Brown v. Plata

In May 2011, the Supreme Court released its decision in Brown v. Plata, holding that a previously mandated population limit was necessary to remedy constitutional violations in California prisons. This was a big deal for a number of reasons, one of which was the fact that in order for California to meet the population limit, tens of thousands of prisoners would have to be released from correctional facilities. The Eighth Amendment violations at the heart of Brown v. Plata did not originally arise from overcrowding (you would be forgiven for assuming this based on the proposed remedy and the picture below). What judges in the lower courts had found cruel and unusual was the paucity of quality medical care provided in prisons. The absence of basic care was determined to be a result of overcrowding, which could only be alleviated through either the construction of new facilities or the emptying of existing ones. Hence, it was decided that inmates were to be released.

I won't really discuss any of the legal issues here; I'm sure that analysis has been done more expertly in other places.

California Institution for Men (Chino, Calif.), August 2006. Courtesy California CDCR. Taken from Prison Law Blog.

Instead, I want to highlight two small sections, one from Scalia's dissent and one from Alito's.

On the fifth page of his opinion, Scalia writes:

It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order - the 46,000 whose incarceration will be ended - do not form part of any aggrieved class even under the court's expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the gym.

Compare that with a passage from Alito's dissent:

Instead of crafting a remedy to attack the specific constitutional violations that were found - which related solely to prisoners in the two plaintiff classes - the lower court issued a decree that will at best provide only modest help to those prisoners but that is very likely to have a major and deleterious effect on public safety.

The three-judge court ordered the release of approximately 46,000 criminals - the equivalent of three army divisions [emphasis in original].

In essence, the two sections make the same point, and it is certainly a point worth making.  Scalia and Alito take issue with the remedy that the majority upholds because the people who most directly benefit from the release are not necessarily the same people who have been deprived of their constitutional rights.

What strikes me is the way in which Scalia and Alito (and their clerks) choose to make their point. They support legal arguments with unabashedly demagogic language. Alito tries to help his readers comprehend "46,000" by translating the number into army divisions. This strategy is ridiculous (can anyone but soldiers and military historians grasp what a division looks like?), and Alito's implication that criminals represent an internal enemy capable of inflicting damage comparable to that of a foreign army is equally absurd.

Scalia's description of buff convicts is more immediately visceral, freighted as it is with violent connotations. It is only upon later reflection that we might wonder what Nino himself might do if he were sentenced to a few decades in San Quentin (would he avoid the gym entirely?), or thank those fit inmates for reducing tax-payer dollars spent on prison healthcare. We ought not be concerned with the circumference of inmate biceps. If anything, we should worry about convicts' violent tendencies. It turns out that 70,906 men serving time in California have never been convicted of a violent crime. The number of inmates who must be released does not even make up two thirds of that total [1]. I hope that these numbers help Justice Scalia sleep at night.

The fact that Supreme Court Justices stoop to this level of rhetoric is disturbing. The notion that this type of emotional logic might be what inspires their rational justifications is even more unsettling.

In The Righteous Mind, Jonathan Haidt collects decades of research that demonstrate our moral reasoning is often a "post hoc fabrication" marshaled in support of our gut moral emotions. We don't necessarily use reason to arrive at a conclusion, rather, it is a way to justify our own intuitions and convince others. High school civics teachers may still cling to the belief that American courts of law function through an impartial weighing of evidence, but in reality judicial systems are permeated and heavily affected by intuitive biases [Efran, "The Effect of Physical Appearance on the Judgement of Guilt, Interpersonal Attraction, and Severity of Recommended Punishment in a Simulated Jury Task."; Mazzella and Feingold, "The Effects of Physical Attractiveness, Race, Socioeconomic Status and Gender of Defendants and Victims on Judgments of Mock Jurors: A Meta-analysis."; Stewart, "Defendant's Attractiveness as a Factor in the Outcome of Criminal trials: An Observational Study."]. Dan Kahan has also done wonderful work on the role that disgust plays in criminal law [2]. No one can definitively say what drove Scalia and Alito to dissent in Brown v. Plata, but the possibility that America's highest court reasons from intuition and not legal principles upsets me - particularly when the original intuitions are narrow and mean. I'm only speculating here, but my reflections are not entirely baseless. If Scalia and Alito did not consider emotional appeals important to their argument, why did they bother to include them in their decisions?

It saddens me to think that these two men have such dim opinions of inmates in California (all the more so because their opinions carry such staggering weight). Instead of demonizing people they know nothing about, Scalia and Alito ought to recall Phil Ochs' aphoristic refrain: "There but for fortune may go you or I."

Thanks for reading.

J