California Prison Crowding Puts Blackstone and Marbury to the Test

By Mike Dorf

Law students and many members of the lay public learn early on the Blackstonian maxim for every right, a remedy, invoked by Chief Justice John Marshall in the opening passages of Marbury v. Madison, and seemingly stating a fundamental principle of both the rule of law and American constitutionalism.  And yet, even a few moments of careful reflection reveal that breaches of rights, including constitutional rights, frequently go unremedied.

Suppose a police officer arrests you without probable cause or a warrant, thereby violating your rights under the Fourth Amendment, as made applicable to state and local officials by the Fourteenth Amendment.  You sue the officer to vindicate your rights, but a court could conclude that your rights were violated and nonetheless withhold a damages remedy because it was not previously established that the objective facts known to the officer did not constitute probable cause and exigent circumstances.  Thus, the officer has qualified immunity from damages, and no action will lie against the municipality that employs him if his actions were not taken pursuant to a policy or practice of unlawful arrests.  Your rights have been violated but you have no remedy.  There are other examples one could also cite.  States may be immune from damages remedies because of sovereign immunity.  Persons whose rights have been violated may lack standing to seek injunctive or other relief.  The political question doctrine may sometimes bar suit. Etc.  The Blackstonian maxim is best understood as aspirational, rather than descriptive of American constitutional law.

Yet that leaves us with the following question: If violations of constitutional rights do not always give rise to judicial remedies, does that mean that there are no limits on the ability of Congress to withhold remedies for constitutional violations?  That question has been much debated by scholars of federal courts and is raised but not fully answered in the extremely important Supreme Court decision in Brown v. Plata.

In Plata, the Court, in a 5-4 opinion by Justice Kennedy, held that a three-judge district court did not violate the Prison Litigation Reform Act (PLRA) when it ordered California to reduce its prison population as a remedy for longstanding violations of the Eighth Amendment.  The photo shown here is one of three appended to the Court's opinion to give some flavor of the conditions in California's prisons.  As presented by Justice Kennedy's opinion, the core of the state's argument was that it was entitled to more time to address its constitutional violations through means short of population reductions.  But the three-judge district court found, and a majority of the Supreme Court agreed, that the state had already had the legally required reasonable time to comply, so that drastic measures were warranted.

As I read the PLRA, it does not violate the Blackstonian maxim.  It allows for a remedy of court-ordered prisoner releases, but only as a last resort that is necessary to correct a violation of a federal right.  Under the PLRA, courts are supposed to consider the potential for adverse impacts on public safety, and the three-judge district court did so.  The Supreme Court agreed that overcrowding could be alleviated by releasing the least violent prisoners without seriously endangering public safety.  Justice Alito (joined by Chief Justice Roberts) contested that claim, relying in part on statistics from an earlier prison release in Pennsylvania.

If Justice Alito's sounded a grim alarm, Justice Scalia's dissent was less measured.  In just the first page of his dissent, Justice Scalia (joined by Justice Thomas) calls the result in Plata--the order to release 46,000 prisoners--"the most radical injunction issued by a court in our Nation's history," "absurd," and a "judicial travesty."  He goes on to take issue with a premise that does not seem to be in dispute in the case--namely, that California's prison overcrowding violates the Eighth Amendment--and also seems to reject over half a century of structural injunctions, including the desegregation remedies in Brown v. Board and its progeny (although Justice Scalia doesn't mention that fact).

But despite the strong difference in tone between the majority and the dissent, they are not that far apart on the Blackstonian question.  Justice Scalia says that in his view of the PLRA, "a court may not order a prisoner's release unless it determines that the prisoner is suffering from a violation of his constitutional rights, and that his release, and no other relief, will remedy that violation."  The real difference is that Justice Scalia has a much narrower view than the majority of when these circumstances are likely to exist.  Likewise, Justice Alito thinks it is possible to give a remedy that addresses the underlying rights violations while staying within the bounds of the PLRA.

Thus, no Justice in Plata seriously entertains the possibility that the remedy of prisoner release is both: a) the only effective remedy for underlying constitutional violations; and b) forbidden by the PLRA.  If that were so, would the PLRA be unconstitutional as applied?  The majority suggests the answer might be yes.  Justice Kennedy writes: "A reading of the PLRA that would render population limits unavailable in practice would raise serious constitutional concerns."  He then cites a footnote in a 1986 case, Bowen v. Michigan Academy of Family Phsicians, which in turn cites some of the case law and literature addressing the scope of Congressional power to close the courthouse door to constitutional claims that are, by assumption, meritorious.

To my mind, that is a major, though not entirely unexpected, development.  In Boumediene v. Bush, the same lineup--except with Justices Souter and Stevens not yet replaced by Justices Sotomayor and Kagan, respectively--held that the Constitution forbade Congress from eliminating habeas corpus as a remedy for unlawful detention.  Boumediene could be construed as implementing only the Suspension Clause, and thus only applying to access to court via habeas corpus.  But the invocation of the Michigan Academy footnote in Plata suggests that Justice Kennedy has a broader view.  To be sure, all he is saying in Plata is that serious constitutional questions would be raised if Congress were to deliberately withhold otherwise necessary remedies for the violation of constitutional rights.  Still, one has a pretty good guess as to how five members of this Court would answer those questions--in a way that would make Blackstone and John Marshall happy.