Mass Incarceration and the Supreme Court

Last week, the Baltimore Sun published an editorial I wrote linking the phenomenon of exonerations to the problem of mass incarceration. Our justice system is overwhelmed by sheer volume, I argued, making wrongful convictions inevitable. I concluded by suggesting that we consider a radical solution to the mass incarceration problem — concerted policy of decarceration.

This suggestion obviously raises many difficult questions. Most such questions — What would decarceration look like? What is the right balance between freedom and safety? — have nothing to do with this blog’s domain of doctrinal mapping. However, over my next few posts, I want to examine a question that does resonate here: Does Supreme Court doctrine contain any potential constitutional arguments against mass incarceration? Is there a way mapping could help us find such arguments?

It’s undoubtedly a long-shot. Mass incarceration is a highly complex phenomenon crossing multiple jurisdictional lines and so it won’t likely reduce to a single case or controversy. Yet it also strikes me as unduly cynical to believe that the constitution has nothing to say about one of the most troubling social realities of our day. No matter how you interpret our constitutional commitment to liberty, locking up over 2 million souls in prison should seem suspect. Maybe then, just maybe, there are kernels of viable arguments against mass incarceration in Supreme Court doctrine.

How to start? Brown v. Plata is as good a place as any. In this 2011 case, the Supreme Court held 5-4 that a court-mandated population limit was necessary to remedy a violation of prisoners’ Eighth Amendment rights. California prisons were (and are) severely overcrowded and the Court upheld the decarceration policy — mandatory release of 38,000-46,000 inmates — fashioned by the lower federal court as consistent with the Prison Litigation Reform Act (PLRA).

Although the PLRA was at issue, the Eighth Amendment is where the action against mass incarceration lies. The idea is that overcrowding is cruel and unusual. How far back does that idea go. In his majority opinion, Justice Kennedy opened his Eighth Amendment analysis stating: “The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.” For this hopeful proposition, Kennedy cited back to Trop v. Dulles (1958). This makes a good endpoint for a network.

So let’s begin this project by constructing a citation network linking Brown v. Plata to Trop v. Dulles. Using the SCOTUS Mapper software, I identified the 2 degree connections (cases that Plata cites that in turn cite Trop), 3 degree connections (cases that cited/are cited by by 2-degree cases that in turn cite Trop) and 4 degree connections. There were 9 2-degree cases, 48 3-degree cases, and 186 4-degree cases. (Click on the links to see a schematic visualization of those networks).

Now 186 4-degree cases is WAY to many cases to look at — and 48 3-degree cases is also a bit too demanding. So using CourtListener’s search tools, I filtered the networks above to only display those cases that contained the words “prison” (and related words like “prisoner”) and “Eighth” (here I did an exact search). This had the effect of seriously reducing the size of the networks – though the 4- and 3-degree are still large.

186 4-degree cases was filtered down to 77 cases — a 59% decrease. (Click on image to for a larger view).


48 3-degree cases was filtered down to 33 cases — a  31% decrease. (Click on image to for a larger view).


Finally, the 9 2-degree cases were filtered down to 8 cases. This is a mere 11% decrease in network size and it suggests, as is intuitive, that the 2-degree cases are most directly related to each other in content around prison and the Eighth Amendment. Interestingly though, this filter knocked out Trop v. Dulles itself. Although it provides staple quotes about the Eighth amendment in the prison context, that case was not about prisons.


In my next post, I’ll begin the process of examining the cases in the networks above and trying to observe patterns. For now though, I’ll leave readers to explore the networks above on their own and see if anything useful jumps out!

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