Reviewing TED Talks, such as Goffman’s How we’re priming some kids for college – and other for prison, or films such as Ana DuVernay’s “13th”, as previously discussed, gives viewers a fairly holistic picture of the mass incarceration occurrence in America. These pieces portray the staggering reality of the volume of prisoners, the racist undertones propelling the movement forward, and explain why this phenomenon is a problem, rather than a solution for America’s justice system. There are many groups involved in this analysis, including police officers, politicians, judges, and the media. However, another important piece of the puzzle is the law – what impact is the law itself having on mass incarceration and where does it currently stand?

In his book, Mass Incarceration on Trial, Jonathan Simon discusses exactly that. Simon takes a look at the cases that have affected mass incarceration, and how case law should be used to break away from prison overcrowding. To make his point, the book focuses on California cases, noting that California had one of the highest rate increases in the mass incarceration discussion: “California went from having fewer than 20,000 prisoners in 1977 to …. nearly 160,000 by 2003.” Simon, Jonathan. Mass Incarceration on Trial. (2014), 18.  Simon reviews pinnacle cases in recent California history to show how case law might present the path to break away from the previously politically and racially motivated push for mass incarceration.

California’s supermax prison at Pelican Bay was the subject of a California case in 1995,Madrid v. Gomez (889 F.Supp. 1146 (N.D. Cal. 1995). The Court evaluated the prison facility in the context of cruel and unusual punishment, an Eighth Amendment violation. This case unearthed evidence of mental and physical abuse towards inmates and resulted in a ruling that concluded the prison’s “violent control tactics and lack of mental health care …. Violated the Eighth Amendment.” Simon at 48. However, the court found that the imprisonment itself did not violate the Eighth Amendment. Around the same time, Coleman v. Wilson (912 F.Supp. 1282 (1995) was decided, a case brought “on behalf of all prisoners with a serious mental illness.” Simon at 74. This resulted in an order for California to create and adhere to a mental health system in the prisons.

These cases are connected to mass incarceration in that, while there are the obvious overcrowding and quantity issues, with this mass incarceration movement came a decrease in quality – the standards of living and care for inmates. The focus of Simon’s work is the Brown v. Plata California Supreme Court case in 2009. This case ordered a population-reduction in California prisons to 137% capacity in two years. Simon at 133. The opinion focused on the importance of human dignity for prisoners and called for and resulted in significant decreases in the California inmate population. This is where Simon sees hope for case law lowering mass incarceration.

Simon’s review of the case law in California is an important lens through which to view mass incarceration. However, it is far from a complete picture. This analysis, as well as the cases on which it is based, focuses on certain solutions to issues arising with mass incarceration, such as lack of medical care, overcrowding, increase in the use of violence to control inmates. Viewing mass incarceration as human rights and constitutional violations has been effective for implementing changes to combat mass incarceration. However, this analysis focuses on results of mass incarceration, rather than its causes It ignores the racist political agendas and manipulation of the media, and the war on drugs, among other factors, that lead to mass incarceration. After reviewing works such as The New Jim Crow or “13th”, one would be surprised to read an analysis of mass incarceration that mentions racism merely in passing, as Simon’s book does. The cases Simon chooses to evaluate were brought on claims of inhuman treatment of inmates and violations of their constitutional rights while incarcerated. Because of this focus, the cases themselves did not focus on the underlying causes of the increased imprisonment, but rather the inmates’ treatment after they are already imprisoned.

The subsequent realization is that California case law is battling mass incarceration in certain ways, ways that might assist in breaking free from mass incarceration as it currently stands, but it is not addressing the underlying causes. This might be due to the fact that doing so would require the actors in the justice system – officers, prosecutors, and judges – to acknowledge their implicit biases. As noted in the article Implicit Bias in the Courtroom, “explicit sexism, racism, and other forms of bias … have become less prominent and public.” However, implicit bias in every stage of the justice system ultimately affects those incarcerated and contributes to mass incarceration. As the article states, “there is simply no legitimate basis for believing that these pervasive implicit biases somehow stop operating in the halls of justice.” It might be because of this that the safest method for courts to address mass incarceration is by attacking the results, rather than the causes.

Allison Nunes