Monday, September 10, 2012
Margo Schlanger (University of Michigan Law School) has posted Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics (Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 48, No. 1, 2013) on SSRN. Here is the abstract:
Last year, a bare majority of the U.S. Supreme Court, in an opinion in Brown v. Plata by Justice Anthony Kennedy, affirmed a district court order requiring California to remedy its longstanding constitutional deficits in prison medical and mental health care by reducing prison crowding. The order the Supreme Court reviewed requires California’s state prisons to limit prison population to 137.5% of the rated capacity of California’s prisons by the end of 2013; absent construction, that works out to a bit under 116,000 prisoners — about equal to the state prison population in mid-1993. At its peak in 2007, California’s prisoner total was over 173,000, with prisoners who couldn’t fit in cells packed instead into congregate spaces such as gyms.
This Article explores the legal and political ecosystem in which the Plata order developed and is being implemented. The result illustrates the complex interplay of institutional reform litigation and political outcomes and processes. The Article proceeds in four parts. Part I sets out crucial background how a 1996 anti-prisoners’ rights federal statute, the Prison Litigation Reform Act (PLRA), structures correctional civil rights litigation. Part II paints the litigation history in the district court and the Supreme Court, focusing on the interaction of court procedure and politics — describing, for example, how the litigation promoted a more explicit, open, and elaborate multiparty bargaining process over prison population and criminal justice policy; and how the focus during trial on public safety actually increased prisoners’ rights advocates’ effectiveness outside of litigation. It analyzes Governor Jerry Brown’s “realignment” plan — the state’s response to the Plata/Coleman population order, which shrinks the parole population and shortens parole revocation sentence terms, moves some classes of prisoners from state to county custody, and encourages counties to consider non-incarcerative penalties for crime. Part III looks at one of the key features of the environment in which realignment is being implemented: pre-PLRA jail population court orders, which have been very common in correctional civil rights cases, functioning for decades as county-specific bail and jail sentencing reform mechanisms. Part IV concludes, by examining the prospects of a litigation-focused response to what I call the “hydra risk” — the very real possibility that court intervention could succeed at chopping the head off of unconstitutional conditions of prison confinement in California, only to cause 58 counties to develop unconstitutional conditions of jail confinement. Going forward, it will be a huge challenge for prisoners’ rights advocates to find out what is going on in all the scattered county jails, much less to seek remedies for the problems that may be uncovered. Three types of litigation responses are likely: additional scrutiny of jails in ongoing statewide prison litigation; new jail litigation; and revival of existing but more-or-less orphaned jail cases.