Tuesday, February 10, 2009

Coleman/Plata v. Schwarzenegger: Initial Insights

The full text of the District Court's tentative opinion is here.

A few points of interest:

The court was basically faced with an issue of causality, namely, whether the health system's conditions are due to overcrowding. It agrees with the Govt. that "the delivery of constitutional medical and mental health care in prisons is a complicated and 'polycentric' problem". In doing so, the court is invoking a concept from Lon Fuller's 1971 classic "The Limits and Forms of Adjudication". But, interestingly, by invoking that concept it may be saying some difficult thing about its own ability to properly adjudicate this conflict. Fuller says:

Now, if it is important to see clearly what a polycentric problem is, it is equally important to realize that the distinction involved is often a matter of degree. There are polycentric elements in almost all problems submitted to adjudication. A decision may act as a precedent, often an awkward one, in some situation not foreseen by the arbiter. Again, suppose a court in a suit between one litigant and a railway holds that it is an act of negligence for the railway not to construct an underpass at a particular crossing. There may be nothing to distinguish this crossing from other crossings on the line. As a matter of statistical probability it may be clear that constructing underpasses along the whole line would cost more lives (through accidents in blasting, for example) than would be lost if the only safety measure were the familiar "Stop, Look & Listen" sign. If so, then what seems to be a decision simply declaring the rights and duties of two parties is in fact an inept solution for a polycentric problem, some elements of which cannot be brought before the court in a simple suit by one injured party against a defendant railway. In lesser measure, concealed polycentric elements are probably present in almost all problems resolved by adjudication. It is not, then, a question of distinguishing black from white. It is a question of knowing when the polycentric elements have become so significant and predominant that the proper limits of adjudication have been reached.

Has the District Court reached the "limit of adjudication", beyond which it is engaging in managerial, rather than judicial, tasks? The panel judges do not think so. They go on to say:

[W]e believe that a polycentric problem can have a primary cause – a cause that underlies and affects nearly every dimension of the problem and that in this case must be substantially mitigated before the constitutional failure can be resolved. Evidence offered at trial was overwhelmingly to the effect that overcrowding is the primary cause of the unconstitutional conditions that have been found to exist in the California prisons. There is, for example, uncontroverted evidence that, because of overcrowding, there are not enough clinical facilities or resources to accommodate inmates with medical or mental health needs at the level of care they require. There is also uncontroverted evidence that, because of overcrowding, there are not enough clinical or custodial personnel to ensure that inmates with medical or mental health needs are receiving appropriate treatment, are taking the medications that they need to take, are being escorted to their medical appointments in a timely manner, and are having their medical information recorded and filed properly. Additionally, as the Governor has stated, and as the California appellate court has found, overcrowded conditions – the use of triple bunks in gymnasiums and other areas not intended to be used for housing, for example – have “substantially increased the risk of the transmission of infectious illnesses among inmates and prison staff.”

Another interesting bit is the role played by the medical system's Receiver's work in all this. As the court notes, the argument against releasing prisoners relies, in part, on attributing the conditions to other factors. As proof of this,

[t]he defendants argue that the work of the Receiver and the Special Master has significantly improved the conditions in the prisons, and that with more time the Receiver and California Department of Corrections and Rehabilitation (sometimes referred to as CDCR), as monitored by the Special Master, can remedy the constitutional violations without decreasing the prison population.

This is somewhat ironic, because the government seems to be relying on the quality of the Receiver's work while, at the same time, trying to remove him from his position. The irony does not escape the court:

The defendants argue that the Receivership and the Special Master’s monitoring efforts constitute other “relief” short of a prisoner release order that could remedy the constitutional violations. But the defendants have opposed the Receiver’s work in Plata and are seeking the dissolution of the Receivership.

And it becomes even more interesting when the court goes on to protect the receivership by presenting the Receiver's position regarding what is and is not possible to achieve in CA prisons:

The Special Master stated that although much has been achieved in the past eleven years, “many of these achievements have succumbed to the inexorably rising tide of population.” Pls.’ Exh. P-35. The Receiver stated in a letter to the Governor and legislators dated July 24, 2006, that “[i]t will not be possible to raise access to, and quality of, medical care to constitutional levels with overpopulation at its current levels.” Pls.’ Exh. P-55. In addition, of course, the Receiver’s ability to help ameliorate the overcrowding is currently seriously threatened by the defendants’ actions to cut off his funding and terminate the receivership.

Another interesting aspect of the decision is the court's assessment of what level of capacity would constitute compliance with constitutional standards. The evidence cited in the decision points out to levels far above 100% capacity as "acceptable".

One important argument made by the Govt., which does not seem to be adequately answered in the decision, is the economic impact of releasing tens of thousands of inmates into the job market without proper skills or a decent re-entry program. The court responds to the counties' concerns by saying,

This, however, appears to be an existing problem regardless of whether the prisoners are released under the current regime or pursuant to the reform measures. More important, the Expert Panel found that, if CDCR were to adopt the recommended combination of earned credits and parole reform, it could save $803 to $906 million annually. These savings could be diverted from the current prison budget to fund community based programming, which would allow the communities to continue and expand the programs that they have described to the Court.

But, for the saved money to optimally provide systematic reentry programs, these need to be carefully thought out and created in an atmosphere of cooperation rather than contention. And what good might it do to release folks without a properly designed and funded guiding hand without reforming parole regulation to provide a sensible, consistent regime of assessing parole violations?

It is important to note that the order is a tentative ruling, meant to prepare the parties to the implications of the final order, which brings us back to Fuller and his polycentric problems. Part of the reason why adjudication is unsuitable, by design, to address such problems, is that adjudication is a zero-sum game; there are winners and losers. This might not be the best approach to solve the problem CA prisons face. Is the tentative order conducive to bringing all concerned parties together and seeking a sensible release and reentry regime?

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