To Free or Not to Free: Rethinking Release Orders under the Prison Litigation Reform Act after Brown v. Plata

Abstract: The United States Supreme Court made one of its most controversial decisions in recent memory in May 2011. Brown v. Plata involved a class action by inmates in California who alleged that their Eighth Amendment rights had been violated because overcrowding in the State's prisons prevented access to adequate physical and mental health care. After California failed to comply with previous orders to remedy those conditions, the U.S. District Court for the Eastern District of California ordered the State to reduce its prison population by forty-six thousand inmates. Forced to either affirm the release order and jeopardize public safety or reverse the order and allow continued violation of prisoners' Eighth Amendment rights, the Supreme Court chose the former. Understandably, many questioned the wisdom of both the decision and the Prison Litigation Reform Act, the statute that required it. As a result, the need for prison reform and alternatives to mass incarceration are clearer than ever.IntroductionOn May 23, 2011, the United States Supreme Court upheld a court order releasing forty-six thousand inmates from Californian prisons, but the decision was by no means an easy one.1 So objectionable were the options before the Court in Brown v. Plata, and so grave were their potential consequences, that the justices may have felt themselves reluctant participants in a Hobsonian gameshow.2 Behind door number one lay reversal of the three-judge court's order and continued overcrowding in California's prisons, which was already so acute that it violated the Eighth Amendment's prohibition against cruel and unusual punishment.3 Behind door number two lay affirmation of the release order and assumption of the public safety risks associated with releasing thousands of prisoners.4 The Court's 5-4 choice of this second door leftmany wondering whether a more tenable solution to prison overcrowding might lie behind a third door that eschews the binary construct presented in Plata and instead opts for systemic change in America's criminal justice system.5The option behind door number one was unpleasant indeed.6 Although designed to hold just under eighty thousand prisoners, the inmate population in California's prison system crested at more than one hundred and sixty thousand in 2006, and, as of August 2009, some prisons in the state had populations approaching three hundred percent of their capacity.7 The predictable result of this arrangement was an increase in violence among inmates.8Over time, the overcrowding in California's prisons produced even more pernicious results.9 Prisoners with mental illnesses "languished for months" without access to care of any sort, and the ever-expanding inmate population led to a "four to five-year gap in the availability of sufficient beds" for the proper treatment of such inmates.10 In lieu of adequate personnel and treatment beds, suicidal inmates were often "held for prolonged periods in telephone booth-sized cages without toilets."11 Inmates not fortunate enough to receive even this modicum of care were largely unsupervised.12The plight of prisoners with physical illnesses told a similar story.13 Like the "telephone booth-sized cages" used to hold suicidal inmates, one prison held fifty inmates in a twelve- by twenty-foot cage for nearly five hours while they awaited medical treatment.14 Elsewhere, a prisoner died after his testicular cancer went untreated for seventeen months, and in San Quentin, a prisoner died from renal failure after going three months without receiving a consultation that should have occurred within fourteen days of his diagnosis.15 The severe understaffing that caused these and other deaths was compounded by the lack of basic sanitation, absence of medical equipment, and incompetence of prison medical staff.16 Of particular concern was the spread of communicable diseases which, in light of crowded conditions, amounted to system-wide pestilences. …