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 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.

Triple-bunked human beings at the California Institution for Men, Chino, 2006.


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