Cruel, Unusual, and Crowded

Will Brown v. Plata bring mass incarceration to an end?


Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America, by Jonathan Simon, New Press, 224 pages, $26.95

Imagine a society where convicts were sentenced to death by untreated renal failure or denial of chemotherapy. Modern Americans would surely consider such a place barbaric and cruel. Yet in the 1990s and 2000s, California essentially meted out such punishments, knowingly shoveling unprecedented numbers of convicts into overcrowded, underequipped prisons to serve long, hopeless sentences.

In 2006, "a preventable or possibly preventable death occurred" somewhere in California's prison system "once every five to six days," the U.S. Supreme Court observed in the 2011 case of Brown v. Plata. It's hard to find medical staff even for functional prisons; vacancies in the California system ranged from 20 percent for doctors to 44 percent for X-ray technicians. But an excess of inmates, more than a lack of doctors, caused the state's prison health care crisis. Built to house roughly 80,000 people, California's prisons were stuffed with twice that many residents, prompting Gov. Arnold Schwarzenegger to declare a state of emergency. With every cell full, prison officials had packed gymnasiums with double and triple bunks. In one such makeshift dormitory, a prisoner was beaten to death. No one on the prison staff noticed for several hours.

California conceded that such conditions violated the Eighth Amendment, but the state fought long and hard with prisoners' rights lawyers over how to remedy the violations. In Plata, the Supreme Court affirmed a lower federal court order requiring California to reduce prison overcrowding to 137.5 percent of capacity over the next two years. (In subsequent litigation, the deadline was extended to 2016.) At the time, the required reduction amounted to about 40,000 prisoners, assuming no increase in capacity-which, given the state's fiscal situation, was a realistic assumption.

The order didn't literally require the authorities to award 40,000 inmates a surprise trip home. California was free to decide how to thin its prison rolls: It could transfer state prisoners to local jails, stop sending parolees to prison for minor violations (an anomalous California practice that had been a major contributor to overcrowding), adjust its sentencing laws prospectively, or use some mix of approaches. Still, because the order set a limit on a prison population, it qualified as a "prisoner release order" under the Prison Litigation Reform Act of 1995, which permits courts to issue such orders only as a last resort. Over 10 days of hearings before the Plata trial court, past and present prison wardens from around the country had testified that California's prisons could safely be downsized. Doyle Wayne Scott, a former head of the Texas prison system, pronounced California's prisons "appalling," "inhumane," and "unacceptable," stating that he had "never seen anything like it" in his 35-year career.

Many analysts have described the Supreme Court's decision using outdated tropes from the Warren Court era, portraying the judges as activists either nobly or naively interfering with law enforcement. Such interpretations are too simplistic, as Berkeley law professor Jonathan Simon makes clear in Mass Incarceration on Trial, a book that chronicles the decades of complex litigation that culminated in Plata. The Supreme Court usually defers to states on issues of punishment. (Even on its so-called liberal wing, the current court contains no public opponent of the death penalty.) And the Prison Litigation Reform Act limits judges from intervening in prison administration even if they want to. That a relatively conservative and congressionally handcuffed Court was moved to uphold the Plata release order says less about the justices than it does about how egregious the California prisons had become by 2011.

"California is to incarceration," Simon writes, "what Mississippi was to segregation-the state that most exemplifies the social and legal deformities of the practice." True, California's per capita rate of incarceration is average compared to other states. But that fact reflects a historic transformation from California's position, until the late 1970s, as one of the least punitive states. Every state got "tough on crime" in the 1980s and '90s, but no state swung from one policy extreme to the other quite like California, which famously enacted the nation's most draconian Three Strikes Law, among other reforms. As Simon notes, California's incarceration rate demonstrated the highest increase in the nation, growing "a staggering 500 percent between 1977 and 1998." Moreover, an average incarceration rate for the United States-for that matter, a low incarceration rate for the United States-remains extremely high by world standards.

By the time Plata reached the Supreme Court, one of the underlying lawsuits had been ongoing since 1991. At oral argument, some of the justices expressed palpable frustration. "How much longer do we have to wait?" asked Ginsburg. "Another 20 years?" Breyer referred to photographs submitted to the court as "horrendous" and observed: "You cannot have mental health facilities that will stop people from killing themselves and you cannot have medical facilities that will stop staph and tubercular infection in conditions like this." In a rare step, the Court published three of those photographs as an appendix to its opinion. Two of the appended pictures show gymnasiums filled with beds, prisoners standing around in the narrow corridors between them. The third picture shows two cages the size of telephone booths. California locked suicidal prisoners inside such cages when there were no available beds in mental health facilities. Kennedy's opinion referenced a prisoner who was "held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic."

Those photographs, and the underlying facts, didn't directly implicate the prisons of any other state. Still, Simon rejects the notion that Plata was a one-off, "a remarkable but unique judicial intervention-the Bush v. Gore of prison jurisprudence." Instead, precisely because of California's outsized place in the annals of recent prison history, Simon reads Plata expansively, as "the legal basis for nationwide dismantling of mass incarceration." Simon agrees with everyone involved in Plata that California's prisons amounted by 2011 to a systematic Eighth Amendment violation. But he goes one step further: The California example proves, he argues, that imprisoning massive numbers of people fundamentally cannot comport with the Eighth Amendment. Beyond the logistical difficulties inherent in coordinating basic care for tens of thousands of prisoners, the logic of indiscriminate incapacitation that underlies mass incarceration militates against recognizing prisoners as individuals with ailments and frailties.

That incompatibility began to be enshrined in the architecture of California's prisons in the 1980s. To accommodate the possibility of overcrowding (although not on the level that would actually occur), these prisons were equipped with water and sewage infrastructure for 190 percent of housing capacity. They did not get equivalent leeway for medical facilities, and so, as the Supreme Court observed, prison medical staff had to "operate out of converted storage rooms, closets, bathrooms, shower rooms, and visiting centers." The Pelican Bay supermax-ostensibly designed to hold prisoners with severe behavioral problems-operated for its first two years without a full-time psychiatrist. In many California prisons, the system of medical record-keeping amounted to piles of documents strewn around spare rooms with no apparent organizational structure.

For Simon, these design and management flaws do not reflect bureaucratic oversights but a deeper cultural pathology: the tendency to imagine prisoners as an undifferentiated mass of uncontrollable criminality, not as human beings with organs that fail and extremities that break.

In addition to providing a legal account of Plata, Simon advances a historical narrative of the etiology of mass incarceration. Between 1970 and 2008, the ratio of Americans in prison ballooned to unprecedented heights, from-according to sociologists Bruce Western and Becky Pettit-around 100 per 100,000 people to around 762 per 100,000. The mechanisms of prison growth varied by state, but they included, in different combinations, local prosecutors charging more aggressively, state lawmakers stiffening criminal codes, parole boards denying release in cases where it previously would have been routine, federal grants encouraging punitive policies, and other factors. Feeding all these proximate causes, Simon argues, was a common factor: the fears of the 1970s, when day-to-day disorder blended in the public mind with sensationalized media coverage of prison riots and of outliers like the Manson family. In the new conventional wisdom, criminals represented a distinct and internally homogeneous class of determined predators; the only way to contain their threat was to imprison them all for as long as possible.

For Simon, Plata's significance rests in its potential to puncture that conventional wisdom by reframing the public image of the typical criminal. Against decades of political discussions that imagined every petty thief and drug addict as a latent serial killer, Kennedy's opinion models "a different way of seeing prisons and prisoners," Simon writes. As an index of the sea change that Plata represents, Simon emphasizes Kennedy's peroration on dignity. "Prisoners retain the essence of human dignity inherent in all persons," Kennedy wrote. "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 word dignity appears frequently in Supreme Court opinions, and Justice Kennedy, known for his high-flying prose, is especially fond of it. (His 2012 opinion overturning the Defense of Marriage Act used the word 11 times.) The term is also ubiquitous in American politics. In their 2012 platforms, the Democrats lauded "the value of treating all Americans with dignity and respect" while the Republicans insisted to the contrary that "all Americans should be treated with respect and dignity." The bioethicist Ruth Macklin once proclaimed dignity "a useless concept": Appeals to dignity, she argued, are inevitably "vague restatements of other, more precise notions or mere slogans." You needn't go that far to wonder whether dignity alone is a strong enough shield for the politically vulnerable. It's not hard to imagine a politician or judge playing the "human dignity" of prisoners against the "human dignity" of taxpayers or crime victims.

Though less inspiring than dignity, the number 137.5 might well prove Plata's more important string of characters. That's the admittedly arbitrary figure the court affirmed as the maximum percentage of capacity to which California's prisons could be crowded. At trial, several expert witnesses had suggested 130 percent, the cap recommended internally at the Federal Bureau of Prisons. A state review board, however, had identified 145 percent as the California prisons' maximum "operable capacity," although that calculation did not specifically account for medical needs. The trial court averaged the two, apparently preferring the lower figure but bumping it up slightly in deference to the Prison Litigation Reform Act's spirit of judicial restraint. In a recent article on post-Plata developments in California, where the state prison population has fallen almost 25 percent since 2007, criminologists Joan Petersilia and Francis Cullen wrote that, if other states want to follow California's example of prison downsizing, they should voluntarily set a similar "hard limit in capacity." Otherwise, "it is foolish to expect that creating alternatives to incarceration will siphon off large numbers of offenders from prisons." In practice, probation and treatment programs have often been tools for netting new groups of people under new forms of court control without concomitantly reducing the numbers sent to prison.

Is this a turning point for criminal justice reform, as journalists have insisted so often that it is becoming a cliché? Historic declines in crime have weakened the appeal of law-and-order demagoguery; DNA exonerations have undermined faith in the criminal courts; episodes like the standoff in Ferguson, Missouri, have laid bare the racism that pervades the criminal justice system; and the recession has made lawmakers newly skeptical of once-sacred fiscal cows. Politicians ranging from the libertarian-leaning Sen. Rand Paul (R-Ky.) to the center-left Sen. Cory Booker (D-N.J.) have spoken eloquently about the hardships faced by men and women who get out of prison only to find jobs and apartments closed off to them. And in 2009, for the first time in almost 40 years, the American prison population declined.

But that much-vaunted decline was largely an artifact of California's efforts to mitigate its overcrowding crisis. Other states have registered smaller reductions, if any, in recent years-and last year, for the first time since 2009, prison populations again grew both in California and in the United States as a whole. The 2013 uptick was small, and the totals remain below their pre-Plata heights. Still, the most recent data suggest that prison growth has leveled off more than it has reversed course.

Moreover, lower prison rolls do not necessarily mean fewer people under penal control. In response to Plata, California transferred responsibility for punishing almost all parole violations and drug and property crimes to the counties. In theory, counties were encouraged to experiment with alternatives to incarceration and treatment programs. In practice, they're filling the local jails. Already, advocates have filed lawsuits alleging crowding and inadequate medical care in county facilities-suggesting that the horrors Plata was supposed to end might merely have been relocated. There is also the danger that poorly implemented reforms could generate new problems. In the 1960s and '70s, when states shuttered abusive psychiatric asylums, many people who in the past would have been incarcerated ended up homeless instead.

Nevertheless, Simon is right to identify Plata as a harbinger of significant change in the politics of punishment. Justice Kennedy's opinion named every California prisoner as a "potential victim" of unconstitutional treatment; he lamented that "many more will die or needlessly suffer" without an end to chronic overcrowding. After decades of zero-sum political formulas pitting criminals against victims, the nation's highest court was now allowing that these categories are not mutually exclusive.

Even the prison guards' union seemed to agree. In a 2007 appearance, the president of the California Correctional Peace Officers Association (CCPOA) lambasted "the prison-industrial complex," unwittingly invoking a term popularized by prison abolitionists. The next year, he hired a parolee to work at the union's headquarters and, when members complained, responded with an email reminder that prisoners "are the brothers and sisters, the nephews and nieces, the children and grandchildren of people from all walks of life." In The Toughest Beat, his definitive history of the union, sociologist Joshua Page concludes that these overtures represented a cosmetic attempt to deflect growing criticism, not a genuine change in the organization's philosophy. Even so, the fact that the CCPOA must now play defense signals a dramatic shift in the political climate since the 1990s.

Failing to register that shift, Alito and Scalia wrote dissents in Plata that read like missives from an earlier era, soaked in superpredator bromides. Alito accused the majority of "gambling with the safety of the people of California"-an accusation that almost exactly mirrored a statement made in 2010 by Harriet Salarno, who told a reporter that a cost-saving proposal to parole a few dozen terminally ill or paralyzed prisoners amounted to "playing games with public safety." Salarno chairs Crime Victims United of California, a CCPOA-funded group that has consistently advocated punitive policies. Scalia, for his part, wisecracked that "many" of the prisoners aided by Plata "will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym." As shown in the photographs appended to the majority opinion, California's prison gymnasiums were unavailable for "pumping iron."

Those who live or work inside prisons are also people, and California gambled with their safety for decades. The state never contested this point before the Supreme Court. "Nobody doubts for a moment," California's lawyer told the justices at oral argument, "that there have been very significant violations of constitutional rights" in California's prisons for "years gone by." The disputed issues in Plata pertained solely to what caused the violations and how to fix them. In backhanded defense of his client, California's lawyer explained that, in his view, the primary cause wasn't overcrowding but "the culture of disregard for the inmate."

Mass Incarceration on Trial is both a useful guide to Plata and an effective polemic against the United States' excessive reliance on prisons. Considering its dark subject matter, it is also remarkably optimistic. Reading the book, I sometimes wondered if Simon was trying to convince himself as much as his readers that Plata represents the beginning of the end of mass incarceration.

In other writings, Simon has emphasized that ending the War on Drugs and decriminalizing low-level offenses, while laudable steps, may not be enough to dismantle America's massive carceral regime. To do that, Simon has written, we will also have to confront the United States' "extraordinarily harsh prison sentences" for violent crime. Whether murderers should be paroled after 20 years is a much thornier political conversation than whether potheads should be branded as felons, and Plata did not directly broach either topic. But Simon seems to hope it has edged America closer to those necessary conversations than has any other Supreme Court case in recent decades.

Sara Mayeux (smayeux@law.upenn.edu) is a Sharswood fellow at the University of Pennsylvania Law School.