Two weeks ago, Slate published an excellent interview with Berkeley law professor Jonathan Simon, author of Mass Incarceration on Trial. In the interview, Simon characterizes the fight against mass incarceration as a moral imperative and suggests that lawsuits have a role to play in the fight. What is needed, Simon suggests, is “a new generation of federal judges” who are willing to act on “the moral sensibility” that Justice Kennedy’s majority decision in Brown v. Plata has “reinvigorated.” Amen!
For those not familiar with Plata, it is the 2011 case where the majority (per Kennedy) held that severe overcrowding in California’s prisons constituted cruel and unusual punishment. Kennedy’s opinion has a moral authority and it is clear that the case affected him personally. Thus, in testimony last week before the House, Justice Kennedy stated that “the idea of total incarceration just isn’t working” and argued that solitary confinement “literally drives men mad.”
In his Slate interview, Simon compellingly suggests that Plata creates a “potentially safe doctrinal space” for future Eighth Amendment lawsuits. This seems absolutely right. Yet I hope that Plata is not the only case occupying this doctrinal space. Brave federal judges will need more than a single opinion to hang their hat on. How can we discover other opinions that might inspire moral action? Perhaps crowdsourcing Eighth Amendment doctrine can help.
Last month, I threw out the idea of hacking mass incarceration based on Plata. However, I’ll admit that I failed to offer a concrete way for others to plug into the effort. Now I have a new idea. It involves leveraging an awesome free legal resource — Casetext. The Casetext platform allows users to mark up and annotate cases in wiki-like fashion. My idea is to create maps of Eighth Amendment cases linked to Casetext and encourage folks to seek out and mark up useful Eighth Amendment arguments within those cases. As an initial experiment, take a look at this map. If you click on the image above, a full-sized version of the map will open in a separate window. Then, if you click on any given case, you’ll be taken to the Casetext version of the opinion. From there, you can mark up and annotate the case in any way you see fit.
Now careful readers will notice that the map above does not include Plata. Rather, the map represents the 2-degree network linking 2003’s Ewing v. California back to 1980’s Rummel v. Estelle. I wanted to start this experiment with this particular network for three reasons. First, it is a small and manageable network — only 7 cases. Folks can get up to speed quickly if they have interest. Second, the doctrinal line directly implicates mass incarceration. Rummel and Ewing both upheld obscene and excessive sentences against Eighth Amendment challenges. This map thus represents doctrine that must be undermined — at least those cases in red must be undermined — if sentencing practice is to be successfully confronted in the courts.
Third and finally, this is a deeply divided network. Five of the seven cases are 5-4s while the other two are 6-3s. (The degree of dissent [DOD] is therefore 0.93 — a network of all 9-0 cases would have a 0.0 DOD whereas a network of all 5-4 cases would have a DOD of 1). In my view, this high degree of dissent means that the doctrine is potentially unstable and susceptible to change. Just as importantly, there could be some potentially useful dissents that suggest an alternative vision for the jurisprudence.
In future posts, I will link this network up to Plata as well as back to earlier cases. I will also start mapping key dissents and concurrences separately. At this point, however, I invite folks to look at these cases on Casetext and share their thoughts and insights there. If this experiment works, we can tweak the project in whatever way works according to the wisdom the crowd.by