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U.S. Supreme Court Holds California’s Prison Overcrowding Violates Eighth Amendment, Must be Remediated by Population Reduction
by John E. Dannenberg
In a landmark ruling upholding provisions of the Prison Litigation Reform Act (PLRA) that permit specially convened three-judge federal court panels to order reductions in state prison populations due to overcrowding (18 U.S.C. § 3626(a)(3)), a bitterly divided U.S. Supreme Court, in a 5-4 decision, affirmed a panel’s prior order directing the California Department of Corrections and Rehabilitation (CDCR) to remediate its constitutionally inadequate mental health and medical care by reducing its prison population to 137.5% of design capacity (thereby lowering the in-state prison population from 156,000 to 110,000 over a two-year period). See: Brown v. Plata, Case No. 09-1233, 2011 WL 1936074.
The May 23, 2011 majority opinion, authored by Justice Anthony Kennedy, was guided by profound moral principles: “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.” Brown, supra, at p.27.
The Underlying Litigation Against CDCR
For decades, California has been the battleground of federal court litigation in separate class-action 42 U.S.C. § 1983 civil rights suits brought by prisoners related to the CDCR’s mental health care (Coleman v. Wilson, U.S.D.C. (E.D. Cal.), Case No. 2:90-cv-00520-LKK-JFM) and medical care (Plata v. Brown, U.S.D.C. (N.D. Cal.), Case No. 3:01-cv-01351-TEH). PLN has reported extensively on these cases in dozens of articles since 1996.
In Coleman, the district court found gross inadequacies in mental health treatment for California prisoners – the most glaring evidence of which was a suicide rate 80% higher than that of the rest of the nation’s prisons. This was compounded by staff psychological doctor vacancy rates of 54.1%, a never-ending lack of bed space for mentally ill prisoners and grossly inadequate conditions of confinement – including keeping mentally ill prisoners in tiny “interview” cages with no bathroom facilities for up to a day at a time, where they would have to defecate and urinate on themselves, because there was no other space for them.
The district court had ordered remedial actions of increasing salaries to attract needed medical staff and expanding treatment facilities, but the prisoner suicide rate held steady at about 60 per year. Ultimately, the court concluded that California could neither build its way out of the shortfall in treatment facilities nor could its promises to hire more staff and take other actions be relied upon. The court believed that prison overcrowding was the main roadblock to remediation of the CDCR’s unconstitutionally cruel and unusual treatment of mentally ill prisoners.
In Plata, the district court found that the CDCR’s medical treatment facilities were grossly inadequate – observing such abominable “clinic” areas as those with no running water for staff to wash up in between patients, soiled shower water (sewage) coursing across the floor leading to a septic drain in front of the clinic, a lack of basic medical supplies, and a chronic shortage of doctors and nurses.
The state prison system would hire any doctor who had “a license, a pulse and a pair of shoes.” Brown, supra, at p.25. On personal tours of the prisons, the district court observed a practice of holding 50 men in a 12 x 20-foot locked “waiting room” for hours on end, sharing the air and touching the same surfaces as other ill patients; the court noted filthy treatment areas, unqualified staff and a lack of basic sanitation. In the “hospital” area, the court found blocks of cells with no medical observation capability and no regular checkups on patients. The district court concluded that these conditions resulted in the needless death of one prisoner every five or six days. [See: PLN, Sept. 2008, p.18].
Frustrated with the CDCR’s lack of response to years of court orders to remediate the cruel and unusual punishment attending these unconstitutional conditions, the courts gave up on expecting prison administrators to keep their promises to fix things, and appointed a Special Master to oversee mental health treatment (in Coleman) and a Receiver to take over the CDCR’s medical care delivery system (in Plata).
The Special Master traveled to all 33 California state prisons, trying to persuade CDCR officials to fix observed problems at each facility. The Receiver initially focused on San Quentin State Prison, whose condemned and shuttered 1884 hospital was ultimately ordered replaced with a new five-story building containing medical and dental facilities. But even that wasn’t enough; the 5,200 prisoners at San Quentin were still waiting in long queues to see doctors, dentists and nurses. At other facilities, backlogs of 700 prisoners waiting to see a doctor were reported, and urgent specialty clinic referrals at one prison had been pending for six months to a year. While there was admittedly some improvement – the abominable physical conditions in medical treatment areas described above were largely addressed – the delays in medical care did not abate. A continuing shortage of CDCR doctors and nurses plagued medical care delivery.
Although San Quentin is fabled for its 700-man death row and (former) gas chamber, it is not as well known for its largest prisoner population, housed at the facility’s reception center. Approximately half of San Quentin’s population is composed of parole violators. When a new arrival enters the reception center he must undergo a medical exam, dental exam and psychological evaluation to develop a baseline for any treatment or special placement needs. With parole violators usually staying for only a few months, this revolving-door factor constantly overwhelms San Quentin’s medical and dental staff. The district court noted that the CDCR processes 140,000 parole violators and new commitments every year, with reception centers often overflowing to 300% of design capacity – resulting in a “toxic” living situation.
Not lost on the district court judges was their observation of grossly overcrowded housing conditions, as CDCR facilities had operated at 200% of design capacity for at least 11 years. This included the conversion of every gymnasium (and most day rooms) in California’s 33 prisons – except the gym at the California Medical Facility, which was built with donated funds and has a legal covenant barring non-athletic use – to a sea of bunk beds, often triple bunks. (The middle bunk was so small that a “well-nourished” former CDCR director, when testing the first triple bunk beds himself, was unable to roll over).
Almost 400 men were stuffed into the gym at San Quentin with no added toilets or showers. In these so-called “ugly beds,” spaced only inches apart, contagious diseases, including “bleeding, oozing with pus” staphylococcus skin infections, were rampant. Outbreaks of chicken pox, influenza and norovirus were common. This further overwhelmed the prison’s medical care delivery system. Moreover, the irritation and stress factor of so many prisoners living so close together increased friction and violence, resulting in lockdowns that again compounded medical care delivery by requiring prisoners to be individually escorted by guards to see a doctor.
After more than a decade of non-compliance with interim court orders, the attorneys for the plaintiff classes in Plata and Coleman argued that the ultimate culprit was simply overcrowding due to overpopulation in the CDCR. Accordingly, they moved the district courts to convene a three-judge panel, pursuant to the PLRA, to seek an order reducing California’s prison population to a level that would permit the CDCR to deliver constitutionally adequate medical and mental health care.
This was the first time that the three-judge panel provision of the PLRA had ever been invoked, and it was natural to expect the state defendants to appeal. But an appeal of a PLRA-convened three-judge panel does not proceed to the Circuit Court of Appeals; rather, it goes directly to the U.S. Supreme Court pursuant to 28 U.S.C. § 1253. Thus, Brown v. Plata became the test-bed not just for California’s unconstitutional prison mental health and medical care, but a legal test-bed for the three-judge panel provision of the PLRA as well.
Convening of Three-Judge Panel Upheld
A preliminary step in every court’s consideration of a case is whether that court has jurisdiction to hear the matter. Here, the U.S. Supreme Court determined that under 28 U.S.C. § 1253, in regard to direct appeals from decisions of three-judge panels, the statutory preconditions had been met. In conjunction with the express terms of the PLRA, the Court first determined that the lower court had “previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied,” under 18 U.S.C. § 3626(a)(3)(A)(i). This requirement ensures that the extreme measure of ordering a prison population reduction is the “last resort remedy,” not a “first step.” The Supreme Court observed that this was easily met in Coleman by the appointment of a Special Master in 1995, and was satisfied in Plata by approval of a consent decree and stipulated injunction in 2002.
Although the state argued otherwise, the Court found that a second PLRA condition, the reasonable time requirement of 18 U.S.C. § 3626(a)(3)(A)(ii), also had been met. The state had ample time in Coleman to remedy the unconstitutional conditions following its own agreement in 2006 to build new facilities, hire new staff and implement new procedures. Further, in 2006, the Plata-appointed Receiver had filed a preliminary plan for new construction, hiring of more staff and procedural reforms. However, the unconstitutional conditions persisted. Since the state had had a reasonable amount of time to comply with the previous orders, the subsequent decision to convene the three-judge panel was upheld.
Evidence Supported Finding that Overcrowding was Primary Cause of Eighth Amendment Violations
The state made the argument that while prisoners who were sick and/or dying unnecessarily were entitled to adequate medical care, the majority of prisoners did not have dire medical issues and the two lawsuits representing the classes of prisoners in need of mental health and medical care should not be resolved by releasing unafflicted prisoners.
The Coleman and Plata judges had concluded, after more than a decade of non-compliance by state officials, that the state’s inability to adequately respond to medically needy prisoners was largely due to being overburdened with the day-to-day management problems attending the CDCR’s 172,000 prisoners (at the peak population level) crammed into space designed for around 80,000. The fact that only “some” prisoners were dying needlessly was simply part of doing business as usual, and the state could not get out of this rut – as proven over many years of non-compliance with stipulations and court orders – by “building its way out” or by hiring more staff to fill vacant medical positions.
The district courts had found that while individual flaws identified at each facility could be earmarked for change, the overarching problem that defined the state’s inability to deliver constitutionally adequate medical and mental health care was incontrovertibly linked to overcrowding. But would ordering the reduction of California’s prison population meet the PLRA requirement that such a drastic remedy may only result when it is apparent there is no lesser remedy to end the constitutional violations?
The Supreme Court found that while reduction of the prison population would be required to bring the state into Eighth Amendment compliance, the remedy of “reducing the population” did not translate to just letting hordes of felons go free. In fact, the Court gave no specific direction to the state on how to accomplish the reduction – just a time-limit (two years) in which to get the job done.
For example, the state could (as the California legislature has recently adopted) return non-violent, non-sex offense, non-serious criminal offenders to county jails. It could ship more prisoners to out-of-state privately-operated facilities. It could shut down the incestuous bed-vacancy-driven practice of returning many technical parole violators to prison, which has kept the prison system overcrowded.
The state could offer greater time-credit incentives for prisoners who complete rehabilitative programs. It could build more facilities. It could depopulate some prisons, consistent with their custody level requirements versus available medical facilities. It could rethink its costly Three-Strikes law, under which 5,000 men and women are serving life sentences for mostly minor (non-violent, non-serious) third offenses. And it could start obeying state law (Penal Code § 3041(a)) by fixing terms for term-life sentenced prisoners at their initial parole hearings, then releasing them on parole pursuant to existing formally-adopted regulations guiding such releases. The latter option would have the double benefit of emptying scarce higher-security beds while drastically reducing the demand for medical care that inheres – indeed, escalates annually – with the state’s aging lifer population.
Evidence Supported Finding that No Other Relief Would Remedy Eighth Amendment Violations
The PLRA was carefully crafted to ensure that prison population-reducing orders were used only as a last resort. This necessarily required a court panel to first consider, and then exhaust, all reasonable alternatives. To this end, both U.S. District Judge Thelton E. Henderson (Plata) and Judge Lawrence K. Karlton (Coleman) spent over a decade jousting with the state defendants in response to mounting evidence that the courts’ earlier remedial orders were not effectuated. Indeed, during the pendency of both cases the CDCR’s prison population drastically increased, while its over-design-capacity percentage increased even more – notwithstanding the largest prison building boom in California’s history. As the Supreme Court summarized in Brown, supra, at p.17:
“The evidence supports the three-judge court’s finding that ‘no other relief [would] remedy the violation,’ § 3626(a)(3)(E)(ii). The State’s claim that out-of-state transfers provide a less restrictive alternative to a population limit must fail because requiring transfers is a population limit under the PLRA. Even if they could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The court also found no realistic possibility that California could build itself out of this crisis, particularly given the State’s ongoing fiscal problems. Further, it rejected additional hiring as a realistic alternative, since the prison system was chronically understaffed and would have insufficient space were adequate personnel retained. The court also did not err when it concluded that, absent a population reduction, the Receiver’s and Special Master’s continued efforts would not achieve a remedy. Their reports are persuasive evidence that, with no reduction, any remedy might prove unattainable and would at the very least require vast expenditures by the State. The State asserts that these measures would succeed if combined, but a long history of failed remedial orders, together with substantial evidence of overcrowding’s deleterious effects on the provision of care, compels a different conclusion here.”
The Court thus rejected the state’s claim that even if each of its suggested solutions was unlikely to remedy the constitutional violations, they would succeed if combined. The Court noted that attempts to remedy the violations in Plata had been ongoing for 9 years; in Coleman, remedial efforts had been pursued for 16 years. The state’s long history of failed remedial orders, together with substantial evidence of overcrowding’s harmful effects on the provision of medical and mental health treatment, “compels a different conclusion today.” Accordingly, the Court concluded in Brown, supra, at p.38:
“The common thread connecting the State’s proposed remedial efforts is that they would require the State to expend large amounts of money absent a reduction in overcrowding. The Court cannot ignore the political and fiscal reality behind this case. California’s Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding. There is no reason to believe it will begin to do so now, when the State of California is facing an unprecedented budgetary shortfall. As noted above, the legislature recently failed to allocate funds for planned new construction.
Supra, at –––– – ––––. Without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill in California’s prisons.”
Public Safety is Not Axiomatically Imperiled by Reducing the Prison Population
In his embarrassing, acrimonious dissent, Justice Scalia (joined by Justice Thomas) assumed the role of activist fearmonger by calling the majority’s decision “an order requiring California to release the staggering number of 46,000 convicted criminals.”
Justice Alito (joined by Chief Justice Roberts) mocked, “46,000 criminals – the equivalent of three Army divisions.”
The PLRA expressly commands a three-judge panel to give “substantial weight” to public safety aspects prior to ordering a prison population reduction. Reviewing the panel’s record below, the Court found that it had devoted 10 days at trial to this issue. Indeed, the panel had considered expert evidence that advised, “overcrowding ... increases recidivism as shown within this state and in others.” Former San Quentin Warden and later Secretary of Corrections Jeanne Woodford testified before the panel that she “absolutely believe[s] that [CDCR] make[s] people worse, and that we are not meeting public safety by the way we treat people.”
A former corrections head in three states referred to California’s prisons as “criminogenic,” meaning that they tend to exacerbate criminal behavior rather than ameliorate it. Another expert testified that California’s recidivism rate (70%) is among the highest in the nation. The state’s respected independent Little Hoover Commission reported, “each year, California communities are burdened with absorbing 123,000 offenders returning from prison, often more dangerous than when they left.”
Yet more expert witnesses produced evidence that lowering prison populations had been accomplished without an adverse impact on public safety in some California counties as well as in Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida and Canada. The three-judge panel recognized that such population-reducing techniques as expanding good-time credits to those prisoners least likely to reoffend, diverting low-risk offenders to community programs and increasing the use of electronic monitoring were proven tools to lower prison populations while minimizing risk to public safety. Most importantly, the panel had observed that CDCR’s practice of filling empty beds in prison reception centers with technical parole violators – who are violated for minor, non-criminal behavior at the discretion of their parole officers – could be stopped overnight by simply redirecting such violators to community-based programs.
At any given time, the CDCR’s technical parole violator population runs upwards of 20,000 – double the number of prisoners that must be reduced by November 2011 pursuant to the three-judge panel’s earlier orders. In 2000, parole violators comprised almost half of the state’s then-140,000 prisoner population; today, low parole rates for lifers and facilities filled with prisoners who have Three-Strike convictions, coupled with no new prison construction, has drastically reduced available bed space for parole violators.
The state has already begun to shift low-risk prisoners from prisons to county jails, where they are housed at lower cost. However, a full roll-out of such transfers has been stymied by the state’s almost $10 billion budget shortfall, which Governor Jerry Brown hopes will be remedied by a November voter referendum to extend present tax structures for several more years. The rub here is not the math, it’s the politics. Plainly, housing prisoners in lower-cost jails should reduce the financial burden on the state. But to move funding from the CDCR’s budget to that of the counties requires wresting money away from members of the state’s influential prison guards’ union, the California Correctional Peace Officers Association (CCPOA) – a daunting political task.
The Supreme Court concluded that the three-judge panel had fully and properly considered both the potential impact on public safety, as well as realistic options left open to the state to safely achieve the prison population reduction ordered by the panel.
Evidence Supported Determination that CDCR’s Population Should be Capped at 137.5% of Design Capacity
The Supreme Court reviewed the panel’s conclusions as to the scope of the required prison population reduction. The Court did not reweigh the evidence considered by the panel; rather, it surveyed the record to determine if the panel’s weighing of the evidence was “clearly erroneous.”
Such evidence consisted of expert testimony from a wide variety of sources. The chief deputy secretary of CDCR’s health care services stated that “California’s prisons were not designed and made no provision for any expansion of medical care space beyond the initial 100% of capacity.” A former corrections director in three states opined that 130% would give staff the ability to provide necessary services. A former Texas prison executive also supported the 130% figure. A former Secretary of the CDCR agreed with the 130% figure, except in regard to older facilities, while the federal Bureau of Prisons has long used the 130% of design capacity benchmark.
California officials proposed an overcapacity ceiling of 151%, to be achieved within five years. But the state’s Corrections Independent Review Panel came up with a recommendation of 145% of design capacity. After looking at the disastrous record of failed medical treatment over the years of litigation, and considering all expert testimony, the three-judge panel concluded that the proper upper bound for the CDCR population with respect to design capacity was lower than 145% but higher than 130%. Averaging the two, the panel settled on 137.5%.
The Supreme Court found this was a reasonable balance based upon the evidence, and thereby compliant with the requirements of the PLRA.
What the Supreme Court’s Decision Requires
The Court’s ruling has been widely reported as requiring a “mass release of prisoners.” The flames of this hotly-debated misrepresentation were no doubt fanned by the media-popularized incendiary rhetoric of the dissenting justices. However, the Supreme Court made itself clear: “The order in this case does not necessarily require the State to release any prisoners. The State may comply by raising the design capacity of its prisons or by transferring prisoners to county facilities or facilities in other States,” the Court wrote. Brown, supra, at p.27.
The Court was also clear that, while finding the panel’s order for capping the CDCR’s population at 137.5% was proper under the PLRA, the panel retained the authority to amend its order in its sound discretion. The Court wrote that the panel could “exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans to correct the violations in a prompt and effective way consistent with public safety.” Id., p.46.
What the Supreme Court required is that unless and until any modification is approved by the panel, the prior population cap order shall be executed. That order requires reaching the 137.5% capacity cap within two years after the Supreme Court’s ruling, subject to an initial 10,000 prisoner reduction by November 2011. California is free to use any or all of its chosen remedies to accommodate the panel’s order. If the state believes it needs more time to comply, it may ask the panel for relief – but the panel is not likely to simply roll over and let more prisoners die unnecessarily for want of adequate medical and mental health treatment.
“The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding,” the Supreme Court noted. Brown, supra, at p.47.
What the Supreme Court’s Decision Does Not Require
The Court’s decision in Brown does not require that even one prisoner be released early. It does not require California to build more prisons. It does not limit population levels at individual facilities to 137.5% – the capacity cap is only the average result required. The ruling does not call for the early release of prisoners with mental health or medical needs. It does not mandate transferring prisoners out of state. It does not order that any particular group of prisoners, such as Three-Strikers or lifers, receive greater parole consideration. It doesn’t even require that any one individual prisoner receive specific medical or mental health care.
Rather, the Supreme Court’s decision only affirms the panel’s finding that inadequate medical and mental health treatment in the CDCR violates the Eighth Amendment; that no other attempted remedies have yet worked or appear that they might work; that overpopulation is the principal cause of the constitutional violations; and that restricting the prison system’s population to 137.5% of design capacity is the most efficacious method to ensure the Eighth Amendment violations will be remedied.
The Disturbing Dissenting Opinions
One of the most enlightening aspects of studying U.S. Supreme Court jurisprudence is to learn from the sanguine counsel of the dissent. These published opinions offer insight into alternate readings of Constitutional precedent and provide guidance in arguing future cases. The wisdom of the dissenting justices is not lost just because they are in the minority in a particular case. Sadly, however, there is precious little of this wisdom contained in the two dissenting opinions in Brown. Rather, those fiery epistles reveal their shallowness with their blustery “tough on crime” rhetoric. Worse yet, they are fraught with miscomprehension of the underlying facts.
Justice Scalia (joined by Justice Thomas) begins by labeling the majority ruling “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” (Brown, supra, at p.51), which would result in “inevitable murders, robberies and rapes to be committed by the released inmates” (Id., at p.58). First, Justice Scalia is simply wrong – the decision does not require the release of a single prisoner. And his inflammatory language, “convicted criminals,” is rhetorical surplusage; after all, there are no state prisoners in California who were not convicted.
Continuing his disapproval of this “judicial travesty,” Justice Scalia lambasted the Court’s majority for granting the “release” of 46,000 prisoners solely because a much smaller number were actually dying for want of necessary medical or mental health care.
Expressly disagreeing with the concept of “evolving standards of decency,” Justice Scalia argued that because not every member of the named classes in Coleman and Plata had personally experienced “torture or a lingering death,” or had received “sufficiently atrocious treatment,” class relief was not constitutionally available. Brown, supra, at p.53.
Justice Scalia further argued that there can be no Eighth Amendment violation based on “systemwide deficiencies”; i.e., there is no legal concept of “systemic unconstitutionality.” Apparently, unless the lack of prison medical care gets so bad that every prisoner is “sufficiently atrocious[ly] [mis]treated,” no systemwide Eighth Amendment claim can be asserted, based on Justice Scalia’s reasoning.
Again misstating the Court’s decision, Justice Scalia decried “the 46,000 whose incarceration will be ended” (Brown, supra, at p.54), “many [of whom] will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” One can only wonder what record Justice Scalia reviewed – there was no reference in Coleman or Plata to such muscle-bound prisoners. Indeed, one wonders if Justice Scalia even read the record below; if so, it should have been plain (particularly from the photographs attached to the majority opinion depicting bunk-filled gyms) that every prison gym but one was converted into a sea of tightly-packed double and triple bunks, and that no weight piles remained. Not in the record was the fact that the CDCR had eliminated weight piles over a decade ago.
Stooping to a personal attack, Justice Scalia then accused the “three District Judges” on the panel (one was a Ninth Circuit Court of Appeals judge) of not relying on the credibility of the testifying expert witnesses, but instead only advancing their personal agendas. “Of course they were relying largely on their own beliefs about penology and recidivism. And of course different district judges, of different policy views, would have ‘found’ that rehabilitation would not work and that releasing prisoners would increase the crime rate. ... I am saying that it is impossible for judges to make ‘factual findings’ without inserting their own policy judgments. ... The policy preferences of three District Judges [sic] now govern the operation of California’s penal system.” Brown, supra, at p.56 (emphasis in original).
Digging deeper into the panel’s credentials, Justice Scalia opined, “Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions.” Perhaps Justice Scalia, who presumably also went to law school and is familiar with pertinent Supreme Court precedents, thus unwittingly exposed the Achilles’ heel of his own dissent. If it is “impossible for judges to make factual findings without inserting their own policy judgments,” then the factual findings expressed in his own dissent are inherently suspect simply because Justice Scalia is, after all, a judge.
Indeed, his own personal agenda that would deny constitutionally-required mental health and medical care to California prisoners fails to acknowledge “the concept of human dignity” and the majority’s finding that such inadequate care “has no place in civilized society.” Brown, supra, at p.27.
In a separate dissent, Justice Alito, inquiring into alternatives to releasing the numerical equivalent of “three Army divisions” of prisoners, asked, at Brown, supra, p.65:
“Is it 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 answer, from the extensive records in Coleman and Plata – and after over a decade of attempts to gain compliance from the CDCR – is, sadly, “no.” While some improvements in treatment and treatment facilities have been made, as of the time of trial most had not.
Justice Alito focused on concerns that “releasing” non-medically ill and non-mentally ill prisoners would not necessarily result in better treatment for those who were sick. He quoted from the Special Master in Coleman, who speculated that even releasing 100,000 prisoners would leave the mental health problem “largely unmitigated” (it is estimated that 20% of CDCR prisoners are in need of treatment for serious mental health issues).
Yet missing from Justice Alito’s doubts about the value of reducing California’s prison population is the fact that the CDCR has for years been under court orders to add medical and psychiatric staff and treatment facilities. Those orders are still in effect, and must be obeyed. Reducing overpopulation in the CDCR merely provides the space and staff for the remaining prisoners to obtain the minimal treatment required under the Eighth Amendment.
Justice Alito was at least hopeful of some degree of remedy, though he felt that due to errors by the three-judge panel, “an adequate but less drastic remedial plan [based on up-to-date data] could have been crafted.” Brown, supra, at p.66. However, he failed to address the cat-and-mouse game that the CDCR has successfully parlayed for more than a decade in the district courts – a court-order-followed-by-noncompliance sequence that frustrated the plaintiffs and courts to the point that they were forced to turn to the ultimate weapon: a prison population reduction order under the PLRA. In any event, Justice Alito’s concerns are mitigated by the fact that the Court’s decision does not require releases – it only requires that the CDCR’s population, housed in prisons designed for 80,000, does not exceed 110,000 within two years.
Nonetheless, Justice Alito accused the majority of “gambling with the safety of the people of California. ... I fear that today’s decision, like prior prisoner releases, will lead to a grim roster of victims.”
What Alternatives are Available to the CDCR and Three-Judge Panel?
The Supreme Court’s ruling in Brown only affirms the three-judge panel’s order to reduce overcrowding within California’s existing 33 state prisons to 137.5% of design capacity.
As noted above, it says nothing about how this shall be accomplished (e.g., build more prisons, transfer prisoners to county jails, ship more prisoners to out-of-state private lockups, phase in community-based rehabilitation programs, stop incarcerating technical parole violators, increase earned good time credits, and/or obey existing parole-setting laws). While the wild-eyed dissents envision “three Army divisions” of murderers, rapists and robbers descending upon a suddenly vulnerable public, that is not what will happen.
First, the plaintiffs and three-judge panel have long agreed that releasing from prison those men and women who are not at high risk of violent crime would have a major impact on achieving the required CDCR population reduction without an adverse impact on public safety. Resistance to such releases, however, includes concerns of a reduced prison employee work force. It can be expected that the CCPOA, the politically powerful prison guards’ union, will use every tool in its toolbox to forestall job losses among its membership. Although, to give credit, the CCPOA intervened in Brown on the side of the prisoner plaintiffs and filed a brief with the Supreme Court arguing that the panel’s population reduction order was proper.
Second, the three-judge panel could entertain medically-determined paroles, wherein prisoners in need of extensive treatment, but not deemed currently dangerous, could be transferred to community facilities where the cost of their care would be greatly reduced. This could, and should, include the politically unpopular “lifer” population, whose aging members drive prison medical costs and whose documented recidivism rate is a miniscule 1%.
Third, the state legislature could take responsibility for the prison overcrowding problem by making a simple business decision: incentify all prison employees for reaching specified goals of reduced recidivism. Currently, the CDCR’s business model is “more prisoners = more money.” That model devolves from the fact that the term “corrections” has never been defined in any state code, and thus cannot be measured or evaluated.
Therefore, the entire “Department of Corrections” is an unaccountable money sink that demands – and gets – unbounded general fund dollars for every prisoner it incarcerates.
The legislature should simply abolish “corrections” and create a Department of Rehabilitation, where rehabilitation is defined as “not recidivating.” Under that model, a percentage of every CDCR employee’s wages would be tied directly to the achievement of specified goals for reducing recidivism rates. The state should also consider abolishing or rewriting its Three Strikes law, which has had a significant impact on the CDCR’s prison population. It could also eliminate parole requirements and supervision for prisoners and simply release them when their sentences are done since reincarceration of parole violators, usually for non-criminal offenses, consumes tens of thousands of prison beds each year. Likewise, having a functional parole system that actually releases life-sentenced prisoners after they have completed their mandatory minimum sentences would free up prison beds and also release the older prisoners who tend to have more medical problems than younger prisoners. Sentencing reform that reduces sentences would also, over time, reduce the prison population. None of these options are likely to occur.
It is also likely that the biggest winners of this court ruling are going to be private prison companies. A lack of political will and leadership is what brought California to this situation and it shows no signs of abating. By shipping its prisoners to out-of-state private prisons the CDCR can reduce its prison population to meet the lower court mandate of 137.5% of design capacity. This avoids any actual changes in prison and sentencing policy and results in a massive windfall to the private prison industry. Corrections Corporation of America already holds over 10,000 California state prisoners.
Brown Offers True Change
In short, the opportunity is ripe for true change: California cannot afford the cost of its bloated prison system; the state’s three-year recidivism rate (70%) is an artifact of the CDCR’s practice of re-incarcerating technical parole violators; and the public is embracing programs that will take prisoners out of the revolving-door prison system and prepare them for successful reintegration into society. The latter is emerging – with success stories in progressive counties of up to a 95% reduction in recidivism – as a sounder investment in public safety.
The outcome in this case goes beyond a prison population reduction order or adequate medical and mental health treatment for California prisoners. Every prisoner, according to the Supreme Court’s majority ruling, is deserving of “human dignity” – a concept that was affirmed in Brown. But it was affirmed only after more than a decade of litigation and stonewalling by prison officials, and only following the Court’s bare majority decision in which four dissenting justices would not have dignified prisoners with even that modest finding.
Note: The plaintiff classes in Coleman and Plata were ably represented by attorneys Donald Specter, Sara Norman and Rebekah Evenson with the Prison Law Office, and by Michael W. Bien, Ernest Galvan, Amy Whelan and Lisa Ells with Rosen, Bien & Galvan LLP.
In a landmark ruling upholding provisions of the Prison Litigation Reform Act (PLRA) that permit specially convened three-judge federal court panels to order reductions in state prison populations due to overcrowding (18 U.S.C. § 3626(a)(3)), a bitterly divided U.S. Supreme Court, in a 5-4 decision, affirmed a panel’s prior order directing the California Department of Corrections and Rehabilitation (CDCR) to remediate its constitutionally inadequate mental health and medical care by reducing its prison population to 137.5% of design capacity (thereby lowering the in-state prison population from 156,000 to 110,000 over a two-year period). See: Brown v. Plata, Case No. 09-1233, 2011 WL 1936074.
The May 23, 2011 majority opinion, authored by Justice Anthony Kennedy, was guided by profound moral principles: “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.” Brown, supra, at p.27.
The Underlying Litigation Against CDCR
For decades, California has been the battleground of federal court litigation in separate class-action 42 U.S.C. § 1983 civil rights suits brought by prisoners related to the CDCR’s mental health care (Coleman v. Wilson, U.S.D.C. (E.D. Cal.), Case No. 2:90-cv-00520-LKK-JFM) and medical care (Plata v. Brown, U.S.D.C. (N.D. Cal.), Case No. 3:01-cv-01351-TEH). PLN has reported extensively on these cases in dozens of articles since 1996.
In Coleman, the district court found gross inadequacies in mental health treatment for California prisoners – the most glaring evidence of which was a suicide rate 80% higher than that of the rest of the nation’s prisons. This was compounded by staff psychological doctor vacancy rates of 54.1%, a never-ending lack of bed space for mentally ill prisoners and grossly inadequate conditions of confinement – including keeping mentally ill prisoners in tiny “interview” cages with no bathroom facilities for up to a day at a time, where they would have to defecate and urinate on themselves, because there was no other space for them.
The district court had ordered remedial actions of increasing salaries to attract needed medical staff and expanding treatment facilities, but the prisoner suicide rate held steady at about 60 per year. Ultimately, the court concluded that California could neither build its way out of the shortfall in treatment facilities nor could its promises to hire more staff and take other actions be relied upon. The court believed that prison overcrowding was the main roadblock to remediation of the CDCR’s unconstitutionally cruel and unusual treatment of mentally ill prisoners.
In Plata, the district court found that the CDCR’s medical treatment facilities were grossly inadequate – observing such abominable “clinic” areas as those with no running water for staff to wash up in between patients, soiled shower water (sewage) coursing across the floor leading to a septic drain in front of the clinic, a lack of basic medical supplies, and a chronic shortage of doctors and nurses.
The state prison system would hire any doctor who had “a license, a pulse and a pair of shoes.” Brown, supra, at p.25. On personal tours of the prisons, the district court observed a practice of holding 50 men in a 12 x 20-foot locked “waiting room” for hours on end, sharing the air and touching the same surfaces as other ill patients; the court noted filthy treatment areas, unqualified staff and a lack of basic sanitation. In the “hospital” area, the court found blocks of cells with no medical observation capability and no regular checkups on patients. The district court concluded that these conditions resulted in the needless death of one prisoner every five or six days. [See: PLN, Sept. 2008, p.18].
Frustrated with the CDCR’s lack of response to years of court orders to remediate the cruel and unusual punishment attending these unconstitutional conditions, the courts gave up on expecting prison administrators to keep their promises to fix things, and appointed a Special Master to oversee mental health treatment (in Coleman) and a Receiver to take over the CDCR’s medical care delivery system (in Plata).
The Special Master traveled to all 33 California state prisons, trying to persuade CDCR officials to fix observed problems at each facility. The Receiver initially focused on San Quentin State Prison, whose condemned and shuttered 1884 hospital was ultimately ordered replaced with a new five-story building containing medical and dental facilities. But even that wasn’t enough; the 5,200 prisoners at San Quentin were still waiting in long queues to see doctors, dentists and nurses. At other facilities, backlogs of 700 prisoners waiting to see a doctor were reported, and urgent specialty clinic referrals at one prison had been pending for six months to a year. While there was admittedly some improvement – the abominable physical conditions in medical treatment areas described above were largely addressed – the delays in medical care did not abate. A continuing shortage of CDCR doctors and nurses plagued medical care delivery.
Although San Quentin is fabled for its 700-man death row and (former) gas chamber, it is not as well known for its largest prisoner population, housed at the facility’s reception center. Approximately half of San Quentin’s population is composed of parole violators. When a new arrival enters the reception center he must undergo a medical exam, dental exam and psychological evaluation to develop a baseline for any treatment or special placement needs. With parole violators usually staying for only a few months, this revolving-door factor constantly overwhelms San Quentin’s medical and dental staff. The district court noted that the CDCR processes 140,000 parole violators and new commitments every year, with reception centers often overflowing to 300% of design capacity – resulting in a “toxic” living situation.
Not lost on the district court judges was their observation of grossly overcrowded housing conditions, as CDCR facilities had operated at 200% of design capacity for at least 11 years. This included the conversion of every gymnasium (and most day rooms) in California’s 33 prisons – except the gym at the California Medical Facility, which was built with donated funds and has a legal covenant barring non-athletic use – to a sea of bunk beds, often triple bunks. (The middle bunk was so small that a “well-nourished” former CDCR director, when testing the first triple bunk beds himself, was unable to roll over).
Almost 400 men were stuffed into the gym at San Quentin with no added toilets or showers. In these so-called “ugly beds,” spaced only inches apart, contagious diseases, including “bleeding, oozing with pus” staphylococcus skin infections, were rampant. Outbreaks of chicken pox, influenza and norovirus were common. This further overwhelmed the prison’s medical care delivery system. Moreover, the irritation and stress factor of so many prisoners living so close together increased friction and violence, resulting in lockdowns that again compounded medical care delivery by requiring prisoners to be individually escorted by guards to see a doctor.
After more than a decade of non-compliance with interim court orders, the attorneys for the plaintiff classes in Plata and Coleman argued that the ultimate culprit was simply overcrowding due to overpopulation in the CDCR. Accordingly, they moved the district courts to convene a three-judge panel, pursuant to the PLRA, to seek an order reducing California’s prison population to a level that would permit the CDCR to deliver constitutionally adequate medical and mental health care.
This was the first time that the three-judge panel provision of the PLRA had ever been invoked, and it was natural to expect the state defendants to appeal. But an appeal of a PLRA-convened three-judge panel does not proceed to the Circuit Court of Appeals; rather, it goes directly to the U.S. Supreme Court pursuant to 28 U.S.C. § 1253. Thus, Brown v. Plata became the test-bed not just for California’s unconstitutional prison mental health and medical care, but a legal test-bed for the three-judge panel provision of the PLRA as well.
Convening of Three-Judge Panel Upheld
A preliminary step in every court’s consideration of a case is whether that court has jurisdiction to hear the matter. Here, the U.S. Supreme Court determined that under 28 U.S.C. § 1253, in regard to direct appeals from decisions of three-judge panels, the statutory preconditions had been met. In conjunction with the express terms of the PLRA, the Court first determined that the lower court had “previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied,” under 18 U.S.C. § 3626(a)(3)(A)(i). This requirement ensures that the extreme measure of ordering a prison population reduction is the “last resort remedy,” not a “first step.” The Supreme Court observed that this was easily met in Coleman by the appointment of a Special Master in 1995, and was satisfied in Plata by approval of a consent decree and stipulated injunction in 2002.
Although the state argued otherwise, the Court found that a second PLRA condition, the reasonable time requirement of 18 U.S.C. § 3626(a)(3)(A)(ii), also had been met. The state had ample time in Coleman to remedy the unconstitutional conditions following its own agreement in 2006 to build new facilities, hire new staff and implement new procedures. Further, in 2006, the Plata-appointed Receiver had filed a preliminary plan for new construction, hiring of more staff and procedural reforms. However, the unconstitutional conditions persisted. Since the state had had a reasonable amount of time to comply with the previous orders, the subsequent decision to convene the three-judge panel was upheld.
Evidence Supported Finding that Overcrowding was Primary Cause of Eighth Amendment Violations
The state made the argument that while prisoners who were sick and/or dying unnecessarily were entitled to adequate medical care, the majority of prisoners did not have dire medical issues and the two lawsuits representing the classes of prisoners in need of mental health and medical care should not be resolved by releasing unafflicted prisoners.
The Coleman and Plata judges had concluded, after more than a decade of non-compliance by state officials, that the state’s inability to adequately respond to medically needy prisoners was largely due to being overburdened with the day-to-day management problems attending the CDCR’s 172,000 prisoners (at the peak population level) crammed into space designed for around 80,000. The fact that only “some” prisoners were dying needlessly was simply part of doing business as usual, and the state could not get out of this rut – as proven over many years of non-compliance with stipulations and court orders – by “building its way out” or by hiring more staff to fill vacant medical positions.
The district courts had found that while individual flaws identified at each facility could be earmarked for change, the overarching problem that defined the state’s inability to deliver constitutionally adequate medical and mental health care was incontrovertibly linked to overcrowding. But would ordering the reduction of California’s prison population meet the PLRA requirement that such a drastic remedy may only result when it is apparent there is no lesser remedy to end the constitutional violations?
The Supreme Court found that while reduction of the prison population would be required to bring the state into Eighth Amendment compliance, the remedy of “reducing the population” did not translate to just letting hordes of felons go free. In fact, the Court gave no specific direction to the state on how to accomplish the reduction – just a time-limit (two years) in which to get the job done.
For example, the state could (as the California legislature has recently adopted) return non-violent, non-sex offense, non-serious criminal offenders to county jails. It could ship more prisoners to out-of-state privately-operated facilities. It could shut down the incestuous bed-vacancy-driven practice of returning many technical parole violators to prison, which has kept the prison system overcrowded.
The state could offer greater time-credit incentives for prisoners who complete rehabilitative programs. It could build more facilities. It could depopulate some prisons, consistent with their custody level requirements versus available medical facilities. It could rethink its costly Three-Strikes law, under which 5,000 men and women are serving life sentences for mostly minor (non-violent, non-serious) third offenses. And it could start obeying state law (Penal Code § 3041(a)) by fixing terms for term-life sentenced prisoners at their initial parole hearings, then releasing them on parole pursuant to existing formally-adopted regulations guiding such releases. The latter option would have the double benefit of emptying scarce higher-security beds while drastically reducing the demand for medical care that inheres – indeed, escalates annually – with the state’s aging lifer population.
Evidence Supported Finding that No Other Relief Would Remedy Eighth Amendment Violations
The PLRA was carefully crafted to ensure that prison population-reducing orders were used only as a last resort. This necessarily required a court panel to first consider, and then exhaust, all reasonable alternatives. To this end, both U.S. District Judge Thelton E. Henderson (Plata) and Judge Lawrence K. Karlton (Coleman) spent over a decade jousting with the state defendants in response to mounting evidence that the courts’ earlier remedial orders were not effectuated. Indeed, during the pendency of both cases the CDCR’s prison population drastically increased, while its over-design-capacity percentage increased even more – notwithstanding the largest prison building boom in California’s history. As the Supreme Court summarized in Brown, supra, at p.17:
“The evidence supports the three-judge court’s finding that ‘no other relief [would] remedy the violation,’ § 3626(a)(3)(E)(ii). The State’s claim that out-of-state transfers provide a less restrictive alternative to a population limit must fail because requiring transfers is a population limit under the PLRA. Even if they could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The court also found no realistic possibility that California could build itself out of this crisis, particularly given the State’s ongoing fiscal problems. Further, it rejected additional hiring as a realistic alternative, since the prison system was chronically understaffed and would have insufficient space were adequate personnel retained. The court also did not err when it concluded that, absent a population reduction, the Receiver’s and Special Master’s continued efforts would not achieve a remedy. Their reports are persuasive evidence that, with no reduction, any remedy might prove unattainable and would at the very least require vast expenditures by the State. The State asserts that these measures would succeed if combined, but a long history of failed remedial orders, together with substantial evidence of overcrowding’s deleterious effects on the provision of care, compels a different conclusion here.”
The Court thus rejected the state’s claim that even if each of its suggested solutions was unlikely to remedy the constitutional violations, they would succeed if combined. The Court noted that attempts to remedy the violations in Plata had been ongoing for 9 years; in Coleman, remedial efforts had been pursued for 16 years. The state’s long history of failed remedial orders, together with substantial evidence of overcrowding’s harmful effects on the provision of medical and mental health treatment, “compels a different conclusion today.” Accordingly, the Court concluded in Brown, supra, at p.38:
“The common thread connecting the State’s proposed remedial efforts is that they would require the State to expend large amounts of money absent a reduction in overcrowding. The Court cannot ignore the political and fiscal reality behind this case. California’s Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding. There is no reason to believe it will begin to do so now, when the State of California is facing an unprecedented budgetary shortfall. As noted above, the legislature recently failed to allocate funds for planned new construction.
Supra, at –––– – ––––. Without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill in California’s prisons.”
Public Safety is Not Axiomatically Imperiled by Reducing the Prison Population
In his embarrassing, acrimonious dissent, Justice Scalia (joined by Justice Thomas) assumed the role of activist fearmonger by calling the majority’s decision “an order requiring California to release the staggering number of 46,000 convicted criminals.”
Justice Alito (joined by Chief Justice Roberts) mocked, “46,000 criminals – the equivalent of three Army divisions.”
The PLRA expressly commands a three-judge panel to give “substantial weight” to public safety aspects prior to ordering a prison population reduction. Reviewing the panel’s record below, the Court found that it had devoted 10 days at trial to this issue. Indeed, the panel had considered expert evidence that advised, “overcrowding ... increases recidivism as shown within this state and in others.” Former San Quentin Warden and later Secretary of Corrections Jeanne Woodford testified before the panel that she “absolutely believe[s] that [CDCR] make[s] people worse, and that we are not meeting public safety by the way we treat people.”
A former corrections head in three states referred to California’s prisons as “criminogenic,” meaning that they tend to exacerbate criminal behavior rather than ameliorate it. Another expert testified that California’s recidivism rate (70%) is among the highest in the nation. The state’s respected independent Little Hoover Commission reported, “each year, California communities are burdened with absorbing 123,000 offenders returning from prison, often more dangerous than when they left.”
Yet more expert witnesses produced evidence that lowering prison populations had been accomplished without an adverse impact on public safety in some California counties as well as in Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida and Canada. The three-judge panel recognized that such population-reducing techniques as expanding good-time credits to those prisoners least likely to reoffend, diverting low-risk offenders to community programs and increasing the use of electronic monitoring were proven tools to lower prison populations while minimizing risk to public safety. Most importantly, the panel had observed that CDCR’s practice of filling empty beds in prison reception centers with technical parole violators – who are violated for minor, non-criminal behavior at the discretion of their parole officers – could be stopped overnight by simply redirecting such violators to community-based programs.
At any given time, the CDCR’s technical parole violator population runs upwards of 20,000 – double the number of prisoners that must be reduced by November 2011 pursuant to the three-judge panel’s earlier orders. In 2000, parole violators comprised almost half of the state’s then-140,000 prisoner population; today, low parole rates for lifers and facilities filled with prisoners who have Three-Strike convictions, coupled with no new prison construction, has drastically reduced available bed space for parole violators.
The state has already begun to shift low-risk prisoners from prisons to county jails, where they are housed at lower cost. However, a full roll-out of such transfers has been stymied by the state’s almost $10 billion budget shortfall, which Governor Jerry Brown hopes will be remedied by a November voter referendum to extend present tax structures for several more years. The rub here is not the math, it’s the politics. Plainly, housing prisoners in lower-cost jails should reduce the financial burden on the state. But to move funding from the CDCR’s budget to that of the counties requires wresting money away from members of the state’s influential prison guards’ union, the California Correctional Peace Officers Association (CCPOA) – a daunting political task.
The Supreme Court concluded that the three-judge panel had fully and properly considered both the potential impact on public safety, as well as realistic options left open to the state to safely achieve the prison population reduction ordered by the panel.
Evidence Supported Determination that CDCR’s Population Should be Capped at 137.5% of Design Capacity
The Supreme Court reviewed the panel’s conclusions as to the scope of the required prison population reduction. The Court did not reweigh the evidence considered by the panel; rather, it surveyed the record to determine if the panel’s weighing of the evidence was “clearly erroneous.”
Such evidence consisted of expert testimony from a wide variety of sources. The chief deputy secretary of CDCR’s health care services stated that “California’s prisons were not designed and made no provision for any expansion of medical care space beyond the initial 100% of capacity.” A former corrections director in three states opined that 130% would give staff the ability to provide necessary services. A former Texas prison executive also supported the 130% figure. A former Secretary of the CDCR agreed with the 130% figure, except in regard to older facilities, while the federal Bureau of Prisons has long used the 130% of design capacity benchmark.
California officials proposed an overcapacity ceiling of 151%, to be achieved within five years. But the state’s Corrections Independent Review Panel came up with a recommendation of 145% of design capacity. After looking at the disastrous record of failed medical treatment over the years of litigation, and considering all expert testimony, the three-judge panel concluded that the proper upper bound for the CDCR population with respect to design capacity was lower than 145% but higher than 130%. Averaging the two, the panel settled on 137.5%.
The Supreme Court found this was a reasonable balance based upon the evidence, and thereby compliant with the requirements of the PLRA.
What the Supreme Court’s Decision Requires
The Court’s ruling has been widely reported as requiring a “mass release of prisoners.” The flames of this hotly-debated misrepresentation were no doubt fanned by the media-popularized incendiary rhetoric of the dissenting justices. However, the Supreme Court made itself clear: “The order in this case does not necessarily require the State to release any prisoners. The State may comply by raising the design capacity of its prisons or by transferring prisoners to county facilities or facilities in other States,” the Court wrote. Brown, supra, at p.27.
The Court was also clear that, while finding the panel’s order for capping the CDCR’s population at 137.5% was proper under the PLRA, the panel retained the authority to amend its order in its sound discretion. The Court wrote that the panel could “exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans to correct the violations in a prompt and effective way consistent with public safety.” Id., p.46.
What the Supreme Court required is that unless and until any modification is approved by the panel, the prior population cap order shall be executed. That order requires reaching the 137.5% capacity cap within two years after the Supreme Court’s ruling, subject to an initial 10,000 prisoner reduction by November 2011. California is free to use any or all of its chosen remedies to accommodate the panel’s order. If the state believes it needs more time to comply, it may ask the panel for relief – but the panel is not likely to simply roll over and let more prisoners die unnecessarily for want of adequate medical and mental health treatment.
“The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding,” the Supreme Court noted. Brown, supra, at p.47.
What the Supreme Court’s Decision Does Not Require
The Court’s decision in Brown does not require that even one prisoner be released early. It does not require California to build more prisons. It does not limit population levels at individual facilities to 137.5% – the capacity cap is only the average result required. The ruling does not call for the early release of prisoners with mental health or medical needs. It does not mandate transferring prisoners out of state. It does not order that any particular group of prisoners, such as Three-Strikers or lifers, receive greater parole consideration. It doesn’t even require that any one individual prisoner receive specific medical or mental health care.
Rather, the Supreme Court’s decision only affirms the panel’s finding that inadequate medical and mental health treatment in the CDCR violates the Eighth Amendment; that no other attempted remedies have yet worked or appear that they might work; that overpopulation is the principal cause of the constitutional violations; and that restricting the prison system’s population to 137.5% of design capacity is the most efficacious method to ensure the Eighth Amendment violations will be remedied.
The Disturbing Dissenting Opinions
One of the most enlightening aspects of studying U.S. Supreme Court jurisprudence is to learn from the sanguine counsel of the dissent. These published opinions offer insight into alternate readings of Constitutional precedent and provide guidance in arguing future cases. The wisdom of the dissenting justices is not lost just because they are in the minority in a particular case. Sadly, however, there is precious little of this wisdom contained in the two dissenting opinions in Brown. Rather, those fiery epistles reveal their shallowness with their blustery “tough on crime” rhetoric. Worse yet, they are fraught with miscomprehension of the underlying facts.
Justice Scalia (joined by Justice Thomas) begins by labeling the majority ruling “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” (Brown, supra, at p.51), which would result in “inevitable murders, robberies and rapes to be committed by the released inmates” (Id., at p.58). First, Justice Scalia is simply wrong – the decision does not require the release of a single prisoner. And his inflammatory language, “convicted criminals,” is rhetorical surplusage; after all, there are no state prisoners in California who were not convicted.
Continuing his disapproval of this “judicial travesty,” Justice Scalia lambasted the Court’s majority for granting the “release” of 46,000 prisoners solely because a much smaller number were actually dying for want of necessary medical or mental health care.
Expressly disagreeing with the concept of “evolving standards of decency,” Justice Scalia argued that because not every member of the named classes in Coleman and Plata had personally experienced “torture or a lingering death,” or had received “sufficiently atrocious treatment,” class relief was not constitutionally available. Brown, supra, at p.53.
Justice Scalia further argued that there can be no Eighth Amendment violation based on “systemwide deficiencies”; i.e., there is no legal concept of “systemic unconstitutionality.” Apparently, unless the lack of prison medical care gets so bad that every prisoner is “sufficiently atrocious[ly] [mis]treated,” no systemwide Eighth Amendment claim can be asserted, based on Justice Scalia’s reasoning.
Again misstating the Court’s decision, Justice Scalia decried “the 46,000 whose incarceration will be ended” (Brown, supra, at p.54), “many [of whom] will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” One can only wonder what record Justice Scalia reviewed – there was no reference in Coleman or Plata to such muscle-bound prisoners. Indeed, one wonders if Justice Scalia even read the record below; if so, it should have been plain (particularly from the photographs attached to the majority opinion depicting bunk-filled gyms) that every prison gym but one was converted into a sea of tightly-packed double and triple bunks, and that no weight piles remained. Not in the record was the fact that the CDCR had eliminated weight piles over a decade ago.
Stooping to a personal attack, Justice Scalia then accused the “three District Judges” on the panel (one was a Ninth Circuit Court of Appeals judge) of not relying on the credibility of the testifying expert witnesses, but instead only advancing their personal agendas. “Of course they were relying largely on their own beliefs about penology and recidivism. And of course different district judges, of different policy views, would have ‘found’ that rehabilitation would not work and that releasing prisoners would increase the crime rate. ... I am saying that it is impossible for judges to make ‘factual findings’ without inserting their own policy judgments. ... The policy preferences of three District Judges [sic] now govern the operation of California’s penal system.” Brown, supra, at p.56 (emphasis in original).
Digging deeper into the panel’s credentials, Justice Scalia opined, “Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions.” Perhaps Justice Scalia, who presumably also went to law school and is familiar with pertinent Supreme Court precedents, thus unwittingly exposed the Achilles’ heel of his own dissent. If it is “impossible for judges to make factual findings without inserting their own policy judgments,” then the factual findings expressed in his own dissent are inherently suspect simply because Justice Scalia is, after all, a judge.
Indeed, his own personal agenda that would deny constitutionally-required mental health and medical care to California prisoners fails to acknowledge “the concept of human dignity” and the majority’s finding that such inadequate care “has no place in civilized society.” Brown, supra, at p.27.
In a separate dissent, Justice Alito, inquiring into alternatives to releasing the numerical equivalent of “three Army divisions” of prisoners, asked, at Brown, supra, p.65:
“Is it 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 answer, from the extensive records in Coleman and Plata – and after over a decade of attempts to gain compliance from the CDCR – is, sadly, “no.” While some improvements in treatment and treatment facilities have been made, as of the time of trial most had not.
Justice Alito focused on concerns that “releasing” non-medically ill and non-mentally ill prisoners would not necessarily result in better treatment for those who were sick. He quoted from the Special Master in Coleman, who speculated that even releasing 100,000 prisoners would leave the mental health problem “largely unmitigated” (it is estimated that 20% of CDCR prisoners are in need of treatment for serious mental health issues).
Yet missing from Justice Alito’s doubts about the value of reducing California’s prison population is the fact that the CDCR has for years been under court orders to add medical and psychiatric staff and treatment facilities. Those orders are still in effect, and must be obeyed. Reducing overpopulation in the CDCR merely provides the space and staff for the remaining prisoners to obtain the minimal treatment required under the Eighth Amendment.
Justice Alito was at least hopeful of some degree of remedy, though he felt that due to errors by the three-judge panel, “an adequate but less drastic remedial plan [based on up-to-date data] could have been crafted.” Brown, supra, at p.66. However, he failed to address the cat-and-mouse game that the CDCR has successfully parlayed for more than a decade in the district courts – a court-order-followed-by-noncompliance sequence that frustrated the plaintiffs and courts to the point that they were forced to turn to the ultimate weapon: a prison population reduction order under the PLRA. In any event, Justice Alito’s concerns are mitigated by the fact that the Court’s decision does not require releases – it only requires that the CDCR’s population, housed in prisons designed for 80,000, does not exceed 110,000 within two years.
Nonetheless, Justice Alito accused the majority of “gambling with the safety of the people of California. ... I fear that today’s decision, like prior prisoner releases, will lead to a grim roster of victims.”
What Alternatives are Available to the CDCR and Three-Judge Panel?
The Supreme Court’s ruling in Brown only affirms the three-judge panel’s order to reduce overcrowding within California’s existing 33 state prisons to 137.5% of design capacity.
As noted above, it says nothing about how this shall be accomplished (e.g., build more prisons, transfer prisoners to county jails, ship more prisoners to out-of-state private lockups, phase in community-based rehabilitation programs, stop incarcerating technical parole violators, increase earned good time credits, and/or obey existing parole-setting laws). While the wild-eyed dissents envision “three Army divisions” of murderers, rapists and robbers descending upon a suddenly vulnerable public, that is not what will happen.
First, the plaintiffs and three-judge panel have long agreed that releasing from prison those men and women who are not at high risk of violent crime would have a major impact on achieving the required CDCR population reduction without an adverse impact on public safety. Resistance to such releases, however, includes concerns of a reduced prison employee work force. It can be expected that the CCPOA, the politically powerful prison guards’ union, will use every tool in its toolbox to forestall job losses among its membership. Although, to give credit, the CCPOA intervened in Brown on the side of the prisoner plaintiffs and filed a brief with the Supreme Court arguing that the panel’s population reduction order was proper.
Second, the three-judge panel could entertain medically-determined paroles, wherein prisoners in need of extensive treatment, but not deemed currently dangerous, could be transferred to community facilities where the cost of their care would be greatly reduced. This could, and should, include the politically unpopular “lifer” population, whose aging members drive prison medical costs and whose documented recidivism rate is a miniscule 1%.
Third, the state legislature could take responsibility for the prison overcrowding problem by making a simple business decision: incentify all prison employees for reaching specified goals of reduced recidivism. Currently, the CDCR’s business model is “more prisoners = more money.” That model devolves from the fact that the term “corrections” has never been defined in any state code, and thus cannot be measured or evaluated.
Therefore, the entire “Department of Corrections” is an unaccountable money sink that demands – and gets – unbounded general fund dollars for every prisoner it incarcerates.
The legislature should simply abolish “corrections” and create a Department of Rehabilitation, where rehabilitation is defined as “not recidivating.” Under that model, a percentage of every CDCR employee’s wages would be tied directly to the achievement of specified goals for reducing recidivism rates. The state should also consider abolishing or rewriting its Three Strikes law, which has had a significant impact on the CDCR’s prison population. It could also eliminate parole requirements and supervision for prisoners and simply release them when their sentences are done since reincarceration of parole violators, usually for non-criminal offenses, consumes tens of thousands of prison beds each year. Likewise, having a functional parole system that actually releases life-sentenced prisoners after they have completed their mandatory minimum sentences would free up prison beds and also release the older prisoners who tend to have more medical problems than younger prisoners. Sentencing reform that reduces sentences would also, over time, reduce the prison population. None of these options are likely to occur.
It is also likely that the biggest winners of this court ruling are going to be private prison companies. A lack of political will and leadership is what brought California to this situation and it shows no signs of abating. By shipping its prisoners to out-of-state private prisons the CDCR can reduce its prison population to meet the lower court mandate of 137.5% of design capacity. This avoids any actual changes in prison and sentencing policy and results in a massive windfall to the private prison industry. Corrections Corporation of America already holds over 10,000 California state prisoners.
Brown Offers True Change
In short, the opportunity is ripe for true change: California cannot afford the cost of its bloated prison system; the state’s three-year recidivism rate (70%) is an artifact of the CDCR’s practice of re-incarcerating technical parole violators; and the public is embracing programs that will take prisoners out of the revolving-door prison system and prepare them for successful reintegration into society. The latter is emerging – with success stories in progressive counties of up to a 95% reduction in recidivism – as a sounder investment in public safety.
The outcome in this case goes beyond a prison population reduction order or adequate medical and mental health treatment for California prisoners. Every prisoner, according to the Supreme Court’s majority ruling, is deserving of “human dignity” – a concept that was affirmed in Brown. But it was affirmed only after more than a decade of litigation and stonewalling by prison officials, and only following the Court’s bare majority decision in which four dissenting justices would not have dignified prisoners with even that modest finding.
Note: The plaintiff classes in Coleman and Plata were ably represented by attorneys Donald Specter, Sara Norman and Rebekah Evenson with the Prison Law Office, and by Michael W. Bien, Ernest Galvan, Amy Whelan and Lisa Ells with Rosen, Bien & Galvan LLP.
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Related legal case
Brown v. Plata
| Year | 2011 |
|---|---|
| Cite | Case No. 09-1233, 2011 WL 1936074 |
| Level | Supreme Court |
| Injunction Status | N/A |