The surprise in the Supreme Court’s ruling in the California prison case is not the decision by five justices to uphold an order requiring the release of about 30,000 prisoners over the next five years. The surprise comes from the votes of the four dissenters to leave the appalling conditions in the state’s prisons largely unaddressed.
The majority opinion in Brown v. Plata by Justice Anthony M. Kennedy, a Californian, paints a damning portrait of the consequences of the state’s housing as many as 156,000 inmates in 33 facilities with a designed capacity of only 80,000. The crowding is not merely uncomfortable, but it is surely that: prisoners sleeping in triple bunk beds; 200 prisoners living in a converted gymnasium; 54 inmates sharing a single toilet.
More to the point, the overcrowding overwhelms the prison system’s capacity to provide medical and mental health care to inmates with deadly consequences. Kennedy notes some of the victims of medical non-care. One inmate died of testicular cancer after doctors failed to diagnose the condition despite the inmate’s complaining of testicular pain for 17 months. Another inmate, suffering from severe abdominal pain, died after a five-week delay in being referred to a specialist. Another prisoner, suffering from extreme chest pain, died after eight hours passed without an evaluation by a specialist. Another inmate died of renal failure after being given medications that actually exacerbated his condition.
The deaths are not merely anecdotal. Statistics for the two years before the trial of the case in 2008 showed that 66 inmates succumbed to “preventable deaths” in 2006, 68 in 2007 one preventable death every five to six days in both years. The number was “extremely high,” according to testimony by the former medical director for Illinois prisons.
The deaths included suicides at nearly double the average rate for prisons. The court-appointed special master concluded that nearly three-fourths of the suicides resulted from inadequate assessment, treatment or prevention and, in that sense, were “most probably foreseeable and/or preventable.” By 2010, there was no sign of improvement in suicide prevention.
The picture of mental health care was especially damning, with wait times for care ranging as high as 12 months. Suicidal inmates were sometimes held for prolonged periods in a telephone-booth sized cage without toilets. One inmate, unresponsive and nearly catatonic, was held in such a cage for 24 hours, standing in his own urine, because, according to prison officials, they “had no place to put him.”
Routine medical care is routinely inadequate. Inmates with urgent care requests are seen only after a delay of two weeks or longer. When one prison was checked, only one-third of 300 inmates requesting urgent care had any appointment scheduled at all. Inadequate medical care in overcrowded facilities resulted, inevitably, in a high rate of infectious disease.
The inadequacies in medical care result from inadequate facilities and inadequate staffing. Medical staff work out of converted storage rooms, closets, and bathrooms. The state has not budgeted for sufficient medical staff, but fell short even of its budgeted understaffing: a 20 percent vacancy rate for surgeons, a 54 percent vacancy rate for psychiatrists.
“The medical and mental health care provided by California’s prisons,” Kennedy concluded, “falls below the standard of decency that inheres in the Eighth Amendment. The extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding.”
The dissenting justices either minimize or wish away these problems. Instead of a prisoner-release order, Justice Samuel A. Alito Jr. says the prison system should hire more medical staff, get more supplies and equipment, keep better records, and improve sanitary procedures as though the prison system had not tried. Chief Justice John G. Roberts Jr. joined Alito’s opinion.
In his dissent, Justice Antonin Scalia, joined by Clarence Thomas, suggests that the only inmates entitled to be released are those shown to be currently suffering from inadequate medical care. The remedy overlooks the inevitable delay in documenting and adjudicating the level of undertreatment needed to be entitled to release. More broadly, as Kennedy notes, Scalia’s solution overlooks the fact that healthy inmates are not “remote bystanders” in the overtaxed medical care system, but the system’s “next potential victims.”
The dissenting justices are willing to accept half measures because they fear the public safety consequences of moving 30,000 inmates out of the prison system. But they exaggerate the fears. First, many of the inmates will now be sent to county jails, not put out on the streets. Second, overcrowding can also be reduced by not returning parole violators to prisons. Third, expansion of good-time credits and diversion of low-risk offenders to community programs would have little if any impact on public safety.
Even under the terms of the lower court’s order in the case, California prisons would still be housing 37.5 percent more inmates than they were designed to hold. The current overcrowding results from Californians' law-and-order binge think of the state’s “three strikes” law combined with their refusal to pay for the facilities and services needed to provide inmates with medical and mental health care.
In his dissent, Alito said he feared a “grim” result from the prisoner-release order. The Supreme Court majority was right to be more concerned with doing something about the grim present.