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A Voice From the Past—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on Newyorktimes.com on June 1, 2011.

A Voice From the Past
By Linda Greenhouse ’78 MSL

Now that the Supreme Court has given California the choice of shrinking its prison population drastically or making sufficient room for the prisoners it has, attention has naturally turned to how the financially strapped state will respond. But that focus shouldn’t obscure the remarkable nature of what the court did last week when it upheld a lower court’s order requiring California to reduce its prison population to no more than 137.5 percent of capacity within two years to cure overcrowding so severe that it amounts to cruel and unusual punishment.

As I read the majority opinion, I had the eerie feeling of entering a time warp, of being whisked back to an earlier era, one that preceded my own decades of close encounters with the Supreme Court. It was a time when federal judges took charge of state and local institutions — prisons, school systems, hospitals, child welfare agencies — in order to remedy grievous constitutional harms. It was an era when an assertion embedded in a Supreme Court opinion that “courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration” would scarcely have raised an eyebrow, so commonplace an observation would it have seemed.

Those were Justice Anthony M. Kennedy’s words in his majority opinion in the California case. I’ll repeat: remarkable.

By the time I began covering the court in the late 1970s, the sun was setting rapidly on the era of the “structural injunction,” the term for an order by which a court takes control of a public institution. (“[A] declaration that the judge will henceforth manage the reconstruction of an ongoing social institution,” is how Owen M. Fiss of Yale Law School defined it in a 1978 book, “The Civil Rights Injunction”).

First the Burger court, then the Rehnquist court, pedaled as fast as they could away from precedents that had endorsed judicial management of once-segregated school systems. “Local autonomy of school districts is a vital national tradition,” Justice William H. Rehnquist declared in a 1977 decision that overturned a wide-ranging desegregation order in Dayton, Ohio. Eighteen years later — as Chief Justice Rehnquist — he wrote the majority opinion overturning a judicial order that had sought to stem white flight from Kansas City, Mo. by requiring increased teacher salaries and other enhancements to the public schools there. (By the time the Roberts court came along, there were almost no structural injunctions left to dismantle, although it did manage in 2007 to declare unconstitutional school integration plans that had been adopted voluntarily by two school systems that had formerly been judicially managed.)

In prisons, too, the court was going out of business. In 1981, it rejected the claim that housing two inmates in a cell intended for one amounted to cruel and unusual punishment, and subsequently gave ever more deference to the administrative decisions of prison officials.

In retrospect, the over-populated cells in the Southern Ohio Correctional Facility, the prison at issue in the 1981 decision, appear closer to the Four Seasons Hotel than to the conditions in California that Justice Kennedy depicted in photographs as well as words last week. The focus of the inmates’ lawsuit, part of which dated to 1990, was medical care, and Justice Kennedy quoted the lower court’s observation that a California prison inmate “needlessly dies every six to seven days due to constitutional deficiencies in the medical delivery system.”

Other portions of the opinion vividly describe a public institution that has descended into something close to a state of nature, making all the more bizarre Justice Antonin Scalia’s assertion in his angry dissent — he called the injunction the “absurd” product of a “judicial travesty” — that most prisoners who may benefit from the order will not be sick and “many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” (As Dan Morain pointed out in an interesting article in the Sacramento Bee, Justice Scalia’s reference to pumping iron is outdated because “officials removed weights from the prisons in 1997.”)

But there is more going on in this decision than an acknowledgment that the California prisons of 2011 are much worse than the Ohio prisons of 1981. (That was a distant period before the U.S. prison population exploded to its current 2.3 million; in California alone, the incarceration rate increased by 42.5 percent during the 1990’s and the state now takes in an astounding 140,000 new and returning inmates every year into a system designed to house 80,000.) In 1996, Congress passed — and a timorous President Bill Clinton signed — a nasty piece of legislation called the Prison Litigation Reform Act. (Count the silver any time Congress puts the word “reform” in the title of a statute.) The purpose of this law was to prevent judges from doing precisely what the judges in this case did.

The law sets up an obstacle course that inmates and judges have to run in order to reach the point of actually telling a prison system to do something. Just reading the list of obstacles is exhausting. For example, an order restricting the number of prison inmates can only be issued by a specially convened three-judge Federal District Court. The special court can issue such an order only after a single district judge has tried other ways of limiting the overcrowding and after the state, given a “reasonable” time, has failed to comply. And so on. In his opinion, Justice Kennedy plowed methodically through every section of the Prison Litigation Reform Act and demonstrated how each of its requirements had been met.

“The PLRA should not be interpreted to place undue restrictions on the authority of federal courts to fashion practical remedies when confronted with complex and intractable constitutional violations,” Justice Kennedy wrote. He added that the courts should have enough regard for Congress to presume that it “did not leave prisoners without a remedy for violations of their constitutional rights.” Finally, he said that interpreting the law to foreclose population limits as a judicial remedy “would raise serious constitutional concerns.”

I’ll repeat: remarkable. Or maybe not so much. In August 2003, Justice Kennedy addressed the annual meeting of the American Bar Association. His topic was incarceration, and he pointedly chided his audience for paying insufficient attention to what happens once a trial and appeals are over. “When the prisoner is taken away,” he said, “our attention turns to the next case. When the door is locked against the prisoner, we do not think about what is behind it.” But “were we to enter the hidden world of punishment, we should be startled by what we see,” he added. “One day in prison is longer than almost any day you and I have had to endure.”

No matter what the prisoner’s crime, Justice Kennedy said, “still, the prisoner is a person; still, he or she is part of the family of humankind.” He called for shorter sentences for many crimes, abolition of mandatory minimum sentences, and greater use of the executive pardon process: “A people confident in its laws and institutions should not be ashamed of mercy.” As a result of the speech, the bar association convened a special commission, which spent a year studying sentencing issues and came out with recommendations along the lines Justice Kennedy had proposed, and that politicians remain fearful of embracing.

Echoes of the 2003 speech are prominent in Justice Kennedy’s opinion. “Prisoners retain the essence of human dignity inherent in all persons,” he wrote.

All of which raises the question, not for California but for the Supreme Court itself: what now? Is the court getting back into the structural injunction business? Has time really run backwards?

I doubt it. This was an extreme case, but also a close case, 5-to-4, with fear-mongering dissents by Justices Scalia and Samuel A. Alito Jr. The very precision of Justice Kennedy’s dissection of the Prison Litigation Reform Act sends a message to lower-court judges about what it takes to navigate that statute and overcome its obstacles: it takes a great deal. And of course, when it comes to prisons, the real problems are the political and social ones, many deeply entwined with race, that have created a nationwide crisis of mass incarceration, of which California is simply the leading edge. A criminal justice system that finds 11 percent of all African American children, 1.2 million children, with an incarcerated parent (compared with 1.75 percent of white children) requires an act of national will, and not just the votes of five justices, to set right.

But if the court can’t solve such problems, it still has the power to illuminate them and to summon our better selves. The court uses that power rarely these days, but in this one decision, it found a nearly forgotten voice from long ago. Now those of us not old enough to have heard it back then at least know what it sounds like.