Brown v. Plata and Prison Population Controls

On Monday the Supreme Court issued its decision in Brown v. Plata, holding that systemic failures to provide adequate medical and mental health care in the California prison system can only be remedied through judicially-imposed limits on the state’s prison population. In a 5–4 decision, the Court upheld a lower court order requiring California to reduce its prison population to 137.5% of its design capacity within two years. That’s a reduction from about 150,000 inmates to 110,000. In other words, California has been ordered to shed roughly the equivalent of North Carolina’s entire prison system.

The case is the climax (though probably not the culmination) of two decades of litigation. First filed in 1990 by a class of seriously mentally ill inmates, the case has seen multiple court-ordered remedial plans, injunctions, the appointment of a special master and a receiver, and—eventually—the empanelment of a three-judge court, empowered under the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prison population. After hearing 14 days of testimony the court did just that, issuing the population-reduction order described above. The order does not require the state to meet the 137.5% target in any particular way, but everyone seems to agree that there is “no realistic possibility that California would be able to build itself out of this crisis.” Slip op. at 30. So, some type of inmate release or transfer will be required.

An order to reduce prison population is an extraordinary remedy, and several preliminary hurdles must be cleared under the PLRA before such an order may issue. First, a court must have previously entered an order for less intrusive relief that has failed despite passage of a reasonable amount of time. Second, such an order may only be issued by a three-judge court convened expressly for that purpose. And third, the three-judge court can only enter a release order if it finds by clear and convincing evidence that “(i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” The relief ordered must be “narrowly drawn” and may “extend[] no further than necessary to correct the violation” through the “least intrusive means necessary.” Along the way, the court must “give substantial weight to any adverse impact on public safety” caused by any relief ordered. 18 U.S.C. § 3626(a).

After detailing history of the litigation and the exceptional degree of prison overcrowding in California and some of its more disturbing consequences (high suicide rates, interminable waits for medical care, and poor hygiene standards—like 54 inmates to a single toilet), the Court determined that the procedural and substantive prerequisites of the PLRA had been met and that a population-reduction order was authorized and appropriate. Following a familiar pattern of tough cases issued near the end of a term, Justice Kennedy wrote for the Court, joined by the four liberal-leaning Justices.

Justice Scalia, joined by Justice Thomas, dissented. Calling the majority opinion an affirmance of “the most radical injunction issued by a court in our Nation’s history,” he challenged the notion that “systemwide deficiencies” could satisfy PLRA’s threshold requirement that prospective relief be limited to violations of the rights of “a particular plaintiff or plaintiffs.” The relief is not “narrowly tailored,” the dissent argued, when most of the inmates released under the order will likely be prisoners outside the original classes of plaintiffs (those with serious medical conditions or severe mental illness)—indeed, Justice Scalia wrote, “many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” Justice Alito, joined by the Chief Justice, authored a separate dissent. Like Justice Scalia he questioned whether, in light of generally positive trends in the California system as of late, the court below had actually found an ongoing violation of constitutional rights. He also expressed doubts about whether the three-judge court had taken into account the public safety ramifications of, as he put it, “the premature release of approximately 46,000 criminals—the equivalent of three Army divisions.”

The case has been covered extensively in the media (here, for example) and it will likely stand as one of the blockbusters of the Term. It includes, as others have noted, some “big-time rhetoric” that is worth a read. Interestingly, an appendix to the majority opinion includes three pictures apparently intended to demonstrate the scope of the overcrowding. Slip op. at 51–52. (A video showing more recent footage is available on the California Department of Corrections and Rehabilitation website, here.)

There are a few North Carolina connections to note. First, North Carolina’s prison system is no stranger to intervention by the federal courts on account of overcrowding—although it’s been a while, and most of it predated the PLRA. Much of the history is summed up in Small v. Hunt, 98 F.3d 789 (4th Cir. 1996). In short, rapid prison population growth in the 1980s led to a series of lawsuits and eventually settlements enforced by the courts through consent decree.

Though our prisons are not as severely overcrowded as California’s, it’s worth noting that our current inmate population exceeds the system’s standard operating capacity (SOC) of around 35,000 inmates and  hovers right around the system’s “expanded operating capacity” (EOC) of around 41,000 inmates. (EOC is achieved through housing two inmates in a single cell and increasing dormitory populations through varying percentages, not to exceed 130% in any individual facility). Sentencing Commission projections suggest that prison population will exceed EOC by around 3,000 inmates in 2019.

But those projections assume current laws and administrative policies remain static, and that’s not likely to be the case. As I’ve mentioned before, substantial changes to our sentencing laws are in the works (e.g., HB 642, which is worth a look if you haven’t seen it). And DOC is about to implement changes to its sentence credit policy, increasing the rates at which earned time will be awarded by 50% (from 2, 4, or 6 days per month to 3, 6, or 9 days, depending on the type of work performed). Those changes, which have already been distributed to prison officials and all sheriffs, become effective next week. (I’ll provide a link to the new policy when it’s available online.) But even if our inmate population stabilizes or even declines, it’s worth remembering that overcrowding was not, in and of itself, the violation at issue in Plata. It was insufficient medical care and mental health treatment.