An image from today's Supreme Court decision in Brown v. Plata.

Leafing through the 84 pages of decision and dissents from the U.S. Supreme Court today, the first sign you’re in unusual territory is the pictures. The majority opinion from Associate Justice Anthony Kennedy includes three images depicting conditions in California’s prisons. Two show generic scenes of overcrowding in a system that in 2006 was packed to 185 percent of its designed capacity. (One unforgettable portrait of the overflow conditions came from NPR’s Laura Sullivan in a 2008 story on San Quentin.)

A third image (right) shows cages used to confine some mentally disturbed prisoners. Here’s how the opinion describes them: “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.’ ”

(By the way: the use of images in U.S. Supreme Court opinions: rare but not unprecedented. For instance, see the 2003 opinion Van Orden v. Perry, in which the court held that a display of the Ten Commandments on the Texas state capitol grounds did not violate the First Amendment’s establishment clause.)

The court was divided 5-4 in today’s Brown v. Plata. But even that close result masks the bitterness of the split. The 84 pages comprise Kennedy’s majority opinion—joined by Associate Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan—and two dissents: one by Antonin Scalia (joined by Clarence Thomas) and one by Samuel Alito ( joined by Chief Justice John Roberts.) The dissents are incendiary, but more on that in a moment.

The majority opinion may be read as a condemnation of inhumane conditions in California prisons and as a ringing defense of the notion that under our Constitution society owes those we imprison a basic measure of rights:

“As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. ‘ “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” ‘ (Atkins v. Virginia 2002, Trop v. Dulles 1958.)

“To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates ‘may actually produce physical “torture or a lingering death.” ‘ (in Estelle v. Gamble 1976, in re Kemmler 1890). … Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. 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.”

But today’s decision actually turns on something a little more mundane than the principles underlying the Eighth Amendment. The court’s charge was to adjudicate the California’s challenge to lower federal courts’ findings and prescriptions for the prison system under a 1996 law called the Prison Litigation Reform Act, or PLRA. The law seeks to make it harder for prisoners to sue over the conditions of their incarceration and requires both inmates and the courts that hear their cases to jump through a series of hoops in seeking and granting remedies to situations like dangerously inadequate mental health care—the allegation that drove the original federal court case (now known as Coleman v. Brown et al.). For instance, inmates must show they’ve exhausted every available avenue for resolving a complaint inside prison—using the prison’s grievance procedures, say—before suing. The law also requires a special three-judge panel, rather than a single judge, to pass judgment on relief for prisoner lawsuits. In granting relief, a three-judge panel is required to come up with a sharply focused remedy to fix a constitutional violation. The panel must also give “substantial weight” to how its remedy will affect public safety.

In short, California argued that the federal courts where the case began overstepped their bounds when they convened a three-judge district court panel to consider the issue of medical care in the prisons; and that the three-judge panel was wrong in its conclusion that overcrowding was the cause of poor medical care, that the conclusion was based on outdated information, and that the panel’s remedy—to require the state to reduce the prison population to 137.5 percent of capacity (about 46,000 inmates)—was far too sweeping and prescribed without due consideration for public safety.

And again in short, the court majority rejected the state’s argument, flatly affirming the panel’s order to reduce the prison population—including a two-year deadline for meeting the inmate quota. The opinion comes with a long final section of advice to both the state and to the three-judge district court
panel on how to approach future handling of the case. In essence, the court tells the panel to be open to the state’s suggestions for complying with its order; the court notes the state has already made progress in reducing its inmate population and suggests it might apply to extend the deadline for complying to five years.

And now to the dissents, which are remarkable for their predictions of a reign of terror if the court-ordered cut in prison populations is carried out. Associate Justice Antonin Scalia says that in affirming the lower court’s order, the majority is going along with “what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.”

Scalia focuses much of his scorn on the opinion’s concluding passage. He calls it “a bizarre coda”—perhaps just a superfluous reminder to the three-judge district court panel that its order is subject to modification. Or perhaps something else:

“I suspect … that this passage 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. … But perhaps I am being too unkind. … 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.”

Beyond the vitriol, Scalia’s argument is that the lower court litigation failed to find any systemwide violation of the Eighth Amendment’s ban on cruel and unusual punishment, that the majority has accepted a remedy far too broadly drawn to follow the dictates of the Prison Litigation Reform Act, and that the decision continues a trend toward “structural injunctions” that involve judges in supervising social institutions. Getting back to the vitriol, Scalia says:

“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.”

Similarly, Associate Justice Samuel Alito argues the lower courts failed to establish that overcrowding in California’s prisons violates the Eighth Amendment. He, too, is appalled at the order to reduce inmate populations: “The three-judge court ordered the premature release of approximately 46,000 criminals—the equivalent of three Army divisions.” (Emphasis in original). He says he’d reverse the lower court for three reasons: the three-judge failed to look at current conditions in the state’s prisons; the panel was wrong in ruling that the massive prisoner release is necessary to comply with the Eighth Amendment; and the panel failed to adequately consider the impact of the release on public safety.

Alito focuses mostly on that last point, saying that past attempts to reduce overcrowding by releasing inmates—even those found most likely to commit violent crimes—have been a failure. His view of what lies ahead here is dire:

“The majority is gambling with the safety of the people of California. 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.”

Supreme Court of the United States: Brown v. Plata (PDF)

Supreme Court’s Prison Ruling: A Closer Look 23 May,2011Dan Brekke


Dan Brekke

Dan Brekke is a blogger, reporter and editor for KQED News, responsible for online breaking news coverage of topics ranging from California water issues to the Bay Area’s transportation challenges. In a newsroom career that began in Chicago in 1972, Dan has worked as a city and foreign/national editor for The San Francisco Examiner, editor at Wired News, deputy editor at Wired magazine, managing editor at TechTV as well as for several Web startups.

Since joining KQED in 2007, Dan has reported, edited and produced both radio and online features and breaking news pieces. He has shared in two Society of Professional Journalists Norcal Excellence in Journalism awards — for his 2012 reporting on a KQED Science series on water and power in California, and in 2014, for KQED’s comprehensive reporting on the south Napa earthquake.

In addition to his 44 years of on-the-job education, Dan is a lifelong student of history and is still pursuing an undergraduate degree.

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