Sherry F. Colb

Prison as the Default Option: The U.S. Supreme Court Considers a California Case

By SHERRY F. COLB
Wednesday, December 22, 2010
p>The U.S. Supreme Court recently heard oral arguments in Plata v. Schwarzenegger, a case about the deplorable state of health care in California's prisons. The main issue in the litigation concerns a three-judge federal court's authority under the Prison Litigation Reform Act to order a remedy that will likely require the release of tens of thousands of California prisoners in the next two years.

Resolving the case will require the Court to analyze a number of legal questions, jurisdictional and substantive. In an important sense, however, the case highlights a more fundamental difficulty regarding an assumption that underlies our current criminal-justice system: the assumption that prison is an essential and inescapable (excuse the pun) feature of protecting the public from danger.

This column will suggest that if we were ready to challenge this assumption about incarceration, then we might find it far easier comply with our Eighth Amendment obligation to avoid the imposition of cruel and unusual punishment.

Coleman and Plata: Two Lawsuits Challenge the Constitutional Adequacy of Health Care in California Prisons

In two class action lawsuits, one filed in 1990 (Coleman v. Schwarzenegger) and the other in 2001 (Plata v. Schwarzenegger), prisoners sued various California officials and entities, including the Governor and the California Department of Corrections and Rehabilitation ("DOCR"). Prisoners claimed that the state of health care within the California prisons was so abysmal that it violated the Eighth and Fourteenth Amendments of the U.S. Constitution, which prohibit the infliction of cruel and unusual punishments.

The U.S. Supreme Court has said that prisons must provide "the minimal civilized measure of life's necessities" to be in compliance with the Eighth Amendment. In Coleman, there was a trial and a finding that California failed the Eighth Amendment standard. In Plata, there was a settlement in which the California DOCR agreed to bring up the standard of care to constitutional levels. In both cases, however, rampant violations persisted, despite approximately 70 court orders (between the two cases) and many efforts to remedy the situation, including a district judge's placing the California prison system into receivership.

In 2007, the federal district courts for the Northern and Eastern Districts of California entered orders convening a three-judge district court to consider both cases together, under the authority of the Prison Litigation Reform Act. The three-judge panel determined that to remedy the constitutional violation, it would be necessary to reduce the occupancy of California's prisons from 200% of capacity to 137.5% of capacity, within two years. The California DOCR and the other defendants in the suits then appealed this ruling to the U.S. Supreme Court. Before the Supreme Court, they claim that the three-judge court should not have been convened; that the remedy it ordered is not narrowly tailored to address the constitutional violation; and that the court did not take sufficient account of the public-safety consequences of releasing over 35,000 inmates from the California prisons within two years.

The Oral Argument Divide

The oral arguments in the case exposed a stark difference between the liberal wing of the Court (Justices Ginsburg, Breyer, Sotomayor, and Kagan) and the conservative wing (Chief Justice Roberts, and Justices Scalia, Alito, and presumably, Justice Thomas, who asked no questions but who has previously elaborated his view that the Eighth Amendment regulates only formal sentences, not prison conditions).

The liberals were shocked at the conditions that prevailed in California prisons and emphasized such findings as prisoners being "discovered catatonic in pools of their own urine after spending nights locked in small cages" and the unnecessary death of an average of one prisoner in the system per week. In addition, the liberals wondered why the twenty years since the first of the class-action lawsuits was filed did not provide enough time for California to remedy what Justice Breyer called "a big human rights problem."

The conservatives worried about imposing great burdens on the State of California. In addition, they expressed concern regarding the public-safety consequences of releasing over 35,000 inmates from prison in order to reach the "137.5% of capacity" goal. Conservatives also wondered whether the connection between prison overcrowding and constitutionally inadequate medical care is tight enough to justify an order regarding the former to serve as a remedy for the latter.

Justice Kennedy, so frequently the swing vote on this Court, appeared both horrified by the overcrowding and concerned about the three-judge court's remedy. He wondered whether the 137.5% goal might perhaps go further than necessary, in contravention of the Prison Litigation Reform act, given expert testimony that 145% of capacity would be adequate. Kennedy's statements and questions, along with his role as a possible swing vote, make it difficult to predict the outcome in this case.

The Assumptions We May Typically Make About Prison

At this point in time, about one percent of the U.S. population lives inside a jail or prison. Some prisoners are violent offenders who have committed such crimes as murder, rape, child molestation, and aggravated assault. Others have committed non-violent offenses.

For the former group, the violent predators, we might readily accept the proposition that they ought properly to be behind bars. Such offenders have arguably proved, by their conduct, that they pose a physical danger to the people around them, and that they accordingly should not be free to move about in society.

In contrast, it is not clear that the people in the latter group -- of those who have committed non-violent offenses -- would pose any physical danger to those around them if they were not confined inside an institution. Moreover, there is plenty of evidence that confining such people in prison actually makes them dangerous, because the prison environment fosters a culture of violence and aggression, and because inmates have little opportunity to observe and model the pro-social modes of behavior that are more prevalent outside of the institutional setting. Put simply, prison time may transform someone who has committed a non-violent offense into a future violent offender.

To the extent that prison is not necessary (and may even be counterproductive) in dealing with many of the people who are currently confined, it is an extremely expensive societal luxury. Prisoners are not well-situated to support themselves financially, so prisons must take care of providing food, shelter, medical care, and mental-health treatment for their inmates. In addition, because inmates are highly motivated to try to exit incarceration, prison expenditures must include salaries for guards and the infrastructure essential to keeping people involuntarily confined.

On average, the cost of incarcerating one person is over $20,000 per year. If a large number of prisoners were released to face less restrictive penalties, the financial cost would be much lower. Such less restrictive penalties could perhaps include fines (for non-violent financial misconduct, for example), probation with conditions (and room for technical violations without re-incarceration), house-arrest, or a GPS implant to allow electronic monitoring.

It is likely for this reason that the three-judge panel that ordered the 137.5% remedy associated improved medical treatment with a reduced prison population. Running prisons with large numbers of inmates is expensive, and it draws needed resources away from providing the medical treatment that the prison population needs and that the U.S. Constitution guarantees.

As Justice Kennedy put it during oral argument, "Overcrowding is of course always the cause. If I am running a hotel -- if I am looking at a highway system, I need a highway, what's the number of cars? If the problem is bad service in a hotel, well, it's the number of employees per -- per guest. I mean, that's fairly simple."

Yet many people assume that our current incarceration levels are necessary and optimal. Justice Alito suggested during oral argument, for example, that "[i]f -- if I were a citizen of California, I would be concerned about the release of 40,000 prisoners." When many of us imagine the sorts of people who live in prison, we tend to assume that they belong where they are.

When we are in a charitable mood, we look to improve prison conditions by asking that more prisons be built in order to accommodate the growing population, or that more people -- guards, doctors, and others who can help manage the needs of the inmates -- be hired to work in the prisons (though such measures are extremely expensive).

When we are in a less charitable mood, we may express impatience with the whole idea of prisoners having entitlements. If prisoners wanted to live comfortably and safely, we might think, then they should not have committed a crime in the first place. On this approach, the public should not have to spend money to "pamper" people who have violated the law.

What both approaches share, however, is the assumption that massive incarceration at present levels is inevitable.

We Need to See Incarceration as an Extreme Penalty, Costly to Society and Not To Be Lightly Imposed for Non-Violent Offenses

It is, of course, well beyond the scope of this column to offer a position in the debate about whether violating a criminal law is inherently wrongful or whether, instead, only some violations of some criminal laws are wrongful and others, though illegal, are relatively innocuous and undeserving of moral condemnation. We can assume, for purposes of this discussion, that any violation of the criminal law is wrong and that the person who commits the violation deserves some form of condemnation or punishment.

This position does not, however, require us to incarcerate people as we currently do. Incarceration is an extreme penalty, though we have become sanguine about it as prison populations have continued to expand. The notion that we will lock up someone in a prison cell for growing a marijuana plant in his house for personal use ought to be shocking, even for those of us who view marijuana as a destructive drug and who want to avoid its (further) proliferation in society. Yet people continue to serve time in prison for such offenses.

In another criminal sphere, it is worth observing that even though we are justifiably quite angry at various financial speculators for bringing misery to the economy and harming people's financial wellbeing, it is hard to argue that such individuals must be kept inside a prison in order to protect society from the threat that they pose. It is clear, instead, that we incarcerate such white-collar criminals purely for retributive reasons: We hate them, and we want them to suffer. For such people, however, house arrest with conditions (including a condition disabling them from engaging in financial transactions) and large, punitive fines could inflict suffering without costing society so much money. A prison is a ludicrous place for a non-violent individual.

Paul Clement, who represents the Coleman group of prisoners, has explained that California retains great flexibility in reaching the target of only 137.5% of capacity. It can do so by building more prisons, by transferring prisoners to other places, by utilizing parole or probation in a manner that is more forgiving of technical violations, or by releasing low-risk inmates early.

In reality, California is experiencing a fiscal crisis that makes expenditures on prison construction improbable. The far less expensive option would be to release a large number of its prisoners, those serving time for non-violent offenses -- those who do not, in fact, conform to people's stereotypical assumptions about dangerous inmates who would threaten the public safety if they were free.

If the U.S. Supreme Court affirms the three-judge federal court's extensive fact-findings and its remedy, and California releases approximately 40,000 inmates carefully and consciously, then its actions could serve as a large-scale form of proof for the proposition that locking up so much of our population is neither necessary, nor conducive to the public safety. Instead, such massive incarceration spends resources that we lack to inflict excessive suffering on our fellow Americans.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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