The MacNeil/Lehrer NewsHour

Intro JIM LEHRER: Good evening. Leading the news this Monday, the Supreme Court agreed to reconsider a major civil rights decision. Three sailors are missing from the explosion aboard a U. S. submarine off the Florida coast. And an Israeli court gave the death sentence to a convicted World War II criminal known as ''Ivan the Terrible. '' We'll have the details in our news summary in a moment. Charlayne Hunter Gault is in New York tonight. Charlayne? CHARLAYNE HUNTER-GAULT: After the news summary we'll get more on the Supreme Court's unusual decision. Then the constitutionality of the independent counsel is debated by former Appeals Court Justice Robert Bork and Harvard Law Professor Kathleen Sullivan. Next, a report on prison overcrowding, a preview of the Pennsylvania primary, and finally a Penny Stallings essay on Andy Warhol.News Summary LEHRER: The U. S. Supreme Court caused a stir today. It voted five to four to consider overturning a 12 year old civil rights law which allows people to sue private citizens for acts of racial discrimination. The decision prompted unusually strong language between the two sides on the court. The four dissenting members said in their opinion that reopening such an issue undermines the trust minority groups have in the court. The majority opinion said reassessing a previous decision for possible modification was ''surely no affront to settled jurisprudence. '' Arguments on the issue will be held in the next term of the court, which begins in October. The Associated Press story of the development today called it ''extraordinary. '' Charlayne? HUNTER-GAULT: The Iran contra defendants appeared in U. S. District Court in Washington today for a pretrial hearing. Former National Security aide Oliver North was joined by his former boss John Poindexter and their co defendants businessman Albert Hakim and retired Air Force Major General Richard Secord. The issue was whether special prosecutor Lawrence Walsh used immunized congressional testimony to bring his case against three of the defendants. Walsh testified today that he and his staff employed elaborate means to avoid hearing the congressional testimony. Judge Gehard Gesell barred defense testimony because he said lawyers violated the ground rules of the proceedings. LEHRER: Three members of the crew of the USS Bonefish are missing tonight. Twenty three others aboard were injured in an explosion and fire that hit the diesel powered submarine yesterday afternoon off the coast of Florida. Surviving crew members who were evacuated from the ship yesterday arrived at the Mayport Naval Station in Jacksonville, Florida, today. From there they flew back to their home port in Charleston, South Carolina. Navy spokesmen said a full search was underway for the missing crewmen. They said the sub was still afloat in the Atlantic some 160 miles east of Cape Canaveral. Initial reports said the fire and explosion occurred in the ship's battery compartment. HUNTER-GAULT: For the first time, acid rain has been labeled a major culprit in the killing of marine life in Atlantic coastal waters. Up to now, most experts have assumed that agricultural runoff, sewage and industrial waste were the main pollutants. But a study of the Chesapeake Bay by the Environmental Defense Fund shows that acid rain is equally harmful to plants and fish. The group called for new controls on motor vehicles, power plants and other sources of pollution. The Environmental Protection Agency said its experts had not had a chance to study the report and were not in a position to comment. LEHRER: Education Secretary William Bennett said in a report to President Reagan the nation's schools are on their way back, but there is still a long way to go. He said it in a report due to be officially released tomorrow to mark the fifth anniversary of the famous ''Nation at Risk'' study that harshly criticized the U. S. Education system. There was criticism today of Bennett's new report from a major teachers' union, the National Education Association. The NEA said Bennett's report absolved the Federal Government from any responsibility for improving public education. HUNTER-GAULT: In Jerusalem, an Israeli court today sentenced John Demjanjuk to be executed for killing thousands of Jews at the Tblinka Concentration Camp in Nazi occupied Poland. Keith Graves of the BBC has the report.

KEITH GRAVES, BBC: The man convicted of crimes against humanity on a scale seldom seen in history arrived to hear of his fate in a wheelchair. He was, he said, feeling unwell. Ivan the Terrible was no faceless bureaucrat giving orders. He personally humiliated and brutalized hundreds of thousands of people before herding them into the gas chambers. The 68 year old Ukrainian who says he is not Ivan the Terrible, made one final plea before the judges retired to consider their sentence. Three times he told them in his native tongue, as God was his judge, he was innocent. The judges had ruled that death was not mandatory. But three hours later came their verdict: FEMALE INTERPRETER: We sentence him for the aforementioned crimes, the punishment of death as stipulated --

GRAVES: Which was the predictable climax of what had from the beginning been a show trial, a nation reminding itself of why it came into being. The proceedings were broadcast on the country's educational television channel. Thousands of school children were brought to court as part of their education. For a few, a very few, who survived, it was a moment of justice. For others, like Demjanjuk's son, who believes in his father's innocence, the man in the dock had himself become a victim. DEMJANJUK'S SON: Judicial murder!

GRAVES: Judicial murder he called it. An appeal is automatic. If that is rejected, only presidential clemency stands between Demjanjuk and the gallows. LEHRER: The United Nations Security Council today condemned the murder of PLO military leader Khalil al Wazir. The vote was 14 to zero in favor of the resolution. The U. S. abstained. Wazir was murdered April 16 at his home in Tunisia by a commando team. Tunisia has charged that it was the work of the Israeli government. Israel has neither confirmed nor denied the charge officially, but unofficially it has been widely reported that the assassination was approved by Prime Minister Yitzhak Shamir and other leaders of the Israeli government. In Damascus, Syria, PLO leader Yasir Arafat met with Syrian President Assad today. The meeting came five years after Arafat was expelled from Syria in a feud with Assad. The murder of Wazir was seen as a factor in bringing the two Arab leaders together. Wazir was popular among both Arafat supporters and pro Syrians. HUNTER-GAULT: In Lebanon, the city of Tripoli was paralyzed today by a general strike as the Syrian held town mourned victims of that nation's worst car bombing in three years. One man wounded in Saturday's blast in a busy shopping center died early today, raising the death toll to 70. Police said that more than 100 people remained hospitalized. No group has claimed responsibility for the bombing. LEHRER: Secretary of State Shultz was in Brussels, Belgium today. He came to brief the NATO allies on his talks last week with Soviet leader Mikhail Gorbachev and Soviet Foreign Minister Eduard Shevardnadze. Shultz had said in Moscow little progress was made in narrowing differences on a long range missile treaty. He said again today chances are slim that treaty can be signed at the Reagan/Gorbachev summit in Moscow the end of May. HUNTER-GAULT: That's our news summary. Still ahead, a surprising Supreme Court move, the constitutionality of the independent counsel, prison overcrowding, the Pennsylvania primary, and an essay on Andy Warhol. Split Court LEHRER: We begin tonight with two Supreme Court stories. One about a big decision today, the other about a big argument tomorrow. The decision has to do with civil rights. The Associated Press called it ''extraordinary. '' Judy Woodruff will take it from there. JUDY WOODRUFF; The decision today which is attracting so much attention is to take another look at a 12 year old civil rights ruling. Five members of the court said they wanted to rehear a job related racial harassment case and in the process reconsider a Burger Court decision that private individuals could be sued for discriminatory actions. Today's decision set off an unusually bitter reaction among the members of the minority. Justice Blackmun wrote, ''I am at a loss to understand the motivation to reconsider an interpretation of a civil rights statute that so clearly reflects our society's earnest commitment to ending racial discrimination. '' The majority in an unsigned order rejected the criticism. We look at today's development now with Al Kamen of the Washington Post, who has covered the Supreme Court for the past four years. First of all, Al, why did the members of the majority of the court decide they wanted to rehear a case they had already heard argued back in February. AL KAMEN, Washington Post: Well, that's what's puzzling the dissenters. I think probably we need to go back a little bit to the history of the '76 ruling. The four dissenters were all in the majority in the 1976 ruling. All five of the people who voted to review that ruling were either not on the court or were in the dissent. Chief Justice Rehnquist and Byron White were dissenters. Obviously -- WOODRUFF: Or they weren't on the court -- Mr. KAMEN: -- or they weren't on the court. Justice Scalia, Justice Kennedy and Chief Justice Burger have all -- Chief Justice Burger, Potter Stewart and Lewis Powell have all been replaced by Justices Scalia, Kennedy and O'Connor. And what it means is there is a new Rehnquist court. This is the Rehnquist court. This is a new majority which has shown a willingness today, at least, to revisit some areas when neither side inthe dispute has asked them to review those areas. WOODRUFF: But in the language today, did they give a reason why the arguments they heard in February wasn't satisfactory? Or was -- Mr. KAMEN: Well, the reason the argument wasn't sufficient was because -- the argument was about a relatively narrow issue; that is, whether racial harassment can be included in a case involving racial -- under a statute talking about racial discrimination. The reason that it didn't please the justices was because I think the majority was concerned that this statute, which is a very broad civil rights statute, has been interpreted in recent years to reach further and further in more and more areas, higher and higher jury awards are being given under this statute, and the majority may have felt, and I think they probably felt, that it may be time to take another look at the 1976 ruling. WOODRUFF: So the plaintiff in the case was arguing -- Mr. KAMEN: -- harassment as discrimination. WOODRUFF: What exactly does the '76 ruling, the Runyon Case it's called, what exactly does it say? What's the significance of it? Mr. KAMEN: The significance of the '76 ruling, the Runyon Case came in a -- it was a case involving private white schools. The question was whether private white schools -- really white flight academies from the busing decision of the court -- would be allowed to continue not to admit black students. Solely on the basis of color. If the Runyon case were overturned -- which is obviously a distinct possibility -- there is nothing tomorrow that would prevent, no federal statute that would prevent, the Woodruff/Kamen Country Day School from putting up a sign saying ''Whites Only. '' WOODRUFF: How do you know that? Mr. KAMEN: There's no other law. I mean, if Runyon is overturned, that's -- WOODRUFF: They couldn't go back to an earlier civil rights -- Mr. KAMEN: This one was in 1866. And that's the first one after the Civil War. WOODRUFF: So the justices brought the 1976 case in because it was part of what was being argued here? Mr. KAMEN: Right. It was an underlying part of it. WOODRUFF: How significant is the lineup today? You alluded to this just a minute ago. But the five in the majority, the four in the minority, how significant, and particular Kennedy's going along with the majority? Mr. KAMEN: Well, it's Kennedy's going along that really heartens the conservatives and is seen as so ominous by the liberals. And the reason is that the liberals and the conservatives both view this as a new willingness by the court to revisit areas that had been considered settled, as in this case. Neither side questioned the validity of the '76 ruling. The court's willingness to reach out and take a new look at prior settled law, and Kennedy joining the decision to do that, is considered a positive side by the conservatives. And a truly threatening side by the liberals. WOODRUFF: Even though the minority in there's statement today said this shouldn't be interpreted as it will be overruled. Mr. KAMEN: Right. Actually, the majority says that. But -- WOODRUFF: I'm sorry, the majority. Mr. KAMEN: But I would point out that this is the same thing the courts said in 1953 when it reordered the Brown case reargued and said, ''We want you to also ask us whether we should overturn Plessy against Ferguson. '' I think the odds are quite good that the court is going to take a hard look at the '76 ruling and overturn it. And that will be a very grave blow to the civil rights community. WOODRUFF: How unusual is this sort of language that was used by the Justices, particularly by Justice Blackmun, Justice Stevens, today? Mr. KAMEN: Well, the language by Blackmun and Stevens has been used frequently in the old days of the Burger Court, when they were battling over a lot of decisions. This is new for the Rehnquist court. The Rehnquist court has been almost symbolized by lower voices, lower tones, and more businesslike atmosphere. We leave earlier in the day, and we leave earlier in the year. This is the first real fireworks that we've had, I think, in the Rehnquist court so far. WOODRUFF: Do you have a sense of how truly bitter it is among the justices? I mean, is this something, an issue that -- how significant is it -- Mr. KAMEN: This is pretty significant. Because they will pass often on dissenting from orders in the court. I think the four dissenters are truly angry, and I think that they legitimately are concerned that the case will be overruled. But I don't think they're looking only at the 1976 case or a certain slice of civil rights laws. Even if the '76 case were overturned, you'd still have the '64 Civil Rights Act, you'd still have other federal laws. But I think they're concerned that the court's willingness to reach out and grab this one will lead to willingness in a whole range of areas to say, Let's take another look at -- WOODRUFF: Judicial activism with the conservative -- Mr. KAMEN: (unintelligible). WOODRUFF: What happens now? I mean, the case will be reargued this fall? Mr. KAMEN: It'll be reargued this fall and inasmuch as it will be reargued on a very important point now, it likely won't come down until early spring, about a year from now, maybe. Maybe March. WOODRUFF: And again, the implications, if the court were to go back and overturn the '76 decision? Mr. KAMEN: Well, it would greatly restrict the reach of federal civil rights laws. The post Civil War statute is very broad in its scope, and very broad in its remedies. You can get punitive damages, for example, if you're a victim of discrimination. The 1964 law doesn't give you punitive damages. WOODRUFF: All right. Well, Al Kamen, we thank you for being with us. Council Challenge LEHRER: Our second Supreme Court story tonight is about a major case on which the court will hear arguments tomorrow. It's the case for and against the constitutionality of the independent counsels, who investigate allegations of wrongdoing by federal officials. Four such investigations are underway now. There have been 11 since the system was set up in 1978. Several targets of those investigations, including former Reagan aides Michael Deaver and Oliver North, have challenged the legality of the system. We precede the Supreme Court's argument tomorrow with one of our own tonight between Robert Bork and Kathleen Sullivan. Robert Bork is a former Solicitor General, Federal Appeals Court Judge and law professor, who is now a legal scholar at the American Enterprise Institute. His nomination to the Supreme Court was defeated by the Senate last year. Kathleen Sullivan is an assistant professor of constitutional law at Harvard University. She joins us from Public Station WGBH in Boston. Judge Bork, why is the independent counsel law unconstitutional in your opinion? ROBERT BORK, American Enterprise Institute: The Constitution lays out the legislation, the executive and the judicial power. In Article II, it says that the President shall take care that the laws be faithfully executed, which means that it's the executive power to enforce law. This statute takes the -- as judges appoint the prosecutor -- is effectively insulated from executive branch control. LEHRER: And why is that wrong? Mr. BORK: Well, it's wrong because the President's power to see that the law has been faithfully executed is taken away from the President. And that's a constitutional power. The law is exclusively in the President. LEHRER: Professor Sullivan? Why is the judge wrong? KATHLEEN SULLIVAN, Harvard University: The law is clearly constitutional. We may disagree about lots of provisions in the Constitution that are open ended, like the meaning of liberty or equality. But the Constitution plainly says that Congress may vest the power to appoint inferior officers in the inferior courts. And that's all Congress has done here. The independent counsels are plainly inferior officers. They have a limited function, a limited task, and they're not discussed in the clause. They're inferior officers, Congress has just done what the Constitution allows it to do. Furthermore, the court has always said that the Constitution does not divide government into three airtight, hermetically sealed compartments. And this is a case where necessity dictates that someone must guard the guardians. Namely, independent counsels rather than the President's own men. LEHRER: Judge? Mr. BORK: The professor's talking about the appointments clause of the Constitution that says that the -- after providing for the major appointments that inferior officers may be appointed by the courts or by the Congress or by the President. That is clearly a power to appoint ministerial officers effectively, courts can appoint clerks or bailiffs or something of that sort. It is not a power to destroy the separation of powers by allowing one branch to appoint the other branch's people. LEHRER: The professor says the Constitution does not separate the powers the way you do. Mr. BORK: The Constitution clearly defines executive, legislative and judicial powers. Now, there is a blending over certain subject matters. But not powers. Under the professor's version of that clause, Congress could appoint all of the military commanders by itself without reference of the President, or the Attorney General could be empowered to appoint all the judicial law clerks. That is -- the framers very carefully worked out a separation of powers in the Constitution. They did not at the last minute in a clause that was not discussed, suddenly destroy their whole scheme. LEHRER: Professor Sullivan? Prof. SULLIVAN: I have to disagree with the judge on at least two points. First, this law is not a grab of power by Congress. Congress here has not appointed its own arms, the independent counsels; rather it has created an office at arm's length from itself, an office of independent counsel appointed by an objective panel of judges, Judge Bork's former colleagues among them, and that is not a power grab by Congress, it's an attempt to put the matter of independent prosecution outside of Congress's hands. Second, the Congress has not impaired the President's power to the extent Judge Bork suggests. Rather, the Executive retains enormous discretion, even under this law. First, the Attorney General gets to decide whether to trigger this law. That's a matter of his discretion. Second, the President retains the pardon power. Clearly, the power to pardon anyone implicated under these laws after conviction, and possibly before, as the example of President Nixon's pardon byGerald Ford indicates. And finally, the Attorney General has the power to remove the independent counsel's for cause. And that's a very broad power. Indeed, the power of Congress to remove the Comptroller General for cause was deemed so broad by the United States Supreme Court that they struck down the Gramm Rudman Act, which placed budget balancing importantly in the Comptroller General's hands. So it doesn't either represent a grab by Congress for power from the Executive, nor does it tie the hands of the Executive to the extent that the judge suggests. LEHRER: Judge, she's right, is she not? I mean, the power of the Executive to exercise power, to use your term, on the independent counsel still very much exists, does it not? Mr. BORK: Well, there's some power. But the tenure of the prosecution, the prosecutor is outside the A. G. 's power -- the Attorney General's power. And furthermore, as we have seen, the independent prosecutor is so independent that he can, for example, as he did, subpoena the Ambassador of Canada, one of our closest allies, and the State Department had to enter the case and ask the judge to quash the subpoena. LEHRER: That was in the Michael Deaver case? Mr. BORK: That's right. That's not a power grab by Congress. What it is is a vesting in the judiciary of the right to name and to some degree to control prosecutors. And that's a mixing of functions the Constitution prohibits. LEHRER: What about -- to go to her broader point that this is a case of somebody needing to guard the guardians, and that's really what prompted this law to be passed in the first place. And if you don't do it this way, how do you do that? Mr. BORK: The way we have done it throughout our history. For example, we had Executive Branch special prosecutors appointed by the President or by the Attorney General in Teapot Dome, we had Harry Truman's special prosecutor, the Attorney General fired him and Harry Truman then fired the Attorney General, he got a new special prosecutor. In the Watergate matter, using the old procedures, everything was carried through just as it should have bene to a successful conclusion. There is no showing that this kind of a statute is ever necessary. LEHRER: You mention Watergate, you were involved in that, and -- Mr. BORK: I was not involved in Watergate, I was involved with the aftermath -- LEHRER: Right. I was about to explain, yessir. But this law was passed partly to prevent happening again what happened in the Watergate case. In that case, you as Solicitor General, after the Attorney General and the number two man in the Justice Department refused to fire the special prosecutor on the orders of the President, you did so. And it was the aftermath of that that this law came into being. Mr. BORK: Well, quite an aftermath. Because at the time I testified to Congress that to pass a statute like this would be unconstitutional. And I said that I would recommend a presidential veto. They did not pass it. They passed it later during the Carter Administration, which was willing to sign it. LEHRER: But my point was that it was to prevent a Solicitor General in the future from doing what you did that they passed this law in the first place. Mr. BORK: It may be, but that is of no practical significance because the U. S. Attorney's office here, before the appointment of Mr. Cox, had really got the case cracked. Then the special prosecutor's office was formed by the Executive Branch and carried the case forward. When I fired Mr. Cox because of this horrible impasse that had occurred, the special prosecutor's office went right ahead, didn't miss a beat, without Mr. Cox, and shortly after that -- and that's in their report -- and shortly after that, we got a new special prosecutor, Mr. Dewarsky. So historically, there's no showing that this is ever necessary. LEHRER: Professor Sullivan? Prof. SULLIVAN: I have to disagree. Watergate is proof that sometimes you can't rely on the ordinary political processes, the ordinary self investigation of the Executive Branch, to bring forward wrongdoing within it. If anything, Watergate suggests that it took catastrophic events before wrongdoing was disclosed. The only intention of the independent counsel act is to try to regularize the process and prevent the government from having to engage in catastrophe before it can flesh out this wrongdoing. LEHRER: Is it your position, Professor Sullivan, that since this law has been on the books -- I mentioned in introducing you all that there had been 11 independent counsels appointed, 11 different cases -- that it has had a practical good effect? That the legal arguments aside, it has worked? Prof. SULLIVAN: Well, it certainly -- there's good evidence to suggest that it's increased confidence in the government. And the appearance of propriety and regularity and official correct conduct is very important to the operation of a stable United States government. So in that sense, it's been a success. Moreover, there's certainly no evidence that there's been any abuse or misconduct by any of the independent counsels. To the contrary, these have been people exercising a very limited task. Mr. BORK: May I just suggest that there is an appearance of impropriety in judges appointing prosecutors and in this case, judges -- if you're a defendant, you will appeal to the court on which one of the judges who appointed the prosecutor sits. Now, he won't sit on your case, but there is, I would think, an appearance of impropriety. I don't think there is any impropriety, but if we're going by appearances, that's one. Prof. SULLIVAN: Well, recusal should be able to take care of that in the ordinary cases you suggest. Moreover, history suggests that it's not such a terrible thing when courts appoint executive officers. After all, the very first Congress, the Congress in the 1789 Judiciary Act, the same Congress that contained many of the framers of our Constitution, passed a law that empowered the courts to appoint U. S. marshalls, persons with great executive power. Moreover, the Supreme Court a century ago, upheld a system that allowed the courts to appoint election officers, executive officers. So history suggests that sometimes it may be necessary for Congress to give the courts the power to appoint executive officers, and conflicts of interest, such as the ones covered by this law, are precisely that case. Mr. BORK: The election commissioners appointed were not purely executive officers and did not perform executive functions in that case. And the U. S. marshall is reviewed as an adjunct of the courts, just as a bailiff was viewed as an adjunct of the court. So I don't think there's any historic example for this kind of damage to the system of separating powers that our government rests upon. LEHRER: Back to recent history, judge, is it your position that there has been a misuse of this law? Mr. BORK: Well, I don't know -- certainly the one instance of subpoenaing the Canadian ambassador I think is a misuse, because that creates a great problem in our foreign relations, something the Executive Branch would not have done and had to step into the case to try to rectify it. Another special prosecutor's assistant told the court that if the Secretary of State or the President, presumably, told him that there was a terrible foreign relations problem, he would make the decisions whether to accommodate that problem or not. Now, I don't claim -- the special prosecutors we've had so far have been good and honorable men and women. But there is a great potential for real problems there. LEHRER: Because they -- because he or she has the power to say what you just said? In other words, I will decide and not the President, and not the Secretary of State? Mr. BORK: This is an essentially unaccountable officer. Now, I don't know how an individual defendant -- imagine if you were a defendant, and you realized you were facing a special prosecutor, or independent counsel, unlimited budget, unlimited staff, with only one case on his hands. And that's your case. There is also an appearance of something there. LEHRER: Is he not right there, Professor Sullivan? Prof. SULLIVAN: I think not. Let's suppose you were that same individual facing your crony in the executive branch? Isn't there an equal danger that your pal, your co worker, would have an incentive to bend over backwards to get you in order to avoid any appearance of bending over backwards to favor you? That is, individuals are not better protected without independent counsels. Independent counsels enable individuals to get the fairest possible process. Moreover, I think it's a mistake to talk about prosecution as a quintessentially presidential policy, a policy that requires accountability. We're not talking here about a court appointing the Secretary of Defense, or the Secretary of State, or any of their underlings. We're not talking here about a function that is policy sensitive, like foreign policy. We're talking here about upholding the law. And that's a function that is not policy based, it's legal. The function of a prosecutor does not require the kind of accountable presidential oversight that Judge Bork suggests. LEHRER: Judge? Mr. BORK: Well, we're talking about a principle which would allow the Congress to appoint almost all of the people in the Department of Justice and break them up into separate offices. Or which would allow the Congress to empower the courts to appoint almost everybody in the State Department. Separation of powers is effectively destroyed if this kind of principle is upheld. LEHRER: Well, I thank you both very much for being with us to ventilate this. I now at least understand what the argument's about. Thank you, Judge Bork and Professor Sullivan in Boston. Jammed Jails HUNTER-GAULT: We turn next to the overcrowding crisis in our nation's prison system. Yesterday, the Justice Department reported that more than 580,000 inmates are now being held in state and federal prisons, up almost 7% in a year. Despite extensive construction across the country, experts don't expect the problem will be solved with the courts continuing to impose heavier sentences. Spencer Michel of Public Television Station KQED has this report on the situation in California.

SPENCER MICHEL, KQED, San Francisco: In cities like Oakland, overrun by drug dealers, the national War on Drugs has meant an increase in arrests. As a direct result, more jail sentences are being handed down under new state laws carrying longer prison terms than before. The drug explosion and the political reaction to it have become major contributors to crowded jails across the land. In Northern California, the Santa Clara County jail in San Jose exemplifies the nationwide crisis. There are far too many inmates for the available space. Even to those locked up, the reason for the crush is obvious. MAN: Drugs. MICHEL: Drugs? MAN #2: It's all related to drugs, man. I'll be the first to tell you. Now, I'm not going to show my face, but when I get out of here, I'm planning on trying to straighten my life out, be a Christian and all that, you know. Get me a job. But I tell you, 85% of the people that's in this jail is drug related.

MICHEL: Barry Krisberg, executive director of the National Council on Crime and Delinquency, sees the trend continuing. BARRY KRISBERG, National Council on Crime: We have a national war against drugs, huge amounts of federal dollars going to the states, encouraging police to go out and make more arrests and judges to make more prison sentences of drug dealers. So I suspect we'll see a continued increase of drug offenders being sent to prison. ROBERT WINTER, Sheriff, Santa Clara County: The citizen on the street, of course, is saying, Hey, go ahead, pack 'em in, stack 'em a little higher. Pack 'em in a little tighter. I'm the sheriff. My job is to arrest people and to incarcerate people. I would like to see as many people as I can possibly contain legally that need to be detained.

MICHEL: But sheriffs like Bob Winter have their hands full. Because new laws are filling their cells. Rapists used to get up to seven years. Now the penalty range is up to nine. First degree burglars used to get up to four years. Now the maximum is six. Some offenses, like use of a firearm during a crime now carry mandatory prison terms. Another reason for the crisis in overcrowding is an influx of women prisoners. Lt. KATHY BARROWS, Santa Clara County: I think women are now the perpetrators of the crime instead of simply going along with their spouse.

MICHEL: When Lt. Kathy Barrows first came to work at this jail in the early '70's, there were 80 women inmates. Today, there are more than 500. Lt. BARROWS: Women are becoming more aggressive and more assertive. Because they have to be. They are now single parents, head of households. They are required to take care of the family. INMATE: It's harder to live. The rents are sky high, for God's sake. They're going out and trying to feed kids by stealing. INMATE: It's the drugs. Yeah, PCP, they're all coming in, going to prison behind PCP.

MICHEL: Crowding in both the women's section and in the men's has been judged by the courts to violate the constitutional rights of the prisoners. So Sheriff Winter was ordered to reduce the jail headcount. Sheriff WINTER: We have a Constitution. And we have civil rights laws that say that people cannot be subjected to cruel and unusual punishment.

MICHEL: Sheriff Winter and other officials who run jails are having to release nonviolent prisoners before they finish serving their sentences, or sometimes even before they start. INMATE: Driving without a license. And I got sentenced for 30 days, and I think it's great, they let me out in one day. MICHEL: You're only doing one day? INMATE: One day. MICHEL: Had you ever been in here before? INMATE: Yeah, I been in here for drugs, drug related. MICHEL: What are you in for? INMATE #2: Possession of cocaine. MICHEL: How long did they sentence you to? INMATE #2: Ninety days. MICHEL: So you're getting out how early? INMATE #2: About a month early. MICHEL: Think you'll be back in here? INMATE #2: Hopefully not. But you never can tell. Never -- when I was on the streets -- you never can tell. SHERIFF WINTER: People are just scoffing at the courts. They're totally disregarding the sentences. They're virtually volunteering to go to jail, because they know the probation isn't necessary. All they have to do is go to jail, because we're going to let 'em out the next day.

MICHEL: The early release program has become unpopular across the political spectrum. In Milpitas, site of an ever expanding jail facility, Democratic Mayor Bob Livengood resents the wasted effort by law enforcement. BOB LIVENGOOD, Mayor, Milpitas, CA: I think it's really a travesty that we spend all that money, exert all that energy, and then release prisoners well before the time that their sentence is over.

MICHEL: Politicians are digging deep into their budgets to launch expensive construction projects to build more cells, and thereby avoid the necessity of early release. In California, longstanding reluctance to spend money on new jails and prisons changed dramatically. It became evident the public wanted to treat criminals in the traditional way, jail time. Mayor LIVENGOOD: The taxpayers are going to have to pay for it. If we're going to insist and our legislature is going to insist on mandatory sentences for PCP use, then we had better come to the realization that there comes with that an expense. And we're going to have to bear it.

MICHEL: Surprisingly, California voters seem to agree. In the past decade, they approved four bond issues to build new state prisons at a cost of $2. 2 billion. And they face another such request on the November ballot. Across the country, facilities for 100,000 new inmates are in the works. But most states faced with dangerous overcrowding say they are out of money. California has already added 15,000 new beds to its prison system, with another 11,000 under way. But the system is still 64% over design capacity. As soon as new prisons are completed, they are filled with nearly twice as many inmates as they were designed for. And even when all the new buildings are finished, the crowding won't end. Kyle McKenzie is in charge of California's prison building program. KYLE McKENZIE, California Corrections Dept. : If we continue building at the rate we're doing, we'll probably be down by 1993 to approximately 130% of design bed capacity. We believe that -- where's that's not optimum, it's a manageable level of overcrowding.

MICHEL: But at the California Medical Facility in Vaccaville, now the largest prison in the nation, inmates complain that overcrowding in the newly constructed buildings has serious effects. INMATE: An effect it has, it makes more tension. It has an effect on our access to the law library, which is access to the court. On food, which is the amount of food and how it's served and whether it's hot or cold.

MICHEL: Newly designed prisons with more open space have helped. Even when full, they feel less crowded. And they're easier for the staff to control. But in the old section of Vaccaville, and in other prisons constructed in years gone by, conditions remain barely manageable with no relief in sight. Rooms constructed as libraries, have been turned into dormitories. Beds have been thrown up in the hallways. This complex is called the freeway. A band practice room has ceased to produce music, and now is home to dozens of prisoners. INMATE: At one time this was all single units. Now it's double. And you have individuals with different hygiene, with different cultural backgrounds, and what have you. And you find them all thrown together, and many times they can't coexist.

MICHEL: Despite the overcrowding, the long lines, the double celling, and despite predictions to the contrary, California's prisons have not had an increase in violence. In fact, there's even been a slight decline. Violence did jump dramatically during the 1970's as the population increased, and again three years ago when the overcrowding was at its worst. But the building program seems to have released some of the pressure. Another major reason for those crowded conditions is an increase in the number of parole violators being sent back to prison. In California, it's nearly a third of the entire prison population. County jails are too crowded to hold them, and parole agents are not inclined to overlook violations. INMATE: I paroled ten times in the last four years out of institutions, different institutions, Soledad, Tracy, San Quentin, here. Okay? Okay, I've been sent back to prison for driving without a license.

MICHEL: Prison researcher Barry Krisberg sees that kind of use of expensive prison space as a waste. Mr. KRISBERG: I think you have to approach incarceration just like every other public resource. How many dollars can we afford to spend, how many cells or incarceration places can we buy with that money, and then who are the most dangerous people who ought to be in those places? And once you move in that rational kind of way, you can come up with a sentencing system which puts the most dangerous people behind bars and then reserves or creates less expensive and very safe community sanctions for the rest.

MICHEL: But prison officials in California reject that approach. Prison builder Kyle McKenzie looks to California's governor for inspiration. Mr. McKENZIE: He indicated that we should consider alternatives to incarceration when criminals start considering alternatives to crime. We're building prisons, we think it's appropriate to get people off the street. In fact, I think the real question is can we afford not to.

MICHEL: But even in California, officials are now worried about vast expenditures on new prisons. The governor recently proposed that more prisoners be put to work to offset some of the construction costs. Other states are having an even more difficult time finding the money to build the prisons the political mood seems to be demanding. Pennsylvania Stakes HUNTER-GAULT: Next, we turn to Campaign '88 and the Democratic presidential race. We preview tomorrow's delegate rich Pennsylvania primary with two of its key political leaders. But first, an update on the Jackson and Dukakis campaigns. Both men traded shots over whether to negotiate with terrorists who hold Americans hostage. This latest sparring started Sunday when Jackson said he would meet with anyone to free American hostages. At a Washington, D. C. rally, he had some tough words for what he said was the Dukakis view.

JESSE JACKSON, presidential candidate: In the Middle east, ''Never negotiate with terrorist, be tough, even if it means hostages never get out! Be tough!'' I don't quite take the same position. If I could get those hostages out, I would bring them back home (applause). And guess what, I know how, I have done it before. MICHAEL DUKAKIS, presidential candidate: Trading arms to Iran for hostages was a terrible mistake. And we're going to live with the consequences of that mistake for years to come. I don't have a problem with talking, but you never make concessions to terrorists, ever. And that's fundamental. If you do, then what you end up with is hostage taking and terrorism all over the world. HUNTER-GAULT: Joining us now to look at tomorrow's Pennsylvania primary are Stephen Reed, mayor of Harrisburg, Pennsylvania, and a Dukakis supporter. He joins us from the studios of Public Station WITF in Harrisburg. And Democratic Congressman William Gray, Chairman of the House Budget Committee, and a Jackson supporter. He is in the studios of WHYY in Philadelphia. Starting with you, Congressman Gray, what impact does this Dukakis/Jackson debate over how to deal with terrorists have in Pennsylvania? Rep. WILLIAM GRAY, (D) PA: I don't think it's having any effect at all. I mean, the differences between the two candidates are minimal. In the debates that I've seen and heard Friday and Saturday, one in Philadelphia and one in Pittsburgh, there's not been a great deal of differences. I think what you really are looking for is a straw of difference. So now they're arguing about who's toughest on terrorism and who can handle it best. But I think on the major questions, they are very, very close. HUNTER-GAULT: Mayor Reed, do you agree? I mean, are people in Pennsylvania interested in this issue, and is this something that their decision could turn on? Mayor STEPHEN REED, Harrisburg, PA: No. It's not a major issue. As Congressman Gray has accurately reported, I think the issues in Pennsylvania are going to focus primarily on items related to economic development, which is where I think Gov. Dukakis's record in Massachusetts causes him to really stand out in a very positive way. And to a somewhat secondary way, I think some of the issues will relate to programs related to young people, and particularly senior citizens, and I say senior citizens because Pennsylvania has one of the highest percentages of senior citizens of any states in the union. HUNTER-GAULT: And you think the voters in Pennsylvania are liking what they hear from Mr. Dukakis more than Rev. Jackson on these issues? Mayor REED: That's an excellent question, because I think what is happening right now, and I've noticed this only in the last several weeks, that a lot of the candidates, all the candidates, perhaps even George Bush, are saying, sometimes are saying things -- everybody's for more jobs, everybody's for this and that. And what is happening in Pennsylvania is that people are looking to the records of the candidates rather than what they're saying. And that's where Michael Dukakis, who is not as flamboyant as a Jesse Jackson, is moving ahead and moving ahead very quickly because he has already done many of the things that he has already talked about, as being part of his presidential platform. HUNTER-GAULT: Do you see it that way, Congressman Gray? Rep. GRAY: Well, I think the major issues here in Pennsylvania are economic opportunity, particularly in Western Pennsylvania and some of the places where there hasn't been a recovery. I think Jesse Jackson's message is just beginning to break through. This past weekend he has been out in Western Pennsylvania, upstate Pennsylvania, in Harrisburg, in Dolphin County for the first time. And I think that the early polls taken last week don't reflect the fact that he now for the last three days has been there drawing excellent crowds wherever he's gone, talking about his message of keeping jobs here at home as wellas keeping drugs out and giving peace a chance. And I think that's going to peak hopefully on election day tomorrow. HUNTER-GAULT: But Mayor Reed has just raised the question that has haunted Rev. Jackson throughout this campaign: the experience issue, saying that Rev. Jackson sounds good when he talks about these things, but in point of fact, Gov. Dukakis actually has had some demonstrable successes. Is that a big factor there, the experience question? Rep. GRAY: Well, I think now that it's down to two candidates, people have a clear choice and they're going to be looking at these candidates, a very tough and long look at them. I think the experience issue is not the issue at all. I think it's the person who's going to provide the strongest leadership, the person who's going to provide the new direction and lead us into the best future. The experience issue -- well, we've had presidents who haven't been in elected office before. Dwight David Eisenhower never had held an elected office. We've had four presidents who never held an elected office in their life. HUNTER-GAULT: But do you think it's registering with the voters, this experience issue, is what I'm asking, the voters in Pennsylvania? Rep. GRAY: Well, no, I don't think that that has been the key issue. I think clearly Mike Dukakis has some assets. The recovery of Massachusetts, which he takes credit for. I think people look at that. I think at the same time, so does Jesse Jackson. And so I think they equally bring some really good assets, and I think people are going to decide tomorrow in Pennsylvania which one they want to go with. HUNTER-GAULT: Mayor Reed, there's been a lot of talk since New York that Dukakis's decisive win here meant that he had a lock on the nomination. From where you sit, your state, is that the sense that you get that it's all over now? But the shouting? Mayor REED: Well, I'm sure the governor would remind me not to say anything that suggests for a second that there's a lock on anything, even if he substantially wins the Pennsylvania primary tomorrow. But it certainly increases the distance between the two. And I think unless there would be a major faux pas in the Dukakis campaign over the next seven weeks, that he would be on his way to a nomination at the Atlanta Convention. We think he's going to do very well. Tomorrow we think he's going to carry both popular vote as well as the largest number of delegates from Pennsylvania, which are separately elected, separate from the popular vote itself. HUNTER-GAULT: How do you see it, Congressman Gray? Does Dukakis have a lock on it? Rep. GRAY: No, not at all. I think it's too early to give the benediction to the Jackson campaign. Here we are talking about giving taps to Jackson's campaign after Gov. Dukakis has had one double digit win in New York. HUNTER-GAULT: What about -- Rep. GRAY: And after Pennsylvania we have ten more primaries after Pennsylvania, over 800 delegates to be selected. So I think it's a little early to make the assumption that the Dukakis campaign is making that a victory tomorrow, even a strong victory means a march towards inevitability. HUNTER-GAULT: What about the polls sponsored by television stations in Philadelphia, Pittsburgh, that predict a big Dukakis win, 57% to 31%. You don't buy that? Rep. GRAY: I don't buy polls. I said polls reflect where people are at that moment. Tomorrow is another day. But even if those polls are accurate, even if tomorrow it comes true that what those polls said a week ago happens, the fact is there are 10 more primaries. Over 800 delegates to be elected. And many of them in places where the Jackson campaign has a stronger network, stronger constituency support than Mike Dukakis. This race is far from over. Even if Gov. Dukakis should be successful tomorrow. And I'm not sure that's going to happen. We still have a significant double digit undecided in this state. And so I would just simply say that there's a very good possibility after the Jackson's campaign over the last two or three days upstate and Western Pennsylvania, and here in the suburbs, that the momentum has changed slightly from New York. HUNTER-GAULT: Mayor Reed, speaking of New York, do you expect the kind of polarization there as here, and as a mayor, how do you look at the role that Mayor Koch played? And has that affected your role in any way there in Pennsylvania? Mayor REED: Well, I think it's safe to say that in Pennsylvania, you haven't had anything even remotely approaching the polarization that unfortunately seemed to have marred the New York primary. And to the extent that Mayor Koch's activities in New York were an example to us, at least to me, it was an example probably of what not to do. HUNTER-GAULT: So how do you see it coming out tomorrow? Mayor REED: I think we're going to have a very heavy Dukakis vote in both popular vote as well as winning the majority of the delegates from Pennsylvania, and we're the fifth largest state, so that's important. I think it'll increase the distance between Dukakis and Jackson, going to the Atlanta Convention and going into the next nine primary elections in terms of the committed delegates. It's going to have an enormous impact in increasing the ability of the Dukakis campaign to raise funds. And it is going to inevitably raise the question, really in a matter of several days. If Dukakis wins with a fairly substantial margin in Pennsylvania tomorrow, it's going to raise inevitably the question of the Jackson campaign continuing to campaign, but whether or not the peacemakers of the party should now be preparing for an Atlanta Convention where Dukakis is expected to win. Jackson is anticipated to provide great support. And how can we best make sure the coming out of Atlanta there is the united Democratic Party. Because very simply, a united Democratic Party going into the fall is going to win. HUNTER-GAULT: Well, I'm sure that that latter part you won't disagree with, Congressman Gray, and unfortunately we have to leave it there. Thank you for being with us, Congressman Gray and Mayor Reed. Born to Shop LEHRER: Finally tonight, some thoughts about that extraordinary Andy Warhol auction now underway in New York City. They are the thoughts of essayist Penny Stallings.

PENNY STALLINGS: Who hasn't experienced the thrill and the guilt as they laid down their hard earned cash for something they don't need, won't use and might even throw away. ''I know I shouldn't,'' a little voice whispers, ''but I can't resist. Stop me, Lord, stop me before I shop. '' Take heart, all you Shopaholics. You're not alone. You share your passion with a man who once turned the art world upside down. The exhibition and auction of his estate now going on at Sothebys in New York has finally solved the mystery of Andy Warhol. Andy Warhol, the ageless media star. Famous for being vacant, famous for being famous. The pop art sphinx, who constantly veiled himself in little lies to throw snoopers off the track, turns out to have been a chronic pack rat, a genius shopper, a crazed collector who bought everything from 19th century antiques to Gumby watches, Aubusson carpets to the complete works of Jackie Collins. At his death last year, Warhol had given over his five story townhouse to his possession, while he camped out in his bedroom. The place was stacked to the rafters with stuff. Furniture. Paintings, jewelry and flea market chatchkas. As well as with unopened cartons full of various odds and ends. By that point, Warhol didn't bother displaying his acquisitions, he didn't even look at them. The point wasn't so much owning and appreciating as buying, consuming, devouring, satiating, gorging. While he sold assemblyline silkscreens to socialites, Warhol himself was busy squirreling away one of a kind treasures with established pedigrees. He loved to bargain. Like rare art deco silverpieces bought for the price of scrap. For Warhol, if one was good, fifty were better. Though his early purchases were based strictly upon style, his taste was unerring. Even when it came to things others might have considered junk. Ultimately, he defined genres of collectibles and established their market values. The case could be made that for Warhol, shopping was a sort of research exercise. His stock in trade being trendy plagiarism. Recycled pop images and artifacts with a designer label. And for a time there was a genuine interplay between his twin passions. All that changed in 1968 when a disturbed factory hanger on pumped three bullets into his chest. Warhol survived, but his talent died. With few exceptions, his work lapsed into self parody, and art became in his words, ''just another job. '' A means to an end. And that end, shopping. Like other legendary shopaholics, Imelda with her shoes, Liberace with his candelabras, and Hearst with everything else, Warhol believed you are what you buy. The son of an immigrant Czech coalminer, Warhol had grown up poor, with his nose pressed against the window of the American dream. Despite his fame, the quintessential insider remained an outsider to the end. A doughy faced freak in a silver fright wig, a fawning groupie to glorify the jet set for a chance to hang out. While the demimonde played, Warhol made money. Money is everything, he declared. For once, he meant exactly what he said. Warhol used his money to even the score, to keep up. His collection was a delicious secret, kept not only from the public, but from his thousands of best friends, few of whom had ever been invited into his home. He collected people the way he collected things. Democratically declaring everyone from deposed monarchs to hairdressers, ''Great, just great. '' But in the end, his possessions were his real friends, his solace, his measure of success, his definition of himself. In that same democratic spirit, Warhol's last wishes give everyone a chance to own a piece of his mad passion. Everyone, that is, who thinks he can pay the price. LEHRER: And speaking of setting market values and paying the price, 175 of those cookie jars were auctioned for a total of $247,000. That's $1400 per jar. Recap LEHRER: And again, the major stories of this Monday. The Supreme Court split dramatically five to four in deciding to reassess a 12 year old decision that allows people to sue private citizens for alleged racial discrimination. And three U. S. Navy personnel are missing and 23 were injured in the explosion and fire yesterday aboard a submarine off the coast of Florida. Good night, Charlayne. HUNTER-GAULT: Good night, Jim. That's our NewsHour for tonight. We'll be back tomorrow. I'm Charlayne Hunter Gault. Thank you and good night.