Marie Gottschalk, Prison Overcrowding and Brown v. Plata, The New Republic, June 8, 2011. Available at:

Today the United States is the world’s warden, incarcerating more people than any other country. With just 5 percent of the world’s population, it has 25 percent of its prisoners. Since the 1970s, the United States has built the largest penal system in the world to accommodate a sixfold increase in its inmate population. But what happens behind its prison walls generally remains far removed from public consciousness. In this context, the Supreme Court’s landmark decision in Brown v. Plata last month, which declared that the degrading and inhumane conditions in California’s grossly overcrowded prisons are unconstitutional, was an exceptional moment when the prison wall was briefly breached.

Of course, Brown v. Plata does not mark the beginning of the end of mass incarceration in the United States, nor of the abusive conditions that proliferate in U.S. prisons and jails. Unlike the landmark prisoners’ rights cases of the 1960s and 1970s, this decision is unlikely to spur many successful copycat lawsuits to impose prison population caps and revitalize the courts as a major forum to challenge abusive prison conditions. The Prison Litigation Reform Act (PLRA), enacted by Congress in 1996 to greatly constrict prisoners’ access to the courts and to reduce the judiciary’s role in monitoring the penal system, continues to present formidable obstacles for inmates seeking to challenge their conditions of confinement. For those few cases that successfully navigate the PLRA and make it into the courts, the legal process is long and protracted. Remarkably, the U.S. prison and jail population has more than doubled since 1990, the year that one of the two lawsuits eventually consolidated in Brown v. Plata was initially filed.

Moreover, Brown v. Plata is not even likely to spur major reductions in California’s inmate population any time soon. This is because the Supreme Court conceded great latitude to the Golden State in how to reduce overcrowding in its prisons and by when. State officials could choose to release some prisoners early. But they could also address the population cap affirmed by the Supreme Court by sending more prisoners to out-of state penal facilities or to county jails in California. Or California could simply build more prisons.

So why, then, is this a landmark decision with enormous implications for the future course of penal policy reform in the United States? More so than many other Supreme Court decisions, Brown v. Plata was as much a political statement as a legal one. It did not render the PLRA restrictions on challenging the conditions of confinement through the courts any less arduous. But it did pry open some important political space that could help incubate political solutions to the problem of mass incarceration in the United States.

The first way in which the Court opened up some political space for prison reform was by making the abhorrent conditions in California’s prisons strikingly visible. In the nineteenth century, prisons opened their doors to the public and were popular destinations for gawking domestic and foreign tourists. In the 1960s and early 1970s, prison memoirs and accounts of life behind bars regularly turned up on best-seller lists. Today, however, the U.S. penal system is distinctive not only because of its huge size, but also because of its relative invisibility—leaving aside television shows like Oz, which contribute to a grossly distorted view of what is at stake in mass incarceration. The hundreds of prisons and jails that dot rural America and the desolate outskirts of cities, the 2.4 million men and women currently locked up, the 750,000 former offenders released from prison each year with stunted life chances, and the struggles of the millions of children with an incarcerated mother or father tend to leave little trace on the wider public consciousness.

Justice Anthony M. Kennedy, writing for the majority in this acrimonious 5-4 decision, graphically catalogued the appalling conditions in California’s penal system, which operates at about 200 percent of capacity: as many as 50 sick inmates at a time held in 12 by 20 foot cages for up to five hours as they await medical treatment; as many as 54 prisoners sharing a single toilet; year-long waits for mental health treatment; a suicide rate nearly twice the national average for prisoners; a needless death every six to seven days because of delayed or inadequate medical care; and the “dry cages,” where suicidal prisoners are kept in telephone booth-sized enclosures without toilets. In case words were not enough, Kennedy appended to his decision photos of the “dry cages” and of a gymnasium-style room crammed with dozens of prisoners and their bunk beds. This was a rare instance where the Court turned to visual evidence to bolster a decision.

The second way in which the Court’s decision may prove important is its assiduous efforts to bring wider perceptions of the public safety effects of incarceration into better alignment with the latest social science research. In the decades-long prison build-up, penal expertise has been sidelined for the most part in public debates over crime and punishment. In an important departure, Kennedy showcased key findings of leading experts on crime and punishment about the association between mass incarceration and public safety. Kennedy noted that several states have successfully cut their prison populations without seeing their crime rates escalate. He also highlighted other important research findings, including that prisons might actually be criminogenic. As many experts on crime have noted, mass incarceration may actually increase the crime rate because imprisonment severs inmates’ ties to their jobs, families, and communities, expands opportunities for criminal networking, and subjects inmates to overcrowded and abusive conditions.


But if Brown v. Plata gives politicians in California some political cover to begin charting a new course for penal reform in the Golden State, what is still lacking in California and elsewhere is a political movement that can transcend the current political climate, which remains deeply and reflexively punitive. As Kennedy made clear in his decision, absent a political push for reform neither this ruling nor others by the courts are likely to be the major catalyst to reverse the prison boom or ameliorate abusive prison conditions. The “constitutional violations in conditions of confinement are rarely susceptible of simple or straightforward solutions,” Kennedy explained. “In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic administrative failures,” he continued.

As of yet, no factor, including the current fiscal crises in the states, has provided sufficient political impetus for comprehensive penal reform to slash the inmate population. California, for instance, has been teetering on the brink of fiscal and social disaster for several years. Yet the state has been unable or unwilling to pursue sensible and proven penal reforms to reduce its prison population in ways that do not seriously jeopardize public safety. Indeed, over the past three decades, the Golden State has gone from spending five dollars on higher education for every dollar spent on corrections to almost a dead-heat on spending. And yet California still holds fast to the toughest three-strikes law in the nation.

Moreover, recent attempts at reform have fallen flat. California voters soundly rejected a ballot initiative in 2008 that would have expanded alternative sentences for nonviolent drug offenders and saved billions of dollars. Governor Arnold Schwarzenegger and four former governors opposed this measure, including Jerry Brown, who was then attorney general and is now once again governor. And a legislative proposal in 2009 to release some nonviolent offenders in response to the federal lawsuit ultimately decided by Brown v. Plata created a political firestorm. A significantly weaker bill eventually passed the state assembly without a vote to spare. One assemblyman opposed to the measure warned: “We might as well set off a nuclear bomb in California with what we are doing with this bill.”

Brown v. Plata has unleashed comparable over-the-top law-and order rhetoric, beginning with the Supreme Court justices who dissented from this decision. They were dismissive of leading social science evidence that prison populations could be lowered without adversely affecting public safety. Justice Samuel A. Alito denounced what he misleadingly characterized as “the premature release of approximately 46,000 criminals—the equivalent of three Army divisions. ” (Yes, the italics are his.) He charged that the Court was “gambling with the safety of the people of California” and that the result would likely be “a grim roster of victims.”

Mass incarceration in the United States is the result of a complex set of political, institutional, and economic developments. No single factor explains the unprecedented rise in the U.S. incarceration rate, and no single factor will reverse the prison boom. What is needed is a broad-based political movement that focuses not just on the economic burden of the penal system, but also on how the massive carceral state rests on stark racial and other inequities and is itself a threat to public safety. Without such a movement, it will not be possible to make deep and sustainable cuts in the incarcerated population and to address the needs of the individuals, families, and communities decimated by the decades-long build up of the carceral state. One can only hope that Brown v. Plata proves an important first step.

Marie Gottschalk is a professor in the Department of Political Science at the University of Pennsylvania and the author of The Prison and the Gallows: The Politics of Mass Incarceration in America.