Guest Post: Michael M. O’Hear, “Do Criminals Count?”

On Point is very pleased to publish this guest post, by Professor Michael M. O’Hear, on Brown v. Plata. Mr. O’Hear is Professor of Law and Associate Dean for Research at Marquette University Law School. He is also editor of the Federal Sentencing Reporter and author of the Life Sentences Blog. You can access his papers on the Social Science Research Network (SSRN) at: http://ssrn.com/author=328167. We are deeply appreciative of his finding the time to share his expertise with our readership. Comments to this post are invited; use the box at the bottom of the post.

Do criminals count?  Are they really “one of us”?  That is the big question that hangs over all of the Supreme Court’s Cruel and Unusual Punishments Clause cases, including the Court’s decision earlier this week in Brown v. Plata, which affirmed a lower-court order requiring California to reduce its prison population.  Do 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?  Or does a person, by virtue of a criminal conviction, fall to some qualitatively lower moral status, such that decent treatment is purely optional?

The latter view is hardly foreign to the American legal tradition.  The Thirteenth Amendment expressly contemplates that convicts will be treated as slaves, and courts routinely characterized prison inmates as “slaves of the state” until the 1970s.  Mandatory minimum sentencing laws are, I think, in much the same spirit — they proclaim that criminals are unworthy of individualized consideration at sentencing and will be presumed irredeemably dangerous.

In the realm of constitutional law, the Cruel and Unusual Punishments Clause offers the only real counterweight — this is the one provision of the Constitution that is expressly written to provide rights to convicted criminals.  And a line of decisions extending back at least to the 1950’s does embrace the view that even criminals are entitled to some level of decent treatment simply by virtue of their humanity.  Here’s how Justice Kennedy, writing for the majority in Brown, put it:

As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty.  Yet the law and the Constitution demand recognition of certain other rights.  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.  The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.

To contemporary lawyers, this passage may sound like a cliche, but these ideas that prisoners retain their essential moral status as human beings and are entitled to dignified treatment is profoundly at odds with the Thirteenth Amendment’s equation of convicts with slaves — a view that was long accepted without serious question in our legal culture and that even today seems still entrenched in our political culture.

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.  Brown put the division on vivid display, with a 5-4 split and two strongly worded dissenting opinions (even by Justice Scalia’s normally dyspeptic standards).  In the Court’s close division and the strongly worded dissents, Brown echoes other recent Eighth Amendment cases dealing with sentencing, such as Graham v. Florida (banning life without parole for juveniles convicted of nonhomicide crimes), Kennedy v. Louisiana (banning the death penalty for sexual assault of a child), and Roper v. Simmons (banning the death penalty for all juvenile offenders).

If you accept the premise that “[t]he basic concept underlying the Eighth Amendment is nothing less than the dignity of man,” then Kennedy’s majority opinion in Brown seems reasonable enough.  Designed to hold a population of about 80,000 inmates, California’s prisons hold close to 160,000.  Ample evidence demonstrates that overcrowding has had devastating, sometimes lethal, consequences for inmates suffering from mental illness or other serious medical problems.  More 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.  A decade ago, in connection with a separate class action, California actually conceded that deficiencies in its prison medical care also violated the Eighth Amendment.  Less 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.

California’s 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.  The PLRA expressly contemplates that a three-judge panel may issue a “prisoner release order” in response to constitutional violations, but imposes a stringent set of criteria that must be satisfied first.

The Supreme Court affirmed that the PLRA requirements were met.  Of particular importance were the requirements that “no other relief will remedy the [constitutional] violation” and that the court “give substantial weight to any adverse impact on public safety.”  In finding these requirements satisfied, the Court emphasized the fifteen-year history of the litigation, the lack of success with other remedies, California’s fiscal crisis and resulting inability to address constitutional violations through new spending, the flexibility afforded by the panel’s 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.

Justice Scalia’s dissent is framed primarily as an objection to federal judges engaging in just this sort of social policy analysis.  Scalia is sounding very familiar Scalian themes of judicial restraint.  He would interpret the PLRA to preclude “structural injunctions” under any circumstances — a “prisoner release order” could only provide for the release of a single prisoner.  His 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.

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.

The trouble for Scalia’s position, as even he seems to admit, is that “the PLRA appears to contemplate structural injunctions in general and mass prisoner-release orders in particular.”  It turns out that Scalia isn’t really being much of a restraintist, at least when it comes to interpreting statutory text.  He suggests that the Court should “bend every effort to read the law in such a way as to avoid” the release of prisoners.  Why?  As a matter of social policy choice.

Scalia says that federal courts are “incompetent” to make penal policy, and should defer to the experts in the executive branch.  Yet, 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.  Simply deferring to the “experts” in the executive branch would predictably result in an ongoing series of constitutional violations.  I’m not sure even the state would seriously contest this point.

In the end, I think what animates Scalia’s dissent is not really a view about the PLRA, but a view about the Eighth Amendment.  As he notes in passing in Brown, Scalia has never accepted that the Eighth Amendment is a general mandate to treat criminals with basic decency.  For Scalia, criminals don’t “count” — at least not in any meaningful way that the law is bound to respect.

This view of criminals received its fullest articulation in Chief Justice Burger’s majority opinion in Hudson v. Palmer, which held that prisoners have no Fourth Amendment rights in their cells.  (I have an extended discussion of the opinion, here.)  The criminal is the dangerous outsider, a profound and irredeemable threat to law-abiding citizens.  I hear an echo of this view in Scalia’s crack in Brown that “many [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.”   Certainly, the view informs Scalia’s assertion that a release of 46,000 convicts is “outrageous,” “absurd,” and contrary to “common sense.”  It 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.

Justice Alito’s dissent is less strident in tone and less extreme in its implications.  Alito would not interpret the PLRA to ban mass prisoner releases as a matter of law.  He would, however, interpret the statute such that they might be nearly impossible as a practical matter.

Alito’s opinion sounded two themes.  First, 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.  But it’s not as if the panel moved precipitously.  Fifteen years of litigation preceded the prisoner release order.   Moreover, the remedy trial involved 14 days of testimony and resulted in a 184-page opinion.  It’s always possible for a court to do more, and I don’t doubt that the panel’s work was less than perfect.  At some point, though, a court’s work must end and a remedy must be selected; otherwise, the underlying right that was violated is effectively nullified.  I’m not sure that is what Alito is driving at, but the consequence of what he contemplates may well be judicial paralysis by analysis.

Alito’s second major theme was that the three-judge panel was not “duly mindful of the overriding need to guard public safety.”  Alito seems to recognize what Scalia denies — that the PLRA itself contemplates that judges will engage in social policy analysis when they decide whether to order a prison release.  (Maybe this is why Scalia did not join Alito’s opinion, and Alito did not join Scalia’s.)  Alito is obviously skeptical of the view that overcrowding contributes to recidivism risk, and believes that “prisoner release orders present an inherent risk to the safety of the public.”  This use of the term “inherent,” coupled with Alito’s characterization of public safety as an “overriding” concern, raises the question of whether Alito would find any release order consistent with the PLRA.  In any event, he closes by restating his fear that Brown “will lead to a grim roster of victims.”

Alito’s fear should not be discounted; in my view, the risks of victimization, particularly violent victimization, make Brown a difficult case.  At the same time, I would find Alito’s opinion more persuasive if he grappled with two countervailing considerations.  First, Alito’s opinion is very much in the spirit of Hudson — all prisoners are inherently and uniformly dangerous.  But we know that not all prisoners reoffend, and many important risk factors are now well-understood.  There’s no reason to assume that California will indiscriminately release 46,000 prisoners, and indeed the lower-court’s decision was apparently premised on the expectation that the state would respond to the release order in a much more nuanced fashion.  An 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.

Second, Alito’s opinion makes no mention of the harm to prisoners from failing to address overcrowding, including the near-certainty of lethal negligence in the delivery of medical and mental-health care.  As Alito talks about public safety as the “overriding” consideration and the “grim roster of victims,” 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.  Again, it would seem that criminals don’t “count” in his calculus.

I don’t mean to suggest that I would necessarily weigh the interests of the Brown classes ahead of their prospective victims.  My point here is just to observe the invisibility in Alito’s analysis of the inmates as individual human beings for whom we might conceivably have some fellow-feeling.  We seem back to that Thirteenth Amendment mentality.