Balkinization  

Monday, May 23, 2011

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?"

Comments:

There is also Appendix C. "Because of a shortage of treatment beds, suicidal inmates may be held for pro-longed periods in telephone-booth sized cages without toilets." Photo added.

Yes, guys in prison (and out) have tattoos. For privacy purposes, their faces would be blurred. This might in some fashion depersonalize them, but they aren't dehumanized.

One feminine prisoner (a transsexual?) gives the effect a clearly barracks like setting isn't really a prison, but some sort of gathering? Really? It looks like some sort of institution clearly enough to me.

The first looks particularly shoddy. The second photo is a bunch in a barracks like setting that looks particularly messy and crowded.

This being where they live in a bunch, yeah, they are going to be talking and doing other living like activities. The guy in the wheelchair doesn't really add to the "gathering like setting" unless it is a gathering at a hospital or something.

Three pictures really doesn't do much so I do wonder why they were added. But, that analysis is a bit much.
 

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

Very likely not.

If our delicate Justice Kennedy saw the far more cramped quarters with five high bunks the Marines reside in while at sea, would he discharge the entire Marine Corps?

When Kennedy extended habeas corpus to foreign enemy combatants, the military largely stopped taking prisoners and killed the enemy on sight rather than allowing courts to return them to the battlefield.

What is the citizenry of California going to do now that the courts are releasing thugs onto their streets because the state cannot provide them with what five black robes in Washington D.C. think as sufficient accommodations.

Sheriff Joe, you better watch out.
 

One of the more interesting aspects of the dissents in this opinion is how they focused heavily on the effects of the majority's opinion. It is striking that Justice Scalia and Alito would focus so heavily on the impact on the State of this decision when the test should be whether the punishment created and enforced by the State was cruel and unusual under the 8th Amendment. The text seemingly focuses exclusively on the conditions of the prison rather than the effect on releasing prisoners from the state prison.
 

Our yodelers' comparison of Marines at sea with CA prisoners fails to point out that the former are Marines voluntarily. And the Marines' cramped quarters are fairly temporary in contrast to the long prison terms of the CA prisoners. (And there are so many other differences. But nice try.)

*****

Nachu points out:

"One of the more interesting aspects of the dissents in this opinion is how they focused heavily on the effects of the majority's opinion."

in this 8th Amendment case. Compare this to the Heller and Chicago v. McCarthy 2nd Amendment cases and the effects of the majority's opinions in those cases. Might there be a convergence of effects of the 2nd and 8th Amendments?
 

Shag:

When you commit the felony crime, you volunteer for the longest prison sentence permitted under law.
 

What is the citizenry of California going to do now that the courts are releasing thugs onto their streets because the state cannot provide them with what five black robes in Washington D.C. think as sufficient accommodations.


a) Ignore/defy the ruling. 2012 is a presidential election year and the chances that Obama or Congress would try to force California to comply with the injunction are slim to none. SCOTUS has neither the power of the purse nor the sword so it can issue all of the rulings it likes but if the other branches don’t cooperate, it can’t do much to enforce them. Given that these sorts of court-ordered releases of prisoners to reduce “overcrowding” tend to result in an increase in the crime rate and/or the likelihood one or more of the released prisoners commits a high profile robbery, rape or homicide which will be laid directly at the doorstep of whatever elected official (e.g. Governor Brown) is held responsible for releasing that particular prisoner in order to comply with the injunction, it might be the rational course of action.


b) Bus the prisoners out to the respective neighborhoods of each of the five justices who formed the majority opinion and release them there en masse.
 

Thorley:

Governor Brown is loving this ruling. Releasing prisoners was already in his budget cutting plan. The Supremes gave Brown political cover to go through with the releases.
 

Query whether our yodeler posts this:

"When you commit the felony crime, you volunteer for the longest prison sentence permitted under law."

on his website for providing DUI legal services to attract clients?

As to our yodeler's comments on CA Gov. Brown, the problems underlying the Court's decision go back many, many years. CA's budget has major problems that Brown and the CA Legislature have to address. America has serious problems with prison over population in contrast with other civilized nations. CA, other states and the federal government "volunteer" to accept prisoners but the 8th Amendment proscribes certain inhospitable treatment of their "volunteer" guests.

Yes, using images is a tricky business, as evidenced by the image of our yodeler.
 

By the Bybee (*^&%^$@#), after the 2008 Bush/Cheney Great Recession, there was a lot of discussion about its causes, including (inter alia) the housing bubble, with most experts lamenting that they did not see it coming. But for many years there has been recognition of prison overcrowding in America with its significantl problems, as recognized by the Court in its recent 5-4 decision, which might suggest that seeing the coming of the "prison housing bubble" was not actually helpful in resolving its problems. Hindsight is not always 20-20.
 

When I was at BPP studying my famous law professors the, vast, majority of my class at Holborn had TCs. I can't speak for Waterloo though, didn't know anyone over there but did here that the situation was almost the opposite. Really strange.

famous law professors
 

Post a Comment

Home