Brown v. Plata: Do photographs of California's overcrowded prisons belong in a Supreme Court decision about the case?
Brown v. Plata: Do photographs of California's overcrowded prisons belong in a Supreme Court decision about the case?
The law, lawyers, and the court.
May 23 2011 6:45 PM

Show, Don't Tell

Do photographs of California's overcrowded prisons belong in a Supreme Court decision about those prisons?

Prison. Click image to expand.
Photos from California's overcrowded prison system

California's prisons are so overcrowded, the Supreme Court ruled today, that they are a violation of the Constitution's ban on cruel and unusual punishment. Writing for the majority in Brown v. Plata, Justice Anthony Kennedy spent 48 pages carefully explaining why the state must release or relocate some 32,000 inmates over the next two years. Then, to drive home his argument, Kennedy attached three grainy black-and-white photographs to the opinion. Whether those photos will change anyone's mind about the morality of prison overcrowding is open to debate. Whether they should may be the more important, and more interesting, question.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

The consolidated appeal comprised two class-action suits, one of which dates to 1990 and challenges prison conditions for prisoners with serious mental health problems. The second was filed on behalf of prisoners with serious medical needs. Almost 15 years ago, the courts found these conditions to be unacceptable. In 2005, a federal court determined that "on average, an inmate in one of California's prisons needlessly dies every six to seven days due to constitutional deficiencies in the medical delivery system." But conditions continued to deteriorate, and in 2009 a three-judge panel ordered California to reduce its prison population to 137.5 percent of the prisons' design capacity within two years. (The system was designed to hold just under 80,000 prisoners, but at the time of the oral argument, it had more than 142,000, and Kennedy notes that since then the state has transferred about 9,000 inmates to county jails.) The state appealed, arguing among other points that it hadn't enough time to remedy the problems.


In  the court's 5-4 decision, Kennedy piles up damning evidence of Eighth Amendment violations. "Prisoners are crammed into spaces neither designed nor intended to house inmates," he writes. "As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correctional officers. … As many as 54 prisoners may share a single toilet." In 2006, he notes, the suicide rate in the prisons approached one per week. Because the facilities lacked treatment beds, suicidal inmates were "held for prolonged periods in telephone-booth sized cages without toilets." Kennedy explains that "a psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had 'no place to put him.' " Prisoners with treatable illnesses died awaiting basic care. "In one facility," Kennedy writes, "staff operate out of converted storage rooms, closets, bathrooms, shower rooms, and visiting centers."

Upon reviewing this massive record of abuse and malpractice he likens to "torture or lingering death," Kennedy concludes: "The medical and mental health care provided by California's prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding. … The State shall implement the order without further delay."

To emphasize this point, Kennedy appends to the opinion three black-and-white photographs of the prison conditions he has just described. This includes an image of the locker-like dry cages for inmates awaiting a mental health crisis bed at the Salinas Valley State Prison. The image of those cages is horrifying, and will doubtless move those who agree with Kennedy, the ACLU, and other prison reformers  to believe that the California system is sinfully inadequate. But should the court be using visual aids to prompt emotional responses or be inviting citizen fact-finding in the first place?

Prison. Click image to expand.
Photos from California's overcrowded prison system

This is not a new phenomenon. According to Hampton Dellinger in a prescient 1997 law review article on the subject, "seminal decisions have employed attachments, ranging from the purportedly 'bizarre' outline of North Carolina's congressional districts appended to the majority's opinion in Shaw v. Reno, to the seven pages of photographs accompanying Chief Justice Warren's concurrence in the first major challenge to the televising of trials, to the allegedly libelous newspaper advertisement affixed to the opinion of the court in New York Times Co. v. Sullivan." Dellinger's conclusion is that these materials contribute very little, and in fact damage the credibility of the court.

The most recent audio-visual footnote to a court opinion came with Justice Antonin Scalia's majority opinion in Scott v. Harris, the famous 2007 police-chase case, caught on videotape from inside a police cruiser. In Harris the court ruled, 8-1, that a police officer did not violate the Fourth Amendment's ban on unreasonable search and seizure when he deliberately smashed his car into that of a fleeing driver who refused to stop, rendering the driver a quadriplegic as a result. The video changed everything, and the court admitted it. At oral argument, Scalia, referring to the video, said the fleeing driver "created the scariest chase I ever saw since The French Connection." Justice Stephen Breyer, at the same argument, admitted to the plaintiff's lawyer, "I was with you when I read … the opinion of the court below. … Then I look at that tape and that tape shows he is weaving on both sides of the lane, swerving around automobiles that are coming in the opposite direction with their lights on. … Am I supposed to pretend I haven't seen that?"

Scalia uploaded the video along with the opinion, inviting America to have a look. "We are happy to allow the videotape to speak for itself," he wrote. In a lone dissent, Justice John Paul Stevens argued that the video didn't prove what the majority claimed and that the issue should have gone to a jury instead of "being decided by a group of elderly appellate judges."

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