Tuesday, May 24, 2011

Brown v. Plata: Antonin Scalia and the Intimidating Muscles of Doom

In Brown v. Plata, the Supreme Court upheld (5-4) a federal court order that California start releasing prisoners to alleviate unconstitutionally icky (i.e., care that “fall[s] below the evolving standards of decency that mark the progress of a maturing society”) prison conditions, especially inadequate medical and mental health treatment. Let’s look at Scalia’s dissent (pdf, dissent begins on page 59), joined by Thomas, shall we?

Scalia drops any pretense to be a neutral arbiter of the law, explicitly calling for a desired outcome to shape legal interpretation: “There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.” Bend every effort. Read the law in such a way.

Scalia objects strenuously to that whole “evolving standards of decency” thing, because he sees it as giving undue interpretative power to judges, and since he is against evolution, standards, and decency.

He denies that there should ever have been a class-action suit, because merely being a patient in a horrendously inadequate system doesn’t necessarily mean that your treatment was horrendously inadequate and your 8th Amendment rights violated (the “theory of systemic unconstitutionality”). Scalia argues that the lower court’s remedy, large-scale prison releases, is not narrowly drawn, as he thinks it should be, to deal only with those specific cases where the horrendously inadequate system provided horrendously inadequate care, while leaving the horrendously inadequate system intact. He grudgingly admits that a prisoner denied constitutionally required medical treatment might – might – be ordered released, but sees no reason to alter a system that will inevitably and predictably deprive prisoners of constitutionally required medical treatment.

And the majority of the 46,000 prisoners that would be released aren’t even part of the class: “Most of them will not be prisoners with medical conditions or severe mental illness...” Of course the California prison system’s facilities are also incapable of determining which prisoners even have medical conditions or severe mental illnesses. “...and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” Fat Tony is very intimidated by the thought of fine physical specimens with muscles formed by pumping iron in the prison gym. And a little excited. And a little ashamed that he’s a little excited. And a little excited that he’s a little ashamed.

Scalia suggests that the majority opinion’s rather anodyne and routine reminder to the 9th Circuit that its release order might be modified is a “ceremonial washing of the hands” to absolve the Supremes of responsibility for the awesome wave of bloodshed Scalia anticipates. For some reason the Nostradamus of the bench is able to see into the future and predict that releasing prisoners will result in injury and death, but not that subjecting prisoners to inadequate medical and mental health facilities will result, as the majority opinion says, in an inmate dying needlessly every 6 or 7 days.

(Alito, in a dissent joined by Roberts, admits “past instances in which particular prisoners received shockingly deficient medical care” – without bringing himself to admit that a system that hasn’t changed will produce more such instances in the future – but says that “such anecdotal evidence cannot be given undue weight in assessing the current state of the California system.” After all, the California prison system’s population is “larger than that of many medium-sized cities” and many people in medium-sized cities also have crappy medical care. So that’s okay then.)

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