Fear-mongering from the Bench

Scalia & Alito disgrace themselves in 'Brown v. Plata'

Few recent U.S. Supreme Court decisions have been more vigorously contested, or hold more ominous implication, than Brown v. Plata [pdf], announced in May. In it the Court affirmed a ruling requiring California to release prisoners in order to reduce overcrowding in its prison system.

First, some background. Beginning in the 1980s, California politicians enacted some of the most punitive mandatory sentencing laws and stringent parole policies in the nation. As a result, the prison population rose by nearly 700 percent, from less than twenty-five thousand to more than one hundred seventy-two thousand, with prisons operating so far above maximum capacity that in 2006 Governor Arnold Schwarzenegger declared a state of emergency, calling for “immediate action…to prevent death and harm caused by California’s severe prison overcrowding.” Plaintiffs in two cases, eventually combined in Brown v. Plata, charged that such overcrowding prevented the state from providing constitutionally adequate medical and mental-health treatment. Lower courts agreed, and beginning in 1995 ordered California to rectify the situation. When the state repeatedly failed to do so, a three-judge panel ordered the state to reduce its prison population by releasing up to forty-six thousand inmates.

By a 5–4 vote, the U. S. Supreme Court affirmed that decision. Writing for the majority, Justice Anthony Kennedy—once again the swing vote determining which wing of the Court would prevail, liberal or conservative—noted that overcrowding had caused prisoners to be “crammed into spaces neither designed nor intended to house inmates,” and that “as many as fifty-four prisoners may share a single toilet.” Such conditions, the Court’s decision held, violate the Eighth Amendment’s ban on cruel and unusual punishment.

Liberals in California and elsewhere have hailed the ruling as a vindication of the notion that our corrections system must conform to basic standards of human rights. And indeed, the record in the case revealed clear evidence of constitutionally deficient medical care. Nurses conducted triage exams in converted broom closets and filthy spaces dank with the overflow from a clogged shower drain. Suicidal prisoners were jammed for hours, untreated, into metal cages the size of a phone booth. These hellish prisons were the fault of irresponsible legislators—legislators who chose to ignore the warnings of at least a dozen official reports over two decades—and the Supreme Court acted correctly in requiring California to correct such conditions.

The ruling should have been a slam dunk, given the repeated findings of atrocious conditions, the repeated failure of state defendants to provide remedies, and the consensus among national experts that the prison population had to be reduced—and could be reduced safely. The testifying experts, many previously hired by the state to produce commission reports, included five former or current heads of state departments of corrections. Of those, four had never before testified for prisoner plaintiffs—but came forward, as one stated, because “the prisons aren’t safe,” and “nobody seems to be willing to step up to the plate and fix the problem.” This was the record on which Justice Kennedy based the majority opinion.

Yet the narrow, 5–4 ruling was in fact anything but a slam dunk; and while those of us who agree with the majority may have won a battle, the war remains very much in question. Especially when you survey the weapons the other side deployed. In a troubling display of injudicious rhetoric, dissenting Supreme Court Justices Antonin Scalia and Samuel Alito used scare tactics to describe, in frankly demagogic terms, the potential effects of the majority decision in Brown v. Plata. In separate dissenting opinions, Scalia and Alito took potshots at the lower court’s ruling and at their colleagues’ majority opinion. Scalia faulted the lower court’s order as too broad a remedy, asserting sarcastically that “the vast majority of inmates most generously rewarded by the release order...will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” Elaborating this theme, he speculated about “the inevitable murders, robberies, and rapes to be committed by the released inmates,” while Alito warned of a future “grim roster of victims.” Together they repeated nine times that “forty-six thousand convicted criminals” will be released—“the equivalent of three Army divisions,” Alito mused darkly, conjuring up columns of soldiers shouldering rifles and marching out of prison to wreak havoc on the public.

Both justices dismissed Justice Kennedy’s and the lower court’s detailed reference to reports, research, and expert testimony supporting the panel’s finding that “prison populations can be reduced in a manner that does not increase crime to a significant degree” and “could even improve public safety.” The lower court, Alito wrote, was simply “bent on implementing its own criminal-justice agenda.” He then recited a popular canard of proprison ideologues, claiming that America’s unprecedented increase in incarceration “has been accompanied” by a corresponding decrease in violent crime, and that “there is a general consensus that the decline in crime is, at least in part, due to more and longer prison sentences.”

Alito attempted to solidify this pseudopopulist position in two footnotes presenting a selective choice of data and an imprecise reference to a journal article by University of Maryland criminologist Raymond Paternoster, which carefully assessed incarceration’s deterrent effect. In the paragraph following the passage cited by Alito, Paternoster made clear that he was merely reporting, and not affirming, assertions that the 1990s' decrease in crime resulted from an increase in incarceration. Such assertions should be treated with “caution and humility,” Paternoster wrote, and he went on to detail four reasons for skepticism—none of which found its way into Alito’s footnote.

Further complicating the incarceration/crime-rate relationship is the experience—noted by Justice Kennedy in the majority opinion—of other states, at least ten of them, that have recently reduced both incarceration and crime. Among the most successful is New York, whose leaders took crime policy in the opposite direction from California’s, reducing the state’s prison population by 19.7 percent from 1999 to 2009 while achieving a 34.7 percent reduction in violent crime and a 28 percent reduction in property crime—substantially larger reductions than California achieved while expanding its prison population.

Do the wild alarms of Justices Scalia and Alito reflect willful misunderstanding or merely a runaway sense of the theatrical? Whatever the case, they ignore some crucial facts: that the recommended releases will result in no more than a manageable 14.5 percent increase in prisoner releases in California; that many California prisoners pose minimal risk to citizens, including over thirty-two thousand convicted of low-level, nonviolent crimes and thousands more of drug-related offenses; that seventy thousand former prisoners are returned each year for violating parole, including seventeen thousand whose violations consist of simply breaking an administrative rule such as not reporting to their parole office; and finally that forty-seven thousand new inmates arrive at the gates each year with less than ninety days to serve in prison—“convicted criminals” who are coming home soon anyway, no matter what the courts rule. And as for the lurid invocation of iron-pumping cons, such imagery is suggestive but false. As evidence in the lower court amply showed, California’s prison gyms and day rooms are “crammed” with three-high bunk beds. No one is “pumping iron” in them.

Confronting a record built on ten days of trial and seventy pages of written opinion, Justice Scalia conceded that the three-judge panel “discharged its obligation to ‘give substantial weight to any adverse impact on public safety.’” Yet he flat-out rejected the panel’s findings as a product of a “structural injunction,” a device he faults for “turning judges into long-term administrators of complex social institutions” whose fact-finding is suspect because they are “inevitably…required to make very broad empirical predictions necessarily based in large part upon policy views.” “The idea that the three district judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful,” Scalia went on.

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.

For Scalia this is not a new complaint, but one that harks back at least to the early 1990s, when “structural injunctions” were desegregating five hundred school systems, overseeing prisons in forty states, addressing abuse in dozens of mental-health and juvenile facilities, and cleaning up numerous union locals charged with racketeering. The admittedly difficult and time-consuming challenge to federal district courts of bringing entire institutions into constitutional compliance has not been so glibly opposed by most jurists. Indeed the complexities of overcrowding cases have prompted exactly the opposite conclusion regarding the fact-finding role of lower courts. Such cases have “no satisfactory outcome,” Justice Sandra Day O’Connor wrote in Rufo v. Inmates of Suffolk County Jail (1992). Any district court hearing them faces an “extraordinarily difficult decision,” one that involves balancing various community interests implicated in the early release of prisoners, and the Supreme Court “should not be inclined to second-guess the court’s sound judgment in deciding who will bear the burden.”

So let us clearly understand the direction Scalia takes us in, and its implications for public debate: no matter how overwhelming the weight of evidence may be, when it comes to prison reform, anything that fails to support Scalia’s policy views will be summarily rejected as a mere stratagem of those espousing an opposing “policy.” Brown v. Plata demonstrates the hazards of this course, because the “policy views” guiding both Justices Alito and Scalia are rooted in fear, exaggeration, and the demagogically provocative image of a prisoner building his physique on the taxpayers’ dime. (Recall Ronald Reagan’s welfare queen.) Surely we don’t want our jurisprudence based on such frivolous and provocative anecdotalism. We are much better off with judges who attempt to work with the evidence before them, even if imperfectly, in order to correct unconstitutional conditions.

Citizens eager to alleviate unconscionable prison conditions should celebrate the decision in Brown v. Plata cautiously. Grounded in evidence and important principles, the majority opinion concludes that “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 a civilized world.” And yet I fear that the dissenting opinion may be the one that ultimately prevails. That is because the dissenting justices appealed to the same exaggerated but durable fear of crime—and the same intuitive but inaccurate reliance on incarceration as a solution—that brought California before the Supreme Court in the first place. Two starkly divergent opinions mapping starkly divergent courses for our future: it remains to be seen, in a nation beset by unprecedented mass incarceration and all the accompanying human and financial costs, which one will win the day.

Related: Cruel & Unusual, by Robert DeFina and Lance Hannon

Published in the 2011-07-15 issue: 

Malcolm C. Young is the Soros Senior Justice Fellow and Director of the Program for Prison Reentry Strategies at Northwestern University Law School’s Bluhm Legal Clinic.

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