognizes those dedicated to the improvement of the administration of justice; the Meador-Rosenberg Award for her outstanding work in support of the judiciary and judicial independence; the Margaret Brent Women Lawyers of Achievement Award; the Philadelphia Bar Association Sandra Day O’Connor Award; and the University of Pennsylvania Law Alumni Society James Wilson Award for Service to the Profession.

Judge Shapiro has always acted in accordance with her strong moral code in order to achieve justice and equality through the law, including better living conditions for those who are incarcerated. As Judge Shapiro herself has stated, “I think that all my life I’ve had a passion for justice, and I would include liberty and equality as part of that.”1

In the fall of 1948, Judge Shapiro began law school at the University of Pennsylvania, one of only eight women in a class of 219. She graduated magna cum laude, with the third highest grades in a class of 127 students (and six women) in 1951.

Judge Shapiro has been active in the Philadelphia legal community, a member of the Women’s Bar Association, the Women’s Law Project, and the Governor’s Commission on Women, and the first woman chair of the Board of Governors of the Philadelphia Bar Association.

Judge Shapiro is a specialist in class actions and settlements, while her involvement in civil rights cases prepared her for Harris v. Philadelphia. This grueling civil rights class action would last nearly two decades and raise a plethora of questions regarding prison overcrowding, judicial independence, and treatment of prisoners. It created a media frenzy that exists to this day. Harris was filed in 1982 on behalf of past, present, and future prisoners in Holmesburg Prison and grew to include all past, present, and future prisoners in the entire Philadelphia prison system. The plaintiffs alleged that the prison conditions violated their Eighth or Fourteenth Amendment rights under the Constitution. Many more prisoners were packed into Holmesburg, built in 1896, than its original capacity; the facility itself was badly in need of repair and upgrade; and health care was questionable at best. Judge Shapiro’s primary role was to determine damages, a Herculean task, complicated by eight appeals during the course of the litigation to the Third Circuit Court of Appeals.

In 2000, Judge Shapiro orchestrated the creation of an incredibly detailed consent decree to bring the long-standing battle to an end. New prisons were built to avoid cramming prisoners three or four at a time into cells built for two. Better health care was implemented, including special health care for women. More lighting was installed, better electrical systems were wired, and an improved ventilation and temperature control system was installed. Janitor’s sinks were installed in every block and in shower rooms to improve cleanliness. In all, over 200 policies and procedures were developed for the new prison system. If Philadelphia failed to comply with the consent decree, it would accrue daily penalties, in addition to those it had accrued during the previous 18 years. Finally, the Harris litigation was at an end, after nine years of negotiations.

However, as in any negotiation, compromises were made, and, in this case, there were consequences. In order to avoid overcrowding, a prison cap was created, necessitating the release of many prisoners who had committed less-violent crimes, such as drug offenses, often into electronic monitoring programs. Still others were released without the benefit of electronic monitoring, and media frenzy ensued. Some publications blamed, and still blame, Judge Shapiro for crimes that these released prisoners subsequently committed, including the shooting death of a police officer by a former inmate released under this prison cap system. Some publications even went so far as to call her “Public Enemy Number One.” The district attorney, opposed to the judicial independence that allowed Judge Shapiro to craft such a complex decree, lobbied for new legislation, resulting in the passing of the Prison Litigation Reform Act, effectively ending Judge Shapiro’s ability to enforce the consent decree; the parties subsequently agreed via another consent decree to end Judge Shapiro’s jurisdiction.

Judge Shapiro continued her hands-on, unique approach to law, such as visiting dilapidated housing for low-income families and ultimately assisting in the renovations, both socially and physically, of a new, safe, beautiful Chester Housing Authority. She continues her work in a variety of boards and social activities, both inside and outside the ABA, and assumed senior judge status on December 31, 1998. Judge Shapiro continues her work as a judge to the present day.

What has your involvement been with the American Bar Association over the course of your career?

I started out on the Executive Committee of the Conference of Federal Trial Judges, and then I became the chair of the Judicial Division Council. I organized and got the Board of Governors to agree to a Justice Center Coordinating Council, and then I represented the Judicial Division on the Board of Governors. There are three Board of Governors committees; I was head of the Program and Planning Committee, and I was instrumental in establishing the Standing Committee of Judicial Independence. I was on that for three years and now I’m chair of the Standing Committee on Federal Court Improvements, so I’ve devoted my ABA life to questions of judicial independence. It’s something very important to me.

When you first decided what was Harris v. Pernsley in 1985, could you have foreseen that this case would be revisited so frequently over the next 15 years?

I had a lot of thoughts on that, such as how awful the Prison Litigation Reform Act was, but since there was nothing I could do, there was no point in keeping the case. What you may not know is that I now have 450 condition-of-confinement cases filed by Philadelphia prison inmates. They all involve triple celling, and I have a series of case management orders. Unless there’s actual physical harm or mental health injury, damages may be unavailable. The triple cell cases are divided into three classes: A, B, and C. B and C cases seek damages for physical or mental health injury arising out of triple celling. The Prison Health Services and the Mental Health Service (providing psychiatric care) have settled with all those people, so what’s left for me are just the A cases involving triple celling alone. There’s also a small group of First Amendment cases; the people of the Muslim faith claim they can’t exercise their religion properly because of the overcrowding conditions.

We’ve been dealing with this for almost a year now and we have had discovery and expert reports. We have four weeks set aside for trial, so I’m going to be very busy for a while.

Did you actually go into the prisons to see the conditions?

Absolutely. I took innumerable tours. I just had to see the conditions. You can’t decide what to do about them if you haven’t seen them. We’ve been very concerned about due process. I never toured by myself; we took the lawyers for both the prisoners and the city and we took the court reporter so we did what we thought was appropriate to preserve the rights of everyone. But then after the Prison Litigation Reform Act we terminated my jurisdiction. I couldn’t do anything anymore. It was pointless; I didn’t want to keep jurisdiction just for my own ego.

In regards to complex cases such as Harris and Chester Housing Authority, is there anything you see that other judges should address, or how other judges should address similar issues for these kinds of situations?

I think you have to be mindful that we’re judges of courts and there are restrictions on what we can and should do. On the other hand, I think that you can’t not do your duty when it’s called for, and it involves a lot of questioning of whether you’re accomplishing something socially useful and legally appropriate. It’s been particularly difficult in the prison actions, and the Chester Housing Authority receivership raises the same issue. It’s very rewarding to see how the situation has improved for the poor in the housing realm. But, on the other hand, you have to constantly question whether judicial intervention continues to be necessary.

You were a judge before the guidelines were implemented and after. Do you prefer one over the other?

Well, I never minded that aspect of the guidelines that gave appellate review because none of us have all the wisdom there is, and I don’t mind having what I do checked by someone else. I did mind the arbitrariness of some of it because the government put the highest premium on whether you cooperated and pled guilty, so the people who were more responsible and more criminal would sometimes get lighter sentences. The dealer of the drugs might get a higher sentence than the guy that manufactured or brought drugs in from out of the country; that seemed terribly wrong to me. When I took senior status, I gave up the criminal docket because I found the sentencing guidelines very unfair in many respects. But when the Supreme Court decided they were discretionary and not mandatory after Booker, I went back on the criminal wheel. I did so because, according to circumstances, one could consider the guidelines as one factor, but there are other factors under 18 U.S.C.A. § 3553 that you also have to consider, so the sentence can be focused on one particular defendant but isn’t out of line for other defendants. In other words, you have to draw the line between individual determinations and nondiscriminatory determinations. That’s not always easy. So I find the guidelines useful and helpful now that they’re discretionary and subject to review.

What are the challenges, if any, facing the legal system today?

How to survive. If you hadn’t called, I would be reading an outline of the program that our Committee is going to do jointly with the Standing Committee on Judicial Independence—“Are the Courts Dying?”—because it seems to me that with the attack on courts and decreased funding, the criticism of judges, and the Supreme Court favoring summary judgment or arbitration, we have very few trials and particularly very few jury trials. I really think we have a tremendous job to do in educating the public to the importance of courts, not to judges, but to the preservation of our constitutional rights. That’s something I firmly believe in.

Is there anything else that you’d like to say, any advice to judges who will be following in your footsteps, in regards to incarceration issues and sentencing issues?

After 34 years as a trial judge, sentencing remains the most important but most difficult of my judicial duties. I have tried—and believe all of us with this serious responsibility must strive to “get it right” to the best of our ability—and conscientiously impose a sentence giving an inmate a fair chance for rehabilitation without endangering society. The future’s great challenge will be to understand crime and punishment better so we no longer have the highest rate of incarceration in the civilized world. n

Endnote

1. Mina Gobler, Interview with Honorable Judge Norma L. Shapiro, Feinstein Center for American Jewish History, Temple University, Oct. 5, 1998.

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