Prison conditions update

The court told California’s politicians that if they couldn’t treat their prisoners decently, they couldn’t have as many prisoners.

Greg Bluestein of the Associated Press has a roundup of reaction to the Supreme Court decision about California’s prison-crowding problem. A prominent scholar whose name I am too modest to mention had some rude words for the conservative California pols complaining about judicial activism:

If they don’t want the federal courts messing with their prisons, then run decent prisons. This isn’t rocket science. Your mother told you that if you didn’t play with your toys properly, she’d take them away. And that’s what the court did.

(In fact, I said “they,” rather than “the court.” But in this space I get to revise and correct my remarks and to include extraneous matter at this point in the record.)

This of course wasn’t nearly as pithy as Oscar Wilde’s comment about conditions in Reading Gaol: “If this is how Her Majesty treats her prisoners, she doesn’t deserve to have any.”

Bonus: Here’s the clip of my appearance today on Warren Olney’s Which Way LA. I come in at about minute 17.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

29 thoughts on “Prison conditions update”

  1. Not that I’m in favor of badly run prisons, but my instant reaction was, “The court ain’t my mother, and I’m not a child anymore, either.” Just what kind of weird view of the relationship between government and citizen does it take, for that analogy to make any sense?

  2. Brett, the “weird” view is that the Constitution, like one’s mother, makes the rules that we (in this case government officials) must obey.

  3. “Just what kind of weird view of the relationship between government and citizen does it take, for that analogy to make any sense?”

    It isn’t government’s relationship to citizen, unless you are the sort of citizen that locks people into tiny, feces-caked boxes. Actually, in fact, it is a rather nicer relationship, seeing how the CA government (not to mention Original Tony and the Umpires, that popular freedom band) likes doing that, and gets a politely worded memo telling them to stop. If a citizen does, well, the response is a bit different.

  4. Low taxes or high rates of incarceration but not both. The other shoe had to drop some day.

  5. Mark was comparing lawless government to a spoiled child, and the rule of law to the mother. I can’t see how a libertarian could possibly dislike this analogy. This brings up a question that is sometimes on my mind. Brett, are you a libertarian or a Republican?

  6. So much for the nurturing mother. If only the court were a harsh father taking the toys away this would work so much better.

    This is, imo, another one of those cases where even 24 hours spent under these conditions by the people responsible for them might have a salutary effect.

  7. “Just what kind of weird view of the relationship between government and citizen does it take, for that analogy to make any sense?”

    I’m going to go out on a limb and say that Mark was speaking figuratively.

  8. Federalism is a principle. So also is the prohibition of cruel and unusual punishment a principle. Since these are different principles, they conflict somewhere. Policy makers could reduce the conflict by the simple device of repealing laws against victimless crime (e.g., drug possession (by adults), prostitution (by adults), working for less than $7.25/hr.). If the Feds want to maintain criminal penalties for these “crimes”, let them pay the costs of courts and prisons for these offenders. Or we could use Benny Lava’s solution and burn them alive. That’s cheap.

  9. Malcolm, maybe I’m missing your point, but the Feds do pay the costs of courts and prisons for those charged with federal crimes. State prisons, such as California’s, house only people convicted of state crimes. There is no conflict between federalism and the 8th Amendment; the latter applies to both the federal and state governments.

  10. The conflict is between the 8th (proscription of cruel or unusual punishment) and the 10th (reserving to individual States or to the people those powers not specifically enumerated). Federal courts are a branch of the Federal government. What gives a Federal court the power to define the operation of State prisons? Obviously, the requirement that the Court define the terms of the 8th amendment. Consider how the USSC respects or does not respect the power of local officials to define “secure” and “public use” (Kelo, 4th Amendment, 5th Amendment), “(reasonable) infringment” (2nd Amendment), or “cruel” (8th Amendment). My point is, if drugs, prostitution, and minimum wage legislation were Federal laws only, there would be less conflict with the Federal principle (State’s rights), although these all would violate the “enumerated powers” principle.

  11. “if drugs, prostitution, and minimum wage legislation were Federal laws only, there would be less conflict with the Federal principle (State’s rights)… .”

    And if my grandmother had balls she’d be my grandfather. Malcolm, the Supremacy Clause of the Constitution (Art. VI, cl. 2) provides that the Constitution “shall be the supreme Law of the Land; and the judges in every State shall be bound thereby.” I repeat, there is no conflict between the Bill of Rights and states’ rights; the Supremacy Clause, together with the incorporation doctrine, establishes that the Constitution governs.

    And enumerated powers have nothing to do with the matter. The Supreme Court has held that the enumerated power in Art. I, sec. 8, “To regulate Commerce with foreign Nations and among the several States” authorizes Congress to outlaw or regulate drugs, prostitution, and just about anything else. The way to limit this power would be for the Supreme Court to hold that the right of privacy that originated in Griswold guarantees control over one’s body, including what drugs one takes and what sexual arrangements one makes with other consenting adults. It would be better to go that route than to use federalism, because that route would limit the states as well as the federal government. Of course, it’s not going to happen, at least not in our lifetimes. The Puritan influence is still too strong.

  12. Keep it civil,
    The Constitution governs. It enunciates several different principles. Since these are different, they conflict at points.
    (Henry): “The Supreme Court has held that the enumerated power in Art. I, sec. 8, “To regulate Commerce with foreign Nations and among the several States” authorizes Congress to outlaw or regulate drugs, prostitution, and just about anything else.
    Really? Which case? That looks like the death of Federalism to me.

  13. “Keep it civil.”

    If you’re referring to my grandmother joke, that was not uncivil; it was meant to be funny. The cleaner version is, “If my grandmother had wheels, she’d be a trolley car.”

  14. My complaint is simply that the metaphor relies on the people being given rules being children, and there are no children in government.

    I despise the way we run our prisons; While prisoners are not entitled to comfy beds, tasty food, and a great social life, they’re certainly entitled to be protected from assault. And they’re NOT being so protected. And I’m quite comfortable with regarding that as an 8th amendment violation.

    My chief complaint here is that we should be releasing victimless ‘criminals’ first, because they shouldn’t be in prison in the first place.

  15. My complaint is simply that the metaphor relies on the people being given rules being children, and there are no children in government.

    No, Brett, the metaphor relies on them behaving childishly. Read it again, you’ll see.

    Once you settle that, you’ll probably object that prisons aren’t toys. And it’s true. Prisons aren’t toys. It’s a metaphor.

    Metaphors compare things to other things. The use of the words “children” and “toys” are, well, they’re metaphorical. Maybe it would help if you looked up the word “metaphor.”

  16. politicalfootball, I agree with your larger point about the nature of metaphors, and I am not defending Brett, but I think that the metaphor relies both on the people being children and on their behaving childishly. The phrase in question is, “Your mother told you that if you didn’t play with your toys properly.” The word “you,” both times it is used, refers to children, because children play with toys. But these children don’t play with them properly, so they are behaving childishly, even for children (if we can accept that there are two senses of the word “childishly”). I think that I may be behaving childishly by posting this analysis.

  17. I think that I may be behaving childishly by posting this analysis.

    I think Mark should rope off a post once a week for the express purpose of Brett (and anyone else who wants to play) to deconstruct, analyse, recast, spin or otherwise nitpick on the sort of language that hurts his fee fees.

    Considering that ads don’t run here, trolls aren’t monetized, so it probably would result in cheaper hosting.

  18. Hey, I’m trying to provide a service here: Just think of me as a fan set up in your intellectual hothouse, so you don’t grow up all spindly, and fold the moment you get into a real world argument with somebody who doesn’t share all your prejudices and views.

    While internet trolls aren’t an entirely imaginary construct, I’d say that most accusations of trolling come from people who just don’t like having anybody who disagrees intruding into their favorite echo chamber.

  19. Brett,
    I do think that you often keep us honest, and I’m thankful for that. And I’m sure that’s always your purpose. But you might want to try to raise your batting average a bit. When you see an exposed jugular, go for it! But an instinct for the capillary is not very helpful. (Oh, dear, I’m mixing my metaphors. Insh ‘allah.)

  20. I think Brett’s – and to an extent the similar larger conservative impulse – to take umbrage at the metaphor of government as parent is interesting. Just as, I suppose, the lack of umbrage on the left. The metaphor is obvious really squishy, and can be taken many different ways. But the difference in the ways in which we read it is interesting.

  21. Eli, keep in mind that the metaphor has the government (in this case, the 8th Amendment) as parent of its employees (who run prisons), not of the populace.

  22. Right, Henry. I suppose in responding Brett’s misinterpreting (willfully poor faith = trolling?) the original metaphor, I was headed even further afield. I was picking up on the parent/child metaphor as seen through various sides of the political spectrum. Interesting, but not something really necessary to this thread.

    Although, on second thought, I think Brett’s interpretation could be correct to the degree that we (as Californians) are somewhat responsible for the prisons being the way they are – through increased incarceration and lack of proper funding. In this sense, the question of citizens being “scolded” by the courts is interesting. So we return to our individual perspectives on the state/citizen relationship.

    There are of course two sides to these views, i.e. a libertarian view of personal freedom often comes at the expense of someone else’s freedom (for instance a crowded cell, a polluted river, or a whites-only bar). As with the “nanny state” charge, the worries about personal freedoms often seem based on a self-interested bias, which opposes giving up personal freedoms in exchange for an increase of the freedoms of another (assuming those freedoms will truly expand. Unfortunately, I think the bias tends to preclude a reasonable cognitive analysis of whether those freedoms are actually increasing – instead doing a lot of hand waving about “big government”.).

  23. Look, Eli, I don’t see the point of analogizing adults to children. We’re dealing here with adults, not incompetent minors. It downplays the seriousness of all this. Do you suppose the people running penal institutions are incompetent to understand that they shouldn’t be letting inmates assault other inmates? They’re just little kids who didn’t know better?

    Yes, I generally think it’s not a constitutional violation, in principle, for inmates to be as crowded as students in college dorms. Or fed lousy institutional food, again, like college dorms. I don’t think prisons should be pleasant. The people in them haven’t earned pleasant, they’re there to be unhappy.

    But they damned well ought to be safe, and they’re not. That’s an outrage, and it’s not an accidental outrage, either. It’s seen as an informal part of the punishment, or else it would have been dealt with long ago.

    I don’t think we should be treating it like it’s some kind of mistake that the authorities didn’t realize they were making. We should be treating it more like a criminal offense, with actual consequences for the people responsible.

    I know I’ll never see that, because rule number one for people running government is that consequences are never appropriate for somebody working for the government. But that’s my position.

  24. I disagree with Brett regarding whether prisons should be pleasant, but I wholeheartedly agree that government officials who violate the Constitution (at least when they do so blatantly) should face criminal consequences.

    1. Being imprisoned by definition is not pleasant, but, putting that aside, they should be pleasant. This is because their sole purpose should be to protect the public from people who have committed violent crimes. (I might allow exceptions for gross financial crimes, such as Bernie Madoff’s, that ruin people’s lives, and for politicians who violate the public trust, but we should become more creative with sentences for others.) Keeping prisons pleasant would not only be humane, but would be in the public interest because it would make prisoners less likely to commit crimes when they are released.

    2. One frequently reads (at Jonathan Turley’s blog, for example), of public school principals who suspend children for not saying the Pledge of Allegiance, of judges who display the Ten Commandments in their courtrooms, of police officers who arrest people for using foul language, and so forth. These are all well-established violations of the First Amendment, yet the government officials never face consequences beyond a court injunction telling them not to do it again. The Constitution is supposed to be the highest law of the land, and there ought to be penalties for blatant violations of it. (Close cases are another matter.)

  25. Maybe you think their sole purpose ought to be protecting the public, but it’s certainly not that their sole purpose IS protecting the public. There’s an unquestionably popular punative aspect, too, not just incapacitation.

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