Lessons from SCOTUS ruling on California prison crowding

Yesterday the US Supreme Court, on a narrow 5-4 majority, ordered the state of California to reduce prison crowding because of inadequate medical care in a case style Brown v. Plata (see the opinion), ordering them to lower the number of state prison inmates by as many as 38-46,000. When Texas faced similar litigation over prison conditions years ago in Ruiz v. Estelle, it ultimately prompted a massive statewide prison building spree. But with budgets tight California has no money for that, so some prisoners will be released early, some housed in county jails, and their legislature will likely be compelled to divert more low-level offenders from prison on the front end.

Perhaps the most remarkable line out of all three opinions came from Antonin Scalia's dissent, joined by Clarence Thomas, overtly embracing the tenets of judicial activism and the merits of judges imposing their own views when they conflict with written statutes. They announce in the dissent's second paragraph that "There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa."  As I wrote in the comments at Sentencing Law & Policy, these two have now formally embraced the whole "Living Constitution" concept, to judge by this quote. They're explicitly advocating that "tradition and common sense" should trump "the law" when judges disagree with the outcome that following the law would create. What an astonishing view coming from those two self-avowed textualists! So much for "plain reading" of statutes. Apparently judicial activism is the new conservatism.

Returning to questions of prison crowding, it should be said that while Texas prisons have their own share of problems, they pale in comparison to the Golden State: A footnote quoted "Doyle Wayne Scott, the former head of corrections in Texas, [who] described conditions in California’s prisons as 'appalling,' 'inhumane,' and 'unacceptable' and stated that '[i]n more than 35 years of prison work experience, I have never seen anything like it.'”

But that doesn't mean there aren't warnings within this ruling for Texas as it begins to slash funding for prison medical care. Indeed, given Texas' already low spending on prison healthcare and further cuts in the next budget, it's worth pointing out language from the decision confirming that "If a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation." The Texas Civil Rights Project has called inadequate medical healthcare "Texas' secret death penalty." Further, given that Texas' university providers are laying off healthcare workers, it's notable that a lack of sufficient medical staff contributed to the court's decision:

The evidence showed that there were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in administrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care.

The shortage of medical staff is so severe in California that "Prisons were unable to retain sufficient numbers of competent medical staff ... and would 'hire any doctor who had ‘a license, a pulse and a pair of shoes.'” "At the time of trial," wrote Justice Anthony Kennedy, "vacancy rates for medical and mental health staff ranged as high as 20% for surgeons, 25% for physicians, 39% for nurse practitioners, and 54.1% for psychiatrists."

There are some in the free world who may not care if prisoners receive adequate healthcare, but there are consequences that spread outside the prison system, including the development of antibiotic resistant infections: According to a footnote, "One officer testified that antibiotic-resistant staph infections spread widely among the prison population and described prisoners 'bleeding, oozing with pus that is soaking through their clothes when they come in to get the wound covered and treated.'” Prisons are a common breeding ground for antibiotic resistant infections that eventually, inevitably spread to the outside world.

Inadequate mental healthcare was also a factor; again from Kennedy's opinion:

Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. [citation omitted] In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations; and a court-appointed Special Master found that 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.”

Remarkably, "Two prisoners committed suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could support a noose. The repair was not made because doing so would involve removing prisoners from the cells, and there was no place to put them."

Finally, based on findings of fact from the lower court, the majority discounted the argument that its order to reduce the prison population would automatically harm public safety:

The court found that various available methods of reducing overcrowding—good time credits and diverting low-risk offenders to community programs—would have little or no impact on public safety, and its order took account of such concerns by giving the State substantial flexibility to select among the means of reducing overcrowding. The State complains that the court approved the State’s population reduction plan without considering whether its specific measures would substantially threaten public safety. But the court left state officials the choice of how best to comply and was not required to second-guess their exercise of discretion. Developments during the pendency of this appeal, when the State has begun to reduce the prison population, support the conclusion that a reduction can be accomplished without an undue negative effect on public safety.

Indeed, Kennedy's opinion speculated from the record that reduced incarceration may even improve public safety:

Some evidence indicated that reducing overcrowding in California’s prisons could even improve public safety. Then-Governor Schwarzenegger, in his emergency proclamation on over-crowding, acknowledged that “‘overcrowding causes harm to people and property, leads to inmate unrest and misconduct, ... and increases recidivism as shown within this state and in others.’” ... The former warden of San Quentin and acting secretary of the California prison system testified that she “‘absolutely believe[s] that we make people worse, and that we are not meeting public safety by the way we treat people.’” ... And the head of Pennsylvania’s correctional system testified that measures to reduce prison population may “actually improve on public safety because they address the problems that brought people to jail.”

The dissents, filled with inflammatory language, read more like op eds than legal opinions - a testament to the extensive record developed by the lower courts. Even Scalia said, "Because these 'findings' have support in the record, it is difficult to reverse them under a plain-error standard of review." So instead of follow the law and apply that standard, he'd simply substitute his own policy preferences if given the chance. In this case, he wasn't, but in the future after this episode it will be difficult to take seriously complaints about activist judges from Justices Scalia and Thomas. To borrow from former California Governor Richard Nixon's famous comment about Keynesianism, apparently "we're all judicial activists now."