Courts and the Penal State: Lessons from California’s Decades of Prison Litigation and Expansion

Abstract

DOI 10.1515/cjpp-2013-0012 Calif. J. Politics Policy 2013; 5(2): 252–265 Jonathan Simon a, * Courts and the Penal State: Lessons from California’s Decades of Prison Litigation and Expansion Abstract: The Supreme Court’s 2011 Brown v. Plata decision may mark a turning point in the history of mass incarceration in California and nationwide. Between the mid-1970s and 2009 the California prison population grew absolutely and relative to population every year, expanding more than any other large state and continuing to grow even after much of the rest of the country had begun to stabi- lize or even shrink prison populations. Since the court injunction that was upheld in Brown v. Plata, however, the state has begun to shrink its population at one of the fastest paces in history and is also experimenting with changes in its pro- imprisonment penal policies. However a look at the parallel history of prisoners’ rights litigation and mass incarceration in California, particularly the Toussaint v. McCarthy case that took place between 1976 and 1991, shows that the two devel- oped together and that the state’s increasingly uncivilized and degrading prisons reflected a political culture of defiance to constitutional rights developed reac- tively to litigation. Will Brown v. Plata play out any differently? The article sug- gests some reasons why today’s decisions may be more effective in overcoming the state’s hostile penal culture than in the past. Keywords: mass incarceration; prisoners’ rights; uncivilized punishments; prison reform litigation; penology; Brown v. Plata. a Adrian A. Kragen Professor of Law, UC Berkeley *Corresponding author: Jonathan Simon, University of California, Berkeley - Law School ­Berkeley, California 94720, USA, e-mail: jsimon@law.berkeley.edu 1 I s California’s Experiment with Mass ­Incarceration Over? California’s leaders like to claim that California’s prison system is either average in terms of its level of imprisonment by population, or more recently (and incredi­ bly) one of the “finest in the nation,” in terms of the quality of prisons. Neither is accurate. From the mid-1970s California went from a state that fit in with the most lenient regions of the country (and with a lower imprisonment rate than other