Brown v. Plata: Dignity is Coming to the USA

"Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment."

Brown v. Plata, No. 09–1233, Kennedy, J. May 23, 2011

Much will be written in the weeks and months ahead about the Supreme Court's 5-4 ruling upholding the 3-Judge court's population reduction order in the California prison case, Brown v. Plata (read the slip opinion here). For now just consider one word, "dignity." That word has long been held to be an important value underlying the Eighth Amendment's ban on "cruel and unusual punishment." But in recent decades it has fallen into a kind of oblivion, providing little basis to inform the way American prisons are evaluated and run. Brown v. Plata represents a turning point.

For now the reappearance of dignity may seem of minimal importance. After all, the 3-Judge court's findings of facts represented a litany of medical and administrative malfeasance so dramatic that Justice Kennedy in his majority opinion did not flinch from using the word "torture" in relationship to it. California's unprecedented combination of a prison system designed without consideration of the fact that prisoners have bodies with organs that are vulnerable to disease and massive prolonged overcrowding may render it an outlier with little relevance to the operation of prisons in much of the rest of the country. But that is to ignore the fact that both these features lie close to the heart of the system of mass incarceration that has animated the growth of prison populations throughout the US over the past several decades.

Moreover, once it is admitted that the Eighth Amendment requires that the state's discretion to set penal policy is limited by the recognition of the human dignity of prisoners, a great deal is open to review by courts. In Europe, for example, dignity has been held to require prison regimes that promote individualization, normalization, and the preparation of all prisoners for the possibility of return to the community (see Dirk van zyl Smit and Sonia Snacken, Principles of European Prison Law and Policy (2009))

The Court was forced to confront the humanity of prisoners, and their claim on dignity, by the shear magnitude of California's penal depravity as reflected in photos of chaotic scenes from overcrowded prisons and inhumane conditions that were included in the appendix to the majority opinion. Perhaps no single practice seared the Court's conscience more than California's use of vertical cages to hold suicidal psychotic prisoners for weeks and months before they could be transferred to treatment beds. In December's oral arguments Justice Breyer had confronted the State's lawyer with a picture of just such a "dry cell," noting that California had a "big human rights problem" on its hands, and that photo was also included in the appendix. Like the pictures from Abu Ghraib,these photos locate California's penal practices in a place of inhumanity, degradation, and torture that cannot be tolerated (even by judges disciplined by decades of punitive populism and crime fear).

The Court's opinion also recognized that this case goes beyond individual instances of cruelty to a political system that facilitates inhumane and degrading punishment and cannot be trusted to reform itself.

"In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic administrative failures."

In short, this is the first decision to move beyond evaluating prison conditions, to place mass incarceration itself on trial.

The dissents by Justices Scalia and Alito (joined by Justice Thomas and Chief Justice Roberts, respectively) avoided any consideration of the inhuman and degrading conditions in California's prisons.

Justice Scalia simply and profoundly disagrees with the very notion that courts have a role to play in remedying institutions that produce unconstitutional conditions, being limited instead to handing out individual remedies to petitioners. In Scalia's universe, a court could order the release of a prisoner from Auschwitz, but not the closing of Auschwitz. This is a coherent vision of the Constitution, but one that renders the Constitution largely irrelevant to modern society.

Still I agree with Scalia's assessment of the importance of this decision.

"Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history."

Justice Alito, as he did in oral argument, falls back on the notion that even unconstitutional conditions are acceptable if done in the name of protecting citizens from criminal violence. Most of his opinion amounts to a disagreement with the 3-Judge Court's fact finding on the question of whether the population reduction order was necessary (abandoning the clear standard of review which requires deference to the factual findings of trial courts). The real force of his argument, however, amounts to a metaphoric invocation of the war on crime in which the 3-Judge court is condemned for releasing an army of criminals on the public.

"The three-judge court ordered the premature release of approximately 46,000 criminals—the equivalent of three Army divisions."

The road from Brown v. Plata to a humane and dignified prison system will be a long one. But this opinion represents a turning point. The system of mass incarceration depends deeply and irretrievably on a simple condition, the denial of the humanity of prisoners. Yesterday the Supreme Court overturned that denial.