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Argument preview: Crowded prisons, inmates’ rights

The Supreme Court on Tuesday confronts its most significant prisoners’ rights case in years — a case that has grown so complicated that the Justices have expanded the oral argument time by a third, to 80 minutes.  The Court must get past two preliminary obstacles before it could rule directly on a remedy for prison overcrowding, in the case of Schwarzenegger, et al., v. Plata, et al. (09-1233),.

Arguing for the state of California at the 11 a.m. hearing will be Carter G. Phillips of SidleyAustin in Washington, and for the prisoners will be Donald Specter of the Prison Law Office in Berkeley — a non-profit law firm that pursues cases on the rights of inmates in California.


America’s prisons now hold more than 2.3 million inmates, and many of the facilities are overcrowded, with serious implications for both health and safety.  In C alifornia, the states’ 33 prisons are operating at almost twice their design capacity — actually, 195 percent, meaning that two inmates have to occupy the space designed for one.

But what most concerned Congress, in 1996, was the crowding that it saw on the dockets of the federal courts, with prisoners’ lawsuits piling up and taking longer to decide.  The lawmakers’ response was two-fold.

First, to curtail the efforts by state inmates to repeatedly contest in federal habeas court their convictions and sentences, Congress enacted the Anti-Terrorism and Effective Death Penalty Act, setting up several new barriers to habeas challenges.  That act paralleled an effort in the Supreme Court to narrow the scope of habeas rights — most significantly, in the 1989 case of Teague v. Lane.

Second, Congress concluded that courts were being drawn too often into overseeing the day-to-day operations of prisons, with sometimes broad judicial decrees to remedy harsh conditions behind the walls.  The lawmakers enacted the Prison Litigation Reform Act, with much of the limited debate preceding passage focusing on what the legislators thought were frivolous claims by inmates.  PLRA does not deal at all with inmates’ convictions or sentences, but only with the conditions of prison life.  It has clearly reached at least one of Congress’s goals: prisoners’ lawsuits have dropped by 60 percent since 1995.

The Supreme Court has repeatedly ruled on the scope of the habeas restraints in AEDPA; in fact, an AEDPA case appears at least once in every Term on the Court’s docket.  It has had far fewer cases testing the civil lawsuits restrictions in PLRA.   The most significant of the PLRA cases has now reached the Court.

If the Justices work their way through to a final ruling on the merits, the case could be a landmark on the power of federal judges to simply send some inmates home from prison, as an ultimate means of reducing overcrowding and the health hazards that result, for inmates and for correctional staff members.

Before PLRA was enacted, federal courts relied on general principles of equity to adopt remedies for overcrowding.  The PLRA displaced that approach, with a comprehensive scheme to govern federal litigation over prison conditions.

The Act takes two separate approaches.  It imposes one set of requirements on prisoner lawsuits that seek any kind of future relief in prison conditions.  A second part deals only with the requirements for a court order to actually release inmates from custody as a remedy — treated by the Act as “the remedy of last resort.”  Such a release order, Congress specified, could involve either reducing inmate population outright, or barring new admissions to prisons.  A cap on a facility’s total population is one of the options.

Prison release orders, however, may be issued only when they are “truly necessary” to remedy an actual violation of prisoners’ rights under the Constitution or a federal statute.  A court may issue a release order only if previously issued orders for less intrusive relief have failed to remedy the problems found, and only if the prison’s managers have had a reasonable time to carry out those prior orders.  If both conditions are met, the judge must ask turn to a three-judge District Court if there is to be an order to release inmates.

Before issuing any such order, the three-judge Court must find by “clear and convincing evidence” that crowding is the primary cause of the violation of a federal right, and that no other, more modest relief will suffice.   One such release order is now before the Supreme Court; its effect has  been postponed while the case proceeds before the Justices, but if it ultimately is upheld, the number released in California might approach or exceed 40,000.

It was perhaps inevitable that a major test of the Act’s release order requirements — and limitations — would come in California.  Since the mid-1970s, the prison population in the nation’s largest state has risen by more than 750 percent, from about 20,000 to more than 160,000.

The growth has been attributed in part to the state’s adoption of fixed terms of sentences in the 1950s, and increases ordered in the length of those sentences mandated by state legislation and voters’ ballot measures.  In October 2006, Gov. Arnold Schwarzenegger declared an emergency, saying that the overcrowding has reached a crisis stage, that “gets worse with each passing day.”

As the overcrowding intensified, two lawsuits by state inmates in federal courts moved along on separate tracks, but not rapidly.  The first, the Ralph Coleman case, was filed in 1990 as a class-action lawsuit claiming inadequate mental health care in violation of the Constitution and federal disability rights law.  An entirely separate class-action case, the Marciano Plata litigation, was filed in 2001, claiming constitutional violations and violations of disability rights law in the delivery of all forms of medical care to inmates.

Over the years, the two District Courts handling these casses independently issued a number of remedy orders, perhaps 70 in all, but ultimately concluded that their efforts had not ended the crisis.  In 2006, after the governor’s declaration of an emergency, lawyers for the inmates sought, under PLRA, the seating of a three-judge District Court to consider a release order.

Such a court was assembled, with the two judges who had handled the Coleman and Plata cases on it, along with a federal Circuit Court judge.   The state challenged the jurisdiction of the Court, but that was rejected, and the three-judge panel held a two-month trial, resulting in August 2009 in a finding that all of the requirements for a release order had been met.

The order would cap overall prison population at 137.5 percent of design capacity, to be achieved within two years.  It is from that order that one can conclude that the total release would be somewhere in the neighborhood of 40,000, though the actual predictable total is in dispute between the parties.

After a failed attempt in September 2009 by the state to get the Supreme Court to  block the release order, the District Court ultimately accepted a plan that the state had reluctantly offered last November.  The final order, released January 12, 2010, requires the state to reduce prison population to 167 percent of design capacity within six months, to 155 percent within a year, to 147 percent within 18 months, and 137.5 percent within two years.

In the meantime, the state had sought to pursue an appeal to the Supreme Court, but the Justices on January 19 dismissed that appeal (09-416), and one by state legislators and law enforcement officers (09-553),  finding it had no jurisdiction.

The District Court’s final January 12 release order has been stayed by that panel, and the stay will remain in effect while the Supreme Court reviews the new appeal that the state formally filed on April 12.  That is case 09-1233.  (A separate appeal, by state GOP legislators and law enforcement officers, in case 09-1232, has not been acted upon by the Justices, and thus appears to be on hold pending the ruling on the state’s case.)

Jurisdictional Statement

The state returned to the Supreme Court last April, filing a jurisdictional statement (rather than a certiorari petition) on the premise that it was appealing from a three-judge District Court.  The lower court’s release order, it argued, is “the most sweeping intrusion into a state’s management of its correctional facilities in history.”

The appeal raised three questions: whether the District Court had authority to order release of prisoners, whether that Court had been wrong in concluding that overcrowding was the primary cause of the violation of inmates’ rights, and whether the final release order reached well beyond what PLRA permits in such orders because its scope reaches inmates who do not have medical or mental health problems and because it will threaten public safety.

The first question is based on the argument that the District Court did not give the state sufficient time, as PLRA required it to do, to comply with prior court orders on inmates’ health problems.   Congress clearly meant that states should be given adequate time to fashion remedies that are less intrusive than turning prisoners loose, the state said.  The convening of the District Court in these cases, the state contended, was premature.

In pressing the second question, the state contended that the District Court was wrong in finding that overcrowding was the “primary cause” of any violation of prisoners’ rights to medical care.  It was not enough, according to the appeal, that overcrowding played some role.  The lower court was also wrong, it asserted, in finding that less intrusive measures would not work adequately.

Finally, on the third question, the state contended that the release order went too far, setting an inflexible cap on prison population, imposing a rigid deadline for achieving it, mandating release for inmates not suffering any maladies, and showing insensitive to the public safety risks and prison management prolems with such a large release of inmates.  Moreover, the state argued, it has made considerable progress in remedying the medical delivery problems, but the District Court did not give the state enough credit for that effort.

The inmates’ lawyers, responding directly to the state’s three questions, argued that the District Court’s convening was not premature and that it had full authority under PLRA to do what it did, that the ruling in any event was based on the special facts in California’s situation and in the prolonged litigation before the two District judges, that the final release order was the only way to remedy the violations, and that the final order was flexible, not rigid, and “extends no further than necessary.”  The Coleman response argued that “even a cursory appreciation for the chronology os this extraordinary case exposes the weakness of the state’s position.”

In addition, in their separate motions for the Court either to uphold the District Court or to dismiss the case without review, the inmates’ lawyers challenged the Supreme Court’s jurisdiction to hear the state’s challenge to the three-judge District Court’s jurisdiction.

Under the federal law that governs three-judge District Courts, the Supreme Court had the authority to review a three-judge panel’s pre-trial or permanent post-trial injunction in any suit where Congress has mandated the seating of such a panel.

But, the inmates’ lawyers contended, the state’s attempt to challenge the District Court’s jurisdiction is aimed not at such an injunction, but at the earlier stage — that is, the plea by the two single judges to assemble the District Corut panel in the first instance.  Any challenge at that stage could have been taken only to the Ninth Circuit Court, the opposing briefs argued, and the state did not do that.  The state, the Coleman brief said, “should not be allowed to use the PLRA to end-run the ordinary appellate procedures for challenging a District Court decision.”

The inmates’ counsel do not argue  that the Justices lack jurisdiction to review the final release order, but contend that the order, on the merits, should be summarily upheld because it  is entirely valid under PLRA; a separate argument was that the state’s arguments on the merits have been forfeited by failure to press them in lower courts.

The Supreme Court on June 14 ordered a hearing on the state’s appeal, but said it was postponing consideration of the issue of its own jurisdiction to decide the case until that hearing was held.  That is a normal reaction from the Court when one side has contested whether a case or an issue is properly before the Justices.   And it is an invitation to the parties to more fully address the Justices’ jurisdiction in their merits briefs as well as in oral argument.  (Although the Court did not indicate what jurisdictional question it was putting off until the hearing, that appeared to be the scope of its own jurisdiction to review whether the three-judge Court was properly convened, and not its jurisdiction to review the merits of the final prisoner release order; the latter appears not to be in dispute between the parties.)

Originally, the state’s appeal was expected to be heard in the usual one-hour argument.  But after the inmates’ lawyers sought to have a divided argument, with a counsel for each set of inmates arguing separately, the Court refused to split up that side of the argument and then added 20 minutes to the overall time.  That means the state will have 40 minutes, and the inmates — with only one lawyer speaking for all of them — will have 40 minutes.   (The federal government is not involved in the case, so only two counsel will appear.)

Merits Briefs

The state has chosen, in its brief on the merits, to make only a passing mention of the jurisdictional issue that the Court has saved for the briefing and argument: that is, the issue of the Supreme Court’s authority to review the two federal judges’ power to seek the assembling of a three-judge District Court.  Indeed, that question is mentioned only obliquely, by a citation to a 1934 Supreme Court precedent (Gully v. Interstate Natural Gas Co.).

The state goes to considerable lengths, though, to challenge the convening of the three-judge Court, since a finding against that panel’s authority is tied closely to the merits.  Neither of the two single District Court judges had a valid basis for passing the dispute on to a three-judge panel, because they had not satisfied the limitations laid down by PLRA, the brief asserted.

If neither one of those single judges had the power to take that step, the brief asserted, then all that the District Court did thereafter was invalid, and the cases should be returned to the single judges to monitor how well the state is doing in satisfying earlier mandates for remedies of the health care situation behind the walls.

The state’s brief tracked the same substantive PLRA arguments made in the jurisdictional statement, but uses additional strong rhetoric to condemn the supposed interference by the federal judiciary in the management of state prisons and in commanding, without authority to do so, that officials take steps to rehabilitate the released prisoners so that they are not a threat to public safety.    There is no assurance that the state, still in fiscal stress, can afford any such expense, the briefs contended.’

Strategically, the state’s brief on the merits amounts to a  federalism plea, based on the contention that California is making solid progress on the problems in its prisons, and should be freed of a draconian release order to do so without endangering public safety.

Both of the merits briefs for the inmates raise the question of the Supreme Court’s jurisdiction to rule on the convening of the three=judge panel, but the more detailed arguments on that point are made in the Coleman brief.  The Court’s precedents, that brief asserted, have insisted on the narrowness of the Sureme Court’s oversight of three-judge courts, since such review is generally mandatory when jurisdiction exists and Congress has been willing to reduce the Court’s mandatory review obligations.

What California is trying to put before the Court, according to that brief, is a “non-merits issue” that should have been taken first to the Ninth Circuit, and, since it was not, is now forfeited.  That brief dismissed the state’s reliance on the Gully precedent as out of date.

That brief on the merits does not doubt the Court’s jurisdiction to review the merits of the three-judge Court’s release order, saying that the Justices “plainly” have the authority to decide whether that order was a necessary one and whether it was issued too early in this prolonged litigation.

There are opposing intervenors’ briefs on the merits — one from state GOP legislators and police officers, supporting the state’s challenge, and one by a state prison guards’ association, supporting the release order.

The amici filings tilt, numerically, to the side of the prisoners and the perceived need for a fairly broad range of authority for federal courts to issue prisoner release orders,   Among the briefs on that side is a plea by a variety of civil rights and human rights organizations, suggesting that too narrow an interpretation of the PLRA that would put prisoner release orders out of reach would raise constitutional concerns about the Act, and raise questions about violation of human rights norms in international law.  Also on that side are medical groups and religious organizations.

Lining up on the side of California is, most importantly, a filing from 18 other states, arguing that the District Court failed to justify the release order because it relied upon out-of-date evidence before the single judges, and thus did not find — as PLRA arguably required — actual ongoing violations in California’s prisons.  Also on that side is the conservative advocacy group, the Criminal Justice Legal Foundation, making a three-pronged plea: that the full case, including the convening of the District Court, is before the Justices, that the Court should question the fairness of the panel and, if there is a remand to it, to insist on a new set of judges, and that the Justices give significantly more weight to the grave risk to victims that the Foundation perceives looming in the release order.


The Court has made clear, even before it accepted this case at least for a hearing, that it was keenly interested in the proceedings.  While it declined to get directly involved at an earlier stage, it twice indicated that it expected any release order that emerged to be held in abeyance until after the Justices could review it — a strong indication that a majority saw this case as a major test of the remedial powers given federal judges under the PLRA, and a test completely worth the Court’s time.

The Court, on taking up the case, may well reach for a center position on the preliminary issues in the case — that is, whether to scuttle the District Court’s entire proceedings for lack of jurisdiction under PLRA, as the state wants, and whether to find that the Supreme Court itself lacks authority to review that challenge, as the inmates argue.   The result would be to deny the jurisdictional challenge aimed at the District Court, and deny the challenge to its own authority, thus clearing the way for the Justices to proceed to the merits of the release order.

It is fair to assume that a number of Justices, and possibly even a majority, approaches this case with some fairly heavy skepticism about a court order that would turn loose tens of thousands of prison inmates, with no dependable assurance that the state would be able to take — or to afford — the steps necessary to prepare many of those inmates for life on the outside.   If that perception is sound, the breadth of the release order, at least, may be at risk.

At the same time, there is likely to be some sentiment within the Court against going so far to narrow the authority of three-judge District Courts under PLRA as to make the prisoner release option a meaningless part of PLRA.   Congress clearly intended that option to exist, whether or not some Justices may think it an extravagant remedy for an institutional health menace.

The chances seem strongest that the Court, if it rules on the merits, will demand that any release order that ultimately emerged be strictly confined to inmates who are themselves suffering from maladies that can be attributed to the health hazards of overcrowding.   California’s prospects for prevailing, to some degree, seem at least moderately good.

Recommended Citation: Lyle Denniston, Argument preview: Crowded prisons, inmates’ rights, SCOTUSblog (Nov. 28, 2010, 5:20 PM),