I’m stuck in Folsom Prison /And time keeps
draggin’ on… ~ Folsom Prison
Blues, Johnny Cash (1966)
If the inmate
of the Johnny Cash song was still in Folsom State Prison in 2011, he might not have
to pine for freedom very much longer. The Supreme Court ruled on May 23 that
California must reduce the population of its prison system by as much as 46,000
(out of a total of 159,000) in order to meet the demands of the Eighth
Amendment (Brown v. Plata, no. 09-1233).
California may rightly wonder how nine judges on the other side of the
continent have anything to say about how the Golden State runs its prisons. This
article will describe how the federal courts have applied the federal Eighth
Amendment to this purpose in the past several decades. A sequel will describe
the specifics of the Court’s May 23 ruling and offer comments.
and the rights they guarantee are applicable to governments, not to private
institutions. While it is easy to see that federal constitutional rights
protect against intrusions by the federal government, it is not so easy to see
how the federal constitution can be used against state governments on behalf of
individual rights. In fact, for most of its history, American law operated on
the opposite assumption: the federal Bill of Rights (the first ten Amendments
to the Constitution) operated only to limit the federal government. A corollary
was that it was state bills of rights that constrained state governments.
1961, with the US Supreme Court’s decision in Mapp v. Ohio, 367 U.S. 643 (1961), those principles were discarded by
the US Supreme Court. In Mapp, the Supreme Court decided that the 14th
Amendment “incorporated” at least some, if not all, of the rights
guaranteed by the federal Bill of Rights into the due process and equal
protection clauses found in the 14th Amendment. This is worth some effort to
work through, because the principle of Mapp undergirds so much of what
the federal courts consider to be perhaps their most important role in American
Here is the
text of the relevant portion of the 14th Amendment: “… nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the
laws.” It was pretty well settled for several decades after enactment of
the 14th Amendment in 1868 that, apart from the racially-prejudiced official
behavior that the 14th Amendment was intended to remedy (which is a separate
story), “due process” as applied against the states did not encompass
the enumerated rights of the federal Bill of Rights.
Such rights as
free speech, free exercise of religion, no self-incrimination, jury trial — these
and more were guaranteed against state government abuses by provisions of state
constitutions, not the federal Constitution. The courts and society in general
reasoned that state courts had both the authority and the responsibility to
upheld those rights against state governments.
shortcomings of the states in enforcing their own constitutions, and the
importunings of citizens harmed by arbitrary and even malicious law enforcement
abuses, chipped away over time at the reluctance of federal courts to interfere
with state criminal laws and procedures. (See Wolf v. Colorado, 338 U.S. 25 (1949)). Finally, in 1961, the federal
Supreme Court upended settled law by holding in Mapp v. Ohio that the
right of “due process” in the 14th Amendment “incorporated”
some of the specific protections found in the federal Bill of Rights. Thus, the
Fourth Amendment right to be free of illegal searches and seizures was
“incorporated” into the 14th Amendment “due process”
clause, and Ms. Mapp’s conviction of possession of obscene materials was
reversed because the evidence on which she was convicted was seized during what
amounted to an illegal invasion of her home by law enforcement officers.
It did not take
long for the federal courts to incorporate many more protections of the federal
Bill of Rights into the “due process” clause, and the Eighth
Amendment was one of the first. Robinson v. California, 370 U.S. 660 (1962) holds that punishing a person for
the crime of being addicted to narcotics is “cruel and unusual punishment”
under the Eighth Amendment.
Amendment is short: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” The Amendment
is not intended to address uncomfortable conditions, even harsh conditions. “To
the extent that such conditions are restrictive and even harsh, they are part
of the penalty that criminal offenders pay for their offenses against
society.” (Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
On the other
hand, it is just as true that “[c]onditions in prison must not involve the
wanton and unnecessary infliction of pain, nor may they be grossly
disproportionate to the severity of the crime warranting imprisonment.” (Id.)
“An inmate must rely on prison authorities to treat his medical needs; if
the authorities fail to do so, those needs will not be met. In the worst cases,
such a failure may actually produce physical “torture or a lingering
death,” the evils of most immediate concern to the drafters of the
Amendment. In less serious cases, denial of medical care may result in pain and
suffering which no one suggests would serve any penological purpose.” (Estelle
v. Gamble, 429 U. S. 97, 104 (1976) internal citations omitted.)
the California author famous for his stories of the Yukon (White Fang),
wrote a somewhat uneven novel that described life in a California prison in the
early years of the last century, The Star Rover (available free on-line
because the copyright has expired). The Star Rover is
simultaneously an expose of prisoner abuse at San Quentin Prison, a tale of
reincarnation (the prisoner goes into trances during torture in which he
relives or remembers earlier lives), and a call to end capital punishment. If
the description of prison life is at all accurate, then abuse of prisoners and
sometimes torture was a constant part of prison life a hundred years ago. Fifty-plus
years later, the movie Cool Hand Luke illustrated prisoner abuse of a
similar degree. There is little reason to think London was exaggerating about
1910 California prisons. The cases that reached federal courts in the same time period suggest that similar treatment of prisoners was not rare in state penal institutions.
In the 1970s
and 1980s, the interventions of the federal courts into state prison systems
expanded into broad remedial injunctions, up to the point where appointees of
federal judges were placed in charge of certain prison operations in at least
two dozen states. (See the list in Rhodes v. Chapman, 452 U. S. 337,
353-54 n. 1 (1981) (Brennan, J. concurring)). By the mid-1990s, Congress tried
to rein in what it perceived as too much judicial eagerness to run prisons by
enacting the Prison Litigation Reform Act of 1995. That federal statute did not
forbid federal courts from considering inmate lawsuits, for that would have
itself violated the Eighth Amendment and due process, but it listed what were
intended to be strict standards for entering judgments in the prisoners’ favor.
It was hoped that the PLRA would reduce the number of occasions in which the
federal courts would intervene in the operations of state prison institutions.
Congress’ intent fared in the Supreme Court’s May 23 decision in Brown v. Plata
will be explored in the next article.
But I know I had it comin’ / I know I can’t
be free / But those people keep a-movin’ / And that’s what tortures me.
James S. Cole graduated from Harvard Law School and
practices law in St. Louis, Missouri.