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Instant Analysis: Brown (Former Schwarzenneger) v. Plata
A sharp 5-4 opinion, with Justice Kennedy writing for Ginsburg, Breyer, Sotomayor, and Kagan.
This Court now holds that the PLRA does authorize the relief afforded in this case and that the court-mandated population limit is necessary to remedy the violation ofprisoners’ constitutional rights. The order of the three-judge court, subject to the right of the State to seek its modification in appropriate circumstances, must be affirmed.
Justice Scalia penned a stinging dissent, joined only by Justice Thomas:
Today the Court affirms what is perhaps the most radi-cal injunction issued by a court in our Nation’s history: anorder requiring California to release the staggering num-ber of 46,000 convicted criminals.There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition andcommon sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageousresult. Today, quite to the contrary, the Court disregardsstringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the gov-erning statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.
From Justice Alito’s dissent, joined by the Chief:
The decree in this case is a perfect example of whatthe Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–66, was enacted to prevent.The Constitution does not give federal judges the au-thority to run state penal systems. Decisions regardingstate prisons have profound public safety and financial implications, and the States are generally free to makethese decisions as they choose. See Turner v. Safley, 482U. S. 78, 85 (1987).The Eighth Amendment imposes an important—but limited—restraint on state authority in this field. The Eighth Amendment prohibits prison officials from de- priving inmates of “the minimal civilized measure of life’snecessities.” Rhodes v. Chapman, 452 U. S. 337, 347 (1981).
Federal courts have the responsibility to ensure that this constitutional standard is met, but undesirable prison conditions that do not violate the Constitution arebeyond the federal courts’ reach.In this case, a three-judge court exceeded its authorityunder the Constitution and the PLRA. The court ordered a radical reduction in the California prison population without finding that the current population level violates the Constitution.
The opinion is 91 total pages. This may take a while to parse through. Plus appendixes B and C have photos of prison over-crowding!
Justice Kennedy’s Majority Opinion
The Court found that the three-judge panel’s mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA. Here is the test the majority put forward to assess the validity of a release order:
Once convened, the three-judge court must find by clear and convincing evidence that “crowding is the primary cause of the violation” and “no other relief will remedy [the] violation,” §3626(a)(3)(E); and that the relief is “narrowly drawn, extends no fur-ther than necessary. . . , and is the least intrusive means necessary to correct the violation,” §3626(a)(1)(A). The court must give “substan-tial weight to any adverse impact on public safety or the operation ofa criminal justice system caused by the relief.” Ibid. Its legal deter-minations are reviewed de novo, but its factual findings are reviewed for clear error.
Based on this standard, the Court found that the lower court acted reasonably in covening the three-judge court.
It was permissible for the three-judge court to conclude that overcrowding was the “primary,” but not the only, cause of the violations, and that reducing crowding would not entirely cure the violations. This understanding of the primary cause requirement is consistent with the PLRA. Had Congress intended to require thatcrowding be the only cause, the PLRA would have said so.
Kennedy also finds that the release order was “narrowly drawn.”
The prospective relief ordered here was narrowly drawn, ex-tended no further than necessary to correct the violation, and was the least intrusive means necessary to correct the violation.
While narrow tailoring requires a “ ‘ “fit” between the [rem-edy’s] ends and the means chosen to accomplish those ends,’ ” Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480, a narrow and otherwise proper remedy for a constitutional violation is not in-valid simply because it will have collateral effects. Nor does the PLRA require that result. The order gives the State flexibility to de-termine who should be released, and the State could move the three-judge court to modify its terms. The order also is not overbroad be-cause it encompasses the entire prison system, rather than sepa-rately assessing each institution’s need for a population limit.
Remarkably, Kennedy did not find the 2-year deadline for releasing 46,000 prisoners unreasonable, but suggested an equitable extension may be in order. Wow
The three-judge court did not err in providing a 2-year dead-line for relief, especially in light of the State’s failure to contest theissue at trial. The State has not asked this Court to extend the dead-line, but the three-judge court has the authority, and responsibility,to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes re-quire that court to exercise its jurisdiction to accord the State consid-erable latitude to find mechanisms and make plans that willpromptly and effectively correct the violations consistent with publicsafety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observa-tions reflect the fact that the existing order, like all ongoing equitablerelief, must remain open to appropriate modification, and are not in-tended to cast doubt on the validity of the order’s basic premise.
Justice Scalia takes exception with this note, and claims it is not so much as a suggestion as a “warning shot across the bow,” which is tantamount to “intellectual bankruptcy.”
I suspect, however, that this passage is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achievethe benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the releasedinmates. But it would achieve that at the expense of intellectual bankruptcy, as the Court’s “warning” is en- tirely alien to ordinary principles of appellate review of injunctions. When a party moves for modification of an injunction, the district court is entitled to rule on thatmotion first, subject to review for abuse of discretion if it declines to modify the order.
So perhaps the coda is nothing more than a ceremonial washing of the hands—making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s responsibility. After all, did we not want, and indeed even suggest, something better?
Justice Scalia’s Dissenting Opinion
The opening paragraphs of this opinion are quite ominous. I haven’t seen Nino this pissed about security issues since some of the detainee cases.
Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: anorder requiring California to release the staggering number of 46,000 convicted criminals.
There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition andcommon sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageousresult. Today, quite to the contrary, the Court disregardsstringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.
The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.
Scalia takes aim at the Court’s “evolving standards of decency” jurisprudence, and notes it does not permit the Courts to control the operation of prisons:
But our judgeempowering “evolving standards of decency” jurisprudence(with which, by the way, I heartily disagree, see, e.g., Roper v. Simmons, 543 U. S. 551, 615–616 (2005) (SCALIA, J., dissenting)) does not prescribe (or at least has not until today prescribed) rules for the “decent” running of schools,prisons, and other government institutions. It forbids “indecent” treatment of individuals—in the context of this case, the denial of medical care to those who need it. And the persons who have a constitutional claim for denial of medical care are those who are denied medical care—not all who face a “substantial risk” (whatever that is) of being denied medical care.
Scalia takes note with the large-size of the class—46,000 employees—and notes that only a fraction of them could possibly be aggrieved by the overcrowding. Rather, they will be pumped up!
It is also worth noting the peculiarity that the vastmajority of inmates most generously rewarded by the release order—the 46,000 whose incarceration will be ended— do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation. Most of them 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.
Scalia also attacks the findings of the three District Judges, and the notion that they made their findings based solely on the facts, and not their personal beliefs:
But the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course they were relying largely on their own beliefs about penology and recidivism. And of course different district judges, of different policy views, would have “found” that rehabilitation would not work and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial fact finding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism. Yet, because they have been branded “factual findings” entitled to deferential review, the policy preferences of three Distric tJudges now govern the operation of California’s penal system.
I can definitely see this language being applied to Judge Walker’s finding of facts in the prop 8 case.
Scalia continues ripping into the “factual findings.”
It is important to recognize that the dressing-up of policy judgments as factual findings is not an error peculiar to this case. It is an unavoidable concomitant of institutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the anticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our system of government allocates to other government officials.
But structural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences. Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions. Thus, in the proceeding below the District Court determined that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity. This was an empirical finding it was utterly unqualified to make. Admittedly, the court did not generate that number entirely on its own; it heard the numbers 130% and 145% bandied about by various 1 witnesses and decided to split the difference. But the ability of judges to spit back or even average-out numbers spoon-fed to them by expert witnesses does not render them competent decisionmakers in areas in which they are otherwise unqualified.
In a special bench slap of the Ninth Court, Scalia notes that the Court has reversed CA9 4 terms on habeas, this term alone.
Recognizing that habeas relief must be granted sparingly, we have reversed the Ninth Circuit’s erroneous grant of habeas relief to individual California prisoners four times this Term alone. . . .
And yet here, the Court affirms an order granting the functional equivalent of 46,000 writs of habeas corpus, based on its paean to courts’ “substantial flexibility when making these judgments.” Ante, at 41. It seems that the Court’s respect for state sovereignty has vanished in the case where it most matters.
Brief typo on p. p. 70 of the PDF, p. 12 of the dissent, Scalia wrote:
If it is nothing but a polite remainder to the State and to the District Court that the injunction is subject to modification, then it is entirely unnecessary.
If it is nothing but a polite reminder to the State and to the District Court that the injunction is subject to modification, then it is entirely unnecessary.
Scalia closes, by noting that the order ignore PLRA, and “all sound conception of the proper role of judges.”
The District Court’s order that California release 46,000 prisoners extends “further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs” who have been denied needed medical care. 18
U. S. C. §3626(a)(1)(A). It is accordingly forbidden by the PLRA—besides defying all sound conception of the proper role of judges.
Justice Alito’s Dissenting Opinion
Alito’s dissent, joined only by the Chief focuses on the “profound public safety and financial implications” of the order.
The Constitution does not give federal judges the authority to run state penal systems. Decisions regardingstate prisons have profound public safety and financial implications, and the States are generally free to makethese decisions as they choose. See Turner v. Safley, 482
U. S. 78, 85 (1987).
The Eighth Amendment imposes an important—but limited—restraint on state authority in this field. The Eighth Amendment prohibits prison officials from de- priving inmates of “the minimal civilized measure of life’snecessities.” Rhodes v. Chapman, 452 U. S. 337, 347 (1981). Federal courts have the responsibility to ensure that this constitutional standard is met, but undesirable prison conditions that do not violate the Constitution arebeyond the federal courts’ reach.
This mirrors Alito’s comments at oral arguments, as I noted in the Constitutionality of Social Cost
Relatedly, during oral arguments in Schwarzenegger v. Plata, Justice Alito expressed concern about the social costs of a court’s prison release order whereby 40,000 prisoners would be released. He questioned
whether the released prisoners would “contribute to an increase in crime,” citing a different release in Philadelphia that yielded “cost[s]” in terms of the “number of murders, the number of rapes, the number of armed robberies, the number of assaults.”137
And the three-judge court violated the PLRA’s critical command that any court contemplating a prisoner release order must give “substantial weight to any adverse impact on public safety.” 18
U. S. C. §3626(a)(1)(A). The three-judge court would have us believe that the early release of 46,000 inmates will not imperil—and will actually improve—public safety. I would reverse the decision below for three interrelated reasons. First, the three-judge court improperly refused to consider evidence concerning present conditions in the California prison system. Second, the court erred in holding that no remedy short of a massive prisoner release can bring the California system into compliance with the Eighth Amendment. Third, the court gave inadequate weight to the impact of its decree on public safety.
Alito finds that the alleged violations at the prisons could certainly be remedied with less dramatic relief than 46,000 released prisoners.
It is instructive to consider the list of deficiencies in the California prison health care system that are highlighted in today’s opinion for this Court and in the opinion of the court below. The deficiencies noted by the majority hereinclude the following: “‘[e]xam tables and counter tops, where prisoners with . . . communicable diseases are treated, [are] not routinely disinfected,’” ante, at 10; medical facilities “‘are in an abysmal state of disrepair,’” ibid.; medications “‘are too often not available when needed,’” ante, at 10–11; “‘[b]asic medical equipment is often not available or used,’” ante, at 10; prisons “would ‘hire any doctor who had “a license, a pulse and a pair of shoes,”’” ibid.; and medical and mental health staff positions have high vacancy rates, ante, at 20. The three-judge court pointed to similar problems. See Juris. App. 93a–121a(citing, among other things, staffing vacancies, too few beds for mentally ill prisoners, and an outmoded recordsmanagement system).
Is it plausible that none of these deficiencies can beremedied without releasing 46,000 prisoners? Without taking that radical and dangerous step, exam tables and counter tops cannot properly be disinfected? None of the system’s dilapidated facilities can be repaired? Needed medications and equipment cannot be purchased and used? Staff vacancies cannot be filled? The qualifications of prison physicians cannot be improved? A better records management system cannot be developed and implemented?
Alito finds that the order would not even remedy the issue, as those released need not be among the aggrieved class of plaintiffs.
I do not dispute that general overcrowding contributes to many of the California system’s healthcare problems. But it by no means follows that reducing overcrowding is the only or the best or even a particularly good way to alleviate those problems. Indeed, it is apparent that the prisoner release ordered by the court below is poorly suited for this purpose. The release order is not limited to prisoners needing substantial medical care but instead calls for a reduction in the system’s overall population. Under the order issued by the court below, it is not necessary for a single prisoner in the plaintiff classes to be released. Although some class members will presumably be among those who are discharged, the decrease in the number of prisoners needing mental health treatment or other forms of extensive medical care will be much smaller than the total number of prisoners released, and thus the release will produce at best only a modest improvement in the burden on the medical care system.
Part III of Alito’s dissent is focused on impacts on public safety, or as I would call it, the constitutionality of social cost. Alito references a prison release program in Philadelphia, which he alluded to during oral arguments.
Before ordering any prisoner release, the PLRA commands a court to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” §3626(a)(1)(A). This provision unmistakably reflects Congress’ view that prisoner release orders are inherently risky. In taking this view, Congress was well aware of the impact of previous prisoner release orders. The prisoner release program carried out a few years earlier in Philadelphia is illustrative. In the early 1990’s, federal courts enforced a cap on the number of inmates in the Philadelphia prison system, and thousands of inmates were set free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses.9 Members of Congress were well aware of this experience.10
Despite the record of past prisoner release orders, thethree-judge court in this case concluded that loosing46,000 criminals would not produce a tally like that inPhiladelphia and would actually improve public safety. Juris. App. 248a–249a. In reaching this debatable conclusion, the three-judge court relied on the testimony ofselected experts, id., at 248a, and the majority now defersto what it characterizes as the lower court’s findings offact on this controversial public policy issue, ante, at 15, 19–20, 24
Alito criticizes the Court for failing to consider the possible social consequences of this decision.
The particular three-judge court convened in this case was “confident” that releasing 46,000 prisoners pursuant to its plan “would in fact benefit public safety.” Juris. App. 248a–249a. According to that court, “overwhelming evidence” supported this purported finding. Id., at 232a. But a more cautious court, less bent on implementing itsown criminal justice agenda, would have at least acknowledged that the consequences of this massive prisonerrelease cannot be ascertained in advance with any degree of certainty and that it is entirely possible that this release will produce results similar to those under prior court-ordered population caps.
Alito has a bit of a causation/correlation mixup, when he tries to link the increase of prison population in California with the decrease of violent crime. Post hoc ergo propert hoc.
After all, the sharp increase in the California prison population that the three judge court lamented, see id., at 254a, has been accompanied by an equally sharp decrease in violent crime.11 These California trends mirror similar developments at the national level,12 and “[t]here is a general consensus that the decline in crime is, at least in part, due to more and longer prison sentences.”13 If increased incarceration in California has led to decreased crime, it is entirely possible that a decrease in imprisonment will have the opposite effect.
11From 1992 to 2009, the violent crime rate in California per 100,000 residents fell from 1,119.7 to 472.0—a decrease of 57.8 percent. Similarly, in the United States from 1992 to 2009, the violent crime rate per100,000 residents fell from 757.7 to 429.4—a decrease of 43.3 percent.Dept. of Justice, Federal Bureau of Investigation, Uniform CrimeReporting Statistics, http://www.ucrdatatool.gov. 12According to the three-judge court, California’s prison population has increased by 750 percent since the mid-1970’s. Juris. App. 254a. From 1970 to 2005, the Nation’s prison population increased by 700 percent. Public Safety, Public Spending: Forecasting America’s Prison Population 2007–2011, 19 Fed. Sent. Rep. 234, 234 (2007)
In sum, the lower court essentially disregarded threats to public safety:
Thus, the three-judge court approved a population reduction plan that neither it nor the State found could be implemented without unacceptable harm to public safety. And this Court now holds that the three-judge court discharged its obligation to “give substantial weight to any adverse impact on public safety,” §3626(a)(1)(A), by deferring to officials who did not believe the reduction could be accomplished in a safe manner. I do not believe the PLRA’s public-safety requirement is so trivial
The prisoner release ordered in this case is unprecedented, improvident, and contrary to the PLRA. In largely sustaining the decision below, the majority is gambling with the safety of the people of California. Before putting public safety at risk, every reasonable precaution should be taken. The decision below should be reversed, and the case should be remanded for this to be done. I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong. In a few years, we will see.
This last line parallel’s Scalia’s closing thought in Boumedienne, that the Court’s opinion “will almost certainly cause more
Americans to be killed.”136