Jesuit priest and lawyer Kurt Denk asks us to consider what a new, landmark Supreme Court decision regarding California prison overcrowding says to Catholics and all those trying to live as faithful citizens. He suggests two areas that should inform our actions within the public square:
First, human dignity — as a concept within the Eighth Amendment and one underlying Jesus’ commands to his disciples — remains relevant to contemporary political and legal debate.
Second, competing visions of the role of various institutions (such as courts and state governments) and actors (such as voters) in addressing questions of dignity, punishment, deterrence, and rehabilitation implicate themes that are deeply rooted in Catholic social teaching.
Over the past two weeks, Ascension and Pentecost reminded us of mission – mission to do and live as Jesus did and lived. Trinity Sunday and Corpus Christi, coming up these next two Sundays, will remind us that the mission of apostolic faith is at once transcendent and incarnational. And Ordinary Time, which began following Pentecost, invites us to live this mission day-to-day. The Great Commission of Jesus’ disciples comes to mind: “Go, therefore, and make disciples of all nations, baptizing them in the name of the Father, and of the Son, and of the holy Spirit, teaching them to observe all that I have commanded you.” Mt 28:19-20. Among Jesus’ concrete commands was, not too much before that, this observation-as-admonition: “‘For I was … in prison and you visited me.’” Mt 25:35-36.
Late last month, in Brown v. Plata, the United States Supreme Court issued a landmark, and highly contested, decision affirming a lower federal court order that California release tens of thousands of inmates in order to achieve, within two years, a prison population cap of 137.5% of capacity. The Court concluded that decades-running overcrowding has yielded consistent healthcare inadequacies – e.g., leading to a preventable or possibly preventable death every five to six days in 2006 and 2007 – that is sufficiently egregious as to violate the Eighth Amendment’s ban on cruel and unusual punishment. This is not the place to provide a comprehensive critical reading of the decision. But given the above-cited snippets from Matthew’s Gospel, the context of Pentecost-to-Ordinary Time, and the Church’s own approach to crime, punishment, and rehabilitation, two observations from the majority and dissenting opinions offer some food for thought for readers who are committed to the often difficult labor of living a faithful citizenship in the public square.
First, Justice Anthony M. Kennedy’s majority opinion characteristically identifies the concept of human dignity as a necessary element of Eighth Amendment jurisprudence: while, because “of their own actions, prisoners may be deprived of rights that are fundamental to liberty[,] … the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.” Accordingly, the opinion proceeds to observe, “[a] prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.”
For those of us who are both citizens and called by faith to ‘visit Jesus in prison,’ what does such an observation about the largest prison system in our nation suggest might be our own task? What is the mission, the call – or the push – of the Spirit? These are not meant to be rhetorical questions. For what “the concept of human dignity” means in our “civilized society” – or, no less, what it means as a principle meant to guide the rule of law in our complex culture – remains a fiercely debated topic. This point, Brown v. Plata’s dissenting opinions, and others among the Court’s recent Eighth Amendment cases, simply underscore.
Consider, then, the emphasis on human dignity in Catholic social teaching (whether in its threshold commitment to discourse that is open to both faith and reason; in its assertion of the role of the faithful in influencing civic discourse; or in its approach to substantive topics ranging from the affirmation of life and of ecology, to the role of moral reasoning in the personal, political, and economic spheres). Justice Kennedy’s not-uncontested observations concerning human dignity and civilized society should, at the very least, impress upon Catholics the fact that Catholic reflection on human dignity remains both timely and relevant to reflection in the public square about a context – the prison – that appears to be the object of contemporary “mission,” whether necessarily secular (the broad injunctive order of Brown v. Plata), or patently religious (Jesus’ admonition as recorded by Matthew’s Gospel).
Second, the majority and dissenting opinions – particularly Justice Scalia’s dissent – diverge as to the proper role of courts in undertaking this mission (or task). For Justice Kennedy and the majority, if “government fails to fulfill” the obligation to ensure the human dignity of prisoners, “the courts have a responsibility to remedy the resulting Eighth Amendment violation,” even as they “must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation” – the traditional purposes of incarceration – “as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals.” For Justice Scalia’s dissent, “tradition and common sense” counsel, quite simply, not “releas[ing] 46,000 convicted felons,” while contending that the majority’s approach “disregards stringently drawn provisions of the governing statute [limiting prison litigation and broad injunctive orders], and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.”
What is at issue in these competing opinions, then – among many other things, more properly addressed in a law review article – are competing conceptions not just (perhaps) of human dignity, but of the role that various institutions play, as well as political actors (especially and including voters), in balancing public and private interests, rights, and duties. Punishment, deterrence, and rehabilitation – among Justice Kennedy’s concerns – are not just elements of penological theory, but concepts with deep roots in Catholic social thought. So are questions involving the balancing of public and private interests, rights, and duties. For these, in turn, implicate themes such as the common good, subsidiarity, solidarity, and the various permutations of justice that orient Catholic social teaching.
From an affirmation of the human dignity of incarcerated persons to a broadside against federal judicial intervention in traditionally state-managed affairs, the competing opinions in Brown v. Plata offer food for thought for persons of faith committed to robust participation in the public square.
 Fr. Kurt M. Denk is a priest of the Maryland Province Society of Jesus (Jesuits) and a lawyer presently serving as a law clerk to Judge Maryanne Trump Barry of the United States Court of Appeals for the Third Circuit. He served from 2004-2010 as a chaplain at California’s San Quentin State Prison and will, this fall, join the faculty at Boston College Law School as a visiting assistant professor. The analysis and opinions herein are exclusively the author’s own.
 For example, the United States Conference of Catholic Bishops published, in 2000, Responsibility, Rehabilitation, and Restoration: A Catholic Perspective on Crime and Criminal Justice. The Bishops Conference monitors criminal justice issues, among other topics, via its Justice, Peace, and Human Development webpage, as do organizations such as Catholic Charities USA, which advocates for juvenile justice and prisoner re-entry policies consistent with church social teaching. Also notable is the Prison Fellowship International’s website, Restorative Justice Online, which includes extensive information addressing faith perspectives on criminal justice.
 See Andrew Skotnicki, Criminal Justice and the Catholic Church (2007), and Religion and the Development of the American Penal System (2002); see also Kurt M. Denk, S.J., “Restorative Justice and Catholic Social Thought: Challenges as Opportunities for Society, Church, and Academy” (2008).
 See, e.g., Charles E. Curran, Catholic Social Teaching, 1891-Present: A Historical, Theological, and Ethical Analysis (2002); Thomas Massaro, S.J., Living Justice: Catholic Social Teaching in Action (2008).