The Class Certification Issue in the California Prison Overcrowding Case
By Mike Dorf
As I discussed yesterday, Monday's Supreme Court decision in Brown v. Plata raises but doesn't ultimately resolve the question of how far Congress may go towards denying any and all judicial relief to people who have had their constitutional rights violated. I speculated that Justice Kennedy's opinion indicates that five justices (Kennedy himself, as well as Justices Ginsburg, Breyer, Sotomayor, and Kagan) are prepared to say that Congress cannot, outside of clearly recognized categories or without providing an adequate alternative, simply cut off what would otherwise be a standard judicial remedy for the violation of constitutional rights. In this follow-up post, I want to note how far in the other direction at least two justices (Scalia and Thomas) and possibly four (also CJ Roberts and Alito) seem willing to go in the other direction. To do so, I'll need to unpack a somewhat technical piece of Justice Scalia's dissent.
Plata is really two lawsuits: one, Plata itself, is a class action on behalf of California state prisoners with serious medical conditions. The other, Coleman v. Brown, is a class action on behalf of California state prisoners with serious mental illnesses. The three-judge court found that severe overcrowding in California prisons renders the state prison system as a whole incapable of delivering medical and mental health care that meets the minimum standards necessary to avoid imposing cruel and unusual punishment on prisoners. Justice Scalia's dissent takes issue with (among other things) that framing of the issue. He says that most prisoners in California--and even most prisoners with serious medical or mental health problems--will not receive sub-Eighth-Amendment-quality care, and thus most people in the prisoner class do not appear to have valid individual claims. Because the class action is a device for aggregating individually viable claims, Justice Scalia goes on, this means that Plata and Coleman are not good lawsuits, unless the prisoners are alleging a right to be imprisoned only in a prison system that provides systematically adequate medical or mental health care. But on the merits, Justice Scalia says, there is no such right. Thus, he concludes: "Whether procedurally wrong or substantively wrong, the notion that the plaintiff class can allege an Eighth Amendment violation based on 'systemwide deficiencies' is assuredly wrong."
What should we make of this objection? On the procedural side, I think Justice Scalia's point is that the classes of prisoners with serious medical conditions and those with serious mental health conditions are too broad. Instead, the respective classes should have been defined as prisoners who will receive such inadequate medical treatment or mental health treatment (including delayed treatment, incompetent treatment, or no treatment) as to violate the Eighth Amendment. BUT if the classes had been so defined, then, Justice Scalia might mean to be saying, no one would have had standing to serve as the respective class representatives, because no one can know in advance that his treatment or non-treatment will amount to cruel and unusual punishment.
If that sounds like a Catch-22, it is. Unfortunately, it's also the law. In the outrageous 1983 ruling in Los Angeles v. Lyons, the Court held that the victim of a previous near-fatal police choke-hold lacked standing to seek an injunction against future choke-holds by the LAPD because he could not show a sufficient probability that he would be subject to future choke-holds. So Justice Scalia could be saying in his Plata dissent that the plaintiffs in a properly defined class action would lack standing under Lyons (although he does not cite Lyons).
Let me be clear that I think a respectable argument can be made against the result in Plata: Justice Alito's dissent does a reasonably good job of it by pointing to the dangers that can arise from releasing criminals, even criminals judged to be relatively less dangerous than others, into the community. But the argument rooted in Lyons that I see as under-writing Justice Scalia's position does not rely on the danger that release may pose, and is therefore quite far-reeaching.
According to the district court, as quoted by the majority in Plata, "it is an uncontested fact 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 care offered by California prisons. In his dissent, Justice Alito contests this supposedly uncontested proposition by pointing to evidence about very recent developments that was excluded in the district court . But Justice Scalia's dissent appears to say that even assuming the one-avoidable-death-per-week statistic is accurate, there is no properly certifiable class.
So consider a slightly different case. Suppose that once every week, the California prison system holds a lottery among all of its prisoners, and then executes the lottery's "winner," regardless of the crime he committed. No doubt Justices Scalia and Thomas would agree that any person so chosen could go into a federal court to object that execution under these circumstances violates the Eighth Amendment. But now suppose that the State keeps the identity of the lottery "winner" secret until the moment of execution, which is accomplished by lethal poisoning of his and only his food in the prison cafeteria. Once again, Justices Scalia and Thomas would say that each prisoner thus poisoned suffers an Eighth Amendment violation, but under Lyons and their reasoning in Plata as I understand it, no prisoner and no class of prisoners would have standing to seek to enjoin the lottery-plus-poisoning scheme because no prisoner could know with a sufficiently high enough probability that he would be the one poisoned on any given week.
One could, of course, say that the state's deliberate weekly fatal poisoning of a randomly selected inmate is a more culpable act than its failure to reduce overcrowding, even if the poisoning and the overcrowding predictably result in an equal number of inmate deaths. However, that distinction has nothing to do with the class certification or standing issue. Accordingly, unless I have misread Justice Scalia's Plata dissent, he would have to say that even in the case of the deliberate random poisoning, no prisoner has standing to complain.
The best thing--and maybe the only thing--that could be said in favor of that position is that in the poisoning case there would be a political remedy: Exposure of the poisoning scheme to the court of public opinion would, one hopes, quickly bring it to an end. The same is not true, however, of Plata. Especially given the public safety issues raised by Justice Alito, the public are likely to be as indifferent to the suffering of prison inmates as are the prison authorities. For the majority in Plata, that's a reason why judicial intervention is needed. For the dissenters, the public indifference to prisoners' fates appears to count as a political judgment to which the courts should defer.
As I discussed yesterday, Monday's Supreme Court decision in Brown v. Plata raises but doesn't ultimately resolve the question of how far Congress may go towards denying any and all judicial relief to people who have had their constitutional rights violated. I speculated that Justice Kennedy's opinion indicates that five justices (Kennedy himself, as well as Justices Ginsburg, Breyer, Sotomayor, and Kagan) are prepared to say that Congress cannot, outside of clearly recognized categories or without providing an adequate alternative, simply cut off what would otherwise be a standard judicial remedy for the violation of constitutional rights. In this follow-up post, I want to note how far in the other direction at least two justices (Scalia and Thomas) and possibly four (also CJ Roberts and Alito) seem willing to go in the other direction. To do so, I'll need to unpack a somewhat technical piece of Justice Scalia's dissent.
Plata is really two lawsuits: one, Plata itself, is a class action on behalf of California state prisoners with serious medical conditions. The other, Coleman v. Brown, is a class action on behalf of California state prisoners with serious mental illnesses. The three-judge court found that severe overcrowding in California prisons renders the state prison system as a whole incapable of delivering medical and mental health care that meets the minimum standards necessary to avoid imposing cruel and unusual punishment on prisoners. Justice Scalia's dissent takes issue with (among other things) that framing of the issue. He says that most prisoners in California--and even most prisoners with serious medical or mental health problems--will not receive sub-Eighth-Amendment-quality care, and thus most people in the prisoner class do not appear to have valid individual claims. Because the class action is a device for aggregating individually viable claims, Justice Scalia goes on, this means that Plata and Coleman are not good lawsuits, unless the prisoners are alleging a right to be imprisoned only in a prison system that provides systematically adequate medical or mental health care. But on the merits, Justice Scalia says, there is no such right. Thus, he concludes: "Whether procedurally wrong or substantively wrong, the notion that the plaintiff class can allege an Eighth Amendment violation based on 'systemwide deficiencies' is assuredly wrong."
What should we make of this objection? On the procedural side, I think Justice Scalia's point is that the classes of prisoners with serious medical conditions and those with serious mental health conditions are too broad. Instead, the respective classes should have been defined as prisoners who will receive such inadequate medical treatment or mental health treatment (including delayed treatment, incompetent treatment, or no treatment) as to violate the Eighth Amendment. BUT if the classes had been so defined, then, Justice Scalia might mean to be saying, no one would have had standing to serve as the respective class representatives, because no one can know in advance that his treatment or non-treatment will amount to cruel and unusual punishment.
If that sounds like a Catch-22, it is. Unfortunately, it's also the law. In the outrageous 1983 ruling in Los Angeles v. Lyons, the Court held that the victim of a previous near-fatal police choke-hold lacked standing to seek an injunction against future choke-holds by the LAPD because he could not show a sufficient probability that he would be subject to future choke-holds. So Justice Scalia could be saying in his Plata dissent that the plaintiffs in a properly defined class action would lack standing under Lyons (although he does not cite Lyons).
Let me be clear that I think a respectable argument can be made against the result in Plata: Justice Alito's dissent does a reasonably good job of it by pointing to the dangers that can arise from releasing criminals, even criminals judged to be relatively less dangerous than others, into the community. But the argument rooted in Lyons that I see as under-writing Justice Scalia's position does not rely on the danger that release may pose, and is therefore quite far-reeaching.
According to the district court, as quoted by the majority in Plata, "it is an uncontested fact 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 care offered by California prisons. In his dissent, Justice Alito contests this supposedly uncontested proposition by pointing to evidence about very recent developments that was excluded in the district court . But Justice Scalia's dissent appears to say that even assuming the one-avoidable-death-per-week statistic is accurate, there is no properly certifiable class.
So consider a slightly different case. Suppose that once every week, the California prison system holds a lottery among all of its prisoners, and then executes the lottery's "winner," regardless of the crime he committed. No doubt Justices Scalia and Thomas would agree that any person so chosen could go into a federal court to object that execution under these circumstances violates the Eighth Amendment. But now suppose that the State keeps the identity of the lottery "winner" secret until the moment of execution, which is accomplished by lethal poisoning of his and only his food in the prison cafeteria. Once again, Justices Scalia and Thomas would say that each prisoner thus poisoned suffers an Eighth Amendment violation, but under Lyons and their reasoning in Plata as I understand it, no prisoner and no class of prisoners would have standing to seek to enjoin the lottery-plus-poisoning scheme because no prisoner could know with a sufficiently high enough probability that he would be the one poisoned on any given week.
One could, of course, say that the state's deliberate weekly fatal poisoning of a randomly selected inmate is a more culpable act than its failure to reduce overcrowding, even if the poisoning and the overcrowding predictably result in an equal number of inmate deaths. However, that distinction has nothing to do with the class certification or standing issue. Accordingly, unless I have misread Justice Scalia's Plata dissent, he would have to say that even in the case of the deliberate random poisoning, no prisoner has standing to complain.
The best thing--and maybe the only thing--that could be said in favor of that position is that in the poisoning case there would be a political remedy: Exposure of the poisoning scheme to the court of public opinion would, one hopes, quickly bring it to an end. The same is not true, however, of Plata. Especially given the public safety issues raised by Justice Alito, the public are likely to be as indifferent to the suffering of prison inmates as are the prison authorities. For the majority in Plata, that's a reason why judicial intervention is needed. For the dissenters, the public indifference to prisoners' fates appears to count as a political judgment to which the courts should defer.