This week the Supreme Court, via a one-line order by Justice Anthony Kennedy, dismissed an appeal in Brown v. Plata for want of jurisdiction. Thousands of law students enrolled in Fed Jur and Fed Courts classes this semester may argue that there’s nothing sexy about jurisdiction, even by law’s substantially reduced standards for “sexiness.” The dismissal of Plata, though, has some significant effects for millions of people.

In 2011, the Supreme Court ruled in a 5-4 opinion authored by Justice Kennedy that overcrowding in California prisons caused continuing violations of prisoners’ Eighth Amendment rights to adequate health care and that the overcrowding problem required a population limit. (Justice Scalia dissented, joined by Justice Thomas. Justice Alito also dissented, joined by the Chief.) As a result, California Governor Jerry Brown needed to drastically improve prison conditions or drastically reduce the state’s prison population by releasing inmates.

A flurry of state appeals and motions to change the original order ensued. Then, on September 24 of this year, a three-judge panel gave Brown until the end of January to meet its original order to remove more than 9,600 inmates from California prisons by the end of the year, absent successful negotiations with the plaintiffs. In an attempt to sufficiently improve prison conditions, Governor Brown negotiated a deal with legislators to spend $400 million on improvement of health care services to California prisoners, but he believed he needed more time in order to fully comply by the panel’s deadline. He filed an an appeal for a stay with SCOTUS….

The Supreme Court’s order this week simply states that Governor Brown’s appeal was dismissed for want of jurisdiction under 28 U.S.C § 1253. The brief in opposition to the application for the stay lays out the argument for lack of jurisdiction, fleshing out the likely basis for the decision. In short, federal law limits the right to appeal in cases like this to challenging lower-court rulings that either issue or deny a binding court order to take some action. The lower court here had only modified its prior orders. So, if the Governor wanted to challenge the district court’s mandate in this case, he needed to do so before the Ninth Circuit, not directly before SCOTUS.

Now Brown must return to the negotiating table. Or, more properly, tables. He’s got to satisfy both California lawmakers, whose support he needs for prison reform, and the plaintiffs in Plata, who demand that he drastically reform the prisons or further slash the inmate population.

While courts continue to find the conditions in California prisons so atrocious as to warrant releasing current inmates in order to reduce to prison population, let’s not forget the implications of that measure. Releasing criminal offenders back into mainstream society simply to avoid overcrowding means . . . increasing the number of criminal offenders in mainstream society.

An amicus brief filed on behalf of former California governors argued that SCOTUS ought to have granted the stay Governor Brown asked for, not simply because of the irreparable harm done to the state of California as a political entity, but because of the harm done to the victims of crimes that could have been prevented but for the measures taken to reduce the prison population. The brief argues:

On May 6, 2013, the Federal Bureau of Investigation released its preliminary statistics on crime in the United States for 2012. This is the first full year after the principal measures to reduce California’s prison population took effect. [ . . . ] The preliminary report does not give statewide totals, but only totals for cities over 100,000 in population. Even so, by comparing the changes in the total crimes for these cities with the national changes in the same period, we can get a preliminary indication of the direction of crime rates in California, controlled for overall national trends.

The brief goes on to report that:

  • Murder increased only 1.5% nationally but 10.5% in California cities.
  • Rape declined 0.3% nationally but increased 6.4% in California cities.
  • Burglary declined 3.6% nationally but increased 7.9% in California cities.
  • Theft crimes generally stayed flat nationwide, but increased 9% in California cities.
  • Auto theft in particular increased only 1.3 % nationally but increased a whopping 15% in California cities.

The facts underlying the original case, tales of shameful inmate treatment in California’s overcrowded prisons, are nothing to ignore, even if you disagree that they constituted a clear violation of the Eighth Amendment. At the same time, if the data above are at all trustworthy, then there’s good reason to worry that Californians would be significantly less safe if Governor Brown releases thousands more offenders in order to comply with the court’s order. That’s not exactly good news for anyone, especially the thousands of lower-income Californians who are disproportionately harmed by many of the theft crimes that threaten to rise if a substantial number of prisoners are released from custody.

Unfortunately for all Californians, the consequences of Brown v. Plata are nothing to dismiss.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at tabo.atl@gmail.com


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