Each country has its own history, customs and internal arguments.  Americans have argued about the proper balance between states’ rights and individual rights since colonial times.  The first sentence of the US Constitution begins: “We the People of the United States.”  It does not say “We the States.”  The Constitution is an agreement among individuals, not states, to form a federal government with limited powers.  A Bill of Rights was added to protect individuals from unrestrained governmental power.  Some would have preferred the pact be more like the Articles of Confederation that had come before.  It was basically a written alliance of independent states.  It isn’t a coincidence that in 1861, when those who promoted states’ rights chose to secede from the Union, they named their new country “The Confederacy.” 

Things didn’t go so well for The Confederacy but their argument for states’ rights is carried on today in politics, including the courts.  And so the big question in a recent Supreme Court case is whether a federal court should have the power to change a state policy which is causing a large number of citizens to be denied constitutional rights.  In other words, what prevails: the rights of the individual or the power of the state? 

Last week, the US Supreme Court decided that California is operating a prison system that is cruel and unusual.  But it was a close decision.  Following its well known ideological divide, the four liberals voted yes, the four staunch conservatives voted no and the moderate conservative (wait for it) voted…..yes! 

Why?  1. Because the 8^th Amendment of the US Constitution outlaws cruel and unusual punishment.  2. Because California prisons don’t provide health and mental health care for many inmates due to severe overcrowding.   3.  It is cruel and unusual to withhold health and mental health care from prisoners. 

So, the five yes votes – "The Yeses” – agreed that California should bring down the population of its prison system from 200% of its designed capacity to 137.5% of that capacity.  The four no votes – "The Nos” – were not happy.

Were they unhappy because California had been taken by surprise?   No.  The California prison population has been double the size that its buildings are designed to hold for over 11 years.  The state has been under court orders to improve mental health services for 12 years and to improve health services for 5 years.  Instead, the Nos were fuming because they believe the standards of a federal law were not met.  That federal law forbids local courts from ordering states to reduce prison populations without convening a three judge panel and meeting very high standards.  This law, the Prison Ligation Reform Act of 1995 (PLRA), was not followed, say the Nos.  The Yeses said it was.

There was no disagreement about overcrowding or lack of health and mental health services.  After all, in 2006, former Governor Schwarzenegger declared a state of emergency in the prisons, stating that “immediate action is necessary to prevent death and harm caused by California’s severe prison overcrowding.”  The Governor was concerned about the “increased, substantial risk for transmission of infectious illness” and a suicide rate “approaching an average of one per week.”

The three judge panel heard evidence that, because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets.  Other inmates are held for months in administrative segregation waiting for limited mental health services.  Wait times for mental health care can be as high as 12 months.  In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations, and 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.” 

Prisoners with physical illness don’t fare better.  California’s prisons have only half the clinical space needed to treat the current population.  A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment.  The number and competence of staff is inadequate, and prisoners face significant delays in access to care.  Adequate housing for the disabled and aged does not exist.  The medical facilities, when they exist at all, are in disrepair.  Basic medical equipment is often not available or used.  Medications and other treatment options are often not available.

Prisons have backlogs of up to 700 prisoners waiting to see a doctor.  A review of referrals for urgent specialty care at one prison revealed that only 105 of 316 pending referrals had a scheduled appointment, and only 2 had an appointment scheduled to occur within 14 days.  Urgent specialty referrals at one prison had been pending for six months to a year.

The Nos didn’t deny these facts but choose not to mention them.  Instead, they challenged the idea that overcrowding results in lack of care for all inmates.  The Yeses set out lots of expert testimony that crowding is the primary cause of the constitutional violations.  For example, the former warden of San Quentin and former acting secretary of the California prisons testified that crowding “makes it virtually impossible for the organization to develop, much less implement, a plan to provide prisoners with adequate care.”  The Nos were not impressed.  They also doubted the three judge findings that many prisoners can be safely released and that imprisonment in overcrowded conditions can increase the risk of prison violence and re-offending upon release.  

The Yeses stressed the misery of the inmates, the years of failed attempts to address that misery and the integrity of the legal process that brought three judges together to consider how to responsibly address the problem.  They supported the judges’ decision to allow California to decide the best way to bring down the prison population so inmates will have a chance to get at least minimally adequate health and mental health services.

The Nos think that prison overpopulation should not be linked to the constitutional violations.  In their view, if a physically or mentally ill individual is subjected to cruel and unusual punishment due to lack of proper care, that inmate can go to federal court to request services.  The federal courts, the Nos contend, should only order a remedy for the harsh consequences of severe overcrowding if every inmate cannot show that the overcrowding makes his or her punishment cruel and unusual.  

They give the example of a prison that is too cold.  In that case, the federal court would be justified in ordering the heat to be turned up.  In sum, they believe that running an inherently unsafe institution is a state policy option that the courts should not presume to overrule.  They also find that releasing any prisoner before his or her sentence is completed will always result in unreasonable jeopardy of public safety.  The Nos seem to not trust state officials in only this one area: deciding how to make safe release decisions. 

From my perspective, the Nos have an almost cartoonish view of prison inmates and are either totally unconcerned with the quality of their confinement or ignorant about the realities of administering a state institution.  Their primary concern seems to be the age old debate about states’ rights as it manifests itself in constitutional jurisprudence.  In aid of that argument, they are not afraid to throw in some fear and prejudice to spice things up.  As the director of an agency that promotes and defends individual rights, I find this all, shall we say, a bit academic.