Wednesday, May 25, 2011

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.


egarber said...

Knowing little about class action lawsuits, suppose 200 workers were once employed in a factory where management negligently exposed everyone to asbestos.

Does the right to join a class action suit only extend to those workers who have contracted actual and diagnosed illness? Or put another way, can I ever join a class action suit because I'm vulnerable to unacceptable risk?

Or how about with product defects? A while back, we were apparently approved to join a lawsuit relating to defective siding on our previous house. No damage showed yet, but we still could take part (I think).

I know I'm blurring a bunch of stuff together (thus exposing my ignorance :) ). But if there are instances in other contexts when civil lawsuits are possible even absent realized harm at the moment, how can we have a weaker standard when it comes to fundamental rights? Or maybe the key is that my examples carry "a sufficiently high probability" that some harm will result?

Hashim said...

Notwithstanding your parade of horribles, you don't appear to disagree w/ Scalia on the merits under existing law. Namely, you don't disagree that: 1) the 8A prohibits only inadequate care, not a mere risk of inadequate care; 2) Lyons bars an individual claim based on the probabilistic risk of a future 8A violation; and 3) class actions are merely a procedural device for aggregating individually viable claims, not a substantive device that creates a cognizable class-wide claim that would be non-cognizable if brought as myriad individual claims.

To put it differently, if you think Plata is correct under existing law, then you also must think that it would be consistent with Lyons for Lyons to have refiled his suit as a class action the day after it was rejected by the Supreme Court. And that seems obviously wrong.

Michael C. Dorf said...

In response to Eric: The answer to your question would mostly depend on the substantive law, which is likely to be state tort law. Some states allow a cause of action (i.e., a lawsuit) by a person who manifests no current injury for medical monitoring costs. State tort law can also recognize a cause of action for "fear of cancer," although that has generally been rejected. Tort theorists have proposed a cause of action for exposure to risk, but that too has not generally been accepted by the state courts.

Michael C. Dorf said...

In response to Hash: That's right. I think that if Lyons is correct, then so is Justice Scalia's dissent in Plata--assuming that the class cert issue was properly presented or is regarded as a subject matter jurisdiction limit and thus appropriately considered sua sponte by the Court. As I noted, however, I think Lyons is wrong. If Plata were regarded as sub silentio overruling Lyons, I would be pleased.

Neil H. Buchanan said...

As I understand it, Alito's dissent basically says, "Sure, there might be cruel and unusual punishment here, but that's outweighed by the cost to society of crimes committed by prisoners who will be released under the majority's order." All cost/benefit analyses depend on which costs and benefits are included and excluded. One important cost of cruel and unusual punishment is borne not by the prisoners but by society, because brutalized and abused prisoners who have been released after serving their time commit more crimes than they otherwise would. (In particular, prisoners who became mentally ill in prison, or whose conditions worsened because of inadequate care, pose a greater danger to society.) Am I right that neither side even brought this up?

Michael C. Dorf said...

The plaintiffs definitely made the point that crowding has external costs of the sort that Neil identifies.

Publius the Clown said...

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.

Prof. Dorf, I haven't read this opinion, but I'm wondering whether Justice Scalia's dissent should be read to say this. Nothing in the previous paragraph of your blog post, summarizing Scalia's opinion, would lead anywhere near this conclusion.

Scalia thinks that the class definition is either procedurally overbroad (by including more people than have claims) or makes the claimed right substantively defective. But does anything in Scalia's dissent indicate that he would have a problem with a class definition that only included all prisoners with serious medical conditions or serious mental illnesses whose 8th Amendment rights have been or will be violated?

This addresses the procedural problem because it doesn't include class members without claims. And it doesn't have any substantive problems because the class members by definition have suffered or will suffer a violation of their constitutional rights.

Again, I haven't read Scalia's opinion, but I wonder whether anything in it would indicate that Scalia would take issue with that class definition. I recently litigated a class action with just this sort of "have suffered or will suffer a violation of their rights" definition.

Obviously this doesn't address the Lyons issue, but you note that Scalia doesn't discuss Lyons either.

Publius the Clown said...

Oh, I forgot to finish the thought: the class representatives can be individuals whose rights have already been (allegedly) violated (and were, in the case that I litigated).

Crispian said...

Professor Dorf,

I agree with Hash's allusion your error in presenting a parade of horribles. I skimmed Lyons and while the facts tug at one's heart it seems legally reasonable. There is already a de jure 'injunction' in place against violations of our Constitutional rights or otherwise illegal behavior. It would be pure silliness for courts to issue injunctions against future violations that are merely speculative. Lyons was free to seek legal remedy for the treatment he received. And one purpose of suing is its value as a deterrent.

You raise the notion of poisoning prisoners but falsely presuppose such a case could only be heard (according to Scalia) based on an 8th Amendment claim relating to the potential of actually being poisoned. This is also silly. If the state actually adopted the plan of randomly killing prisoners, there would be a violation of due process of all prisoners because all prisoners are subject to the policy (ie merely having one's name in the lottery is the violation). The fact that the state is acting intentionally does matter for purposes of standing. Such a policy would have the effect of terrorizing inmates and thus constitute an 8th Amendment violation.

What I'd appreciate your opinion on is Hash's third observation: "class actions are merely a procedural device for aggregating individually viable claims, not a substantive device that creates a cognizable class-wide claim that would be non-cognizable if brought as myriad individual claims."

Do you think this should not be the case because facts can be ugly?

Michael C. Dorf said...

Crispian: You write "There is already a de jure 'injunction' in place against violations of our Constitutional rights or otherwise illegal behavior." I assume that by "de jure" you really mean "de facto" because, of course there is no actual general-purpose injunction in place against rights violations. Even so, what you say is mistaken for any number of reasons.

1) There is a world of difference between a government actor, even one acting in good faith, knowing that it should not violate the Constitution in a general sense (a de facto injunction) and knowing that specific conduct (such as chokeholds) will result in punishment for contempt of court.

2) Damages actions are often inadequate to stop ongoing rights violations. Individual officers frequently have qualified immunity, states and state agencies have sovereign immunity, and liability on the part of municipalities requires proof of policy or practice, which can be quite difficult. In combination, these doctrines can block or deter all retrospective relief, even when the policy in question violates rights.

3) So, who should have standing to seek to an injunction against unconstitutional conduct that occurs unpredictably to any particular person? The Lyons case effectively says no one should. I disagree. It strikes me that a person who has previously been victimized by the conduct is in the best position to seek to enjoin it in the future.

As to your last question: No, I don't disagree with Hash's statement (taken from Justice Scalia's dissent) that under current law, class actions are merely a procedural device for aggregating otherwise proper suits. I didn't say I disagreed with that proposition.

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