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‘Mass Incarceration on Trial’

July 31, 2014

Review by Judith Tannenbaum

“Mass Incarceration on Trial,” by Jonathan Simon, professor of law at the University of California, Berkeley, is a new book (from The New Press) that talks about mass incarceration nationally, but focuses on California. The book should be of value to all California citizens for, as Simon writes, the decisions in Madrid v. Gomez, Coleman v. Wilson, Plata v. Davis, Coleman-Plata v. Schwarzenegger and Brown v. Plata “are legal precedents with ongoing relevance to prison lawyers and officials, but they are also a public sociology text, addressed to all of us, concerning the threat that mass incarceration poses to prisoners, prison officers, and any society with pretensions to decency.”

'Mass Incarceration on Trial' coverSimon describes these court decisions and their background and also argues that they show the way toward a legal dismantling of mass incarceration. He writes, “If the physical and mental health requirements of prisoners cannot be constitutionally met on a mass scale, then mass incarceration is inherently unconstitutional.”

Simon begins with a brief look at California’s prisons in the 1970s and writes that the state “began the 1970s as home of the nation’s most progressive correctional systems, least reliant on imprisonment to deal with felony crime.” He refers to Eric Cummins’ excellent “The Rise and Fall of California’s Radical Prison Movement” (published in 1994) and then moves forward in time, with a primary focus on the court decisions listed above and how they show “the very things that define mass incarceration as a distinctive mode of punishment – its scale, its categorical nature, and its prioritization of custody over reform or rehabilitation – all predict that intensified health crises will be an inherent problem.”

A problem that, Simon shows, California has not been interested in dealing with. Simon writes about Judge Henderson’s appointment of a medical receiver in 2005 that the act “amounted to a public finding that California cannot give constitutional medical care to its prison population because its officials don’t care and can’t even imagine caring. As his opinion notes, ‘The prison is unable to function effectively and suffers a lack of will with respect to prisoner medical care.’ California’s prison leadership was not just incompetent at medical care; it had established a penal logic antithetical to it.”

Given all this: “In late 2006, a year after the receivership order in Plata placed prisoner medical treatment under direct court control and 11 years after the Coleman decision ordered reform of prison mental health care, lawyers for the prisoners in both cases returned to their respective courts and asked their judges to strengthen previous orders and impose a population cap as a way of relieving chronic extreme overcrowding … In August 2009, some months after the trial, the special three-judge court issued the largest prison injunction order in history.”

In their conclusion to the 184-page opinion, the judges wrote: “Unfortunately, during the eight years of the Plata litigation and the 19 years of the Coleman litigation, the political branches of California government charged with addressing the crises in the state’s prisons have failed to do so. Instead, the rights of California’s prisoners have repeatedly been ignored. Where the political process has utterly failed to protect the constitutional rights of a minority, the courts can, and must, vindicate those rights.”

“If the physical and mental health requirements of prisoners cannot be constitutionally met on a mass scale, then mass incarceration is inherently unconstitutional.”

Those of us who care about “the constitutional rights of a minority” owe tremendous thanks to Judges Thelton Henderson, Lawrence Karlton and Stephen Reinhardt for vindicating those rights and to the Prison Law Office for bringing these lawsuits, for being such a consistent and long-term advocate for these same “constitutional rights of a minority.” And another thank you to Jonathan Simon for this book’s documentation and his own clear values.

The U.S. Supreme Court upheld Brown v. Plata 2011. As Simon importantly notes: “Human dignity had been acknowledged as an important value underlying the Eighth Amendment’s ban on cruel and unusual punishment. But in the decades before the Brown v. Plata decision, it had fallen into a kind of oblivion and was not seen as a basis for running or evaluating prisons. Brown v. Plata is a potential turning point toward a future when American political leaders and prison planners are forced to justify the effect of imprisonment on both public safety and prisoners.”

Reknowned author and teacher Judith Tannenbaum taught at San Quentin State Prison when Arts and Corrections was a regular part of rehabilitation. Her books include “Disguised as a Poem: My Years Teaching Poetry at San Quentin” and a two-person memoir written with Spoon Jackson titled “By Heart: Poetry, Prison, and Two Lives.” She can be reached at jtannen@earthlink.net.

Meet the author

Jonathan Simon will read from, sign and discuss his book on Thursday, Aug. 14, 6 p.m., at University Press Books, 2430 Bancroft Way, Berkeley.

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