Antecedents of Brown v. Plata: Justice Kennedy on prisons and prisoners

Justice Anthony Kennedy wrote the stunning majority opinion in Brown, Governor v. Plata last month.  There the U.S. Supreme Court ordered California to alleviate the overcrowding in its prisons.  His rhetoric reminded Linda Greenhouse of the great days of the Warren Court.  Kennedy's role should not have been a complete surprise as this 2003 address to the American Bar Association shows.  An excerpt follows:

The subject of prisons and corrections may tempt some of you to tune out. You may think, “Well, I am not a criminal lawyer. The prison system is not my problem. I might tune in again when he gets to a different subject.” In my submission you have the duty to stay tuned in. The subject is the concern and responsibility of every member of our profession and of every citizen. This is your justice system; these are your prisons. The Gospels’ promise of mitigation at judgment if one of your fellow citizens can say, “I was in prison, and ye came unto me,” does not contain an exemption for civil practitioners, or transactional lawyers, or for any other citizen. And, as I will suggest, the energies and diverse talents of the entire Bar are needed to address this matter.
Even those of us who have specific professional responsibilities for the criminal justice system can be neglectful when it comes to the subject of corrections. The focus of the legal profession, perhaps even the obsessive focus, has been on the process for determining guilt or innocence. When someone has been judged guilty and the appellate and collateral review process has ended, the legal profession seems to lose all interest. When the prisoner is taken way, our attention turns to the next case. When the door is locked against the prisoner, we do not think about what is behind it.
We have a greater responsibility. As a profession, and as a people, we should know what happens after the prisoner is taken away. To be sure the prisoner has violated the social contract; to be sure he must be punished to vindicate the law, to acknowledge the suffering of the victim, and to deter future crimes. Still, the prisoner is a person; still, he or she is part of the family of humankind.