SUPREME COURT TAKES THE “RADICAL” STANCE THAT PRISONERS ARE HUMAN BEINGS Jean Casella and James Ridgeway | May 31, 2011 at 9:16 am | Supreme Court Justice Antonin Scalia, in his dissenting opinion to last week’s Brown v. Plata decision, called the ruling “perhaps the most radical injunction issued by a court in our nation’s history.” Since Scalia is the ultimate legal literalist, we presumably ought to take his written opinions literally. So what is this decision that the Court’s most conservative justice finds more “radical” even than Roe v. Wade or Brown v. Board of Education? It is no less than the radical notion that prisoners are human beings, entitled to the most basic human rights even while incarcerated. In rendering the majority opinion in the Plata case, Justice Anthony Kennedy wrote: “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.” And cruel and unusual punishment is what California prisoners are receiving, according to the Supreme Court’s 5-4 ruling, in a prison system so overcrowded that it cannot provide anything close to adequate mental health care or medical care to its 147,000 inmates. To comply with the Court’s ruling California must remedy the situation by reducing its prison population to a mere 137.5 percent of capacity, rather than the current 175.5 percent. It’s a decision that runs counter to the federal courts’ take on prisoners’ rights over at least three decades, especially since the passage of the 1996 Prison Litigation Reform Act, which severely limited the ability of prisoners to file civil lawsuits and of courts to intervene on their behalf. In citing the “essence of human dignity” inherent even in the nation’s 2.3 million prison inmates, the decision also runs counter to the mentality of mass incarceration, by which prisoners have been so effectively dehumanized that otherwise decent people condone treating them in ways that often approach–and sometimes constitute–torture. Kennedy actually references torture in insisting 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 civilized society.” To show that California’s prisons have in fact reached this level of inhumanity, Justice Kennedy cites just a handful of examples from the voluminous documentation submitted on behalf of the plaintiffs by the Prison Law Office and others. (Solitary Watch readers will be particularly interested to note that Kennedy singles out the solitary confinement of prisoners with mental illness for a special dose of approbation.) Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had “ ‘no place to put him.’ ” 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. 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.” Prisoners suffering from physical illness also receive severely deficient care. California’s prisons were designed to meet the medical needs of a population at 100% of design capacity and so have only half the clinical space needed to treat the current population. A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment. The number of staff is inadequate, and prisoners face significant delays in access to care. A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”…Many prisoners, suffering from severe but not life-threatening conditions, experience prolonged illness and unnecessary pain. Kennedy also takes the unusual step of appending photographs to his opinion. (These can be viewed in Mother’s powerful montage, here.) Together with the written descriptions, they depict California prisons as something akin to Hieronymus Bosch’s paintings of an overcrowded Hell. Berkeley Law professor Jonathan Simon believes that the photographs forced the Court to confront “the sheer magnitude of California’s penal depravity,” and goes so far as to compare the images to another notorious set of photos: “Like the pictures from Abu Ghraib,” he writes, “these photos locate California’s penal practices in a place of inhumanity, degradation, and torture that cannot be tolerated (even by judges disciplined by decades of punitive populism and crime fear).” Simon is among the many commentators who believe that the Plata decision has far-reaching implications, and even “represents a turning point. The system of mass incarceration depends deeply and irretrievably on a simple condition, the denial of the humanity of prisoners. Yesterday the Supreme Court overturned that denial.” If this is true, it may someday affect the host of other human right violations that take place every day in prisons across the country–from the tolerance for prison rape to the widespread use of solitary confinement. But it will take more than a single Supreme Court decision to wean the incarceration nation off of its 30-year addiction to prisons. High court’s ruling could lead to prison overhaul Greg Bluestein ATLANTA — The U.S. Supreme Court decision that ordered California to drastically reduce its prison population to relieve severe overcrowding could encourage some states with bloated corrections systems to overhaul tough-on-crime policies that have led to stiffer sentences, law enforcement officials and experts said. The court’s 5-4 ruling last week concluded the reduction of about 33,000 inmates was needed to correct sometimes deadly lapses in medical care. Advocates of sentencing reform say California is an example of what could happen if states don’t adopt alternative programs for those convicted of drug offenses and non-violent crimes. “It should provide even more impetus for other states already working on sentencing and corrections reform to understand that if they don’t get our own acts in order, the federal courts will force them to do so,” said Douglas Berman, an Ohio State University law professor and expert on sentencing law. “This is yet more of a reason why these reforms are critical to head off these kinds of dramatic showdowns in court,” he said. The soaring costs of housing state inmates have already led lawmakers in at least 22 states — many of them already facing tight budgets — to consider unraveling years of policies designed to imprison more lawbreakers and keep them behind bars longer. The high court’s ruling upheld an order by a three-judge federal court in 2009 that required the prison population to be reduced to 110,000 inmates. Justice Anthony Kennedy, writing for the majority, said the state had little choice but to reduce its inmate population because of the squalid conditions of the prison system, which violates the Constitution’s ban on cruel and unusual punishment. “The violations have persisted for years. They remain uncorrected,” wrote Kennedy, who noted the court challenge was filed in 1990. In a dissent, Justice Antonin Scalia blasted the ruling as “absurd” and said he feared it will lead to more criminals on the streets. His fears were echoed in a motion filed by the attorneys general in 18 other states in September. They urged the court not to “forget the hard-earned lessons of history” of other large-scale prisoner releases. They cited a mandatory cap placed on Philadelphia’s prisons between 1986 and 1995 that required officials to release those charged with some non-violent crimes when the prison population topped 3,750. It led to a crime wave of rapes, assaults and murders, including the death of a police officer gunned down by a recently-released prisoner, the motion said. “Many of the victims of those crimes were residents of the crime-plagued inner city neighborhoods, whose suffering all too often escapes the notice of decision makers.” But many law enforcement advocates, although frustrated the Supreme Court intervened, said the silver lining is that it may prompt state legislators to keep more low-level offenders out of prison. Marc Levin of the Center for Effective Justice at the Texas Public Policy Foundation said it gives him an opening to push sentencing reforms overhauls with Ohio, Nebraska and other states with overcrowded prison systems. “California will be an example of how not to do things,” he said, citing the costs of the state’s three-strikes laws and other tough crackdowns. “We’re uncomfortable with courts taking matters into their own hands, but it does provide an impetus for states to get out in front of the process.” Ohio’s prison officials hope to use the ruling to convince lawmakers to support a measure backed by Republican Gov. John Kasich that would allow non-violent criminals to serve time in community-based centers instead of state prisons. The state’s inmate population is at 132 percent capacity and expected to add 3,000 more inmates by 2015, said Ohio prison system spokesman Carlo LoParo. Enacting the reform, which is pending in the state Senate, could save Ohio more than $78 million a year and reduce the need for several thousand prison beds, he said. “We would rather have these offenders under sanctions and supervision on our terms, than have to release them under a court order,” LoParo said. In California, the decision doesn’t mean the state is releasing a flood of inmates onto the streets. Shorter term inmates will leave prison before the court’s deadline expires and some low-level offenders will be diverted to local jails under the plan. Some experts say other states should heed California as a warning and act while they still can. The ruling is a chance for the states to shift prison spending toward better supervision of those on probation and parole, said Mark Kleiman, a UCLA public policy professor who specializes in drug-control policy and the criminal justice system. “If they don’t want the federal courts messing with their prisons, then run decent prisons. This isn’t rocket science,” he said. “Your mother told you that if you didn’t play with your toys properly, she’d take them away. And that’s what they did.” Associated Press writer Ann Sanner in Columbus, Ohio contributed to this report.

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