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June 17, 2011

"Fear-mongering from the Bench: Scalia & Alito Disgrace Themselves in Brown v. Plata"

The title of this post is the headline of this sharp commentary authored by Malcolm C. Young, who is the Soros Senior Justice Fellow and Director of the Program for Prison Reentry Strategies at Northwestern University Law School’s Bluhm Legal Clinic.  Here are excerpts:

The ruling [in Plata] should have been a slam dunk, given the repeated findings of atrocious conditions, the repeated failure of state defendants to provide remedies, and the consensus among national experts that the prison population had to be reduced — and could be reduced safely.  The testifying experts, many previously hired by the state to produce commission reports, included five former or current heads of state departments of corrections.  Of those, four had never before testified for prisoner plaintiffs — but came forward, as one stated, because “the prisons aren’t safe,” and “nobody seems to be willing to step up to the plate and fix the problem.”  This was the record on which Justice Kennedy based the majority opinion.

Yet the narrow, 5–4 ruling was in fact anything but a slam dunk; and while those of us who agree with the majority may have won a battle, the war remains very much in question. Especially when you survey the weapons the other side deployed.  In a troubling display of injudicious rhetoric, dissenting Supreme Court Justices Antonin Scalia and Samuel Alito used scare tactics to describe, in frankly demagogic terms, the potential effects of the majority decision in Brown v. Plata.  In separate dissenting opinions, Scalia and Alito took potshots at the lower court’s ruling and at their colleagues’ majority opinion.  Scalia faulted the lower court’s order as too broad a remedy, asserting sarcastically that “the vast majority of inmates most generously rewarded by the release order ... will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”  Elaborating this theme, he speculated about “the inevitable murders, robberies, and rapes to be committed by the released inmates,” while Alito warned of a future “grim roster of victims.”  Together they repeated nine times that “forty-six thousand convicted criminals” will be released—“the equivalent of three Army divisions,” Alito mused darkly, conjuring up columns of soldiers shouldering rifles and marching out of prison to wreak havoc on the public....

Do the wild alarms of Justices Scalia and Alito reflect willful misunderstanding or merely a runaway sense of the theatrical?  Whatever the case, they ignore some crucial facts: that the recommended releases will result in no more than a manageable 14.5 percent increase in prisoner releases in California; that many California prisoners pose minimal risk to citizens, including over thirty-two thousand convicted of low-level, nonviolent crimes and thousands more of drug-related offenses; that seventy thousand former prisoners are returned each year for violating parole, including seventeen thousand whose violations consisted of simply breaking an administrative rule such as not reporting to their parole office; and finally that forty-seven thousand new inmates arrive at the gates each year with less than ninety days to serve in prison — “convicted criminals” who are coming home soon anyway, no matter what the courts rule.  And as for the lurid invocation of iron-pumping cons, such imagery is suggestive but false.  As evidence in the lower court amply showed, California’s prison gyms and day rooms are “crammed” with three-high bunk beds.  No one is “pumping iron” in them....

Citizens eager to alleviate unconscionable prison conditions should celebrate the decision in Brown v. Plata cautiously.  Grounded in evidence and important principles, the majority opinion concludes that “a prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in a civilized world.”  And yet I fear that the dissenting opinion may be the one that ultimately prevails. That is because the dissenting justices appealed to the same exaggerated but durable fear of crime — and the same intuitive but inaccurate reliance upon incarceration as a solution—that brought California before the Supreme Court in the first place.  Two starkly divergent opinions mapping starkly divergent courses for our future: it remains to be seen, in a nation beset by unprecedented mass incarceration and all the accompanying human and financial costs, which one will win the day.

Some prior posts on the Plata ruling and responses thereto:

June 17, 2011 at 10:47 AM | Permalink


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unconscionable prison conditions - thats laughable. The prisoners "rights" should be curtailed severly when balanced against the need to provide law abiding citizens with a secure society. Does any rational person believe a prisoner should receive 24/7 health care including mental health care, dental, vision...its absurd. These animals would never get any like care if they didnt commit a crime and were roaming the streets and going about their menial jobs.

Posted by: DeanO | Jun 17, 2011 11:01:25 AM

Respectfully, what you don't seem to appreciate, DeanO, is that all it would take is a zealous prosecutor, a street-smart business competitor or a conniving ex to turn you into one of those prisoners yourself. In a heartbeat.

We incarcerate more people as a percentage of our population than any society in human history, and five times more than any other civilized nation. Prison: it's not just for criminals anymore.

No one is suggesting that everyone be released, but can't we all agree that things have gotten a bit extreme? I think that's the main point that Malcolm Young is trying to make.

Posted by: Jeremy | Jun 17, 2011 5:04:06 PM

'Deano' you sound like one sadistic and mean SOB...have a good life hope you never have the misfortune of getting caught up in the system you so gloriously defend.

Posted by: james | Jun 18, 2011 12:28:44 AM

J and J: You worry about people getting railroaded on false charges. I have proposed that all prosecutors and judges face full tort liability for this intentional false imprisonment with exemplary damages. To deter.

Only the tiniest fraction of current prisoners is in that category. More are illegal aliens, where those prison conditions represent a lifestyle 10 times as rich as what they had back home. For example. They are going to the bathroom indoors. They are fat, not rail thin as they are back home. You cannot be poor and fat. They have total medical care instead of some shaman reciting incantations.

They have also worked hard to land in stir, having failed many alternatives. What they are is ultra-violent predators, destroying entire blocks, and making life impossible for hundreds of people around them.

Under 123D, there would solve crowding. Authorities could provide Ritz class conditions because most violent prisoners would be deceased, including the vengeful spouse who lied. To deter.

Posted by: Supremacy Claus | Jun 18, 2011 9:34:27 AM

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