Tag Archives: Prison Planet

Confederate Monuments to the Memory of Slavery or Defense of Liberty?—the Debate Rages on in New Orleans

Last Thursday, the New Orleans City Council Voted 6-1 to take down four Confederate Monuments. [And may God-Bless Councilwoman Stacy Head, the sole dissenter, an White Uptown New Orleanian I had the privilege of meeting once at a special event at the Prytania Theatre in 2013]. The monuments in question were namely,
(1)    an equestrian statue of Confederate General Pierre-Gustav Toutant Beauregard, a lifetime French Creole who was born and died in New Orleans;
(2)  a standing statue of Confederate President Jefferson Davis, who died in New Orleans after presiding over the founding of the first museum to the memory of the nation over which he presided for four years, as statesman and orator;
(3)   a truly monumental column crowned by a bronze standing statue of General Robert Edward Lee (forever facing North, never turning his back on the enemy); Robert E. Lee was a close kinsman of George Washington from Virginia who was and still is widely revered as one of the great heroes of all American history; and
(4)    finally, a much smaller obelisk moment to the memory of those who dies in a much-too-little-known post-war Urban Battle seven years into Reconstruction, called “the Battle of Liberty Place”, where White citizens of Louisiana overthrew the hateful occupation government imposed on them after the surrender of the Confederacy.

Polls following this vote show that more than 90% of the actively interested public oppose the removal of these statues.  But the debate rages on.  Those on the side of removal, sponsored by Mayor Mitch Landrieu, call their opponents hateful racist reactionaries who support monuments to traitors.  They accuse us of  irrational adherence to a culture of hate and to the “Memory of the Lost Cause”…

Listening, at several meetings of the New Orleans City Council, and reading online, the only wildly irrational hatred and hateful speech I hear in this debate comes from people on Mitch Landrieu-pro-Removal side of the fence.  Just this morning, a fellow named Michael Dominici posted on “Save our Circle in New Orleans on Facebook: “Slavery was an American Holocaust.” Let’s start there.  I challenged him to explain what on earth he could possibly mean by that choice of words.

You think that slaves were destined to murder or sacrifice? Well, not in the USA or anywhere in the New World, but in Africa only, where slaves were kept like cattle as food reserves for cannibalism. Many slaves who told their stories later in life said that they expected to be eaten when they arrived at the end of their slave-ship journey. That was based on African experience and tradition, nothing else. So please check and restudy your history carefully.
 
The origins of the slave trade were that first Arab and European slave traders saw the slaughter of human beings on the “dark continent” and decided that Africa’s food reserves could be better used as labor reserves than chopped up and eaten.
 
So that’s point number one: slavery may not have been a great life, but it WAS life for slaves instead of death in the cannibal stew pots or having gotten too old to be eaten and just executed.
 
Second point: Africans sold the African slaves to Anglo-American white slavers up until 1808, but never to Confederates. By the time the Confederate States of America came into being, the international slave trade had been abolished everywhere in the world EXCEPT in Africa. And many, many African-Americans in the South actively supported the Confederate States of America both as soldiers and, in the state of Louisiana, as Planters who financially backed the CSA. Like it or not, that’s just reality: there WERE African American (Mulatto, Quadroon, Octaroon) southern planters who owned slaves and supported the Confederacy “as if their life depended on it” because in a sense, it did.
 
Third point: “Confederate” is a constitutional term whose definition reflects a constitutional argument. Many of us today (who do not and would never approve of slavery) still hold to the Confederate States side of the Constitutional argument. Look at the writings of Donnie Kennedy and his brother James, of Thomas DiLorenzo, Mike Maharrey and of a not specifically “Southern” but in fact Los Angeles-based group called “The Tenth Amendment Center”.
 
Fourth point: ironically, the reason many of us do favor Jefferson Davis’ constitutionalism is that we feel that all free people lost a great deal of Freedom in the War of 1861-5 AND IN THE 150 years since, so that we Americans and our society as a whole is more slave-like now than ever before.
 
Fifth point: want statistical proof? More black people, and many more white people, are now in prison or on probation today than were ever slaves in the South, and why? Maybe you think Alex Jones is a nut, maybe you like him, but the fact remains that nobody ever called the USA a “Prison Planet” in the early 19th century. Alexander de Tocqueville called slavery America’s “peculiar institution” precisely because this was the freest land on earth—back then, but now it’s more controlled and under constant state surveillance than any dictatorship in the world, prior to 1950, ever had the technological capacity to achieve. We are living in a slave society today, and we look back with some substantial envy on the States which were free enough, and technologically self-sufficient enough, to secede in 1860-1861.
 
Sixth point: the 13th Amendment at least indirectly inspired an explosion in American prison populations. Again, look carefully at the statistics. Prior to the 13th Amendment, which established that neither slavery nor involuntary servitude could exist EXCEPT as a punishment for crime, there was almost no such thing as a “prison population” in the USA…. now the prison population of the USA is more than twice what the original TOTAL population of the United States was at the time of the first census 1790, 14 years after independence.
 
Seventh: the other cause for the explosion of American prison populations is the criminalization of so much of the country’s commercial and general economic and scientific, even food producing and consuming, activity by Federal laws and policies spread to the states. There was hardly such a thing as “Economic Regulation” on the Federal level in 1860, unless you count Andrew Jackson abolishing the Bank of the United States in the early 1830s.
 
The centralized planning of agriculture, industry, and the social-economy generally which began during the “Civil War” in the North under Abraham Lincoln’s administration, and was brutally imposed on the South during Reconstruction and afterwards, was and remains exactly what people of a “Confederate” mindset hated and feared then and still hate and fear today: the loss of economic freedom (and thus all meaningful freedom) to a tyrannical Federal government.

California Prisons (Brown v. Plata): Will this Result in Legal Reform or More Prison Building?

Overflowing Prison Populations Result from a Disgracefully Excessive and Oppressive “Justice” System (not a real crime wave)—the laws of the United States, but especially the People’s Republic of California, make every member of society either a real or potential criminal—releasing even 90% of these prisoners would not make society any more dangerous, while putting about 50% of the Judges and Prosecutors behind bars might be a major improvement in the quality of life generally….and restore at least part of the American Dream of Freedom to California

BROWN v PLATA:  2011 WL 1936074
Only the Westlaw citation is currently available.
Supreme Court of the United States
Edmund G. BROWN, Jr., Governor of California, et al., Appellants,
v.
Marciano PLATA et al.

(Full Text of Monday’s Decision is attached here in adobe.pdf: Brown v Plata May 23 2011 and microsoft word:Brown v Plata May 23 2011 )

No. 09–1233.
Argued Nov. 30, 2010.Decided May 23, 2011.
Syllabus*
*1 California’s prisons are designed to house a population just under 80,000, but at the time of the decision under review thepopulation was almost double that. The resulting conditions are the subject of two federal class actions. In Coleman v. Brown,filed in 1990, the District Court found that prisoners with serious mental illness do not receive minimal, adequate care. A Special Master appointed to oversee remedial efforts reported 12 years later that the state of mental health care in California’s prisonswas deteriorating due to increased overcrowding. In Plata v. Brown, filed in 2001, the State conceded that deficiencies in prisonmedical care violated prisoners’ Eighth Amendment rights and stipulated to a remedial injunction. But when the State had not complied with the injunction by 2005, the court appointed a Receiver to oversee remedial efforts. Three years later, the Receiver described continuing deficiencies caused by overcrowding. Believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, the Coleman and Plata plaintiffs moved their respective District Courts to convene a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prisonpopulation. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. After hearing testimony and making extensive findings of fact, the court ordered California to reduce its prison population to 137.5% of design capacity within two years. Finding that the prison population would have to be reduced if capacity could not be increased through new construction, the court ordered the State to formulate a compliance plan and submit it for court approval.
Held:
1. The court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by the PLRA. Pp. –––– – ––––.
(a) If a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U.S. 678, 687, n. 9, 98 S.Ct. 2565, 57 L.Ed.2d 522. They must consider a range of options, including the appointment of special masters or receivers, the possibility of consent decrees, and orders limiting a prison’s population. Under the PLRA, only a three-judge court may limit a prison population. 18 U.S.C. § 3626(a)(3). Before convening such a court, a district court must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. § 3626(a)(3)(A). Once convened, the three-judge court must find by clear and convincing evidence that “crowding is the primary cause of the violation” and “no other relief will remedy [the] violation,” § 3626(a)(3)(E); and that the relief is “narrowly drawn, extends no further than necessary …, and is the least intrusive means necessary to correct the violation,” § 3626(a)(1)(A). The court must give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Ibid. Its legal determinations are reviewed de novo, but its factual findings are reviewed for clear error. Pp. –––– – ––––.
(b) The Coleman and Plata courts acted reasonably in convening a three-judge court. Pp. –––– – ––––.
*2 (1) The merits of the decision to convene are properly before this Court, which has exercised its 28 U.S.C. § 1253 jurisdiction to determine the authority of a court below, including whether a three-judge court was properly constituted. Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 95, n. 12, 95 S.Ct. 289, 42 L.Ed.2d 249. Pp. –––– – ––––.
(2) Section 3626(a)(3)(A)(i)‘s previous order requirement was satisfied in Coleman by the Special Master’s 1995 appointment and in Plata by the 2002 approval of a consent decree and stipulated injunction. Both orders were intended to remedy constitutional violations and were given ample time to succeed—12 years in Coleman, and 5 years in Plata. Contrary to the State’s claim, § 3626(a)(3)(A)(ii)‘s reasonable time requirement did not require the District Courts to give more time for subsequent remedial efforts to succeed. Such a reading would in effect require courts to impose a moratorium on new remedial orders before issuing apopulation limit, which would delay an eventual remedy, prolong the courts’ involvement, and serve neither the State nor the prisoners. The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy, given the ongoing deficiencies recently reported by both the Special Master and the Receiver. Pp. –––– – ––––.
(c) The three-judge court did not err in finding that “crowding [was] the primary cause of the violation,” § 3626(a)(3)(E)(i). Pp. –––– – ––––.
(1) The trial record documents the severe impact of burgeoning demand on the provision of care. The evidence showed that there were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in administrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care. Crowding creates unsafe and unsanitary conditions that hamper effective delivery of medical and mental health care. It also promotes unrest and violence and can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Increased violence requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. Overcrowding’s effects are particularly acute in prison reception centers, which process 140,000 new or returning prisoners annually, and which house some prisoners for their entire incarceration period. Numerous experts testified that crowding is the primary cause of the constitutional violations. Pp. –––– – ––––.
(2) Contrary to the State’s claim, the three-judge court properly admitted, cited, and considered evidence of current prisonconditions as relevant to the issues before it. Expert witnesses based their conclusions on recent observations of prisonconditions; the court admitted recent reports on prison conditions by the Receiver and Special Master; and both parties presented testimony related to current conditions. The court’s orders cutting off discovery a few months before trial and excluding evidence not pertinent to the issue whether a population limit is appropriate under the PLRA were within the court’s sound discretion. Orderly trial management may require discovery deadlines and a clean distinction between litigation of the merits and the remedy. The State points to no significant evidence that it was unable to present and that would have changed the outcome here. Pp. –––– – ––––.
*3 (3) It was permissible for the three-judge court to conclude that overcrowding was the “primary,” but not the only, cause of the violations, and that reducing crowding would not entirely cure the violations. This understanding of the primary cause requirement is consistent with the PLRA. Had Congress intended to require that crowding be the only cause, the PLRA would have said so. Pp. –––– – ––––.
(d) The evidence supports the three-judge court’s finding that “no other relief [would] remedy the violation,” § 3626(a)(3)(E)(ii). The State’s claim that out-of-state transfers provide a less restrictive alternative to a population limit must fail because requiring transfers is a population limit under the PLRA. Even if they could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The court also found no realistic possibility that California could build itself out of this crisis, particularly given the State’s ongoing fiscal problems. Further, it rejected additional hiring as a realistic alternative, since the prison system was chronically understaffed and would have insufficient space were adequate personnel retained. The court also did not err when it concluded that, absent a populationreduction, the Receiver’s and Special Master’s continued efforts would not achieve a remedy. Their reports are persuasive evidence that, with no reduction, any remedy might prove unattainable and would at the very least require vast expenditures by the State. The State asserts that these measures would succeed if combined, but a long history of failed remedial orders, together with substantial evidence of overcrowding’s deleterious effects on the provision of care, compels a different conclusion here. Pp. –––– – ––––.
(e) The prospective relief ordered here was narrowly drawn, extended no further than necessary to correct the violation, and was the least intrusive means necessary to correct the violation. Pp. –––– – ––––.
(1) The population limit does not fail narrow tailoring simply because prisoners beyond the plaintiff class will have to be released through parole or sentencing reform in order to meet the required reduction. While narrow tailoring requires a “ ‘ “fit” between the [remedy’s] ends and the means chosen to accomplish those ends,’ ” Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 106 L.Ed.2d 388, a narrow and otherwise proper remedy for a constitutional violation is not invalid simply because it will have collateral effects. Nor does the PLRA require that result. The order gives the State flexibility to determine who should be released, and the State could move the three-judge court to modify its terms. The order also is not overbroad because it encompasses the entire prison system, rather than separately assessing each institution’s need for apopulation limit. The Coleman court found a systemwide violation, and the State stipulated to systemwide relief in Plata. Assuming no constitutional violation results, some facilities may retain populations in excess of the 137.5% limit provided others fall sufficiently below it so the system as a whole remains in compliance with the order. This will afford the State flexibility to accommodate differences between institutions. The order may shape or control the State’s authority in the realm of prisonadministration, but it leaves much to the State’s discretion. The order’s limited scope is necessary to remedy a constitutional violation. The State may move the three-judge court to modify its order, but it has proposed no realistic alternative remedy at this time. Pp. –––– – ––––.
(2) The three-judge court gave “substantial weight” to any potential adverse impact on public safety from its order. The PLRA’s “substantial weight” requirement does not require the court to certify that its order has no possible adverse impact on the public. Here, statistical evidence showed that prison populations had been lowered without adversely affecting public safety in someCalifornia counties, several States, and Canada. The court found that various available methods of reducing overcrowding—good time credits and diverting low-risk offenders to community programs—would have little or no impact on public safety, and its order took account of such concerns by giving the State substantial flexibility to select among the means of reducing overcrowding. The State complains that the court approved the State’s population reduction plan without considering whether its specific measures would substantially threaten public safety. But the court left state officials the choice of how best to comply and was not required to second-guess their exercise of discretion. Developments during the pendency of this appeal, when the State has begun to reduce the prison population, support the conclusion that a reduction can be accomplished without an undue negative effect on public safety. Pp. –––– – ––––.
*4 2. The three-judge court’s order, subject to the State’s right to seek its modification in appropriate circumstances, must be affirmed. Pp. 41–48.
(a) To comply with the PLRA, a court must set a population limit at the highest level consistent with an efficacious remedy, and it must order the population reduction to be achieved in the shortest period of time reasonably consistent with public safety. Pp. –––– – ––––.
(b) The three-judge court’s conclusion that the prison population should be capped at 137.5% of design capacity was not clearly erroneous. The court concluded that the evidence supported a limit between the 130% limit supported by expert testimony and the Federal Bureau of Prisons and the 145% limit recommended by the State Corrections Independent Review Panel. The PLRA’s narrow tailoring requirement is satisfied so long as such equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. Pp. –––– – ––––.
(c) The three-judge court did not err in providing a 2–year deadline for relief, especially in light of the State’s failure to contest the issue at trial. The State has not asked this Court to extend the deadline, but the three-judge court has the authority, and responsibility, to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes require that court to exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans that will promptly and effectively correct the violations consistent with public safety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observations reflect the fact that the existing order, like all ongoing equitable relief, must remain open to appropriate modification, and are not intended to cast doubt on the validity of the order’s basic premise. Pp. –––– – ––––.
Affirmed.