Locked Up in Jail, Locked Out of Court

"Since 1982 inmates increasingly have been placed two to a cell because the prison lacked space for its increasing population….Most … spend approximately 14 hours a day in their cells…. The court found that ‘[b]ecause these shared cells are so tiny, only one inmate at a time can stand in the cell; the other must lie on the bed.’… [P]hysical exercise is impossible…. Essentially, an inmate can only lie on his bunk or sit at the desk or on the bunk…. The lamp provides adequate light for the inmate on the top bunk to read, but virtually no light to the inmate on the bottom….

"Despite the small size of the cells, 20 percent to 25 percent of the inmates fear to leave them for recreation or exercise because they fear physical assault. Much of the insecurity is due to under staffing. …Weapons such as knives, ice picks, razors and homemade guns are easily available…. According to the district court, ‘the auditorium and gymnasium are virtual dens for violence. Assaults, stabbings, rapes and gang fights occur…. The corrections officers do not make rounds; they wisely choose to stand by the door next to the riot button.’

"[C]onditions… are unsanitary and dangerous…. Ventilation is grossly inadequate….[T]here are … excessive odors, heat and humidity…. Bed bugs and mice are endemic. Torn mattresses shelter mites, fleas and lice…. Most of the toilets in the cells are old and cracked. Urine sediment has accumulated in the cracks causing noxious odors…. ‘The showers are encrusted with dirt, …slime has accumulated in the chronically wet areas,’ and the smell of putrid water is inescapable.

"…They are not supervised by a guard and thus weaker inmates fear to enter them; instead they take ‘bird baths from the sinks in their cells.’…

"Medical and psychiatric treatment are also shockingly deficient."

Thus did the U.S. Court of Appeals for the 3rd Circuit summarize evidence underlying its ruling last year, in Tillery v. Owens, that conditions at the Pennsylvania State Correctional Institution at Pittsburgh amounted to unconstitutionally cruel and unusual punishment.

Henceforth, however, inmates subjected to conditions like these, which have been documented not just in Pittsburgh but in dozens of prisons all over the country, may find it difficult or impossible to get judicial relief.

That’s the ominous-though for now ambiguous-implication of a 5-4 Supreme Court decision last week in an unrelated case from Ohio, called Wilson v. Seiter.

The new Reagan-Bush majority held that prisoners must do more than prove they are subjected to horrible conditions of confinement; they must also prove that prison officials acted with "a culpable state of mind," amounting at least to "deliberate indifference" to prisoners’ basic needs.

This comes at a time when the drug war and the public’s thirst for punishment are putting so much pressure on overburdened prisons and jails that there often is little that even an enlightened administrator can do to house prisoners humanely.

Minor first-time offenders and hardened criminals alike are being locked up so last that the population of the nation’s dangerously overcrowded prisons and jails has nearly doubled since 1980, to over one million, giving the United States the world’s highest rate of incarceration and far outpacing efforts to add new cells.

In this context, Justice Antonin Scalia’s opinion for the Court seems to suggest that so long as prison officials are doing the best they can with sadly inadequate resources, there is no constitutional problem with states jamming people into crumbling, understaffed, unhealthy- institutions where they shiver in winter, swelter in summer, and are constantly threatened with rape, savagery, and contagion.

Is a warden "deliberately indifferent" to prisoners’ needs if he tries but fails to get money from the state to hire enough guards to control pervasive violence, or to fix broken toilets, or to provide adequate heat and ventilation?

If courts carry the Scalia opinion to the limits of its logic, it could eventually mean unwinding federal court supervision of prisons in more than 40 states even if conditions do not improve.

To be sure, it’s far from clear that all those in the majority would go anywhere near that far. At least until the Court clarifies its meaning in some future case, there will be room for creative judges and prison litigators to interpret their way around Scalia’s troublesome language.

The unusual brevity of Scalia’s 11-page opinion and his failure to specify how one might prove "deliberate indifference" indicate that he may have had to do a good deal of pruning to pick up five votes. It seems probable that some justices in the majority might interpret the ruling more flexibly than its author’s tone would suggest.

And after all, it could have been worse, as Elizabeth Alexander of the ACLU’s National Prison Project, representing plaintiff Pearly Wilson, stressed; she takes a prudent litigator’s optimistic view of a decision with which she must henceforth live.

The U.S. Court of Appeals for the 6th Circuit had ruled in dismissing Wilson’s suit-which was based on evidence of overcrowding and other inhumane conditions less shocking than in cases like Tillery v. Owens-that prisoners must prove "persistent malicious cruelty" by officials to win challenges to prison conditions.

That standard was too tough even for Scalia, who ordered the lower court to reconsider the case using the "deliberate indifference" standard.

The Scalia opinion leaves open two major questions of interpretation:

Can prisoners prove deliberate indifference merely by showing that prison officials are aware of persistently intolerable conditions, even if officials cannot obtain the resources to rectify them?

And can prisoners base their claims on the collective culpability of all state officials, including the legislators who vote to lock more people up while refusing to appropriate the money needed to avoid subjecting prisoners to barbaric conditions?

Scalia’s language, which stresses the need to prove a culpable state of mind "on the part of prison officials," provides no support for such liberal readings of "deliberate indifference." Nor does Scalia’s response to Justice Byron White’s dissent.

White, joined by Justices Thurgood Marshall, Harry Blackmun, and John Paul Stevens, argued that requiring prisoners to show official culpability in such cases was an unwise departure from precedent. It "leaves open the possibility," he said, that prison officials will be able to defeat complaints "simply by showing that the conditions are caused by insufficient funding from the state legislature." White also echoed the Justice Department’s assertion in an amicus brief that "seriously inhumane, pervasive conditions should not be insulated from constitutional challenge because the officials managing the institution have exhibited a conscientious concern for ameliorating its problems."

In brushing aside such concerns, Scalia suggested that if his opinion does have the effect of allowing states with inhumane prison conditions to use a "cost" defense to block judicial intervention-a possibility he did not disclaim-that’s just the way the cookie crumbles:

"An intent requirement is either implicit in the word ‘punishment’ or is not; it cannot be alternately required or ignored as policy considerations might dictate."

One irony in all this is that some of the best prison administrators, frustrated by their states’ refusal to pay for humane conditions, privately welcome suits against their institutions.

Faced with voters and legislators who ratchet up penalties while turning a blind eye to the horrors visited on prisoners, these officials know that judicial intervention is often the only source of pressure to provide minimally adequate food, sanitation, medical care, security against assault, and other basic human needs.

Now, by suggesting that courts can intervene only when prison officials are indifferent to their responsibilities or worse, the Court may be undercutting precisely those officials who most want to do the right thing.