A Hat Tip to Justice Anthony Kennedy: The Jurist Who Called Out Mass Incarceration

The politics associated with the appointment of a replacement for Justice Kennedy, 81, who resigned June 27, 2018, from the US Supreme Court after thirty years of service, is gut-wrenching. Take your own gut test: what rights and protections do you fear are being whittled away by the sway and stench of political expediency? The battle for the ideological composition of the Supreme Court is upon us, and it has immediately begun to wax ugly.

This political game of thrones was originally orchestrated by Senate majority leader Mitch McConnell when he blocked President Obama’s nomination of Merrick Garland in 2016 until the presidential election was held. This paved the way for the appointment of Antonin Scalia’s inky ghost, Neil Gorsuch. That appointment has led to a slew of 5–4 decisions that impact negatively on labor unions (workers) and a travel ban steeped in a shun of the religious freedom rights of Muslims (people) wanting to come to this country. Stripping away people’s constitutional protection appears to be the paramount business of the conservative justices appointed by Republican presidents to the Supreme Court. So much for the balancing scales we associate with justice.

Justice Kennedy’s decisions have often been swing votes — and there hasn’t been a legal Geiger counter to predict his point of view on the myriad and complicated cases that were plopped in the laps of the justices. CNN Supreme Court reporter Ariane de Vogue wrote

Kennedy disliked the label of “swing vote,” but he did side with his conservative colleagues on issues such as campaign finance, gun control and voting rights. He also cast a vote with conservatives in Bush v. Gore, the 2000 case on disputed electoral results that cleared the way for the presidency of George W. Bush.

Kennedy authored the majority opinion in Citizens United v. FEC striking down election spending limits for corporations and unions in support of individual candidates.

Then there’s the Justice Kennedy who has sided with the liberal wing of the court on a number of pivotal issues. He has been instrumental in preventing Roe v. Wade from being overturned and has supported same-sex marriage, affirmative action, and criminal justice reform. In many respects, Kennedy has stood for supporting basic rights associated with people moving through personal encounters with life — marriage, racial equality, and incarceration.

Kudos to Kennedy

In my memoir, Derailed: How Being a Lawyer Taught Me to Survive in Prison, I wrote about Brown v. Plata,[1] the 2011 US Supreme Court case for which Justice Kennedy wrote the majority opinion. Kennedy, citing from the documented evidence of Eighth Amendment violations of inmates’ rights in California, opined for the majority that the mass incarceration of people resulted in overcrowding that equated to health and safety conditions so egregious that they rose to the level of cruel and unusual punishment. The evidence Justice Kennedy relied upon was developed by reputable experts during the time I was incarcerated in one of the state’s prisons. Having lived through or otherwise experienced much of what Justice Kennedy noted, I found his majority opinion to be eerily accurate. I was once housed with 210 other men in a prison dorm designed to hold ninety men; we shared four latrines and the hot, dank, cramped living quarters described by Justice Kennedy. Overcrowding creates a tension between inmates and staff caused by a system functioning on sheer overload.

It’s important to review some of the findings of Justice Kennedy. His judicial concern and subtle outrage for the abhorrent condition of California’s incarcerated people is rare. Here is an outline of his findings that starts on page 99 of Derailed:

The issue the Supreme Court was considering in the Plata case was this: does a court order requiring California to reduce its prison population to remedy unconstitutional conditions in its prisons violate existing law?

On May 23, 2011, in a five-to-four decision, Justice Anthony Kennedy’s majority ruling wielded a thunderous indictment of the conditions in which inmates suffered as charges of the California prison system. The decision upheld a federal appellate court’s decision by a panel of three judges that serious overcrowding in California’s thirty-three prisons was the “primary cause” for violations of the Eighth Amendment.

Justice Kennedy wrote that “the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights and is authorized by [law].”

The next effect of the Plata decision was an order to release enough prisoners, over time, so the California inmate population would come within 137.5 percent of the prisons’ total design capacity. That amounted to releasing between thirty-eight thousand and forty-six thousand inmates. The state was ordered to comply with the reduction “without delay.”

Following are examples of the deficiencies cited in Justice Kennedy’s opinion:

1. Inadequate medical screening of incoming prisoners.
2. Delays in or failure to provide access to medical care, including specialist care.
3. Untimely responses to medical emergencies.
4. The interference of custodial staff with the provision of medical care.
5. The failure to recruit and retain sufficient numbers of competent medical staff.
6. Disorganized and incomplete medical records.
7. A lack of quality control procedures, including lack of physician peer review, quality assurance, and death reviews.
8. A lack of protocols to deal with chronic illnesses, including diabetes, heart disease, hepatitis, and HIV.
9. The failure of the administrative grievance system to provide timely or adequate responses to complaints concerning medical care.

The claims alleged that patients being treated by the CDCR [California Department of Corrections and Rehabilitation] received inadequate medical care that resulted in the deaths of thirty-four inmate-patients.

Justice Kennedy described egregious conditions found by experts who visited California prisons as fact finders for the panel of federal judges:

1. Suicidal patients were being held in “telephone-booth sized cages without toilets” for prolonged periods of time because there was simply no other place to hold them.
2. One correctional officer testified that as many as fifty sick prisoners could be held in a twelve-by-twenty-foot cage for up to five hours while they waited for medical treatment.
3. One report found wait times for mental-health care as long as twelve months.
4. Another analysis estimated sixty-eight preventable suicides or possibly preventable suicides due to failure to provide psychiatric care.
5. “The degree of overcrowding in California’s prisons is exceptional. California’s prisons are designed to house a population just under 80,000, but . . . the population was almost double that.”[2]
6. The State’s prisons had operated at around 200 percent of design capacity for at least eleven years.
7. “Prisoners are crammed into spaces neither designed nor intended to house inmates.”[3]
8. Inadequate mental health care. “A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic.”[4]
9. Deficient medical treatment. There were 557 preventable deaths in a one-year period. The relied-upon report found that a preventable death occurred every six to seven days in the California prison system [due to deficiencies in medical treatment].

Replacing Justice Kennedy with a Like-Thinking Jurist

I wish I could be confident that the president will consider prison reform matters in his calculus for choosing a replacement. However, having a short-attention-spanned president who bores quickly if not the center of attention has the makings of a perfect storm against the appointment of a person with the likes of Kennedy’s judicial sensitivities to some groups’ human rights. Trump’s policy of incarcerating over 2,000 children separated from parents seeking lawful asylum bespeaks his sentiments toward incarcerated people: what can this population do for me?

In my post Prison Reform, Politics, and Kushner: A Curious Amalgam, I refer to Trump’s lip service single-sentence inaugural speech reference to prison reform for those reentering society after incarceration. Placing one’s faith in Trump’s words is often a setup for disappointment. He is the boy who cried wolf, as well as the wolf, all in one person. The only other people I’ve come across of the same ilk as Trump were men I met in prison.

The President’s Methodology for Choosing a Candidate

According to NPR host Mary Louise Kelly, “President Trump says he already has a short list — 25 names of potential Supreme Court nominees.” From a June 28, 2018, interview with the president on NPR’s All Things Considered, Trump is quoted saying, “We have a very excellent list of great, talented, highly educated, highly intelligent, hopefully tremendous people. I think the list is very outstanding.” As Kelly points out, “this list includes judges who have been handpicked by a group of conservative lawyers called the Federalist Society.”

The Federalist Society is a hugely powerful nationwide organization of conservative lawyers that will be instrumental in helping President Trump pick the next Supreme Court nominee.

The Federalist Society’s website states one of its three purposes :

Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.

Here’s my attempt to translate the statement:

Sentence one: “Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society.”

English translation: The legal profession and students of law are radically indoctrinated participants in a system that supports a liberal ideology that upholds equal protection of the law for all people through the rule of law.

Commentary: My experience in law school was to learn to apply the facts of a case to the rule of law and then implement a good-faith advocacy plan to both sides of the argument. The concepts of liberalism and conservatism were not matters of concern. I don’t know how to interpret the phrase “orthodox liberal ideology” for lack of understanding exactly what it means.

Sentence two: “While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.”

Commentary: Since the meanings of “academic community” and “these views” are not defined, there’s no clue to what point is being made. By and large, I’ll pass on trying to make sense of this statement.

Trump’s Racial Bias for Appointing White Judges

According to a March 2018 Pew Research Center report by John Gramlich, “Trump has appointed 29 judges as of March 20, including 26 who are white and three who are Asian. He has yet to appoint a black or Hispanic judge.”

Gramlich emphasizes in his piece that

Just 10% of the judges President Donald Trump has appointed to the federal bench since taking office are racial or ethnic minorities — a decline from the administration of Barack Obama, whose judicial appointees were a record 36% nonwhite, according to a Pew Research Center analysis of data from the Federal Judicial Center.

This statistic is important and telling of the commander in chief’s racist approach to most any issue he soils with his touch.

The Federalist Society has no discernable policies on prison reform. A May 2018 report by the Federal Bureau of Prisons shows this racial breakdown in the federal prison system:

Race# of Inmates% of InmatesAsian2,7001.5%Black69,32437.8%Native American4,0682.2%White107,12858.5%

It’s imperative that Trump appoint judges and justices that reflect the racial composition in federal and state prisons. Trump’s manifested aversion to checks and balances in government is reflected in his attempt to keep his judicial appointment white.

Where Is the Next Anthony Kennedy?

I wish I could be optimistic. All signs point in the direction of Trump’s not caring about the well-being of incarcerated people or for the criminal justice system as a whole.

As this post goes to press, a June 27, 2018, post by Bloomberg cites unnamed sources that have mentioned federal appeals court judge Brett Kavanaugh as a leading contender to replace Justice Kennedy. A study by the American Bar Association Journal of decisions by Kavanaugh shows that he tends to rule against appeals by criminal defendants. In the journal article, Debra Cassens Weiss quotes a blog post: “Kavanaugh ‘has written almost entirely in favor of big businesses, employers in employment disputes, and against defendants in criminal cases.’” He also, according to the journal, “would be attractive to conservatives because of positions he took on two hot-button issues: gun rights and abortion.”

I will continue to watch and report on this evolving issue. Your comments and points of view are always welcome.

May the force be with us.

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