South Carolina also challenged Judge Baxley on the law. In its motion, the state argued that the inmates had no standing to challenge the conditions of their confinement, that there was no "private cause of action" upon which they could rely in seeking help, that "the punishment of the mentally ill for violations of the law" could never constitute "cruel and unusual punishment" under the Eighth Amendment, and that the case "gives rise to a non-justiciable political question" beyond the control of the courts or even the Department of Corrections.

These assertions turn on their head the entire edifice of American law—the idea that our judges have the authority to determine the constitutional rights of citizens, the notion that state officials are bound by law, and the principle that prisoners retain certain rights and protections even while incarcerated, to name just a few. If the courts accept these arguments, the state's prisons will become islands of lawlessness where the entities responsible for the abuse and neglect (the Department of Corrections and the state legislature) will get to decide whether they want to remedy those problems, or not.

And that, in turn, is a remarkable position for South Carolina to take in light of the reaction Judge Baxley's ruling generated on the ground in South Carolina. It turns out there are a great many good people in the Palmetto State who are mortified by what is happening inside their prisons there and who want their elected officials to fix it, now, without spending any more time and money on lawyers. In Columbia, the editorial writers of The State, for example, last week bluntly called on state officials to fix the problem rather than continue to litigate over it. From the paper's house editorial:

SADLY, THERE is little surprising about a judge’s ruling that the state of South Carolina long has treated mentally ill inmates poorly and must clean up its act. For years, our state’s “lock ’em up and throw away the key” mentality led to inexcusable neglect, as legislators passed laws that increased the inmate population without providing adequate funding to help the Department of Corrections deal with overcrowding, rehabilitation, inmate care and other critical elements of its mission. While inmates are convicted of crimes, the state is responsible for providing an adequate level of mental and health care to those in its custody.

One week earlier, just days after Judge Baxley's ruling, The Post and Courier, in Charleston, was even more blunt in its assessment that the time has come for reform, and not additional prison litigation, there. It's important to note here that the state now has a budget surplus, which you would think would vitiate at least some of the political arguments against complying with the constitutional principles the judge set forth in his opinion. From the paper's house editorial on January 12th:

The Legislature should make it a top priority for the coming session to evaluate the circumstances and budget enough money for adequate staffing, medical care, medications and training. The prisons have been a convenient place for tough-on-crime legislators to skimp when considering the budget. It's an easy sell on the way to the polls, and prisoners don't vote. Judge Baxley's ruling should be a shocking reminder of the important role prisons play in the safety of citizens and the imperative to operate them humanely and efficiently. Prisoners who fail to get treatment for mental illness may re-enter society in worse shape than before incarceration. No wonder. The judge cited the incidence of severely mentally ill prisoners who have been segregated for long periods of time - even years and years... Corrections struggles under the difficulty of being perennially under-funded. Too few employees are expected to do an extremely difficult job for inadequate pay. Nevertheless Judge Baxley is correct when he says treatment of prisoners with serious mental illnesses has to improve, despite the department's budgetary woes. And Corrections has to begin the reform process now.

It isn't just the local media that seems to see the light. The biggest awakening about the plight of these inmates has come from State Senator Mike Fair, of Greenville, a Republican who chairs the Corrections and Penology Committee. You may remember Senator Fair as the official who said immediately after Judge Baxley's ruling that he "didn't know that we had a problem with any particular aspect of mistreating or not treating inmates who have a diagnosis of mental illness," even though he himself had chaired a 2003 Task Force that found terrible conditions for the mentally ill in South Carolina's prisons.