Cruel, unusual, and crowded: Will Brown v. Plata bring mass incarceration to an end?

• Author: Mayeux, Sara
• Position: Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America - Book review

Mass Incarceration on Trial: A Remarkable Court Decision and the Future of Prisons in America, by Jonathan Simon, New Press, 224 pages, $26.9;

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

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

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

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

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