{"id":13535,"date":"2011-05-27T16:39:23","date_gmt":"2011-05-27T21:39:23","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=13535"},"modified":"2011-05-27T16:42:01","modified_gmt":"2011-05-27T21:42:01","slug":"do-criminals-count","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2011\/05\/do-criminals-count\/","title":{"rendered":"Do Criminals Count?"},"content":{"rendered":"

Do criminals count? \u00a0Are they really \u201cone of us\u201d? \u00a0That is the big question that hangs over all of the Supreme Court\u2019s Cruel and Unusual Punishments Clause cases, including the Court\u2019s decision earlier this week in\u00a0Brown v. Plata<\/em>, which affirmed a lower-court order requiring California to reduce its prison population. \u00a0Do we regard criminals as fellow citizens, or at least fellow human beings, who are entitled as such to some irreducible minimal level of decent treatment? \u00a0Or does a person, by virtue of a criminal conviction, fall to some qualitatively lower moral status, such that decent treatment is purely optional?<\/p>\n

The latter view is hardly foreign to the American legal tradition. \u00a0The Thirteenth Amendment expressly contemplates that convicts will be treated as slaves, and courts routinely characterized prison inmates as \u201cslaves of the state\u201d until the 1970s. \u00a0Mandatory minimum sentencing laws are, I think, in much the same spirit \u2014 they proclaim that criminals are unworthy of individualized consideration at sentencing and will be presumed irredeemably dangerous.<\/p>\n

In the realm of constitutional law, the Cruel and Unusual Punishments Clause offers the only real counterweight \u2014 this is the one provision of the Constitution that is expressly written to provide rights to convicted criminals.<\/p>\n

<\/p>\n

And a line of decisions extending back at least to the 1950\u2032s does embrace the view that even criminals are entitled to some level of decent treatment simply by virtue of their humanity. \u00a0Here\u2019s how Justice Kennedy, writing for the majority in\u00a0Brown<\/em>, put it:<\/p>\n

As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. \u00a0Yet the law and the Constitution demand recognition of certain other rights. \u00a0Prisoners retain the essence of human dignity inherent in all persons. \u00a0Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. \u00a0The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.<\/p><\/blockquote>\n

To contemporary lawyers, this passage may sound like a cliche, but these ideas that\u00a0prisoners\u00a0retain their essential moral status as human beings and are entitled to dignified treatment is profoundly at odds with the Thirteenth Amendment\u2019s equation of convicts with slaves \u2014 a view that was long accepted without serious question in our legal culture and that even today seems still entrenched in our political culture.<\/p>\n

Indeed, even on the Supreme Court, the expansion of Eighth Amendment rights beyond the bare minimum of protections that were expressly mentioned by the framers remains possibly the most enduringly divisive legacy of the Warren Court. \u00a0Brown <\/em>put the division on vivid display, with a 5-4 split and two strongly worded dissenting opinions (even by Justice Scalia\u2019s normally dyspeptic standards). \u00a0In the Court\u2019s close division and the strongly worded dissents,\u00a0Brown <\/em>echoes other recent Eighth Amendment cases dealing with sentencing, such as Graham v. Florida <\/em>(banning life without parole for juveniles convicted of nonhomicide crimes),\u00a0Kennedy v. Louisiana <\/em>(banning the death penalty for sexual assault of a child), and\u00a0Roper v. Simmons <\/em>(banning the death penalty for all juvenile offenders).<\/p>\n

If you accept the premise that \u201c[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man,\u201d then Kennedy\u2019s majority opinion in\u00a0Brown<\/em> seems reasonable enough. \u00a0Designed to hold a population of about 80,000 inmates, California\u2019s prisons hold close to 160,000. \u00a0Ample evidence demonstrates that overcrowding has had devastating, sometimes lethal, consequences for inmates suffering from mental illness or other serious medical problems. \u00a0More than fifteen years ago, in response to a class-action lawsuit, a federal district judge found that inmates with mental illness experienced systemic constitutional violations. \u00a0A decade ago, in connection with a separate class action, California actually conceded that deficiencies in its prison medical care also violated the Eighth Amendment. \u00a0Less drastic remedial measures proved unsuccessful over a period of many years, leading to consolidation of the two cases before a three-judge panel and an order to reduce the prison population to 137.5 percent of capacity within two years.<\/p>\n

California\u2019s appeal to the Supreme Court focused less on the underlying constitutional violations than on the remedy and its consistency with the Prison Litigation Reform Act. \u00a0The PLRA expressly contemplates that a three-judge panel may issue a \u201cprisoner release order\u201d in response to constitutional violations, but imposes a stringent set of criteria that must be satisfied first.<\/p>\n

The Supreme Court affirmed that the PLRA requirements were met. \u00a0Of particular importance were the requirements that \u201cno other relief will remedy the [constitutional] violation\u201d and that the court \u201cgive substantial weight to any adverse impact on public safety.\u201d \u00a0In finding these requirements satisfied, the Court emphasized the fifteen-year history of the litigation, the lack of success with other remedies, California\u2019s fiscal crisis and resulting inability to address constitutional violations through new spending, the flexibility afforded by the panel\u2019s order (for instance, permitting transfer of prisoners to county jails or out-of-state facilities in lieu of outright release), the ability to accomplish release through expanded good-time credits and other mechanisms that would serve to distinguish riskier from less risky inmates, and the likelihood that better prison conditions would reduce the recidivism risk posed by many inmates.<\/p>\n

Justice Scalia\u2019s dissent is framed primarily as an objection to federal judges engaging in just this sort of social policy analysis. \u00a0Scalia is sounding very familiar Scalian themes of judicial restraint. \u00a0He would interpret the PLRA to preclude \u201cstructural injunctions\u201d under\u00a0any\u00a0circumstances \u2014 a \u201cprisoner release order\u201d could only provide for the release of a single prisoner. \u00a0His vision of prisoner rights litigation would seem to involve adjudication one prisoner at a time; each inmate would have to prove an individual violation of rights and would receive an individualized remedy.<\/p>\n

This would be, of course, a tremendously cumbersome process, and it is hard to see how it would ever result in structural changes, no matter how compelling the case for structural change is.<\/p>\n

The trouble for Scalia\u2019s position, as even he seems to admit, is that \u201cthe PLRA appears to contemplate structural injunctions in general and mass prisoner-release orders in particular.\u201d \u00a0It turns out that Scalia isn\u2019t really being much of a restraintist, at least when it comes to interpreting statutory text. \u00a0He suggests that the Court should \u201cbend every effort to read the law in such a way as to avoid\u201d the release of prisoners. \u00a0Why? \u00a0As a matter of social policy choice.<\/p>\n

Scalia says that federal courts are \u201cincompetent\u201d to make penal policy, and should defer to the experts in the executive branch. \u00a0Yet, a parade of prison experts from across the nation, including former officials from California, testified before the three-judge panel that the California system was horribly broken. \u00a0Simply deferring to the \u201cexperts\u201d in the executive branch would predictably result in an ongoing series of constitutional violations. \u00a0I\u2019m not sure even the state would seriously contest this point.<\/p>\n

In the end, I think what animates Scalia\u2019s dissent is not really a view about the PLRA, but a view about the Eighth Amendment. \u00a0As he notes in passing in\u00a0Brown<\/em>,\u00a0Scalia has never accepted that the Eighth Amendment is a general mandate to treat criminals with basic decency. \u00a0For Scalia, criminals don\u2019t \u201ccount\u201d \u2014 at least not in any meaningful way that the law is bound to respect.<\/p>\n

This view of criminals received its fullest articulation in Chief Justice Burger\u2019s majority opinion in\u00a0Hudson v. Palmer<\/em>, which held that prisoners have no Fourth Amendment rights in their cells. \u00a0(I have an extended discussion of the opinion,\u00a0here<\/a>.) \u00a0The criminal is the dangerous outsider, a profound and irredeemable threat to law-abiding citizens. \u00a0I hear an echo of this view in Scalia\u2019s crack in\u00a0Brown <\/em>that \u201cmany [of those released as a result of the lower-court’s order] will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.\u201d \u00a0\u00a0Certainly, the view informs Scalia\u2019s assertion that a release of 46,000 convicts is \u201coutrageous,\u201d \u201cabsurd,\u201d and contrary to \u201ccommon sense.\u201d \u00a0It probably also helps to account for his cavalier attitude toward the Eighth Amendment violations that could only be prevented through the sort of structural remedies that his interpretation of the PLRA would preclude.<\/p>\n

Justice Alito\u2019s dissent is less strident in tone and less extreme in its implications. \u00a0Alito would not interpret the PLRA to ban mass prisoner releases as a matter of law. \u00a0He would, however, interpret the statute such that they might be nearly impossible as a practical matter.<\/p>\n

Alito\u2019s opinion sounded two themes. \u00a0First, the three-judge panel moved too quickly to the mass-prisoner-release remedy, and should have considered more complete and up-to-date information regarding the state of the California system and alternative remedies. \u00a0But it\u2019s not as if the panel moved precipitously. \u00a0Fifteen years of litigation preceded the prisoner release order. \u00a0 Moreover, the remedy trial involved 14 days of testimony and resulted in a 184-page opinion. \u00a0It\u2019s always possible for a court to do more, and I don\u2019t doubt that the panel\u2019s work was less than perfect. \u00a0At some point, though, a court\u2019s work must end and a remedy must be selected; otherwise, the underlying right that was violated is effectively nullified. \u00a0I\u2019m not sure that is what Alito is driving at, but the consequence of what he contemplates may well be judicial paralysis by analysis.<\/p>\n

Alito\u2019s second major theme was that the three-judge panel was not \u201cduly mindful of the overriding need to guard public safety.\u201d \u00a0Alito seems to recognize what Scalia denies \u2014 that the PLRA itself contemplates that judges will engage in social policy analysis when they decide whether to order a prison release. \u00a0(Maybe this is why Scalia did not join Alito\u2019s opinion, and Alito did not join Scalia\u2019s.) \u00a0Alito is obviously skeptical of the view that overcrowding contributes to recidivism risk, and believes that \u201cprisoner release orders present an inherent risk to the safety of the public.\u201d \u00a0This use of the term \u201cinherent,\u201d coupled with Alito\u2019s characterization of public safety as an \u201coverriding\u201d concern, raises the question of whether Alito would find\u00a0any\u00a0release order\u00a0consistent with the PLRA. \u00a0In any event, he closes by restating his fear that\u00a0Brown<\/em> \u201dwill lead to a grim roster of victims.\u201d<\/p>\n

Alito\u2019s fear should not be discounted; in my view, the risks of victimization, particularly violent victimization, make\u00a0Brown<\/em> a difficult case. \u00a0At the same time, I would find Alito\u2019s opinion more persuasive if he grappled with two countervailing considerations. \u00a0First, Alito\u2019s opinion is very much in the spirit of\u00a0Hudson<\/em> \u2013 all prisoners are inherently and uniformly dangerous. \u00a0But we know that not all prisoners reoffend, and many important risk factors are now well-understood. \u00a0There\u2019s no reason to assume that California will indiscriminately release 46,000 prisoners, and indeed the lower-court\u2019s decision was apparently premised on the expectation that the state would respond to the release order in a much more nuanced fashion. \u00a0An analysis of whether the lower court gave adequate weight to public safety should, I think, focus on what the state is actually likely to do, rather than a worst-case scenario.<\/p>\n

Second, Alito\u2019s opinion makes no mention of the harm to\u00a0prisoners\u00a0from failing to address overcrowding, including the near-certainty of lethal negligence in the delivery of medical and mental-health care. \u00a0As Alito talks about public safety as the \u201coverriding\u201d consideration and the \u201cgrim roster of victims,\u201d there is an implicit tradeoff being made: the lives and well-being of prisoners are being sacrificed in favor of the lives and well-being of anticipated crime victims. \u00a0Again, it would seem that criminals don\u2019t \u201ccount\u201d in his calculus.<\/p>\n

I don\u2019t mean to suggest that I would necessarily weigh the interests of the\u00a0Brown<\/em> classes ahead of their prospective victims. \u00a0My point here is just to observe the invisibility in Alito\u2019s analysis of the inmates as individual human beings for whom we might conceivably have some fellow-feeling. \u00a0We seem back to that Thirteenth Amendment mentality.<\/p>\n

Cross posted at\u00a0On Point<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

Do criminals count? \u00a0Are they really \u201cone of us\u201d? \u00a0That is the big question that hangs over all of the Supreme Court\u2019s Cruel and Unusual Punishments Clause cases, including the Court\u2019s decision earlier this week in\u00a0Brown v. Plata, which affirmed a lower-court order requiring California to reduce its prison population. \u00a0Do we regard criminals as […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,66,24],"tags":[],"class_list":["post-13535","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-human-rights","category-us-supreme-court","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13535","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=13535"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/13535\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=13535"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=13535"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=13535"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}