The United States Supreme Court's ruling Monday requiring the early release of tens of thousands of California prison inmates may be, as Justice Antonin Scalia wrote in his fiery dissent, a "staggering" and "radical" event in the annals of law. But it comes as no surprise to people (in and out of the criminal justice system) who long have been chronicling atrocious prison conditions around the country. And it surely marks a nadir in America's persistently zealous efforts to imprison its citizens: We still lead the world in that category by far.
It was left to Justice Anthony Kennedy, a native of Sacramento and a graduate of Stanford University, to finally do the dirty work that has long needed to be done; to hold accountable lawmakers and prison officials who have tarried for decades in providing state prisoners with a constitutionally acceptable level of care and living conditions. In Brown v. Plata, one of the most important and contentious cases of the term, Justice Kennedy provided the critical fifth vote, the swing vote, to affirm a rare affirmative injunction issued by a special three-judge panel ordering as a last resort some 37,000 prisoners to be released through a variety of measures.
"As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three officers. As many as 54 may share a single toilet."Here, at last, after decades of short-sighted policy, comes the butcher's bill for the war on drugs, the state's dubious three-strikes law, and the magnetizing political pull of victims' rights groups. And it was delivered to the Golden State by the only tribunal in America with the power and the authority to speak on behalf of the nation's last lobbyless constituency -- our nation's prisoners. If this decision is a "slap in the face" to the victims of crime, as so many overheated commentators were suggesting Monday afternoon, it is not a slap delivered by the inmates themselves or even the federal judiciary. Like so much else about modern governance, we see here instead the consequences of the gulf between political promise and budgetary reality; between our short attention spans (lock 'em up, throw away the key) and life's long journey (in or out of a cell).
Here are the nut graphs from Monday's ruling. Justice Kennedy wrote:
For years the medical and mental health care provided by
's prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners' basic health needs. Needless suffering and death have been the well documented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California 's prison system. Short term gains in the provision of care have been eroded by the long-term effects of severe and pervasive overcrowding. California
Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the "primary cause of the violation of a Federal right," specifically the severe and unlawful mistreatment of prisoners through grossly inadequate provision of medical and mental health care (citations omitted by me).
How bad is the problem the justices were required to address? If all of those inmates were released today, which cannot happen, the state's prison system would still be enormously overcrowded. The injunction didn't even try to bring California's prison population in line with its prison capacities. It sought merely to limit the overcrowding to "137.5 percent of design capacity." As recounted by Justice Kennedy, "the state's prisons had operated at around 200% of design capacity for at least 11 years. Prisoners are crammed into spaces neither designed nor intended to house inmates. As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correctional officers. As many as 54 prisoners may share a single toilet."
To better understand what the Court has just done, and why, it's useful to have a sense of the enormity of the scope of the country's prisonization (both in California and elsewhere). Here's how David Cole, the brilliant law professor, summed up this context and perspective in a landmark piece on the topic for The New York Review of Books:
Until 1975, the United States' criminal justice system was roughly in line with much of Europe's. For fifty years preceding 1975, the US incarceration rate consistently hovered around 100 inmates per 100,000; criminologists made careers out of theorizing that the incarceration rate would never change. Around 1975, however, they were proved wrong, as the United States became radically more punitive. In thirty-five years, the incarceration rate ballooned to over 700 per 100,000, far outstripping all other countries.
This growth is not attributable to increased offending rates, but to increased punitiveness. Being "tough on crime" became a political mandate. State and federal legislatures imposed mandatory minimum sentences; abolished or radically restricted parole; and adopted "three strikes" laws that exact life imprisonment for a third offense, even when the offense is as minor as stealing a slice of pizza. Comparing the ratio of convictions to "index crimes" such as murder, rape, and burglary between 1975 and 1999 reveals that, holding crime constant, the United States became five times more punitive. Harvard sociologist Bruce Western estimates that the increase in incarceration rates since 1975 can take credit for only about 10 percent of the drop in crime over the same period.
Much of the extraordinary growth in the prison and jail population is attributable to a dramatic increase in prosecution and imprisonment for drug offenses. President Reagan declared a "war on drugs" in 1982, and the states eagerly followed suit. From 1980 to 1997, Loury tells us, the number of people incarcerated for drug offenses increased by 1,100 percent. Drug convictions alone account for more than 80 percent of the total increase in the federal prison population from 1985 to 1995. In 2008, four of five drug arrests were for possession, and only one in five was for distribution; fully half of all drug arrests were for marijuana offenses (footnotes omitted by me).
It's as much a matter of mathematics as it is about law. You send seven times more state inmates to prison for committing a wider range of crimes, and you fail to build seven times more prisons to hold them, and pretty soon you have a problem. The federal courts allowed California to try to solve this problem for a decade or so before finally coming up with the remedies the Supreme Court endorsed Monday. And, if the matter had been left to the High Court's conservatives, California would have been given many more years yet to put to right the conditions in those prisons. Enough is enough, Justice Kennedy effectively said with this opinion; law and justice don't necessarily have to wait forever.
It is impossible to read the details of Justice Kennedy's majority opinion without noting that many of the inmates in California's prisons appear to receive less care and consideration than do the terror law detainees at Guantanamo Bay, Cuba. For example, as Justice Kennedy wrote: "Prisoners with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had "no place to put him" (citations omitted by me).
And it is impossible to read the two separate dissents -- from Justice Scalia and from Justice Samuel Alito -- without feeling the scorn with which the Court's conservative minority clearly views Justice Kennedy's opinion. It practically drips from the pages. For example, Justice Scalia wrote:
It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order--the 46,000 whose incarceration will be ended-- do not form part of any aggrieved class even under the Court's expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.
Justice Alito was even more blunt. He ended his dissent with a chilling warning:
In largely sustaining the decision below, the majority is gambling with the safety of the people of
. Before putting public safety at risk, every reasonable precaution should be taken. The decision below should be reversed, and the case should be remanded for this to be done. I fear that today's decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong. In a few years, we will see. California
Justice Scalia took aim at the structure of the remedy. He wrote: "What has been alleged here, and what the injunction issued by the Court is tailored (narrowly or not) to remedy is the running of a prison system with inadequate medical facilities. That may result in the denial of needed medical treatment to "a particular [prisoner] or [prisoners]," thereby violating (according to our cases) his or their Eighth Amendment rights. But the mere existence of the inadequate system does not subject to cruel and unusual punishment the entire prison population in need of medical care, including those who receive it."
Justice Alito, on the other hand, focused upon the scope of the remedy. He wrote: "It is plausible that none of these deficiencies can be remedied without releasing 46,000 prisoners? Without taking that radical and dangerous step, exam tables and counter tops cannot properly be disinfected? None of the system's dilapidated facilities can be repaired? Needed medications and equipment cannot be purchased and used? Staff vacancies cannot be filled? The qualifications of prison physicians cannot be improved? A better records management system cannot be developed and implemented?"
The Supreme Court gave California two more years to undertake the required reduction of prison inmates and applauded state officials for already transferring some 9,000 prisoners out of the state system (to county jails, for example). And Justice Kennedy spent a great deal of time and space in his opinion seeking to reassure California's upstanding citizens that the ruling doesn't necessarily presage a coming crime spree. Justice Alito is right about that: in a few years we will see what happens with California's released inmates. In the meantime, and like it or not, Monday was a good day for the timeless proposition that our rule of law can on occasion protect even the least popular among us.
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