When the Judiciary Has to Force the Other Two Branches of Government to Act Ethically, Are We Seeing Warning Signs of a Morally Failing Society? — The U.S. Supreme Court’s Decision in Brown v. Plata and the Ninth Circuit Court of Appeals’ Opinion in Veterans for Common Sense v. Shinseki

© 2011 Peter Free

 

24 May 2011

 

 

The mantra, “no new taxes” drowns out building necessary infrastructure and strangles ethical sense

 

As an electorate, we have turned an effectively blind eye to the responsibilities that a citizenry bears in appropriately treating both ends of the human social spectrum.

 

Twice within the last month, slim majorities on elite courts have felt compelled to put a stop to the equivalent of human rights-abusing actions of our executive and legislative branches.

 

The first of these admittedly novel “interventions” came from the Ninth Circuit Court of Appeals in its decision to force the Veterans Administration to properly treat veterans who have compensation claims and/or medical and mental needs.  (I discussed Veterans for Common Sense v. Shinseki at length here.)

 

The second legal opinion landed yesterday.  In Brown v. Plata, a 5-4 split on the U.S. Supreme Court decided that the Eight Amendment of the Constitution had had enough of California’s decades-long mistreatment of overcrowded prisoners.

 

 

These cases as dead canaries in our nation’s political mine

 

From a historical perspective, these opinions are unsettling:

 

First, they indicate that the only branch of American government still reliably working is the judiciary.

 

That may be because judges and justices have significantly more difficulty escaping (a) from their profession’s wide-ranging ethical obligations and (b) from the daily stream of real problems the courts have to attempt to solve each day.

 

Second, the necessities that forced these judicial outcomes imply that our overly politicized culture has no problem:

 

(i) in turning its back on the military people who serve the nation at the cost of their lives and wellbeing

 

and, simultaneously,

 

(ii) in arguably abusing lawbreakers, whom it dismissively treats as having few, if any, rights.

 

Third, these court decisions indicate that the other two branches of government — now muck-sucked after decades of pandering to what they perceive as the spoiled brat electorate and, simultaneously slavishly carrying out the whims of Corporate America’s plutocratic masters — have mostly abandoned any valid claim to providing effective governance.

 

 

Politics today is an interminable competition about who can lie, cheat, and steal the most, without alienating voters enough to boot politicians from office.

 

We have become a rudderless ship and pilotless plane.

 

 

A sorry mess, indeed

 

When the Judiciary has to step in to correct the abuses that the Executive and Legislative branches leave in their wakes, the nation is in a tattered state.

 

Aside

 

For non-lawyers, it is important to point out that judges and appellate court justices are usually genuinely reluctant to actively interfere with either the Executive or Legislative branches.

 

The fact that the Ninth Circuit and the U.S. Supreme Court have now done so, coincidentally within the same 30 days, indicates that our tripartite governmental system is not working as the Founders probably hoped.  Two branches of the tripod have casually dumped their assigned duties, while still raking in massive remuneration for jobs not done.

 

Activist judges become such, when executives and legislators are asleep or illicitly frolicking at the switch.

 

 

Brown v. Plata — the majority essentially said, “Let some prisoners loose”

 

Question:

 

Under the Constitution, should society either:

 

(a) build and properly staff the prisons it needs in order to house the criminals it (often stupidly or prejudicially) deems need to be incarcerated,

 

or

 

(b), in the absence of an appropriately built and maintained incarceration infrastructure, should it let some of its over-crowded prisoners loose?

 

The five-justice majority in Brown v. Plata chose the latter.

 

Extracts from Justice Kennedy’s opinion include:

 

The appeal comes to this Court from a three-judge District Court order directing California to remedy two ongoing violations of the Cruel and Unusual Punishments Clause, a guarantee binding on the States by the Due Process Clause of the Fourteenth Amendment.

 

The degree of overcrowding in California’s prisons is exceptional. California’s prisons are designed to house a population just under 80,000, but at the time of the three judge court’s decision the population was almost double that.

 

The State’s prisons had operated at around 200% of design capacity for at least 11 years. Prisoners are crammed into spaces neither designed nor intended to house inmates.

 

The appeal presents the question whether the remedial order issued by the three-judge court is consistent with requirements and procedures set forth in a congressional statute, the Prison Litigation Reform Act of 1995 (PLRA).18 U. S. C. §3626 . . . .

 

As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights.

 

Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. “‘The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.’” Atkins v. Virginia, 536 U. S. 304, 311 (2002) (quoting Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion)).

 

A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.

 

If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation.

 

Having engaged in remedial efforts for 5 years in Plata and 12 in Coleman, the District Courts were not required to wait to see whether their more recent efforts would yield equal disappointment.

 

Numerous experts testified that crowding is the primary cause of the constitutional violations. The former warden of San Quentin and former acting secretary of the California prisons concluded that crowding “makes it ‘virtually impossible for the organization to develop, much less implement, a plan to provide prisoners with adequate care.’”

 

Expert witnesses produced statistical evidence that prison populations had been lowered without adversely affecting public safety in a number of jurisdictions, including certain counties in California, as well as Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida, and Canada.

 

The three-judge court concluded that the population of California’s prisons should be capped at 137.5% of design capacity. This conclusion is supported by the record. Indeed, some evidence supported a limit as low as 100% of design capacity.

 

Brown v. Plata, No. 09–1233, Kennedy opinion, pages 2-5, 13, 18, 24, 39, 42 (U.S., 23 May 2011) (paragraphs split)

 

Essentially, the Court upheld the 3-judge district court’s modifiable order that California carefully choose prisoners to release in order to reduce the system’s overcrowding.

 

 

Brown v. Plata — Justices Scalia and Thomas said, “Don’t let anyone out”

 

There are two dissents in this case: Justice Scalia’s (joined by Justice Thomas) and Justice Alito’s (joined by Chief Justice Roberts).

 

Of the two, Scalia’s is the more legally persuasive (although arguably wrong for reasons I’ll discuss).

 

Justice Scalia’s core argument is that the majority is blatantly wrong to take up class actions that have members who have not suffered identically describable harms.

 

Instead, he reasons, the majority has mixed the harmed and unharmed into an amorphous class for which its injunctive remedy is unconstitutionally generic and poses a public danger.  In short, the court overstepped its authority.

 

In view of the incoherence of the Eighth Amendment claim at the core of this case, the non-judicial features of institutional reform litigation that this case exemplifies, and the unique concerns associated with mass prisoner releases, I do not believe this Court can affirm this injunction.

 

I will state my approach briefly:

 

In my view, a court may not order a prisoner’s release unless it determines that the prisoner is suffering from a violation of his constitutional rights, and that his release, and no other relief, will remedy that violation.

 

Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that prisoner (and no other remedy) would enable him to obtain medical treatment, then the court can order his release; but a court may not order the release of prisoners who have suffered no violations of their constitutional rights, merely to make it less likely that that will happen to them in the future.

 

Brown v. Plata, No. 09–1233, Scalia dissent, pages 14-15 (U.S., 23 May 2011) (paragraphs split, reformatted)

 

Justice Alito’s dissent attacks the same alleged illogic in the majority position. He also notes that the lower court relied on outdated factual information:

 

The Constitution does not give federal judges the authority to run state penal systems.

 

Instead of crafting a remedy to attack the specific constitutional violations that were found—which related solely to prisoners in the two plaintiff classes—the lower court issued a decree that will at best provide only modest help to those prisoners but that is very likely to have a major and deleterious effect on public safety.

 

The scope of permissible relief depends on the scope of any continuing violations, and therefore it was essential for the three judge court to make a reliable determination of the extent of any violations as of the time its release order was issued. Particularly in light of the radical nature of its chosen remedy, nothing less than an up-to-date assessment was tolerable.

 

 

The three-judge court, however, relied heavily on outdated information and findings and refused to permit California to introduce new evidence.

 

 

I do not dispute that general overcrowding contributes to many of the California system’s healthcare problems. But it by no means follows that reducing overcrowding is the only or the best or even a particularly good way to alleviate those problems.

 

 

Many of the problems noted above plainly could be addressed without releasing prisoners and without incurring the costs associated with a large-scale prison construction program. Sanitary procedures could be improved; sufficient supplies of medicine and medical equipment could be purchased; an adequate system of records management could be implemented; and the number of medical and other staff positions could be increased.

 

Similarly, it is hard to believe that staffing vacancies cannot be reduced or eliminated and that the qualifications of medical personnel cannot be improved by any means short of a massive prisoner release.

 

Without specific findings backed by hard evidence, this Court should not accept the counterintuitive proposition that these problems cannot be ameliorated by increasing salaries, improving working conditions, and providing better training and monitoring of performance.

 

Brown v. Plata, No. 09–1233, Alito dissent, pages 1, 2, 4, 9, 11 (U.S., 23 May 2011) (paragraphs split)

 

 

“So who’s right, Pete? — Letting bad guys loose sounds bad”

 

On purely legal grounds, the dissenters are probably more correct than the majority.

 

But both dissents ignore the real issue in the case.

 

The real issue has to do with the lack of available legal and social mechanisms with which non-privileged and underclasses can address obvious injustices directed against them.  Particularly, when as here, the dominant society deliberately closes its wallet to those classes’ legally recognized requirements.

 

That conflict between the powerless and powerful was a core, but hidden issue, in Veterans for Common Sense v. Shinseki.  The VA’s incompetence, understaffing, and complacence deny veterans the medical care and benefits they are legally due.

 

The social problem posed by the lack of underclass clout is even clearer in Brown v. Plata.  California believes in locking people up wholesale (and then some), but refuses to pay adequately to do so.

 

So who is going to stand up for veterans and prisoners?

 

Apparently not the vanishingly small amount of government rectitude that remains in the non-judicial branches.

 

So — as a matter of default, the judiciary faces an ethical problem that disguises itself as a legal question.

 

The two Brown v. Plato dissents answered the justice problem narrowly.

 

The majority opinion answered broadly and on arguably more substantive principled grounds.  In essence, the majority thinks that the Constitution does not approve of letting people rot, just because we’re too cheap to give them their legally-owed due.

 

Notice, here, that the dissents in Plato and Veterans for Common Sense agree that the plaintiffs (narrowly defined) have been wronged and will continue to be wronged.

 

The legal quarrels are over the judiciary’s right to impose proposed fixes.

 

On the alleged “conservative” hand, the plaintiffs’ wrongs don’t justify the courts in stepping over the boundaries of government.

 

On the so-called “liberal” side, the unfairnesses do.

 

In a system of tripartite government which worked, the conservatives could win and no one would suffer.

 

However, what Justice Kennedy and colleagues recognize is that, when two branches of government have abandoned their duty to govern, and wrongfully harmed groups of people have no adequate recourse to remedy their bad situations, the courts have to step in.

 

 

The essence of the basic conflict between Right and Left on the Court is a fundamentally spiritual one

 

What separates liberals from alleged conservatives on the Supreme Court is the latter’s unwillingness to recognize that the democratic majority oppresses circumstantially-selected groups at every turn.

 

 

When harmed people, like veterans and prisoners, have not the financial wherewithal to hire competent lawyers for years at a time, their chances of receiving fair and just treatment in our plutocratically-rigged society are nil.

 

Scalia’s unspoken objection to Kennedy’s treatment of the foreseeably harmed prisoners as a class is that it smacks of social engineering.  Scalia would prefer that the institutionally helpless waste away, out of sight.

 

For all his intelligence (and Catholicism), the man is deliberately blind, when it comes to accurately perceiving how social systems work to conspire against virtually everybody but the socioeconomic elite.

 

The point to Plato is that for 12 years, California hasn’t done anything effective to ameliorate its treatment of medically-needy prisoners.

 

Justices Scalia, Alito, Thomas, and Roberts don’t care enough to do anything about it.  In their narrow legal eyes, California can keep spinning its no-money wheels, pretend-trying to fix a problem without getting anywhere, and that would be okay.

 

Hence, Alito’s disingenuous argument that the district court involved had old facts.  Mathematically-speaking, we can never have up-to-the-minute facts.  Postponing action for newer material is government’s prime way of doing nothing.

 

The poor and downtrodden will always be with us.  Right?

 

Kennedy’s majority group in Plato isn’t quite so complacently and legally self-righteous.  Like the two-to-one Ninth Circuit majority in Veterans for Common Sense, the Supreme Court majority simply figured that enough is finally enough.

 

 

The really key question

 

Which is more important:

 

(a) self-satisfied excuses and narrow legal logic,

 

or

 

(b) simple fairness, according to the spirit of the Constitution and the statutes that Congress has enacted with the intent of taking the edge off some of the functional disparities that go with degrees of social standing?

 

“But that’s the Slippery Slope again, Pete!”

 

Yes, it is.

 

If we’re not on a slippery slope, we’re simply too rigidly fearful to recognize that Life lives there.

 

 

The moral? — We are defined by the ways we treat our fellow beings

 

For my narrow American legal money, the dissents in Veterans for Common Sense and Plato are correct.

 

For my larger self — the one that pragmatically and spiritually matters — the majorities in both got it right.

 

Too bad that the Legislative and Executive branches are still throwing tantrums at pre-school.