High Court Opinions in the Age of Digital Reproduction: Soliciting Sympathy or Antipathy?

Written by SpearIt

Last month in Brown v. Plata, the Supreme Court held that prison overcrowding in California caused conditions that violated the Eighth Amendment’s prohibition against cruel and unusual punishment.  Capping a legal saga that has entered its third decade, the case consolidated two class action suits, Coleman (1990), involving prisoners with serious mental disorders, and Plata (2001), involving prisoners with serious medical conditions.  By 5-4 majority, the Court affirmed an order by a three-judge federal court that required California to reduce its prison population to 137.5% of capacity, which at that time stood at nearly 200%.  To comply with the order, the state must still trim another 33,000 within two years.

Or maybe not.  Although many see this decision as a key victory for prison rights activists, a more pessimistic read may reveal it as a symbolic gesture, a bold statement simultaneously weakened by caveat since it supplies a path for California to continue dragging its feet.  California may have been told “time’s up,” but whether the Court means it is a different issue.  Thus, despite laying out a definite timeline, the order backhands some considerations which could warrant an “extension of time” for the state, perhaps rendering the time limit a hollow suggestion.

Writing for the Majority, Justice Kennedy affirmed that the lower court’s order was consistent with the mandates of the Prison Litigation Reform Act (PLRA) of 1995.  The federal order was issued in response to constitutional violations stemming from institutional overcrowding; mentally ill prisoners living in filthy segregation for 6 months or more, needless deaths from “systemic failures” with an average of one suicide each week, and others dying from incompetent diagnoses, poor treatment, or, in many cases, no treatment at all.

In a vigorous dissent joined by Justice Thomas, Justice Scalia blasted the decision, characterizing it as “perhaps the most radical injunction issued by a court in our Nation’s history” and rejecting the notion that a “plaintiff class can allege an Eighth Amendment violation based on ‘systemwide deficiencies.’”  In other words, viable constitutional claims must be based on individual instances of mistreatment rather than a remedy aimed at reforming the whole system.  He cites the order as an example of a “structural injunction,” which he asserts departs from the historical practices of equity and “vastly expands its use by holding that an entire system is unconstitutional because it may produce constitutional violations.”

Justice Alito’s dissent, joined by Chief Justice Roberts, asserts that the approach of the three-judge court “flies in the face of the PLRA” since the remedy is not narrowly tailored as the statute requires.  Alito outlines three interrelated reasons for reversing the decision, namely, that the Court “improperly refused” to consider updated conditions in the prison system, erred in holding “that no remedy short of a massive prisoner release” can bring the state in compliance with the order, and “gave inadequate weight to the impact of its decree on public safety,” which he fearfully suggests, “will lead to a grim roster of victims.”

Although the dissents responded to a strongly worded opinion, some of the opposition may have ignited from photographs included in the decision depicting California’s overcrowding.  Although rare, use of photographs or video is not a new occurrence in Court opinions, and in this case seemingly attempts to garner justification for the decision.  But whether the images helped or hurt the cause has yet to come clearly into focus.

In the photos, ambiguity reigns supreme.  Some who view them may spot signs of severe overcrowding; others, however, might see Alito’s dissent come to life—the prospect of bands of men like those in the photos being released to the streets, and the negative consequence for public safety.  Taken this way, the photos appear as a frightening, almost forbidden artifact, replete with all the inmates’ faces blurred out, which conveys a sense of danger.

The defacement, in addition to dehumanizing the inmates, also lends a pornographic effect; several inmates are shirtless and sport extensive tattoos, some of which look like gang logos, others have muscular bodies that look strong and healthy.  The images seem to miss the mark of what this case is all about, and instead of supporting the decision, may attest to Scalia’s contention that, rather than suffer medical neglect, many prisoners will be “fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

Were these the most prudent photos to make the point?  Or did the Court miscalculate or ignore potential backlash?  Surely, if the Court wanted to display the problem of prison overcrowding, there were countless other photos that would have served the purpose better.  In fact, there was not even a need for prisoners to be featured at all.  Shots of rooms where hundreds of inmates share the same cramped sleeping quarters would have done the trick, as would have close-ups of the bathroom facilities described in the opinion, depicting the single toilet that serves more than fifty inmates.  Still, if the Court was adamant that prisoners be included, it should have shown the real products of overcrowding: the mentally ill who languish in their own excrement, inmates at Pelican Bay who gnaw on their own bodies or self-mutilate from the mania of solitary confinement, images of the elderly man who fasted to death in his cell in Corcoran State Prison, or portrayals of the many successful suicides executed within prison walls.  If the Court, a body that should recognize the prejudicial effect of imagery, is going to mess around with photos, it shouldn’t mess around.

Despite the haphazard selection of photos, the decision still stands as a powerful commentary on the history of imprisonment in America.  Whether one describes the situation as “mass” or “hyper” incarceration, there is tension between these labels and the idea of America as land of the free.   Distinguished as the number one bondsman in the world, some also view the United States as the number one slaveholder.  From this perspective, today’s slave economy is not like the chattel days since labor is not really necessary; in the context of private prison industries, a warm body and a number can generate a check from the state and dividend checks for investors.

In California, the financial stakes intimately connect to the powerful prison guard union, the California Correctional Peace Officers Association or “CCPOA,” which has lobbied intensely for higher salaries and a lower retirement age.  The CCPOA has made it such that an entry-level prison guard commands the salary of an entering university professor holding a Ph.D.  Even though the job of prison guard requires no post-secondary education, with a little overtime, a guard can make far more money than the professor.  This fact reveals a glimpse of California’s priorities, where the penal budget of well over 10 billion dollars helps cover the $45,000 a year price-tag per inmate—about five times what it spends on a typical public school student.

The huge sums of money at stake in the immense prison industry lend credibility to slavery arguments, yet money is not the only driving force of overcrowding.  There is also “tough on crime” politics, discrimination, and overcriminalization; racial profiling in policing, lackluster and overworked court-appointed defense attorneys, and biased juries and judges all contribute to the mess as well.  In addition, legislative trends in sentencing continue their upward spiral with mandatory “three strikes” legislation and increased reliance on “life without parole” formulas, as well as anti-gang legislation like the STEP Act, which increases punishment for gang affiliation.

Some experts and commentators have advanced ways California might comply with the order while avoiding bankruptcy.  For example, one attorney offers, among legislative and funding reforms, the suggestion that the state make greater use of Laura’s Law.  This statute allows judges to order mentally ill people with a history of violence to stay in treatment rather than incarceration.  Since it costs about half the price for an individual to remain in treatment rather than in prison, diversion of seriously mentally ill offenders may not only reduce the population, but costs as well.

Other analysts suggest that California could pursue criminal sentencing reform.  They posit that since California has more than 1,000 felony sentencing laws and more than 100 sentencing enhancements, the attempt “to boost ‘tough on crime’ credentials and strict minimum sentencing laws have been imposed when more proportionate punishments…would have been more appropriate and cost effective.”  They also suggest that recidivism reduction must become a priority.  Burdened by one of the highest recidivism rates in the country, California clogs its own system with technical rules that bloat the figures.  Moreover, they suggest expanded use of private prisons as a way for the state to save money.

The vote for private prisons, however, is an issue that requires closer scrutiny since such a measure may have serious drawbacks.  Aside from political pushback from the CCPOA, which wants to keep dollars flowing to its members, research by the Department of Corrections in Arizona indicates that private prisons may not be the deal once imagined.  Since such prisons are premised on housing healthy, younger inmates, the financial equation changes drastically when private facilities must ward over mentally ill or elderly inmates, who typically consume more staff and medical resources.  In other words, private prisons can maintain a competitive edge only by cherry-picking the healthiest inmates and leaving “the most expensive prisoners with taxpayers.”  Further, private prisons compromise California’s penal mission of rehabilitation since they offer little if any programming or meaningful oversight.  Perhaps even more crippling for rehabilitation is the common practice of shipping inmates to other states, which effectively cuts ties to family and friends, ties that studies suggest can make all the difference for rehabilitation.  In California, some inmates already live more than 1,000 miles from their families—expansion into other states would hamper rehabilitation even further.

Exactly how and when California will execute this order are far from known since the decree “does not necessarily require the State to release any prisoners.”  There are other options, including relocating to county jails, shipping prisoners to other state facilities, or relying more on private prisons.  These may hardly seem like options to a state that can barely pay its own bills, rendering this decision one that is far from final—a more sober assessment might recognize that as this blog posts, lawyers on both sides are busy scripting sequels to the saga that may come with their own images of success or failure.

Inmate under suicide watch, Corcoran State Prison