Wednesday, December 22, 2010

Massive Prison Release and Least Restrictive Alternatives

By Sherry Colb

In my column for this week, I discuss the case of Plata v. Schwarzenegger, in which the Supreme Court is reviewing a three-judge federal district court's order that the California prisons reduce their overcrowding from 200% of capacity to 137.5% of capacity, within two years.  If the Supreme Court affirms the order, then California will probably have to release approximately 40,000 prisoners (though it can, in theory, build more prisons or pay for prisoners to be transported to facilities outside the state prison system).  The underlying constitutional violation, to which the overcrowding reduction measure is addressed, is a state of medical care that is so deficient that it violates the Eighth Amendment prohibition against cruel and unusual punishments.  Because other approaches to the problem have failed, the California federal court concluded that the only way to remedy the problem is reduce the overcrowding substantially.

In my column, I discuss the default assumption of our criminal justice system that massive incarceration is a necessary and appropriate response to crime, whether or not the crime is violent in nature.  In this post, I want to suggest that the sort of "mental set" that treats prison as the default is not unique to the criminal justice context.  In this particular context, of course, we have a system that treats non-incarceration as a "last resort." Here, depriving a person of her fundamental right to be free from physical confinement is presumptively the right thing to do about crime, and we must be cautious and try everything else with little or no success before releasing someone who has been so confined.  This is so, despite how violent and destructive a place we know prison to be, not to mention how extremely expensive it is.

The mental set prevents us from realizing that we have given the extreme measure of incarceration an elevated and presumptively valid status.  Since the California case is about prison health care, I thought it would be useful to consider the area of health care more generally, another context in which we have massive spending and a peculiar default.

When a person visits the doctor with symptoms of heart disease, for example, the number one killer of both men and women in this country, the common instruction is to take medication, undergo surgery, or both.  What doctors rarely do is to counsel their patients to go on an oil-free and vegan diet, a diet that actually reverses heart disease.  By contrast to surgery, which addresses specific symptoms but leaves the disease largely to take its course, a switch to an oil-free and vegan diet is the one way in which extremely sick heart patients have successfully regained their cardiovascular health.

Dr. Caldwell Esselstyn, a medical doctor who authored the book Prevent and Reverse Heart Disease, has demonstrated persuasively that the misery, death, and expense associated with heart disease in the United States is almost completely unnecessary.  The key to solving the heart disease crisis, however, is to eat differently rather than to spend more money on state-of-the-art surgical interventions.

The analogy to prison is straightforward.  We treat incarceration as the default solution, where one must demonstrate a very good reason for deviating from it (as though continuing incarceration is truly a "less restrictive alternative").  And similarly, we treat bypass surgery as the least restrictive alternative.  When doctors advise their heart patients, they typically push surgery and pharmaceuticals and then, as a side note, suggest minor alterations in diet that they do not even expect patients to make (and that fail completely to address the destructive impact of animal-based food, even of the fat-free variety).

When confronting a particular person I know, who was told to undergo triple-bypass sugery, I said "Why not try an oil-free vegan diet for ten days, at a resort with doctors who will help you learn and adjust, and then have the surgery aftewards if you still want to?"  His response?  "That's too radical."  He preferred, in other words, to sit and wait to have his chest opened up, with all of the pain, disability, and risk associated with such surgery, than to try to eat a healthy diet for ten days first.

The reason?  Our society has come to view heart surgery as a normal and inevitable part of life after sixty or seventy years old.  The suffering associated with such surgery is not highlighted.  By contrast, the simple changes one can make in one's diet are treated as extreme, radical, and nearly impossible.  The person I know with heart disease essentially wanted a less restrictive alternative than eliminating animal corpses and secretions, as well as added fats, from his diet.  His less restrictive alternative -- being sliced open -- was comparable to the least restrictive alternative of incarcerating non-violent offenders.

As in the case of imprisonment, where some people simply cannot be left free to inflict violence on the populace, there are people who truly need and will benefit from surgery -- those, for example, who suffer from a congenital heart abnormality or other conditions that are not responsive to nutritional improvement.  For so many others, however, all we need to do is to think outside the box and realize that such things as imprisonment and heart surgery are not the least restrictive, but the most restrictive alternatives.  If we can manage to escape our mental sets, we can thereby save ourselves immense amounts of money and misery.