Brown v. Plata: The Prison Photographs

Jason Mazzone

In Appendix B to his opinion for the Court today in Brown v. Plata, Justice Kennedy reproduced two photographs of the interior of California prisons. (The photos are at page 57 of the opinion.) One photographs is from Mule Creek State Prison in 2008. The other is from the California Institution for Men in 2006. Both photographs show male prisoners on and standing by metal bunk beds. In each photo, some of the prisoners are shirtless (the photos were both taken in August). Several of the men have extensive tattoos on their upper bodies.

The Supreme Court occasionally includes images in its opinions when a pictorial depiction seems stronger than mere words. The obvious reason for Kennedy's use of the two photographs today is so readers will see for themselves what the conditions within the prisons are like--and thereby understand better the reason for the Court's endorsement of the extraordinary remedy of a mass release.

Using images, though, is a tricky business and it's not obvious that these photographs will have the effect Kennedy intended.

Some people who look at the two photographs will see not crowded prisons demanding a judicial remedy but scary criminals who are going to be released into the community before they have served their sentences. Indeed, as far as photographs go, these two seem particularly poor choices for persuading the public of the correctness of the Court's decision. The faces of all of the prisoners are blurred and they are therefore dehumanized. Many or all of the prisoners appear to be of the same ethnicity, thereby suggesting this might be a gang. In the Mule Creek photo, a prisoner in the foreground is holding a beverage and engaged in animated conversation with two other prisoners, as though at some kind of event. In the second photograph, we see in the foreground a shirtless prisoner with his back to the camera. This prisoner has the hair and body of a woman, giving the effect that the photograph is not of a prison but of some other kind of gathering in which men and women are mingling. And worse, the prisoner in the foreground also has several large tattoos on his (is it her?) body. (And is that gang insignia I see?)

With apologies to Dan Kahan, we obviously need now a survey in which respondents are shown these two photographs and asked the following question: "Are you in favor of releasing early one third of the prisoners depicted in these photographs so that the other prisoners will be less crowded?"
Posted 4:51 PM by Jason Mazzone [link]