Thursday, May 26, 2011

My reaction to Brown vs Plata

In times of hardship, it is always the powerless and disenfranchised who suffer the most. The massive economic downturn facing the nation is no exception.

A recent decision in the case of Brown vs Plata, demonstrates this fact. Lack of revenue coupled with massive rates of incarceration in California has created massive overcrowding in the prison system. (140,000 people currently occupy facilities that were built to house a maximum of 80,000.) The Supreme Court held that the overcrowding of California prisons has created conditions that are so inhumane that it amounts to "cruel and unusual punishment". Therefore California's prison policy violates "the Supreme Law of the Land" contained in the eighth amendment to the Constitution.

The reports of the living conditions hit me particularly close to home. Currently, someone very close to me is living in a prison in California. He recently had a rather intense infection. His gums became red and inflamed and became the source of a great deal of pain. He told his gaurds about the development in his mouth, but they told him that there was nothing they could do for him. He was denied treatment for over two weeks. Meanwhile, His gums continued to worsen and became extremely engorged and would bleed when he ate. Finally, the gaurds agreed to provide him with anti-biotics - but no pain medication. They also offered to pull his teeth out for him (surprisingly, my friend rejected the offer). Now, my friend is living in rather awful conditions. Yet, his prison is relatively posh compared to the overcrowded penitentiaries that the Supreme Court come down on.

Slow and inadequate health care are endemic in California's massively overcrowded prison system. Huffpost's Laura Gottesdiener reports that "From 2003 to 2004, one inmate each week died as a result of lack of treatment." Contributing to these numbers are the squalid conditions of inmates crammed together in close quarters. California authorities have created fantastic conditions for the spread of disease.

Consider the case of a severely mentally ill inmate, who was held in a cage the size of a "telephone booth". Without access to a toilet for over 24 hours, the inmate was found sitting in a pool of his own urine. The horrific stories of the treatment of these inmates is reminiscent of the dehumanizing management of "enemy combatants" at Abu Graib. But all the more alarming considering that these are US citizens. Two days ago I wrote a blog whose title read: "Are we living in the state of exception?" If you are a prisoner in a California state prison, the answer is unequivocally Yes. These prisoners are homo sacer, excluded from the realm of the living they can be mistreated and killed with impunity. (With overcrowding wardens can treat inmates as less than people - quickly resulting in sickness and deaths.) I find it frightening that this de facto condition has come to pass.

Furthermore, I was struck by the biopolitical reasoning employed in the majority opinion of the Supreme Court. The court concludes that that it is precisely because the prisoners are excess, that they are being mistreated (rendered expendable). "Overcrowding" is identified as the cause of the inhumane conditions. Therefore, the surplus of people (of life) is the cause of sickness and untimely death. Kennedy is very clear on this point; overcrowding is the problem. (Kennedy explains in his decision that if there were enough prisons to hold them, the state would be free to incarcerate as many people as they please, but the excess of people exceeds the states capacity to hold them.) This understanding of the problem serves to diffuse the culpability of the state in its willingness to provide for killings with impunity. "Overcrowding" even allows us to shift the blame on to the victims themselves; the inmates. It is after all their excessive life, that is the heart of the problem. In this way the state anathematizes a certain type of life (the lives of prisoners). Up until now the state's only solution to this excess has been systematic mistreatment and killing - the same solution utilized whenever and wherever life is found to be existing in "excess" by the state.

However, The Supreme Court was correct in ruling against the State of California. The conditions in California prisons does amount to cruel and unusual punishment. My primary criticism of the majority decision - rendered by, power broker, swing-vote Kennedy - is that it does not go nearly far enough in remedial action. Kennedy calls for 30,000 prisoners to be released from custody in order to ease crowding in the state prisons. This may seem radical, but the reality is that the Court creates a slew of loopholes that allow California to avoid taking any action to address the problem, if they determine that corrective action would be too expensive or too "unsafe". Essentially, the Supreme Court told California that what they're doing is illegal and they have to change, but if it turns out to be too difficult to treat inmates humanely, they can forego any changes. This legal exception ensures that California inmates will continue to exist as homo sacer - permanent residents of the "state of exception."

This analysis seems to already be proving true. Governor Brown's plan to remedy the problems of the state's prison system (in response to the Supreme Court's ruling) is to relocate 30,000 prisoners from state prisons to county prisons in California. This seems to be in compliance with the Supreme Court's holding. However, this plan ultimately does nothing to solve the fundamental lack of funding and resources in the failing prison system. All the plan does, in effect, is to shift the problem from one set of prisons, to another set of prisons. Thereby allowing the systematic overcrowding and inhumane conditions to prevail. (Now it seems even Brown's weak-sauce proposal won't happen due to lack of funds.)

Finally, the last thing I find particularly depressing is how small the majority was that was willing to support Kennedy's very modest proposal for remedial action. The decision was a 5-4 split decision. This means four justices felt that the horrific abuses taking place in California either did not amount to cruel and unusual punishment, or were outside the purview of the court. These four justices are either despicable or cowardly, but likely both. Dostoevsky said "the degree of civilization of in a society can be judged by entering its prisons." I say, we need to seriously reconsider our policies and priorities. We need to stop filling-up our prisons and start focusing on how to find a redeeming sense of humanity in our nation.

I believe this starts by reassessing the efficacy of "tough on crime" initiatives like the infamous "three-strikes" rule, the "War on Drugs", and extended prison sentences for minor offenders (like parole violators). But our discussion shouldn't end there. Redeeming our nation also requires us to address the route causes of crime - which have been identified by Phd criminologist Todd Clear as - social, racial and most importantly economic inequality. Until we find lasting solutions to these problem, we, the United States, are doomed to continually reinforce and perpetuate abuses of the human spirit.


  1. I likes your statement from criminologist Todd Clear. I find it funny that economic inequality isoneof the root causes, because it also becomes a consequence, basically perpetuating the inequality. It is also funny to mention that prisons can be for profit as well, which means the incentive to imprison more people for minute crimes exists.

  2. I have to apologize about the conjoining of words and misspells, the iPad autocorrects incorrectly at times.

  3. I think your 2nd assumption is correct on the 5/4 split. I read Scalia's thoughts and he felt it should be a state decision and SC shouldn't mandate but just interpret constitutional law. Once again SC is overstepping its bounds in his opinion. I thought this might be some good news but it looks like maybe not.

  4. I think Scalia's eighth amendment analysis is really quite flawed. He contends that the aggregation of mistreatments is problematic because it does not reflect actual imminent individual, harms; systematic deficiencies cannot be disaggregated on the scale of individuals in prisons. One thing his analysis neglects is the very specific problem you discussed, Zach: overcrowding. Overcrowding is, itself, cruel and unusual as not only does it create very specific forms of mistreatment but also necessarily exposes every single prisoner to other forms of abuse. Overcrowding does not affect any exclusive group within prisons - it harms everyone, and thus constitutes an eighth amendment violation.

    Beyond the "legal analysis", it's problematic for anyone who makes the "Supreme Court is overstepping its authority" to even address the consequential logic of Kennedy. In my opinion, the only way to preserve the integrity of the strict-constructionist/originalism vein of legal thinking is to refuse to play the consequentialist game; to judge a case based on outcomes is necessarily to default to the reasoning of the left end of the court (something I happen to agree with). Thus, I don't think the statements "the supreme court has overstepped its authority" and "it might expose the people of California to dangerous felons" can really co-exist.

    One last point about Alito's dissent: making explicit the "problem" of releasing "three Army divisions" seems to indicate that the justices should err on the side of fear rather than justice. If the potential for Californians to be harmed is reason alone to justify keeping these prisoners in obviously abusive conditions, then it seems as though anything can be done in the interest of safety (see: marijuana laws). As I've said before, fear should never be the basis for law; unfortunately, it has been at the core of conservatives rhetoric for decades.

    In addition to finding the "correct" causes of crime, I think we just need to realize that we are all complicit in what happens to individuals we imprison. If we are alright with exercising police power to deprive individuals of their freedom, we should all bear the consequences of what happens to them after the fact.

  5. Yep. I think you're all right-on.