Supreme Court Update: Brown v. Plata (09-1233) and Fowler v. United States (10-5443)

June 7, 2011 Supreme Court Update

Greetings, Court fans!

We're back to bring you Brown v. Plata (09-1233), the Court's lengthy and highly controversial decision ordering a reduction in California's prison population; and Fowler v. United States (10-5443), interpreting the federal witness tampering statute.

Justice Kennedy authored the majority opinion in Brown v. Plata (09-1233), where he joined with the liberal wing of the Court to find that overcrowding of California prisons was the primary reason for serious and long-standing violations of the Eighth Amendment's protection against cruel and unusual punishment through inadequate medical and mental health care, and that a population reduction was necessary to remedy these violations. At the time the injunction was issued, California's prisons were at nearly 200% of design capacity. The result: inmates packed in cells resulting in increased disease and violence; inadequate medical and mental health care resources; extremely long waits for these services; and many preventable deaths, prolonged illnesses and needless pain. These conditions prompted two class action lawsuits relating to mental health services (filed in 1990) and medical services (filed in 2001) seeking injunctive relief. Both district courts found serious constitutional violations. Indeed, in one case, the State stipulated to a constitutional violation. The courts then worked for years with the State to remedy the problems, appointing a Special Master in one case and a receiver in another. Despite these many years of efforts, the rising tide of prisoners washed away any positive gains. So the plaintiffs in both cases asked that a three judge district court be assembled to consider the remedy of a prison population limit, as provided under the Prison Litigation Reform Act of 1995 ("PLRA"). Under the PLRA, a three judge court may not be convened to consider population reduction unless a court previously entered an order for less intrusive relief that failed to remedy the problem and gave the defendant a reasonable time to comply with its prior order. Once convened, the three judge court must find by clear and convincing evidence that "crowding is the primary cause of the violation of a Federal right" and that the relief extends no further than "is necessary" and "is the least intrusive means necessary to correct the violation. . . ."

California first argued that the three judge court shouldn't have been convened because it should have been given more time to comply with the district courts' prior remedial orders. This argument was easily dispatched: 12 years had passed since the appointment of a Special Master in one case; 5 years had passed since the consent decree in the other. Though additional later orders had been entered, the basic plan remained unchanged and had not been effective. The Court also rejected California's complaints that it wasn't able to present evidence of current conditions, finding no factual basis for this argument. The Court heard significant expert testimony about current conditions; California pointed to no substantial evidence that it wasn't permitted to introduce; and the discovery cut-off imposed by the three judge court a few months before trial was an appropriate step in managing the litigation.

Moving to the merits, California argued that overcrowding was not the "primary" reason for the violations because curing the overcrowding problem would not in and of itself cure the violations. Applying a deferential standing of review to this mixed question of fact and law (particularly since the "mix weighs heavily on the fact side"), the Court concluded that the evidence below supported the three judge court's decision that overcrowding was the "primary" cause, creating unsafe and unsanitary living conditions, and affecting every aspect of the delivery of medical and mental health care. Overcrowding need not be the only cause, it need only be the "foremost, chief, or principal cause of the violation." The three judge court also properly found that no remedy other than population reduction would correct the violation and that the remedy imposed was both necessary and no more intrusive than necessary to correct the violation. California argued that it could address the problem through transfers of prisoners out of state or to county facilities, the creation of increased capacity via new construction, the hiring of additional medical and mental health personnel, and training. The first two measures are just alternate ways to reduce the prison population and remain available to California. The third and fourth had never been successful; the prisons remained deeply understaffed notwithstanding years of focus on hiring. But if California suddenly succeeded where it had long failed, it could move the court for a modification of the decree on that basis. Finally, these options (while still available to California) are expensive and the three judge court did not have to turn a blind eye to California's fiscal crisis. Any solution which required additional expenditures of funds was unlikely to succeed. Finally, the mere fact that the remedy would benefit prisoners outside of the plaintiff class did not mean that it swept too broadly. It was narrowly tailored to address the identified violations; any side benefits were collateral. And if the three judge court had imposed a population reduction remedy aimed only at current members of the class, this would have significantly reduced California's discretion in implementing the remedy. Recognizing that its ruling could result in setting tens of thousands of convicted criminals free, the Court explained that it was sensitive to the clear public safety concerns raised, but found that the evidence presented to the district court showed that a population reduction to 137.5% of design capacity would be adequate to remedy the constitutional violations and could be achieved with no adverse impact on the public, via parole reform, diversion of low risk offenders, and the expansion of good time credits. The Court also reminded California that it could move to modify the decree at any time if it could show it was finally violation-free, and suggested that California might well want to move to modify the decree to increase the amount of time it had to comply.

Justice Scalia, joined by Justice Thomas, dissented. First, they took issue with the nature of the alleged Eighth Amendment violation. There is no right to be free from a deficient medical system. There is only an individualized right to be free from cruel and unusual punishment, including the denial of needed medical attention. The majority either erred by allowing a class to go forward where most of the individuals didn't have a cognizable constitutional claim (which would be procedurally improper since class actions are simply a procedural vehicle to amalgamate valid claims), or the majority erred by recognizing a new type of constitutional claim based on being a patient in a poorly run prison system (which would be a "gross substantive departure" from the constitutional standard). This improper identification of the constitutional issue flows over into the remedy, which is not tailored even to the classes as defined, but would result in the release of 46,000 prisoners, many of whom "will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym." Scalia then railed against structural injunctions generally, and this one specifically. As he makes perfectly clear, he doesn't think courts should issue them. They raise severe separation of powers and competency questions. And here, when dealing with sensitive prison operations, these problems are exacerbated. Scalia would also not defer to the three judge court's fact finding since, in his view, it was not truly fact finding (based on evidence of historical information) but policy judgments (based on the predictions and value judgments of experts). Finally, Scalia rebuked the majority for its unsolicited advice regarding modification of the decree. This "bizarre coda" is either a "polite reminder" that parties can always seek to modify a decree or an improper "warning shot" that should California seek modification, the district court better grant that request. Thus, it is either utterly unnecessary or completely inappropriate. All of this goes to what Scalia wouldn't do. What would he do? He would only grant prisoner release under the PLRA on an individualized basis – in this type of case, if and only if a prisoner was unable to get adequate medical attention in prison. Scalia acknowledged that the PLRA seemed to envision the possibility of institutional prisoner reduction orders, but did "not believe this objection carries the day," since the PLRA as a whole was aimed at limiting judicial power, not enhancing it.

Justice Alito, joined by the Chief, issued a separate dissent. (Apparently, they were not comfortable with the scorched-earth, no institutional injunctions approach, advocated by Scalia.) They would reverse on the more narrow grounds that the three judge court erred by: (1) failing to consider evidence of current conditions and instead basing the decision on outdated information; (2) concluding that no remedy short of "massive prisoner release" could remedy the alleged constitutional problems; and (3) giving inadequate weight to the order's impact on public safety. The State presented some evidence that conditions were improving and the district court did not make a finding that unconstitutional conditions continued to exist. Such a conclusion was a necessary precursor to the imposition of current injunctive relief. Moreover, Alito and the Chief found the notion that massive prisoner release was required to ensure adequate medical care "implausible on its face" and not supported by clear and convincing evidence. While overcrowding may contribute to poor care, it certainly must be possible to do things like ordering new equipment, hiring better doctors, sanitizing exam tables, and implementing a better record management system without releasing 46,000 people. The relief ordered is simply not tailored to the constitutional violations alleged and is frankly ill-suited to correcting them. Finally, the district court did not give adequate weight to the evidence of public safety ramifications. The court's findings in this area were not like standard findings of fact and thus, were not entitled to the same degree of deference on appeal. Alito concluded on this optimistic note: "I fear that today's decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong. In a few years, we will see."

If you were hoping to move on to something more upbeat, our apologies in advance. In Fowler v. United States (10-5443), Charles Fowler was convicted under the federal witness tampering statute for killing a local police officer who came upon Fowler and several other men as they were preparing to rob a bank. The statute prohibits killing "another person, with intent to . . . prevent the communication by another person to any law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense." The statute further provides that the defendant need not know that the officer or judge actually is a federal official. On appeal, Fowler argued that the Government failed to show that he had killed the police officer to prevent him from communicating with a federal officer. The Eleventh Circuit held that the Government only needed to show "possible or potential" communication to federal authorities, and affirmed Fowler's conviction.

The Court reversed, in an intriguing 6-1-2 split. Justice Breyer wrote for the majority, which included the Chief, Kennedy, Thomas, Sotomayor, and Kagan. The Court began with the proposition that since the statute focuses only on the defendant's intent, the Government need not show beyond a reasonable doubt, or even that it was more likely than not, that the victim would have communicated with federal authorities. But since the statute speaks of the defendant's intent to "prevent" a communication, and there is no need to "prevent" something that cannot possibly occur, the Government must prove something about the hypothetical communication. The question was, what? The Court looked to the dictionary definition of "prevent": to render an "intended, possible, or likely" event impossible by anticipatory action. The Court quickly rejected, as contrary to the statute, any standard that would require a showing that the victim "intended" to make a communication. The Court also rejected a standard which would only require that a communication be "reasonably possible." Since violations of state law often implicate federal law as well, and there is always some possibility of communication with federal officials about a federal offense, a "reasonably possible" standard would sweep too broadly. The Court settled instead on a "reasonable likelihood" standard as most consistent with the witness tampering statute's language and objectives. In sum, where a defendant kills a person with intent to prevent communication with law enforcement officers generally, the Government must show that it was at least reasonably likely that there would have been a communication with a federal officer. (It remains to be seen whether Fowler can benefit from this standard. Since he did not challenge the "reasonable likelihood" standard at trial, the Eleventh Circuit must first determine, on remand, whether he can proceed with his challenge under the plain error doctrine.)

Justice Scalia concurred in the judgment only. By his reading of the statute, the "federal officer" requirement is an element of the crime, and thus must be proven beyond a reasonable doubt. This element would be satisfied, for example, where the person killed turned out to be an FBI informant, or where the killer wanted to silence a witness about a crime only federal officials prosecute. The Court's "reasonable likelihood" standard was both unprecedented and "hopelessly indeterminate." Scalia doubted that a jury would be able to discern the difference between a communication that was "reasonably likely" and one that was "reasonably possible." But the dissent's approach was worse still. It would make the statutory words "of the United States" superfluous, and would federalize crimes that had no connection to any federal investigation. In this case, the Government's only evidence that the slain police officer would have communicated to federal authorities is the fact that a different state police officer contacted a federal officer four years later about a robbery by one of Fowler's confederates – after the state statute of limitations had expired. Under these circumstances, Scalia would hold that there was insufficient evidence to support Fowler's conviction on remand.

Justice Alito, joined by Justice Ginsburg, dissented. In their view, the Court's "reasonable likelihood" standard effectively added an element not present in the text of the witness tampering statute. Under the statute that Congress passed, a rational jury in this case could have found that Fowler's intent was to prevent his victim from communicating any information that would lead to his arrest and conviction. And since the victim possessed information that related to, among other things, a federal crime, a rational jury could infer that this group included law enforcement officers who were employed by the United States.

With more than a handful of decisions outstanding, you'll see us in your inbox again soon. Until then, thanks for reading!

Kim & Jenny

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400