The prisons pickle

How Brown v. Plata has undermined Congressional limits on federal court orders, and how citizens have allowed this to happen.
James S. Cole | Jun 20 2011 | comment  



This is the second of two articles on Brown v. Plata, the May 23 US Supreme Court decision that affirmed that California must greatly reduce its inmate population in the next two years. The first article explained how federal courts can tell states what to do in prison matters under the US Constitution. This article focuses on the weaknesses of the ruling itself.

At the time the two cases on appeal in Brown were tried in 2008, California's prisons held almost twice as many prisoners as they were designed to hold. The district courts ordered California to reduce the number to a limit of 137.5 percent of capacity. The difference between the then-current population and the limit imposed by the federal courts was huge, approximately 46,000 inmates. Since the trial, the state reduced the number of prisoners by 9,000, so its prison system must achieve a net reduction of 37,000 more. The courts have given California two years to comply, with leave to seek more time if it can demonstrate the need.

The two lawsuits that went up to the Supreme Court claimed that California was violating the Eighth Amendment's ban on "cruel and unusual punishment" because inmates could not obtain minimally decent health care. (One class focused on physical care; the other on mental care.) It has been settled law since the 1960s that a serious lack of basic medical care represents a violation of the Eighth Amendment. "A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society... If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation." Brown v. Plata, Part II.

Although several causes of the violations were identified in the trials of the cases, the trial judges focused on overcrowding. The judges ruled that the sheer number of inmates overwhelmed the ability of the prisons to provide minimal care. There was no room for doctors and nurse to work; there was no space for sick inmates to recuperate from serious illness or injury; there were too few medical personnel to see all seriously injured and ill prisoners.

In both the lawsuits, remedies that were not as drastic as forcing the early release of inmates were attempted first. In one of them, the State had been under orders for specific steps to increase the availability of health care for over ten years, without success. The district judges were plainly frustrated by the failure of California to improve the health care it afforded to inmates according to the mandates issued by the courts.

Unleashing a flood of convicted criminals upon society greatly interferes with a state's criminal justice system and causes real risk of harm to citizens. Despite these repercussions, federal courts have ordered reductions of prison populations here and there across the country for several decades. By the 1990s it seemed to many citizens that the federal courts were not as reluctant to do this as they should be. Congress enacted and President Clinton signed the Prison Litigation Reform Act of 1995 (the "Act"), 18 USC. § 3626, in order to reduce such occasions to a minimum.

In certain respects, the majority opinion in Brown v. Plata treated the Act as an obstacle to be overcome rather than a law to be respected. Among other errors, the Court failed to honor the requirements that overcrowding be found to be "the primary cause of the violation of a Federal right" and that a release order be entered only if "no other relief will remedy the violation of the Federal right of a particular plaintiff or plaintiffs." § 3626(a)(3)(E).

Remember that the Eighth Amendment violation consisted of failing to provide minimum health care to prisoners, not overcrowding per se. The 5-4 majority of the Supreme Court recognized that overcrowding was not "the primary cause" but one of several causes of that harm. "In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic administrative failures… Only a multifaceted approach aimed at many causes, including overcrowding, will yield a solution." Brown v. Plata, Part II.B.3. It described overcrowding as the most important of these.

It is hard to understand how the Court could find that overcrowding was "the primary cause" of the lack of medical care when it admitted that there were multiple causes that required a "multifaceted" approach. The language Congress enacted into law implies that overcrowding must be identified as the only primary cause, not one of the primary causes. To that objection made in the dissents, Justice Kennedy's majority opinion replies, "The PLRA should not be interpreted to place undue restrictions on the authority of federal courts to fashion practical remedies when confronted with complex and intractable constitutional violations." Id.

Notice that word, "undue." It is quite squishy. Who determines what is "due" and "undue"?  Ultimately, five judges of the US Supreme Court. One can only wonder with Justice Scalia in dissent what makes those five unelected officials any wiser than the elected representatives of the American people about what restrictions are "undue."

The Court also failed to match the relief to the persons who were actually harmed, as the statute requires. A release order is to be entered only if "no other relief will remedy the violation of the Federal right of a particular plaintiff or plaintiffs." § 3626(a)(3)(E)(ii). As both dissenting opinions pointed out, most of those who will benefit from a wholesale release of inmates are healthy. Their rights have not been violated, and they do not need the relief. The majority responded that healthy prisoners will unavoidably become members of the aggrieved classes of sick and injured prisoners if overcrowded conditions are not fixed. But did the statute say to release prisoners who are at risk of becoming victims of constitutional violations in the future? The majority answered "yes," but the language of the statute rather clearly answers "no." The remedy is supposed to be for those who have been harmed already.

The dissents outline additional ways in which the majority paid little respect to the directives of Congress in the Act, and readers will profit from their expositions.

Justice Alito's dissent makes a telling point about the proper role of judges by quoting one of the district judges as he reacted to a particular proposal for more limited relief: “The only thing is we would be protecting the class members. And maybe that’s the appropriate thing to do. I mean, that’s what this case is about, but it would be… difficult for me to say yes, and the hell with everybody else.” It is hard to find a clearer expression of a tendency to ignore the law in favor of an amorphous sense of "justice." Yet that did not seem to trouble the majority of the US Supreme Court. While it did not explicitly ratify the district judge's comment, its insistence that it would not countenance "undue" restrictions on the ability of courts to fashion relief represented another way of saying the same thing.

The end result of Brown v. Plata is that the Prison Litigation Reform Act will put less restraint on judicial overreaching than Congress intended. That is not a good thing if we intend to govern ourselves through our elected representatives. But ultimately in our Republic we get the government we deserve, including the Supreme Court. Electing the current President insured that he would appoint two of the five justices that composed the majority in Brown v. Plata. It is hard to imagine that two justices appointed by his opponent would have treated the case in the same manner.

One more thing. Citizens who complain, as this writer does, that the courts are taking over their government may want to consider how much they themselves have created the incentives for the courts to do so. Citizens in California and other states have maintained prison systems in which a parade of horrible conditions can be recounted in courtrooms to spur judges into action to prevent future abuses of human rights. We cannot "lock 'em up and throw away the key" and still meet our responsibilities as a civilized society. Those are yet men and women that we are locking up. Justice Kennedy is surely right that a prison "that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society."

The responsibility to insure basic human rights belongs in the first instance to the people and their elected representatives. If they abdicate their responsibilities, it should be no surprise that well-meaning judges will seek ways to solve the problems, even if the consequences include overriding state sovereignty, undermining self-government, and releasing tens of thousands of convicts into the streets before their sentences have expired.

James S. Cole graduated from Harvard Law School and practices law in St Louis, Missouri.



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