October/November 2015
Correctional Law Reporter Page 41
From the Literature . . .
by James E. Robertson*
Justifying Plata v. Brown, 131 S. Ct. 1910
(2011): Revisiting John Hart Elys
Democracy and Distrust
Featured
Democracy and Distrust: A Theory of
Judicial Review
John Hart Ely
Cambridge, MA: Harvard University
Press (1980)
Referenced
Due Process in Prison: Protecting In-
mates Property After Sandin v. Conner
Kaitlin Cassel
112 Columbia L. Rev. 2110 (2012)
Can Process Theory Constrain Courts?
Michael C. Dorf & Samuel Issacharoff
72 Univ. of Colo. L. Rev. 923 (2001)
Judicial Policy Making and the
Modern State: How the Courts
Reformed Americas Prisons
Malcolm Feeley & Edward Rubin
Cambridge, UK: Cambridge University
Press (1998)
Preparing Convicts for Law-Abiding
Lives: The Pioneering Penology of
Richard A. McGee
Daniel Glaser
Buffalo, NY: State University of New
York Press (1995)
Anthony M. Kennedy, keynote address
American Bar Association annual meet-
ing in San Francisco, August 2003
http://www.november.org/stayinfo/
breaking/Kennedyspeech.html
*James E. Robertson is Distinguished Faculty
Scholar and Professor of Corrections at Min-
nesota State University. He is a graduate of the
law schools of Washington University and Oxford
University. As editor-in-chief of the Criminal Law
Bulletin, a law journal published by West, he wel-
comes submissions by the readers of CLR via e-
mail attachment to james.robertson@mnsu.edu.
Suggestions for items to review are appreciated.
2015 Civic Research Institute. Photocopying or other reproduction without written permission is expressly prohibited and is a violation of copyright.
A Political Process Theory of Judicial
Review Under the Religion Clauses
Carlton Morse
80 Southern California L. Rev. 793
(2007)
Plata v. Brown and Realignment: Jails,
Prisons, Courts, and Politics
Margo Schlanger
48 Harvard Civil Rights-Civil Liberties
L. Rev.165 (2013)
Originalism: The Lesser Evil
Antonin Scalia
57 Univ. of Cincinnati L. Rev. 849 (1989)
Mass Incarceration on Trial
Jonathan Simon
New York, NY: The New Press (2014)
Cleaning Up the Eighth Admendment
Mess
Tom Stacy
14 William & Mary Bill of Rights Journal
475 (2005)
The Ghost of Richard McGee
I can readily imagine what the ghost
of Richard McGee would say as he walks
the cellblocks of Californias state pris-
ons. When McGee ended his long direc-
torship of the states department of cor-
rections in 1967, he left a prison system
second to none (see Daniel Glaser, 1995).
Today, he would be teary-eyed after see-
ing first-hand why the U.S. Supreme
Court in Plata v. Brown, 131 S. Ct. 1910
(2011), upheld a three-judge court order
reducing the states prison population by
some 36,000 inmates in order to remedy
an overtaxed correctional health care sys-
tem regarded as cruel and unusual punish-
ment.
Earlier, in 2003, Justice Kennedy had
warned of the coming crisis: it is not ac-
ceptable ... for all our prisons to borrow a
sign from Dantes Inferno: Leave aside
all hope all ye who enter here (Kenne-
dy, ABA keynote address). The California
legislature through design and neglect
had forced its prisons to erect that sign.
As Berkeleys Jonathan Simon (2014) ob-
served, California practiced a totalitarian
brand of mass incapacitation whereby
the notion of shared humanity was
abandoned in the treatment of prisoners
(p. 41). In Plata v. Brown, the Supreme
Court effectively ordered the return of the
sign designating Californias prisons as
places without hope.
What Does Plata Stand for?
Plata is an important decision if for no
other reason than that spoken of by Uni-
versity of Michigan law professor Margo
Schlanger (2013, p. 165):
Not since 1978 had the Court ratified
a lower courts crowding-related or-
der in a jail or prison case, and the
order before the Court in 2011 was
fairly aggressive; theoretically, it
could have (although this was never
a real prospect) induced the release
of tens of thousands of sentenced
prisoners or the expenditure of bil-
lions of dollars in new prison con-
struction.
With nary a vote to spare, the swing
Justice, Anthony Kennedy, joined with
the Courts four liberal Justices to form
the Courts majority in Plata. He did so
for a reason worth remembering, enforc-
ing an Eighth Amendment that protects
the human dignity of arguably our most
reviled outcastsprisoners. Just as a
prisoner may starve if not fed, wrote
Justice Kennedy, he or she may suffer or
die if not provided adequate medical care.
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 civi-
lized society (Plata, 131 S. Ct. at 1928).
Not surprisingly, Justice Scalia took
issue with Justice Kennedys majority
opinion. For him, the Plata majority had
See FROM THE LITERATURE, next page
Page 42 Correctional Law Reporter October/November 2015
FROM THE LITERATURE, from page 41
acted on policy preferences (Plata, 131
S. Ct. at 1955, Scalia, J. dissenting), the
worst judicial sin imaginable for a self-
declared faint-hearted originalist (i.e., a
judge who looks to the Framers intent),
like Justice Scalia (1989, p. 264).
The charge that Plata rested on policy
preferences must be given serious con-
sideration. After all, the sparse text of the
Eighth Amendments Cruel and Unusual
Punishment Clause led Malcolm Feeley
and Edward Rubin in their seminal book
Judicial Policy Making and the Modern
State (1998) to characterize the judicially
mandated reform of state prisons follow-
ing the collapse of the hands-off doc-
trine as an act of judicial policy making
(pp. 13-14). When used by the courts,
explained Feeley and Rubin, policy mak-
ing creates a serious legitimacy problem
in that the concepts of federalism and the
division of powers engrained in the U.S.
Constitution, calls for the executive and
legislative branches of state government
to make state correctional policy, not the
unelected judicial branch of the federal
government (pp. 17-18). Judge Scalia, in
his dissent in Plata, would have agreed
100%.
Judge Hendersons Answer
While the prisoners rights bar should
praise Justice Kennedys majority opinion
in Plata, a special tribute is owed to the
senior U.S. District Judge for the North-
ern District of California, Thelton Hen-
derson. He came to prominence in Ma-
drid v. Gomez, 889 F. Supp. 1146 (N.D.
Cal. 1995), where he found features of
the security housing unit at Californias
Pelican Bay Prison to impose cruel and
unusual punishment. The coming of the
new century brought much of the Plata
litigation to his courthouse:
In 2001, after the Plata class-action
lawsuit was filed in federal district
court, Judge Henderson in Plata v Da-
vis, No. 3:01-cv-01351 (N.D. Cal. Apr.
5, 2001), oversaw the stipulation for
injunctive relief.
In 2005, in Plata v. Schwarzenegger,
2005 WL 2932253 (N.D. Cal., Oct. 3,
2005), Judge Henderson appointed a
receiver to implement the overhaul of
the states correctional health care sys-
tem.
In 2009, Judge Henderson joined two
other judges on the district court panel
in Coleman v. Schwarzenegger, 922
F. Supp.2d 882 (E.D. Cal. 2009), in
2015 Civic Research Institute. Photocopying or other reproduction without written permission is expressly prohibited and is a violation of copyright.
ordering a significant reduction in the
states prison population as a partial
remedy for its overburdened prison
health care system.
In Mass Incarceration on Trial (2014),
Jonathan Simon observed that through
his long experience with Madrid as well
as Plata, Judge Henderson had become
convinced that ... California officials were
not capable of reordering the prison health
care system (p. 94). That realization
likely led to the penultimate paragraph in
Coleman, 922 F. Supp.2d at 1003, which
advances a rationale for judicial interven-
tion on behalf of prisoners:
[D]uring the 8 years of the Plata
litigation and the 19 years of the
Coleman litigation, the political
branches of California government
charged with addressing the crisis
in the states prisons have failed to
do so. Instead, the rights of Califor-
nias prisoners have repeatedly been
ignored. Where the political process
has utterly failed to protect the con-
stitutional rights of a minority, the
courts can, and must, vindicate those
rights. See John Hart Ely, Democ-
racy and Distrust 103, 173 (1980).
Importantly, the above paragraph ends
with the following attribution: See John
Hart Ely, Democracy and Distrust 103,
173 (1980). Ely remains one of the most
cited and discussed commentators on
judicial review (Morse, 2007). And the
book that the Coleman court cites, Elys
Democracy and Distrust: A Theory of
Judicial Review (1980), is regarded as
extraordinarily influential (Michael C.
Dorf & Samuel Issacharoff, 2001, p. 927).
Indeed, it is most cited legal work since
its publication in 1980 (Morse, 2007).
In Democracy and Distrust, Ely sought
to reconcile judicial review with popular
democracy. For Ely, judicial review is
necessary and legitimate when it seeks
to correct a malfunction in representa-
tive democracy. A malfunction occurs,
according to Ely, when (1) the channels
of political change are choke[d] off so
as to disempower a would-be majority (p.
103); or (2) when a minority group is sub-
ject to indefensible inequities or other
acts of ill-will by those who control the
legislative process (p. 153).
For Judge Henderson, the Plata plain-
tiffs experienced first-hand just the sort
majoritarian ill-will that for Ely justified
judicial intervention. To a significant
extent, wrote Judge Henderson in Plata
v. Schwarzenegger, 2005 WL 2932253,
at *32 .D. Cal. Oct. 3, 2005), this case
presents a textbook example of how ma-
joritarian political institutions sometimes
fail to muster the will to protect a disen-
franchised, stigmatized, and unpopular
subgroup of the population.
In describing prisoners in California
and elsewhere in terms that speak to their
vulnerability to abuse and neglect at the
hands of popular democracy, Judge Hen-
derson did ask the reader to accept this
characterization at face value. If you need
convincing, Professor Tom Stacy (p. 528)
of the University of Kansas Law School
provides independent corroboration:
In most states, those convicted of
serious felonies are disabled from
voting. In addition to such formal
political exclusion, which would
justify skeptical judicial review
of prison conditions and recidivist
statutes, the stigma that surrounds
criminal conviction inhibits poten-
tial targets of criminal punishment
from forming interest groups. While
some interest groups exist to oppose
criminalization of such controversial
activities as abortion, unrestricted
firearm possession, gambling, and
medical use of marijuana, there is
no National Association of Burglars
pushing for more respectful treat-
ment of its members. Even if such
groups did exist, mainstream interest
groups would be loath to ally with
such disreputable partners.
Conclusion
In Democracy and Distrust, Ely sought
to legitimate the rights revolution
worked by the Warren Court. However,
one group of outcaststhe nations pris-
onershad been largely excluded from
the arc of the Warren Court. Their rights
revolution came after the Chief Justices
resignation in 1969 and was largely the
workings of the lower federal courts (see
Cassel, 2012).
By invoking Elys Democracy and
Distrust and its justification for judicial
intervention, Judge Henderson likely
wanted his readers to view the judiciarys
role in policing prisons as anything but an
anomaly. His rulings in the Plata litiga-
tion should be seen as part of its larger
judicial functionmaking government
accountable when it fails to accord equal
concern and respect for all individuals,
including those persons burdened by the
stigma of criminality. n
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