How can US Federal Courts tell States how to run their prisons?

The US Supreme Court recently ordered California to reduce the numbers in its over-crowded prisons. Has it overstepped its authority?
James S. Cole | Jun 9 2011 | comment  


I'm stuck in Folsom Prison /And time keeps draggin' on… ~ Folsom Prison Blues, Johnny Cash (1966)

If the inmate of the Johnny Cash song was still in Folsom State Prison in 2011, he might not have to pine for freedom very much longer. The Supreme Court ruled on May 23 that California must reduce the population of its prison system by as much as 46,000 (out of a total of 159,000) in order to meet the demands of the Eighth Amendment (Brown v. Plata, no. 09-1233).

Citizens of California may rightly wonder how nine judges on the other side of the continent have anything to say about how the Golden State runs its prisons. This article will describe how the federal courts have applied the federal Eighth Amendment to this purpose in the past several decades. A sequel will describe the specifics of the Court's May 23 ruling and offer comments.

Constitutions and the rights they guarantee are applicable to governments, not to private institutions. While it is easy to see that federal constitutional rights protect against intrusions by the federal government, it is not so easy to see how the federal constitution can be used against state governments on behalf of individual rights. In fact, for most of its history, American law operated on the opposite assumption: the federal Bill of Rights (the first ten Amendments to the Constitution) operated only to limit the federal government. A corollary was that it was state bills of rights that constrained state governments.

Beginning in 1961, with the US Supreme Court's decision in Mapp v. Ohio, 367 U.S. 643 (1961), those principles were discarded by the US Supreme Court. In Mapp, the Supreme Court decided that the 14th Amendment "incorporated" at least some, if not all, of the rights guaranteed by the federal Bill of Rights into the due process and equal protection clauses found in the 14th Amendment. This is worth some effort to work through, because the principle of Mapp undergirds so much of what the federal courts consider to be perhaps their most important role in American life today.

Here is the text of the relevant portion of the 14th Amendment: "… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It was pretty well settled for several decades after enactment of the 14th Amendment in 1868 that, apart from the racially-prejudiced official behavior that the 14th Amendment was intended to remedy (which is a separate story), "due process" as applied against the states did not encompass the enumerated rights of the federal Bill of Rights.

Such rights as free speech, free exercise of religion, no self-incrimination, jury trial -- these and more were guaranteed against state government abuses by provisions of state constitutions, not the federal Constitution. The courts and society in general reasoned that state courts had both the authority and the responsibility to upheld those rights against state governments.

The shortcomings of the states in enforcing their own constitutions, and the importunings of citizens harmed by arbitrary and even malicious law enforcement abuses, chipped away over time at the reluctance of federal courts to interfere with state criminal laws and procedures. (See Wolf v. Colorado, 338 U.S. 25 (1949)). Finally, in 1961, the federal Supreme Court upended settled law by holding in Mapp v. Ohio that the right of "due process" in the 14th Amendment "incorporated" some of the specific protections found in the federal Bill of Rights. Thus, the Fourth Amendment right to be free of illegal searches and seizures was "incorporated" into the 14th Amendment "due process" clause, and Ms. Mapp's conviction of possession of obscene materials was reversed because the evidence on which she was convicted was seized during what amounted to an illegal invasion of her home by law enforcement officers.

It did not take long for the federal courts to incorporate many more protections of the federal Bill of Rights into the "due process" clause, and the Eighth Amendment was one of the first. Robinson v. California, 370 U.S. 660 (1962) holds that punishing a person for the crime of being addicted to narcotics is "cruel and unusual punishment" under the Eighth Amendment.

The Eighth Amendment is short: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Amendment is not intended to address uncomfortable conditions, even harsh conditions. "To the extent that such conditions are restrictive and even harsh, they are part of the penalty that criminal offenders pay for their offenses against society." (Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).

On the other hand, it is just as true that "[c]onditions in prison must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment." (Id.) "An inmate must rely on prison authorities to treat his medical needs; if the authorities fail to do so, those needs will not be met. In the worst cases, such a failure may actually produce physical "torture or a lingering death," the evils of most immediate concern to the drafters of the Amendment. In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose." (Estelle v. Gamble, 429 U. S. 97, 104 (1976) internal citations omitted.)

Jack London, the California author famous for his stories of the Yukon (White Fang), wrote a somewhat uneven novel that described life in a California prison in the early years of the last century, The Star Rover (available free on-line because the copyright has expired). The Star Rover is simultaneously an expose of prisoner abuse at San Quentin Prison, a tale of reincarnation (the prisoner goes into trances during torture in which he relives or remembers earlier lives), and a call to end capital punishment. If the description of prison life is at all accurate, then abuse of prisoners and sometimes torture was a constant part of prison life a hundred years ago. Fifty-plus years later, the movie Cool Hand Luke illustrated prisoner abuse of a similar degree. There is little reason to think London was exaggerating about 1910 California prisons. The cases that reached federal courts in the same time period suggest that similar treatment of prisoners was not rare in state penal institutions.

In the 1970s and 1980s, the interventions of the federal courts into state prison systems expanded into broad remedial injunctions, up to the point where appointees of federal judges were placed in charge of certain prison operations in at least two dozen states. (See the list in Rhodes v. Chapman, 452 U. S. 337, 353-54 n. 1 (1981) (Brennan, J. concurring)). By the mid-1990s, Congress tried to rein in what it perceived as too much judicial eagerness to run prisons by enacting the Prison Litigation Reform Act of 1995. That federal statute did not forbid federal courts from considering inmate lawsuits, for that would have itself violated the Eighth Amendment and due process, but it listed what were intended to be strict standards for entering judgments in the prisoners' favor. It was hoped that the PLRA would reduce the number of occasions in which the federal courts would intervene in the operations of state prison institutions.

How well Congress' intent fared in the Supreme Court's May 23 decision in Brown v. Plata will be explored in the next article.

But I know I had it comin' / I know I can't be free / But those people keep a-movin' / And that's what tortures me.

James S. Cole graduated from Harvard Law School and practices law in St. Louis, Missouri.

This article is published by James S. Cole and under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation. Commercial media must contact us for permission and fees. Some articles on this site are published under different terms.

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