Abstract
As we approach the decade anniversary of the US Supreme Court decision in Brown v. Plata (2011), it is perhaps a good time to take stock of some of the optimism expressed by this author (Simon, 2014) that the landmark prisoners’ rights decision, with its stark condemnation of the toxic combination of chronic illness, medical neglect, and overcrowding so typical of American prison systems in the era of mass incarceration, and its rhetorical invigoration of ‘dignity’ as a constitutional value, could play a role in taming mass incarceration in the United States. In doing so, part of the inquiry is juridical and jurisprudential. Did the opinion move the court system towards more protection of human rights for prisoners? The second aspect of the question is cultural and political. At a time of unprecedented public interest in reforming the criminal legal system in the United States, has the language or rhetoric of ‘human dignity,’ along with the problems of illness and overcrowding that the Plata case called national attention to, played a role in the foment? The Black Lives Matter movement, a major force in the street protests against policing in the summer of 2020, emerged just two years after Plata and, completely independently, has revitalized abolition discourse in the United States, leading to popular calls to ‘defund’ the police. To what extent should abolition and other goals of the movement for racial justice, supplant human dignity, with its liberal legal genealogy, as a meaningful lodestar for legal and political efforts to end mass incarceration? As an essay in normative sociological jurisprudence, my answers will be both descriptive and prescriptive.
Introduction: Does dignity matter?
The decade anniversary of the US Supreme Court decision in Brown v. Plata (2011) in Spring 2021 provides enough distance to revisit the considerable optimism (some might say naivety) I expressed (Simon, 2014) that the landmark prisoners’ rights decision marked a turning point away from mass incarceration in the United States. The decision had a very significant effect on California, where its cap on the prison population forced the state to begin a process of sentencing reform that has not run its course. But, unlike human rights courts elsewhere, the decisions of the US federal courts are, with very rare exceptions, narrowly limited to the specific state correctional system (or sometimes even the specific prison). What effects can we find for Plata outside of the gigantic California system? The opinion combined vivid condemnation of the toxic combination of chronic illness, medical neglect, and overcrowding found in California, but so typical of many American prison systems in the era of mass incarceration, with rhetorical invigoration of ‘dignity’ as a constitutional value. Beyond its precedential value to similar factual circumstances, could this combination embolden courts or legislatures to act against mass incarceration?
As a legal decision, the case undeniably played the major role in driving California’s steep prison population decline during the first years of the decade, when the state responded to the beginning of a two-year time clock for compliance with a court-ordered population cap by adopting important sentencing reforms. In turn, California represented a major portion of the national imprisonment drop during the decade. But the immediate effects of Brown v. Plata are behind us now, and its author, Associate Justice Anthony Kennedy (for a time the Court’s most influential justice as its fifth ‘swing’ vote between the Court’s then evenly divided liberal and conservative wings), retired to be replaced by an appointee whose commitment to human dignity as a legal value is uncertain at best, and a second very conservative justice opening the Court to reversing recent precedents, including Brown v. Plata.
When we turn to the cultural and political fields, the decade since Plata has seen escalating public opposition to the criminal justice system, mostly focused on policing and especially police use of deadly force against Black and Indigenous people and People of Color on American city streets. Much of this social movement has been led by a loose network of activists known as the Black Lives Matter movement, which first emerged after the death of Trayvon Martin, an unarmed Black teenager, in Florida in 2012 at the hands of a self-appointed neighborhood watch leader stirred national outrage (compounded by police handling of the case and the eventual acquittal of the man who killed him). 1 This movement expanded even further in the Spring of 2020, after video emerged of a Minneapolis police officer choking the life out of an unarmed Black man with his knee for over nine minutes. In the aftermath of the movement’s crest in the Summer of 2020, the discourse of criminal justice reform has been transformed by serious discussion of abolitionist positions for the first time in decades. Plata, which enshrined overcrowding at less than 137 percent of a prison’s design capacity as constitutional, comes up very short by the standards of a social moment that has moved on to talk of abolition.
For different but perhaps not unrelated reasons, the Covid-19 pandemic, which has hit confined populations especially hard in the United States and prisons in particular, has placed Plata’s overcrowding math into a past that now seems shockingly insensitive to the danger of disease in prison, despite generations of ill-health behind bars. Recently, for example, a unanimous three judge panel of the California Court of Appeals, First Circuit, ordered the California Department of Corrections and Rehabilitation to reduce the population of one prison, stricken hard by Covid, to half of its current population (far below the Plata cap) (In re Ivan Von Staich, 2020).
With these developments in mind, it is fair to ask whether human dignity, with its liberal genealogy and association with the European history of colonialism and slavery, can serve as a meaningful lodestar for legal and political efforts to end mass incarceration, with its deep anti-Black orientation (Muhammad 2019; Hinton, 2016). Applying a mode of inquiry I have called normative sociological jurisprudence (Simon, 2014), my analysis takes seriously jurisprudential developments, including the reasoning of important constitutional or human rights courts, not simply for their legal force but for their normative intervention in politics and society. In seeking not just the influence of Plata but its prescience, I look first to the legal domain, and especially the federal courts, which in the United States play a disproportionate role compared with other countries in protecting prisoners’ rights and where one might expect a landmark Supreme Court decision to have the most immediate effect. There the language of human dignity appears to encourage courts to intervene where the facts point to inhuman conditions imposed upon imprisoned people. In a sense that is nothing new (Feeley and Rubin, 2000), but suggests a modest return towards a norm of human rights enforcement first established in the 1970s but that went into decline in the 1990s.
Whether this small trend continues or not, it is likely to be modest in its impact. The not so secret power of the judicial branch in American democracy has often been to signal a cultural shift that will ultimately have its most significant ramifications in political and social changes (Klarman, 2006). The most famous example is Brown v. Board of Education, whose legal mandate to integrate schools with ‘all deliberate speed’ languished until backed up by federal legislation and a national consensus against segregation a decade later (Rosenberg, 2008).
A decade out from Plata, its vivid call to recognize that prisoners retain their essential human dignity has arguably found its most powerful expression in the Black Lives Matter movement and the renewed discourse of abolition (Cullors, 2019; Davis, 2020; Kaepernick, 2020). Here the language of dignity is an integral part of reclaiming marginalized communities from an overextended carceral state but with a very different, far more robust, conception of dignity. I argue here that the long-term success of dignity as a legal tool against mass incarceration in the United States depends on an enrichment of the cultural meaning of dignity coming from the abolition movement.
Dignity and its discontents
Before we turn to the inspiring universalist language of ‘human dignity’ in Brown v. Plata (2011), it is important to consider why many, especially many people in communities of color, queerness, and economic marginality, which have borne the brunt of mass incarceration, remain skeptical of the courts and the grand narratives of liberty, equality, or dignity that on occasion they produce. The genealogy of dignity and the discourse of national – if not human – rights begins in the 18th century and parallels the progress of both colonialism and slavery. Historically, dignity was for Europeans and their colonizers, not for indigenous peoples, let alone those enslaved to work in the colonial setting, sweated to produce some modicum of practical dignity for Europeans (Whites) (Fanon, 1994). In important respects, people of color have never enjoyed full respect for their human dignity in the United States and other settler colonial societies, as well as in the European heartlands of empire.
Even in its modern, post World War II form, dignity talk has often assumed a patriarchal focus on rationality and autonomy, which has often read out of its protections the lives and values of women and those dependent on women in many societies, including children, the elderly, and the disabled (Soifer, 1999).
Although dignity has become one of the key values expressed by the LGTBQ+ civil rights movements, its deployment often carries along with it a subtle but powerful heteronormative framework that can continue to disadvantage people from sexual minorities (Robinson, 2019). Historically demonized and criminalized, same sex relationships have more recently been protected by the Supreme Court under the Due Process clause of the Constitution because of the importance of intimate relationships to human dignity in Lawrence v. Texas (2001) and Obergefell v. Hodges (2015). Yet these protections are limited by the heteronormative relationship framework that Justice Kennedy’s vision of dignity incorporates into the opinions. With Justice Kennedy now replaced on the Supreme Court by jurists who may not share his deeply principled interest in dignity, the precedents he created in both LGTBQ+ rights and prisoner rights are not likely to be expanded, and well may be diminished.
Clearly, in the United States and likely other settler colonial societies that internalized the contradictions between universal dignity and colonial subjugation behind the ‘veil’ of race (Du Bois, 2008 [1903]), the promise of dignity as a tool of ending mass incarceration is diminished for many of the very communities most affected by mass incarceration, but that does not mean it should be discarded for that aim. Legal concepts are not fixed. 2 They draw from the evolution of meaning in the surrounding culture (indeed, the specific Eighth Amendment doctrine of ‘evolving standards of decency,’ strongly connected to dignity, is intended to draw changing social meaning into the Eighth Amendment). 3
Although dignity has the baggage discussed above, so do the other broad frameworks in US constitutional law, including equality and liberty. Moreover, when it comes to people in prison, neither equality nor liberty offer much succor. Liberty has been forfeited as the punishment for crime (as Brown v. Plata itself acknowledges). Equality as a checking value has been hobbled under the US federal Constitution by the requirement of an invidious intent, which can rarely be demonstrated beyond the patterns of racial disproportionality. Even were equal protection jurisprudence more up to the job (by being less ‘color blind’), it would leave states with the option of increasing punishment for those groups currently sheltered and leave the nature of punishment unaddressed.
Dignity in the federal courts
In the United States, lacking broad instruments of human rights protection associated with the European Convention on Human Rights, and those countries that acknowledge the Nelson Mandela Rules of the United Nations as binding (Cliquennois and Snacken, 2018; Simon, 2018), courts enforcing rights under the federal Constitution and a variety of federal statutes (for example, the Americans with Disabilities Act) 4 play a dominant role in protecting prisoners’ rights. This was not always the case. Until the 1960s, federal courts refused on principle to consider internal administrative matters or material conditions in state prisons so long as the legal proceedings leading to the prison sentence complied with constitutional due process. This changed. In what amounts to a two act play, the federal courts first played an active role in reshaping prisons and whole prison systems in response to claims that administrative procedures violated various specific constitutional rights (for example, freedom of religion or speech), or that prison conditions themselves violated the Eighth Amendment’s ban on ‘cruel and unusual punishments,’ and in act two placed increasing burdens on imprisoned people who wanted to have their complaints heard in court.
The first act is one of the rare examples of courts successfully intervening in state institutions. Between the mid-1960s and the mid-1980s, widespread improvements in physical prison conditions and treatment were mandated by courts and codified in some cases into the accreditation standards of American corrections. Ironically, many of these lawsuits were launched by civil rights lawyers who hoped to help abolish prisons by making improvements to their aged infrastructure involve an unpalatable level of public spending. These lawyers did not reckon on a turn in the politics of punishment and a growing embrace by state governments of new prison construction (Lynch, 2009; Schoenfeld, 2018). An entire form of imprisonment associated with the harshest treatment of mostly African American people – forced agricultural labor prisons based on the model of (and sometimes literally located on the former sites of) slave plantations – was largely abolished (Feeley and Rubin, 2000).
The second act saw an increasingly cautious and conservative judiciary, led by the Supreme Court, set procedural and substantive hurdles to prisoner-initiated lawsuits (Schlanger, 2017). This trend was reinforced by a federal statute, the Prison Litigation Reform Act of 1995, that codified a variety of procedural and substantive limits on these lawsuits, including fees for prisoners filing multiple lawsuits deemed frivolous, and a condition of administrative exhaustion that requires people to pursue resolution through prison complaint procedures, no matter how futile (Calavita and Jenness, 2015). As a result, the number of prisoner lawsuits, growing throughout the 1990s due to the growth in imprisonment despite a more hostile legal standard, plummeted starkly (Schlanger, 2003).
An argument can be made that we are in the midst of the third act, one in which a limited recovery of prisoner lawsuits strips away the facade of legitimacy that had sheltered state prison systems from scrutiny by public officials and the media. Brown v. Plata did not begin this trend. Indeed, we can see the mega-litigation in California that became Brown v. Plata as an important part of a national wave of trial courts responding to increasingly strained medical and mental health care services in American prisons. Brown v. Plata has been cited more than 500 times by federal courts, some granting and others denying prisoner rights in particular claims. About 10 percent of those specifically cite the portions of the Plata decision that exemplify the dignity language. If it accelerated the trend (and this article does not seek to test that), a qualitative reading of recent case law suggests three socio-legal mechanisms through which Plata is empowering courts to act and a fourth emerging from a recognition of its limits: (1) providing a successful model of the kind of record that should compel a court to order major reforms (especially population limitations); (2) reaffirming that prisoner dignity is not forfeited by criminal conviction and imprisonment and that prison regimes are commanded to respect the ‘essential’ requirements of dignity; and (3) imposing a limit on the strong deference that earlier Supreme Court doctrine had demanded that judges grant to prison administrations based on considerations of federalism and the special burdens of incarceration. A possible fourth mechanism is suggested by the recent order of a California state appellate court in the Covid-19 pandemic that the state must cut the population at one virally stricken prison by half, distinguishing Brown v. Plata’s 137 percent of design capacity limit as both unintended for, and clearly inadequate to, the current pandemic.
A review of jurisprudence such as this cannot prove that dignity makes a difference. Perhaps the factual circumstances of these cases would have compelled positive judicial outcomes (often only intermediate decisions to allow a litigation to go forward) anyway. Courts inevitably seek to bring their conclusions into line with recent Supreme Court decisions. But they can do that without calling attention to the rhetoric itself. The fact that they do suggests that judges noticed Brown v. Plata and heard its language. Supreme Court rhetoric is perhaps most valuable of all to that small audience of federal judges and magistrates whose decisions about prisoners are most likely to be overruled by higher courts. The argument here is that something more than legal precedence is evident, something more akin to a cultural shift within a defined institutional set of actors (here the federal courts).
Model factual record
In its factual record, Brown v. Plata provides a model for what prisoner rights advocates can demonstrate to get a systemic population order in the era of the Prison Litigation Reform Act (PLRA) (1996). 5 The law intended to make it more difficult for constitutional claims by imprisoned persons to reach federal courts and for courts to remedy unconstitutional conditions (Schlanger, 2003). In particular, the PLRA made it especially difficult for such courts to place caps on state prison populations. Plata, by far the largest systemic population cap ever ordered, demonstrated that it was possible to seek structural reform of state prisons in court if you have the right facts. The successful formula combines documented failures of medical care and mental health treatment that create a constitutional violation, and overcrowding that overwhelms efforts at improvement. This ‘toxic cocktail’ is one that is frequently produced by the processes of mass incarceration. Conditions such as these exist in many US. states (Simon, 2014), but the resources necessary to bring and sustain such lawsuits, what Margo Schlanger (2016) calls the ‘prisoner rights ecosystem,’ are rare outside California (and barely sustainable there according to her research). There is evidence that the strength of the Plata record could be having carryover effects for other litigation, because it implicates common conditions. This may lead judges to grant class certification more easily in class actions, appoint experts, and deny motions to dismiss. Although there is always the danger that the detailed record in the decades-long battle that led to Plata could be treated as a minimum requirement by courts looking to dismiss cases by imprisoned people, there is no evidence yet of such a trend. 6
A good example of a case aligned with the issues in Brown v. Plata, and possibly benefiting from the strength of that record, is Indiana Protection and Advocacy Services v. Commissioner, Indiana Department of Corrections (IPAS v. Comm.) (2012). After a bench trial in the Southern District of Indiana that began in July 2011, just a month or two after Plata was decided, District Judge Tanya Pratt ruled decisively in favor of the plaintiff class of prisoners claiming abusive treatment of prisoners living with mental illness through continued confinement in segregation and ordered a broad reform of mental health care delivery in Indiana prisons.
After summarizing a record replete with documented failures of mental health care and decompensation of prisoners with mental illness held in segregation, including high rates of suicide, Judge Pratt turned to its Eighth Amendment legal analysis and immediately referenced the first two tropes of Brown v. Plata’s dignity language: (1) prisoners retain a right to have their dignity respected, and (2) dignity is the foundation for the Eighth Amendment (IPAS v. Comm., 16).
Judge Pratt returned to Plata in discussing the need for a remedy that would require system-wide reforms. After sounding the third dignity chord of Plata – ‘a prison that deprives prisoners of basic sustenance . . . is incompatible with the concept of human dignity’ – Judge Pratt specifically invoked Plata’s remedy. ‘The remedy may be as complex as the evidence of the violation, and Plata is again instructive, just as it was in addressing the merits of the Eighth Amendment claim’ (IPAS v. Comm., 19). 7 Speaking preemptively to the question of deference to prison authorities discussed separately below, Judge Pratt closed the conclusion with a final quotation of the third chord, as if to say, you have left me no choice (IPAS v. Comm., 20).
In Shepherd v. Corizon (2013), a case involving a common problem in the United States, privatized prison health care where the state seeks to shift responsibility to a profit-making health provider, Magistrate Katherine Nelson recommended denying a motion to dismiss by the Alabama Department of Corrections against a prisoner whose increasingly disabling conditions, including cataracts and the need for a wheelchair, went untreated by the private health care contractor (Corizon) named in the title. As to the cataracts, the Magistrate concluded that denial of medical care was a straightforward violation of the Eighth Amendment, citing Brown v. Plata. Brown v. Plata’s rhetoric about dignity underlying the Eighth Amendment was quoted for good measure (see below). A separate issue dealt with access to a toilet that could accommodate Shepherd’s wheelchair. Citing a number of Eighth Amendment precedents, including Brown v. Plata, the Magistrate noted: ‘The denial of access to a toilet violates the dignitary prohibitions of the Eighth Amendment.’
Most recently, in Disability Rights Montana v. Batista (2019), a panel of the Ninth Circuit Court of Appeals reinstated a prisoner class action lawsuit on behalf of people imprisoned with serious mental illness facing a failure of effective diagnosis and treatment, and who suffered from the use of solitary confinement as a control measure. After quoting Brown v. Plata on the foundational role of dignity in the Eighth Amendment (see below), the panel went on to note: ‘Consistent with that concept and the clear connections between mental health treatment and the dignity and welfare of prisoners, the Eighth Amendment’s prohibition against cruel and unusual punishment requires that prisons provide mental health care that meets “minimum constitutional requirements”. . . . When the level of a prison’s mental health care “fall[s] below the evolving standards of decency that mark the progress of a maturing society,” the prison fails to uphold the constitution’s dignitary principles’ (Disability Rights Montana v. Batista, 1097).
Tonic for judicial moral outrage
The applicable language of the Eighth Amendment is famously sparse: ‘Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’ The ability to extract specific norms of penal performance from it has always required individual trial judges to use their great powers to open prisons and their records to discovery and to make findings on that record that accord with the several categories of prison conditions that past precedents have established (for example, exposure to the elements, lack of adequate food or medical care). A major Supreme Court precedent such as Plata, in favor of prisoners, naturally bolsters judges’ perception that it is legitimate to act on their moral intuitions without clashing with the law. Even in cases presenting very different claims than Brown v. Plata, prisoners may benefit from that opinion’s strong restatement of the Court’s earlier dignity jurisprudence. In close proximity within the opinion, the decision provides three specific references to dignity with slightly different implications, but all likely to validate what a judge already perceives as conditions that violate the human dignity of prisoners.
First, a declaration that, despite losing their freedom, ‘[p]risoners retain the essence of human dignity inherent in all persons’ (Brown v. Plata, 510). Second, identification of dignity as foundational to the Eighth Amendment:
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.’ (Brown v. Plata, 510)
Third, recognition that prison conditions such as those demonstrated in California fail to respect human dignity.
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. (Brown v. Plata, 511)
In Reaves v. Department of Corrections (2019), following a bench trial, Federal District Judge Timothy S. Hilman held that Massachusetts violated the Eighth Amendment when it held a person with total paralysis (quadriplegic) in a prison that lacked the resources to provide care for him and ordered his transfer to a non-Department of Corrections facility where he could receive care. Leading off the portion of the opinion addressing ‘deliberate indifference’ (a critical component of a successful Eighth Amendment claim, one that amounts to a culpable mental state of recklessness on the part of the government actors), Judge Hilman hit two of the three Brown v. Plata’s dignity chords on his way to finding for the prisoner plaintiff.
In Scott v. Clarke (2014), a district court in Virginia granted a motion for summary judgment to women prisoners who claimed that the state was ‘deliberately indifferent’ to their serious medical problems by entering into a contract with a private health provider who was systematically failing to provide minimally sufficient care. Judge Norman Moon quoted Plata’s language about prisons that fail to provide medical care being incompatible with dignity (819).
In Barkes v. First Correctional Medical, Inc. (2014), the Third Circuit Court of Appeals upheld a district court’s rejection of a motion to dismiss a lawsuit by the survivors of a person with untreated mental illness who suffered death by suicide while in prison in Delaware. Rejecting the administrators claims of ‘qualified immunity,’ the court held that it was clearly established that prisoners have a right to adequate medical care. ‘This is so because “[p]risoners retain the essence of human dignity inherent in all persons”’ (Barkes v. First Correctional Medical, Inc., 328).
In Hoffman v. Flores (2011), Judge Roy B. Dalton, Jr, declined to dismiss the most substantial damage claims against the warden of a Florida prison where the plaintiff was in custody. Hoffman’s medical condition made it impossible for him to urinate without assistance due to incontinence and bladder disease. The response of the prison was to segregate him and deny him participation in work release programs. In discussing the Eighth Amendment basis for the claims, Judge Dalton quoted at length from the recently decided Brown v. Plata, noting: ‘Recently, the Supreme Court of the United States, in assessing the medical care being provided to California prisoners, set forth the standard of decency that inheres in the Eighth Amendment in the context of a state prison setting.’
Although anchored in the prison conditions jurisprudence of the Supreme Court, the dignity rhetoric of the Brown v. Plata opinion addresses the Eighth Amendment as a whole. In United States v. D.W. (2016), celebrated liberal judge Jack B. Weinstein rejected a sentence under the United States Sentencing Guidelines of 292–365 months of imprisonment for child pornography possession as excessive, noting the defendant’s circumstances – young (27), gay, mentally disabled, a previous victim of rape, who could only survive in prison if held in solitary confinement. Judge Weinstein drew on Brown v. Plata both for its factual findings about the close relationship between overcrowding and Eighth Amendment violations, anticipating that D.W. would face even harsher conditions because of overcrowding (United States v. D.W., 59), and for its dignity rhetoric, which was quoted in full (United States v. D.W., 133–4).
An even more radical extension was offered by a panel of the 7th Circuit Court of Appeals in Vance v. Rumsfeld (2011) (Vance I), overruled on rehearing by the circuit as a whole sitting ‘en banc’ (Vance v. Rumsfeld, 2012 – Vance II). 8 The panel upheld a decision by a trial judge rejecting a motion to dismiss by the defendants of a lawsuit by Iraqi detainees who accused the former Secretary of Defense Donald Rumsfeld and other officials of the Defense Department of creating policies that led to their torture. Although the plaintiffs were not prisoners under a penal sentence, the Due Process clause protects the same interests as the Eighth Amendment’s prohibition on ‘cruel and unusual punishment.’ Taking a bold step on an extremely controversial issue (the liability of Bush administration figures for torture during the war in Iraq), the Court of Appeals quoted some of Brown v. Plata’s strongest dignity rhetoric.
As the Supreme Court concluded recently, ‘[p]risoners 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.’ (Brown v. Plata, 608)
Limiting deference to prison administrations
Even before the PLRA, Supreme Court guidance already mandated federal courts to act with ‘sensitivity’ in replacing the decision-making authority of state prison officials with that of the court’s own. This special sensitivity was grounded in two distinct values. The first is federalism, the constitutional principle that leaves the US states with broad police powers to define crimes and punish those convicted. Since many court orders effectively burden the ability of states to imprison more people, they implicate the very question of how much punishment federalism grants states the right to impose. The second is broad judicial recognition of the especially dangerous nature of prisons as places and people in prison as a population to be governed (often described as ‘convicted criminals,’ conflating their juridical status and their positivist criminological status).
During the era of judicially imposed reform in prisons – the 1960s through the 1980s – the reputation of American prisons as humane improved, despite rising concerns about the very issues that have come to the fore today, such as mental illness and overcrowding. In the critical 1981 decision in Rhodes v. Chapman, involving the Southern Ohio Correctional Institution, the Court noted that the prison was new and included modern features such as a library, before dismissing the prisoners’ Eighth Amendment claim as amounting to no more than a demand for ‘comfortable’ prisons, one that the Constitution did not require states to provide. In the decades of mass incarceration that followed, prisons enjoyed a strong presumption of being secure and humane places, and prison administrators as making unenviable tradeoffs.
California’s gigantic failure to resolve its medical and mental health crisis in the first decade of 21st century compelled a majority on the Court to draw a line around their late 20th-century deference to prisons. Following on its statement regarding California prisons as failing to provide constitutionally minimum conditions for a ‘civilized society,’ the Court went on to speak very directly to district court judges around the nation:
If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation. . . . Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals. . . . Courts nevertheless must not shrink from their obligation to ‘enforce the constitutional rights of all “persons,” including prisoners.’ . . . Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.
Coming after years of Supreme Court encouragement of deference to state penal policies and correctional expertise, what might have been a statement of the obvious (constitutional rules are binding on courts) takes on the status of a possible course correction.
In the 2017 case of Savage v. Fallin, a federal magistrate in Oklahoma recommended against dismissing a prisoner complaint against Oklahoma state and prison officials alleging deliberate indifference to extreme danger to people caused by overcrowding and understaffing in units that contained as many as 230 prisoners in an open ward with one correctional officer. The litigation had already gone through several stages of appeal and reinstatement, and Oklahoma argued that the issue was moot (no longer relevant) because the prisoner was transferred in the interim to another prison (a common way for the state to disrupt or negate litigation victories by a prisoner). The Magistrate recommended allowing the case to go forward because of the strength of the underlying claim and the danger that the prisoner might face similar circumstances. The Magistrate noted:
The Supreme Court, too, has recognized the dangers posed by overcrowded and understaffed prisoners and has emphasized the responsibility of federal courts to intervene when the government has shirked its obligation to afford prisoners the human dignity emblematic of a civilized society; personal safety is one facet of the human dignity to which the Supreme Court was referring. (Savage v. Fallin, 8)
The Magistrate then went on to quote in full the long passage in the previous quotation.
In Postawko v. Missouri Department of Corrections (2018), the Eighth Circuit Court of Appeals turned aside an appeal from the Missouri Department of Corrections of a District Court’s decision to certify a class action for prisoners living with Hepatitis C who claimed the prisons were not able to provide adequate treatment. Turning aside the state’s assertion of federalism, the court quoted Plata: ‘Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration’ (Postawko v. Missouri Department of Corrections, 1040).
Recognizing Plata’s limits in an era of pandemics
Perhaps the most interesting sign of judicial empowerment through the Plata court’s invocation of human dignity is a decision that pointedly goes beyond the severe limitations in Plata imposed by the PLRA and thus not binding on state courts and in light of the Covid-19 pandemic emergency in prisons across the country. In a remarkable decision handed down as this article was being prepared for publication, an appellate court in California ordered the state to release or transfer to a different prison half of the current population of imprisoned people at Northern California’s San Quentin state prison (the oldest in the state) in the face of an already heavy infection by Covid-19. 9 The legal issue in this ‘habeas corpus’ case (a legal theory where the petitioner claims that their continued confinement violates some aspect of the Constitution) was whether the continued confinement of the petitioner, Von Staich and similarly situated imprisoned people, constituted ‘cruel and unusual punishment.’ The legal theory on behalf of the imprisoned petitioners was that the state officials in charge of the prison had enough knowledge about the danger posed to those imprisoned by exposure to Covid-19 in an overcrowded and archaic prison with no possibility of social distancing and a population compromised by age and chronic health issues for a court to decide that refusing to relieve that danger was ‘deliberate indifference,’ that is, the subjective element required for a violation of the Eighth Amendment. The state’s position was that, having taken some public health recommended steps to alleviate the risk, such as providing hand sanitizer to the people imprisoned, they had demonstrated their lack of indifference.
The unanimous three judge panel, in an opinion by Judge Anthony Kline, accepted the prisoners’ argument, citing the vast amount of scientific evidence cited by the petitioners and in friend of court briefs from medical, public health, and legal experts as to the danger facing the imprisoned people and the lack of adequacy to the state’s response, noting in the first page of the opinion that ‘we agree that the respondents – the Warden and CDCR [California Department of Corrections and Rehabilitation] – have acted with deliberate indifference and relief is warranted’ (In re Ivan Von Staich, 2). Perhaps more importantly, the case quite self-consciously anchored itself in Plata’s dignity talk, while conspicuously reaching beyond Plata’s limitations.
Reaching the crux of its analysis of deliberate indifference, the Von Staich court quoted the whole trinity of Plata’s dignity invocations. Summarizing evidence that the petitioners were particularly vulnerable to Covid and the prison was particularly ill suited to protecting their health, Judge Kline moved to a moral rather than simply a legal plane.
In the faces of this pandemic, which appears to take its greatest toll among older individuals and in congregate living situations, and in an aged facility with all the ventilation, spaces, and sanitation problems . . . respondents’ failure to immediately adopt and implement measures to eliminate double ceiling, dormitory style housing and other measures to permit physical distancing between inmates is morally indefensible and constitutionally untenable. ‘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.’” . . . 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 a civilized society.’ (In re Ivan Von Staich, 36)
The deep dive into Plata’s dignity talk stands in contrast to the very striking ways that the court distinguished the decision from Plata. First, the state argued that the whole action should be deferred in favor of a similar claim being made as part of the ongoing Plata case before the special three judge federal court (a procedure required by the PLRA), which has been considering demands to further reduce populations well beyond the 137 percent of design capacity fixed by the Plata court. The Von Staich court reasoned that the Plata case was inapt because it did not (and likely could not) anticipate something like the Covid-19 pandemic. Second, and most importantly, as a state court it was not bound by the very restrictive requirements of the PLRA that require federal courts to minimize interference with state prison operations even when constitutional rights are being violated.
In recognizing that state courts can actually go further than federal courts in protecting the human dignity of imprisoned people, the Von Staich opinion is a very promising picture of what the next phase of legal challenges to mass incarceration might look like, guided by dignity but not bound by Plata. The resulting order goes leagues beyond Plata. Whereas Plata required the state to get down to 137 percent of design capacity from something close to 200 percent at the worst phase of the litigation, the Von Staich court ordered the state, which had already reduced San Quentin’s population to close to its actual design capacity, to further reduce it by half. In doing so, the court fully recognized and indeed engaged directly with the fact that achieving this goal would require the state to possibly release imprisoned people convicted of violent crimes such as murder and kidnapping, something Plata refused to order and the state refused to do in complying.
No doubt the pandemic crisis has made possible a decarceration order as radical as Von Staich, and the state may yet succeed in appealing it to the California Supreme Court. Still, it suggests that the climate surrounding court actions such as Plata remained far too deferential to the punitive impulses of the state than the current climate will support.
Black lives, abolition and dignity
Changes in tone and attitude among federal judges in the decade following Plata, although significant (if real), pale in comparison to a strikingly parallel development, the rise of a dignity-based human rights movement, based not in courts or international charters but on the long history of Black resistance to the use of the carceral state as a tool of racial hierarchy-making and humanity-differentiating. Although predicting the trajectory of a social movement is always hazardous, I offer reasons why the growing strength of this movement could ultimately far surpass even the most optimistic observers of court-based reform of mass imprisonment.
The name of the Black Lives Matter movement is taken from a social media hashtag during street protests against police (and White citizen) claims of justification in killing unarmed Black men and women (Taylor, 2016) between 2012 and 2014. When demonstrations broke out in the Summer of 2014 following the killing of unarmed Black teenager Michael Brown by the police in Ferguson, Missouri, and in other cities, surveys showed huge gaps in perspective along racial lines. In a 2019 article discussing its recent surveys on policing and race, the PEW Research Center found in one survey that 61 percent of White adults thought that Black people were treated less fairly in the criminal justice system (compared with 87 percent of Black adults) but, in another survey on the same topic, only 32 percent of White adults thought this disparity was ‘a very big problem’ (compared with 79 percent of Black adults) (Gramlich, 2019). In the same survey, 72 percent of White adults said police do an ‘excellent’ or ‘very good’ job ‘protecting people from crime.’ When huge demonstrations broke out in June following the murder of George Floyd by several Minneapolis police officers, a brutal nine minutes of asphyxiation for no visible reason captured on cell phone video, perhaps combined with the strong racial injustices associated with Covid-19 deaths, has broken through for the first time to a majority of Whites (in a June 2020 survey). In their most recent survey, conducted in September of 2020, PEW found support had dropped a bit but remained above majority levels for all adults for the first time in survey history. As of September, 55 percent of adults said they supported the Black Lives Matter movement and the demonstrations (despite heavy press coverage of property damage and looting associated with some demonstrations,) including 45 percent of White adults (down from 60 percent in June, right after the Floyd murder).
In addition to gaining broad saliency and support, the 2020 Black Lives Matter movement, far more clearly than earlier in the decade, is articulating abolition not reform of the criminal justice system as the goal. In the following weeks and months scores of large and small cities have debated calls to ‘defund’ the police in favor of social services (Taylor, 2020). Although few expect majorities (even among Black citizens) to favor full abolition any time soon, there is little doubt that the injection of abolition discourse, with its roots in the Black radical tradition, is transforming the grounds for discussion of criminal justice reform.
Abolitionist discourse in the United States initially flourished during the same period it was influential in Europe – the late 1960s and early 1970s (Duran and Simon, 2019). Correctional systems focused on rehabilitation and individualized treatment were vulnerable to the abolitionist critique that prisons did more harm than good. As penal policies turned towards mass incarceration in the 1980s and beyond, abolitionist discourse was largely invisible and illegible to the broader debate about prisons and penal policy. Not so today: as mass incarceration has experienced a crisis of legitimacy, the increasingly visible linkage between structural racism and the harm of incarceration has renewed the relevance of abolition talk (applied to prisons, police, and indeed the penal state more generally). Examples of mainstream discourse showcasing abolition include a recent profile of long-term abolitionist Ruth Wilson Gilmore in The New York Times Magazine (Kushner, 2019) and a symposium on abolition in the Harvard Law Review (Cullors, 2019).
With its origins in radical Black liberation thought, we might take abolitionist discourse to be exceedingly distrustful of dignity talk coming from the core origins of the western legal state, and we would be right. Critical race theorists and other scholars of color are painfully aware of the history of being excluded from the category of human dignity as the latter has been articulated by elite legal institutions (Robinson, 2019). Yet, at the same time, the abolition tradition has placed the concept of dignity at the very center of its vision for transforming the carceral state. This does not mean their struggle will take the same path as the legal battle for dignity in the courts. It is primarily a political and social movement. But, since the legal concept of dignity feeds off the culture, the two are bound together. As Cullors (2019) writes in the conclusion to her introduction to the Harvard Law Review symposium:
Abolition must be a cultural intervention. It must produce a new way of being even in the most challenging and difficult moments. We have not collectively practiced abolition so it’s hard for us to understand its significance. But, if we implement a new practice that is centered in care and dignity, we might find a practice that challenges our instinct to ‘cancel’ each other. Abolition is about how we treat each other. It is about standing up for yourself. We need to be committed to building a culture that is rooted in care, dignity, and accountability.
Indeed, I would argue that, for the United States at least, the Black Lives Matter movement offers a vision of dignity that is freed from the ‘color-blind’ universalism and unattended-to history of colonialism that undermine legal dignity and is evident in its cautious application to mass incarceration. If the key objection to dignity as a discourse in the United States is that it ignores the anti-Black quality of the criminal justice institutions in favor of presumption that rights, once established, will apply equally to everyone, Black Lives Matter is a verbal commitment to making dignity matter for Black people in the United States. The underlying theme behind both is that human life is sacred and requires respect in all circumstances.
This suggests that the Black Lives Matter movement not only can take the fight against mass incarceration into the political process; it can also strengthen the legal meaning of dignity. The very fact that Cullors’ essay appeared in the Harvard Law Review, the academic journal most likely to be cited by lawyers and judges, suggests that these two streams can productively reinforce each other. The best way that legal discourses of dignity can check the historic tendency to read out the experience of peoples of color, indigenous people, laboring people, women, and queer people is to center their experiences in interpreting and applying its lofty terms. Once they do, it becomes obvious that a purely court-based approach to ending mass incarceration is incomplete. Demanding that state authorities respect the human dignity of those in custody while allowing them to ignore it completely otherwise is unsustainable and futile. Centering the experiences of outsider groups points beyond remedial court orders, which mostly require even more public investment in carceral institutions, to an abolitionist agenda in which the crisis of medical and mental health care, homelessness, and chronic unemployment in marginalized communities is resolved without prisons.
Conclusion: Dignity’s value
Courts in the United States are not going to declare mass incarceration unconstitutional and, if I seemed to suggest in Mass Incarceration on Trial (Simon, 2014) that Brown v. Plata marked a step in that direction, I overstated the case. In a much more incremental sense, Brown, with its massive record of depicting a humanitarian crisis behind bars and with its dignity rhetoric, seemed to have added momentum to what was already a growing tide of judicial concern about prison conditions in the United States in the era of mass incarceration. More than Europe, the United States relies heavily on federal judges, armed with moral intuitions and shielded in some degree by Supreme Court precedents, to set some limits to the diminishing standards of decency associated with punitive turns such as the one we have just been through. This revitalization of judicial pressure on the carceral states, modest in the best of times, now has the potential to encourage decarceration moves by states (unlike during the last such period), because crime rates are low and states are seeking their own paths towards smaller prison populations. 10
This brief examination of post-Brown v. Plata decisions in reported prisoner rights cases has identified three mechanisms by which the legal posture of prisoners has been improved and the potential for decarceration moves by courts improved. First, although epically expensive and prolonged (Schlanger, 2016), the record discussed in Brown v. Plata has created a kind of paradigm of Eighth Amendment violation that prisoners can replicate at least in their pleadings, and thus have a better chance of surviving early motions by state defendants to dismiss the case. Second, the opinion’s cascade of powerful dignity rhetoric, most of it in a couple of paragraphs, has become reinforcement for the willingness of trial judges to use their considerable discretion over fact-finding to push back on state prison systems that are ignoring clear evidence of medical and mental health failure. Third, after decades of reminding trial courts to be deferential to states and prison administration, Brown v. Plata has reinforced the centrality of judges to protect the rights of prisoners.
One case, and there is not likely to be another one from the current Court, does not a European Convention on Human Rights make. The United States ultimately needs a far more extensive human rights framework to make sure that mass incarceration is not allowed to return. That, however, requires a political consensus that still lies in the future. The potential for dignity to mobilize even more rapid change lies also in the political branches of the state and federal governments. Courts work most effectively when they catch an emerging culture trend early and accelerate it. The proximity of Brown v. Plata to the growing majoritarian force of the Black Lives Matter movement is a case not of causation but possibly of exactly this kind of prescience.
Precisely because it does have a wide cultural salience and resonance beyond its legal meanings, and with multiple communities within the United States’ now famously polarized society, dignity has the potential to become a crossover framework for the kind of broad legislative solution to the problems of hyper-marginalized communities whose needs have been hidden and exacerbated by the wars on crime and drugs fought on their terrain. More than the language of fiscal responsibility, but best when aligned with it, the rhetoric of dignity has the potential to address the colonialist and exclusionary legacies of its own European, Enlightenment origins. What drives resentment towards the penal state (and the state in general) in many of the communities whose marginalization lies in those origins, more than the lack of equality or freedom in the abstract, is the endless indignities it presents to individuals and whole communities in the form of police ‘stop and frisks,’ prison or jail searches, ankle bracelets for monitoring, and drug testing. This would suggest a vision of dignity that, as Patrisse Cullors suggests, takes on themes of acknowledgement and reparative justice.
Mass Incarceration on Trial was also guilty of presuming that, although mass imprisonment violates human dignity, there are reforms of imprisonment that could return prisons to places that respect human dignity. But that sentiment, shared by many others, presumed, first, that there was ever a time when American prisons respected human dignity, and, second, that, in a society where criminal justice is constitutively anti-Black, dignity-based reforms could adequately protect Black lives. Thus dignity going forward, at least in the United States, requires that abolition and not reform be the lodestar of change.
This concern about the limits of color-blind constitutional rights was powerfully articulated in Justice Sonia Sotomayor’s dissent in Utah v. Strieff a decision involving another facet of the US penal state: immunizing police stops without suspicion from the sanction of the exclusionary rule. In her evolving understanding of dignity, I take Justice Sotomayor (although she might reject the terms) to be constructing an abolitionist understanding of dignity.
This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, . . . many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. (Emphasis added)
After tying the case to other recent decisions diminishing the protections of the Fourth Amendment (the other important constitutional clause said to have its foundational values in dignity), Justice Sotomayor, the Court’s only Latina and one of the few with direct experience in the criminal justice system (albeit as a federal prosecutor), stated:
But it is no secret that people of color are disproportionate victims of this type of scrutiny. . . . . For generations, black and brown parents have given their children ‘the talk’ – instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger – all out of fear of how an officer with a gun will react to them. . . . By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’ They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but. (Utah v. Strieff, 2070–1)
It is most unlikely in the near future that Justice Sotomayor’s expansive democratic vision of what respecting dignity would look like will receive the support of a majority of Supreme Court justices. Yet it begins to articulate a concept of dignity that can overcome the legacies of its origins in colonialism, slavery, and exclusion. To overcome mass incarceration, something like this broad, restorative, reparative vision of dignity will need to spread in US culture, one that can nourish politics and law. It is already growing as a political force in local and state government but, as the open talk about ending mass incarceration and doing reparations for slavery in the 2020 Democratic nominating campaign, it will soon reach a national dimension.
