Supreme Court Stands Up for Inmates

by Mark Wilson

When it comes to crime and punishment, Justice Anthony Kennedy leans to the left. Justice Kennedy authored Lawrence v. Texas, which struck down a Texas law prohibiting homosexual sodomy. Justice Kennedy again comes through, casting the tie-breaking vote in favor of reasonable living conditions for prisoners in Brown v. Plata (re-captioned following Jerry Brown’s election to the governorship; lower-court rulings will refer to the case as Schwarzenegger v. Plata).

The facts are these: California’s state prison system is so overcrowded that living conditions are violating the Eighth Amendment’s prohibition on “cruel and unusual punishment.” At the time of the trial, Kennedy notes, California’s prisons are housing almost double their design capacity, and have been for 11 years. In two separate cases that were consolidated, a U.S. District Court ordered the State of California to release prisoners until the prison system held 137.5% of its design capacity, citing overcrowding as the primary cause of the unconstitutional conditions. The Ninth Circuit Court of Appeals affirmed.

Prison overcrowding thus leads to the impermissible “cruel and unusual” conditions: inadequate treatment for prisoners who need mental health care, prisoners living in squalor, and inadequate treatment for prisoners with physical health problems:

A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”

What is at issue is not so much the issue of prison overcrowding as the novel approach the district court took in these cases: it is rare, indeed, that a court orders the executive to do something as drastic as releasing prisoners. But the district court concluded that building more prisons was too time-consuming; the constitutional violations were happening now, had been happening for years, and persisted in spite of different solutions to alleviate the problem.

In 1995, the federal courts dealt with prison overcrowding in California in Coleman v. Brown, that time due to “the systematic failure to deliver necessary care to mentally ill inmates.” As it turns out, prisoners have a right to “retain the essence of human dignity inherent in all persons,” which includes medical care. I guess if we’re going to imprison 1% of the adult population of the United States, we’d better be prepared to care for them.

The majority’s opinion is more of this: facts about the poor conditions of California prisons that are, perhaps, shocking to people who don’t know about the problem already. (The opinion even includes a rare Appendix, which contains photographs of some of the living conditions.)

The Dissent

Justice Scalia is not pleased. The Prison Litigation Reform Act (PLRA), which grants courts the authority to do things like this, insists that the relief granted must be “narrowly drawn” and “shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” I guess that’s where Scalia disagrees with the majority: the remedy was way too broad. Then again, Scalia notes explicitly that he disagrees with “evolving standards of decency” as the benchmark for the Eighth Amendment, as articulated in Roper v. Simmons. (By the way, Justice Kennedy also wrote that opinion, in which he declared that the parameters of “cruel and unusual punishment” are not, as Scalia would have it, fixed in time.)

But what is most appalling about Scalia’s opinion is his use of bogeymen to imply that the effect of this ruling will be to put violent felons back on the street:

Most of [the released prisoners] 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.

[. . .]

I suspect, however, that this passage [about modifying the injunction] is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achieve the benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the released inmates. [Emphasis added]

[. . .]

So perhaps the coda is nothing more than a ceremonial washing of the hands — making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s responsibility. [Emphasis added.]

Justice Alito, in a separate dissent, added:

The three-judge court would have us believe that the early release of 46,000 inmates will not imperil — and will actually improve — public safety. Common sense and experience counsel greater caution. [Internal citations omitted.]

Got that? Big, scary prisoners are coming to kill and rape you. And it’s all Justice Kennedy’s fault. Because it only makes sense that, if the State is permitted to release any prisoners, it would obviously release only the most violent offenders first. So either the State is monstrously stupid or everybody in prison is there for equally heinous crimes. Justice Scalia certainly can make these kinds of bold and ignorant inferences from the comfort of his home in Georgetown. It probably goes without saying that he has never met a prisoner, spoken to a prisoner, or visited a prison, relying instead on the caricatures perpetuated by the punish-them-as-much-as-you-can lobby.

Scalia also, predictably, disagrees with what he calls “factfinding-as-policymaking,” insisting that injunctions like the one upheld in this case “force judges to engage in a form of factfinding-as-policymaking that is outside the traditional judicial role.” He is blissfully unaware that negative policymaking, of the type extolled in Connick v. Thompson, is also a form of policymaking. Scalia is making his bed just as every other liberal justice is; the only difference is that Scalia refuses to acknowledge what he’s doing, insisting that he’s engaging in a truer, “originalist” interpretation of the law. Outside the Federalist Society, that’s called being intellectually dishonest.

Case-in-point: Scalia disagrees with the trial court’s findings of fact. But as he himself acknowledges, it’s extremely difficult to override the trial court’s findings. Trial courts’ facts are given hearty deference and are overruled only if there is “plain error.” So Scalia decides to rebrand those findings of fact as opinions disguised as facts. This paragraph is a doozy:

I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism. Yet, because they have been branded “factual findings” entitled to deferential review, the policy preferences of three District Judges now govern the operation of California’s penal system.

Justice Scalia is shocked — shocked! — by the notion that judges exercise opinions even when they are trying to find facts. Whatever happened to objectivity? Is it possible that the selective inclusion or omission of facts constitutes an opinion? This is news to everyone but Scalia, apparently. As my contracts professor always said, judges exercise judgment. That’s why their written responses are called opinions.

Scalia might be right that judges should not be in a position to exercise broad institutional reforms, but that’s nevertheless what PLRA gives them. It’s also important to note that the trial court’s decision to release prisoners comes after fifteen years of litigation. California’s elected and appointed officials, who are the proper parties to determine what to do, have apparently tried everything else and failed. Prison overcrowding is still a problem.

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