The New York Times editorial board gets something partially correct today!
This editorial lauds the Supreme Court for upholding a Ninth Circuit decision requiring California to remedy intolerable (“cruel and unusual”) prison conditions.*
Based on the decision, the conditions inside the California penal system appear horrendous, and these horrendous conditions seem to be the rule, not the exception. ‘Puter can see how a majority of the Court could reasonably find these widespread conditions to constitute cruel and unusual punishment, thereby violating prisoners’ constitutional rights.
‘Puter believes that prisoners deserve to be treated with basic human dignity while incarcerated. This includes adequate space, ventilation, medical care and nutrition. It also includes preventing and harshly punishing all inmate violence, including most pointedly prison rape. Prison rape is not a joke. It is a horrendous crime and should be treated as such. Failure of the penal system to protect inmates is a violation of basic legal rights, and diminishes us.
Tangentially, ‘Puter has a full riff ready to go on “this is what happens when you focus on the public union worker and not the customer (e.g., prisoners, students, taxpayers),” but that’s not his intent for this post.
Where the NYT errs is in its reflexive berating of Justices Scalia and Thomas’ dissent. The NYT attempts to paint Scalia and Thomas as extreme, yet in so doing underline the mainstream nature of the Justices’ position.
Scalia and Thomas stated that it is not the duty of the Court, indeed it is beyond the authority of federal courts, to substitute their judgment for that of the Legislature. That is, judges are not to make policy, they are to determine law and leave any required policy adjustments to legislators. ‘Puter agrees with the Justices that the slow usurpation by unelected lifetime appointees into policymaking is beyond any reasonable reading of the Constitution.
A prime example of this overreach is Roe v. Wade. The Court could have held there exists a right to privacy, and that abortion falls within such right to privacy (leaving aside the myriad reasons this holding is wrong on its face and constitutes impermissible judicial policymaking in itself), so therefore an absolute ban on abortion is impermissible. Such a decision would have left the policy decisions to the elected representatives of the people, where such decisions properly reside.
Similarly in this instance, even had the majority disagreed with Justices Scalia and Thomas as to whether procedurally and substantively California’s prison conditions constitute cruel and unusual punishment, it could have simply held the specific conditions unconstitutional and ordered California’s lawmakers to remedy the situation. Instead, we have a federal court setting itself up to run California’s legal system for the next 50 or so years. And that’s the real problem here, greater than violation of individual prisoners’ rights, because legislating courts are an attack on our entire form of government.
Maybe the NYT should change its motto to “The Ends Justify The Means” and be done with it.
*For those of you interested in reading the entire 91 page opinion, here’s a link to Brown v. Plata from the Supreme Court’s website.