Tuesday, January 3, 2012

Happy New Year -- and another look at the prison conditions case of Brown v. Plata

Back in June of 2011 I wrote a post on a Supreme court case, Brown v. Plata, limiting the permissible population of California's prisons as a remedy not for unconstitutional overcrowding but for violation -- by reason of overcrowding -- of the right to decent health care while in state custody.  I said the decision was a good one, but not entirely.

Here, briefly, is the reason for the qualification: the oddity of limiting prison population without finding that the number of inmates was itself unconstitutional. (Justice Alito's dissent emphasizes the point that the case did not turn on a finding of overcrowding unconstitutional in itself. (Alito, J., dissenting, slip opinion at 1-2.)) This makes the right to adequate health care somehow more demanding than the right against overcrowding. That's not necessarily unreasonable -- the presence of abysmal health care may be more unmistakable and its consequences more sharp than would be true for overcrowding as such. But I don't think the courts have articulated such a priority listing of rights, and without one the special leverage for one compared to the other is puzzling.

Nor is it easy to produce a listing of human claims that convincingly measures them all against each other. Consider, for instance, the claims of different groups of school children. Do handicapped children have greater rights to public support for their education than poor children? Or members of racial minorities compared to their peers disadvantaged by economics or by handicaps?

What about weak students compared to average students? Weak students compared to strong students may be easier, since strong students may prosper even without special support. Or, perhaps more likely, strong and weak students will both get special support, leaving those in the middle least assisted. Do those in the middle have a claim comparable to any of these other groups?

There are, to be sure, some weak rights, such as the right not to be discriminated against on some ground society isn't much worried about (say, whether your factory makes margarine or butter). But rights that have real force give those who enjoy them a big, often probably a huge, edge in conflicts over the allocation of society's always scarce resources. That's a central reason people fight to have their claims established as rights.

It's a smart move, and I think the "rights explosion" of the past 50 years has broadly made our society more just -- and did so in this particular case. But in a society less than fully committed to social justice, even declaring a right hardly guarantees it will be fully honored. Meanwhile, the pockets of rights that we do recognize aren't evenly distributed, and so -- sometimes -- they probably create their own degrees of injustice as the weak compete against the weaker for the benefits society is prepared to distribute.

So I'm glad the prisoners won their case. But the priority of health care rights as against overcrowding rights reflects how uneven, if not inequitable, our distribution of rights and resources sometimes is.

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