Brown v Plata, 563 US 2011 (23 May 2011)
On 23 May 2011 the Supreme Court of the United States upheld a lower court's decision finding that the conditions in California's overcrowded prisons violated prisoners' Eighth Amendment right not be subjected to cruel and unusual punishment. As a result of the overcrowding, adequate medical care could not be provided to prisoners. The Court reaffirmed US authority that denial of basic sustenance, including adequate medical care, violates the Eighth Amendment. What is perhaps more notable is the remedy it upheld, a cap on the prison population. The Court could have ordered the State to provide adequate medical care in its prisons, and accepted the State's plans for achieving that result. The Court instead found that only if the prison population decreased would it be possible for adequate medical care to be provided.
The facts as found in the lower court decisions are grim. A prisoner in California "needlessly dies every six to seven days due to constitutional deficiencies in the medical delivery system". Prisoners requiring urgent referrals to specialist treatment often waited months for that treatment, if they ever received it.
The decision on appeal related to two class actions arising from these conditions. 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 mental health care provided continued to deteriorate due to further overcrowding. In Plata v Brown, filed in 2001, the State accepted that deficiencies in prison medical care violated prisoners’ Eighth Amendment rights and stipulated 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.
Following these ongoing failings, a three judge lower court ordered that the prison population be reduced to 137.5% of capacity.
The ability of a court in the United States to order that prison numbers be reduced is stringently curtailed by the Prison Litigation Reform Act (1995), which contains a range of requirements that will not be directly relevant in Australia. For present purposes, the most relevant findings are that overcrowding was the primary cause of the violations of Eighth Amendment rights, and as a result these violations could not be remedied any other way.
The Supreme Court accepted the lower court's findings of fact that the State's efforts to provide adequate health care would not succeed until overcrowding was reduced. Efforts to deliver new programs were thwarted by the inability to hire and retain adequate staff and the absence of physical space to provide medical care. These issues simply could not be addressed so long as prisons remained overcrowded. Plans for construction of new facilities had no real prospect of being carried out given budgetary constraints. A cap on the population, achieved through reductions in the absolute number of prisoners, was therefore the only possible means of avoiding ongoing constitutional violations.
The Court was firmly divided, 5:4, in this finding. The dissenting judgments focused, most relevantly, on the concern that the judiciary not involve itself in policy decisions that are the proper province of the executive. If the Court orders such relief on the basis that "prison medical facilities are inadequate, the essential distinction between judge and executive would have disappeared: it would have become the function of the courts to assure medical care."
Relevance to the Victorian Charter
Brown is of most direct relevance to s 22 of the Charter, the right to humane treatment while in detention. Given the egregious facts of Brown, however, it does not represent an extension of the standard already likely to be required by s 22. In Castles v Secretary to the Department of Justice  VSC 310 the Victorian Supreme Court commented that s 22 will require that "Like other citizens, prisoners have a right to…a high standard of health. That is to say, the health of a prisoner is as important as the health of any other person." A high standard of health will require the provision of medical care well beyond what was found to be available in California's prisons.
The Supreme Court's affirmation of the order to reduce the prison population, a form of structural injunction is the more notable of its findings. Such orders, which require large scale changes in an organisation's practices and procedures, are unknown in Australian courts. However when confronted with ongoing, systemic conditions that, on the facts as found, make continued human rights breaches all but inevitable, their appeal is difficult to deny. The Charter requires that public authorities act compatibly with human rights, and give proper consideration to human rights in any decision making process. This may give some basis for arguing that broader injunctions may be necessary to provide the relief envisaged by s 39 if a public authority displays the level of dysfunction found in Brown. It is likely, however, that any such broadening will be limited, for reasons similar to those expressed by the minority in Brown.
The decision is at http://www.supremecourt.gov/opinions/10pdf/09-1233.pdf.
Further reading about prisoner rights can be found here on the HRLC website.
Tim Maxwell is a lawyer with Allens Arthur Robinson.