Of prisons and safety and the meaning of “cruel and inhuman”

This is a guest post from Todd Brewster, Director of the Peter Jennings Project. A workshop for journalists to learn how to better report on Constitutional issues by coming to the National Constitution Center in Philadelphia for a mid-winter weekend of stimulating talk, provocative programming and challenging case-law workshops. Are you a journalist an interested in attending? Sign up here.

On Tuesday, the Supreme Court held a hearing on a case that was watched closely by state legislatures and prison officials across the country. It involved a decision by a three-judge federal panel in California to force that state to release thousands of inmates in state prisons in an effort to relieve overcrowding (they are now operating at twice the facilities’ design capabilities) as well as the prisons’ inability to address health issues in a timely and humane manner.

In issuing its ruling, the three-judge panel, unusual in that it included two district court judges and a circuit court judge, declared that “a significant number of inmates have died as a result of the state’s failure to provide constitutionally adequate medical care. As of mid-2005, a California inmate was dying needlessly every six or seven days.”

The court’s remedy was to order California to reduce prison population to 167 percent of design capacity within six months, 155 percent by one year, and 137.5 percent within two years. But California has appealed, concerned that the early release of thousands of prisoners will put local communities in danger. While the reduction of the prison population will save the state money, there is no assurance in a time of tight budget woes that local communities will want to use that money for security services and methods aimed at easing inmates back into society.

This case was different

The Supreme Court hearing is unusual in that the state did an end-run around the Ninth Circuit court, to which district court decisions are usually appealed, and the attorneys for the prisoners, in what is a class action suit, intend to raise that jurisdictional issue when they appear before the justices.

The Supreme Court hearing is unusual in that the state did an end-run around the Ninth Circuit court.

But for the state of California, which is being represented by Carter Phillips, a DC appellate attorney who will argue the annual moot court at the 2011 Peter Jennings Project, there is an issue more fundamental than either of the above and it is one in need of immediate attention: can a federal court order a remedy so draconian as this one without in effect acting like a legislature itself?

That issue has history. Back in 1996, concerned about the flood of lawsuits brought by inmates, Congress passed the Prison Litigation Reform Act. A major concern was that courts were getting down into the weeds over the day-to-day operations of prisons, issuing broad rulings intended to remedy harsh conditions without, many argued, realistic understandings of how those rulings could be effectively enforced.

A problem for the courts or for lawmakers?

The result was legislation that among other things, prevented courts from issuing prospective relief unless the relief is “narrowly drawn, extends no further than necessary to correct the violation of the federal right, and is the least intrusive means necessary to correct the violation of the federal right.” California officials believe they can handle the problems in their courts without resorting to the remedy the court demands. They believe they can release some non-violent offenders, send some prisoners out of state to other facilities and otherwise manage the problem without having to meet the percentage requirements that the court demanded. In other words, they believe that the court, in issuing its ruling, did not heed the strict standards legislated by the Prison Litigation Reform Act.

Whatever the Supreme Court does, there will be a lot of eyes watching. With the nation’s prison population now well over two million, California is not the only state facing the critical dilemma now being addressed by the justices: in a system bursting at the seams, what method is there to humanely house prisoners? And which branch of government gets to decide what that method is?

Todd Brewster is the Director of the Peter Jennings Project for Journalists and the Constitution. For more than twenty years, he has covered national and international politics, working for both Time, Inc. and ABC News.