Plata: A Remedy for “Exceptional” Over-Crowding, But Not for Mass Incarceration

May 23, 2011
Guest Post

By Giovanna Shay, an Associate Professor of Law at Western New England College School of Law


Today in Brown v. Plata, the Supreme Court in a 5-4 decision affirmed a three-judge court’s order requiring the California Department of Corrections to reduce its prisoner population to within 137.5% of the design capacity of its facilities.  Plata makes clear that the restrictions placed on prisoner release orders by the Prison Litigation Reform Act (PLRA) do not tie judges’ hands when they are faced with unconstitutional conditions that cannot be remedied by other means. 

The California conditions described in the Plata decision were inhumane by any standard.  Justice Kennedy described them as “exceptional.”  Prisoners were housed in a system that was at 200% of capacity for over a decade.  Because medical and mental health systems could not function due to over-crowding, prisoner deaths were all too common. 

The remedy in Plata was necessary.  However, the type of over-crowding described in Plata requires, not just conditions litigation, but a criminal punishment overhaul.  Simply put, California needs to lock up fewer people, as does our nation more generally. The Court describes various methods of reducing the prisoner population by releasing prisoners who are not a safety threat. This is a good goal, and in a time of budget crunch, one shared (at least in part) by others across the political spectrum (check out Right on Crime).

But the big question is how to change our criminal punishment policies to shrink our nation’s network of prisons, the world’s largest.  Although it may seem counter-intuitive, conditions litigation can sometimes reinforce what many have described as “mass incarceration.”  In a podcast on SCOTUSblog, former Solicitor General Paul Clement, the Supreme Court advocate for one class of prisoners in Plata, said that California could have averted its deadly over-crowding if it had coupled its “tough-on-crime” sentencing provisions with construction of sufficient prisons.  In a recent article, “Mass Incarceration and the Paradox of Prison Conditions Litigation,” Professor Heather Schoenfeld has demonstrated that early prisoner cases in Florida contributed to a prison-building boom, by mandating the construction of new facilities.

The decision in Plata was right: Judges must act to remedy ongoing constitutional violations and avert unnecessary deaths.  The more difficult challenge is finding the political will to redesign criminal punishment and end our over-reliance on prisons.

[Photo courtesy of A-Block Alcatraz.]