Some days, you are reminded that the framers were some pretty smart dudes. Today, the U.S. Supreme Court in Brown vs. Plata ordered the State of California to move 32,000 inmates from its state correctional facilities because their treatment constituted a violation of the 8th amendment’s restriction on cruel and unusual punishment. Dalia Lithwick in Slate does a nice summary of the on-going case law on this subject:
In 2005, a federal court determined that “on average, an inmate in one of California’s prisons needlessly dies every six to seven days due to constitutional deficiencies in the medical delivery system.” But conditions continued to deteriorate, and in 2009 a three-judge panel ordered California to reduce its prison population to 137.5 percent of the prisons’ design capacity within two years. (The system was designed to hold just under 80,000 prisoners, but at the time of the oral argument, it had more than 142,000, and Kennedy notes that since then the state has transferred about 9,000 inmates to county jails.) The state appealed, arguing among other points that it hadn’t enough time to remedy the problems.
In his opinion, Justice Kennedy, perhaps recognizing the limits of reasoned argument on this issue, attached photographs of the overcrowded conditions to his argument (here, here, and here). I have lots of sympathy for the court in this instance. They walk a fine line between having to uphold constitutional principles while at the same time legitimating them to a less informed but more petulant public. In my courses, very few students ever take the position that people in prison should have any constitutional protections. If we left it up to the public, the miserable conditions in state prisons would never be addressed. As Schneider and Ingram pointed out in their fantastic book, prisoners are constructed as deviant target populations and as such politicians have no incentive to adopt legislation that would aid them.
But the court (at least five of them) know full well that the constitution is intended to protect minority interests, no matter how vilified they are by the public (even if that vilification is justified). It does sadden me that the citizens of my state can’t show responsible citizenship in addressing the situation. I grudgingly have to accept that the framers had it right in positing a dim view of their fellow citizens’ ability to rationally assess social problems. Locking mentally-ill prisoners in a phone booth cell isn’t humane or rational, even if it’s satisfying in a primal way. Can we ever move to a place where the courts don’t need to step in to do what citizens themselves should be doing.
Comments 2
Mark A Clarkson — May 26, 2011
So Arne will be remembered as the Terminator of 8th Amendment Rights in California and for his mistresses. Fiddle whilst Rome burns and all that!
Kenneth M. Kambara — May 26, 2011
Great post, José.
I think there's a cultural and institutional component to much of this. In much of North America (US & Canada), the criminal court system is often about meting out justice with the consequences being an alignment of interests (the prison industrial complex) and mandatory minimums (or three strikes) laws. I think many in the US and Canada would be shocked at the "lenient" sentencing in many parts of Europe, which take a more rehabilitative stance on incarceration and treat drug offenses as a public health concern—with much lower violent crime rates.
Prisoners are marginalized and this is reinforced by media, pop culture, and politicians who manufacture outrage at perceived injustices in the name of public safety. There's also the mentality of criminals owing a debt to society. This sets up a Foucauldian "theatricality" effect of prisoners and their crimes being used strategically for gain in the public eye. In Canada, PM Stephen Harper has promised an omnibus crime bill (with his majority parliament), despite crime rates falling in Canada. Nevertheless, there is a perception that crime is a big problem in the general public AND the solution is to get tough on criminals. Theatre. The criminal justice institution itself creates a class of "delinquency" with those in the margins falling into particularly easily. There's a racial irony when it comes to prison in that you don't want to be white and incarcerated. Prison demographics and "informal community formation" create a rather brutal turning of the tables on white privilege. Is that a way to go regarding increased consciousness? I don't think so. Nevertheless, unless there is a cultural shift, I see crime and punishment as fodder for bad policy.