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Supreme Court's Scary Power Grab

A Commentary By Debra J. Saunders

Tuesday, May 24, 2011

The U.S. Supreme Court effectively ordered California on Monday to release 33,000 inmates over two years from an in-state prison population that numbers about 143,000.

Kent Scheidegger of the tough-on-crime Criminal Justice Legal Foundation blogged that Californians shouldn't "bother investing much in a car. It will be open season on cars, given that car thieves (nonviolent offenders) will never go to prison no matter how many times they are caught."

The 5-4 Plata decision upheld a federal three-judge panel that in 2009 found that overcrowding in California prisons is "criminogenic" -- likely to produce criminals -- and ordered state prisons to run at 137.5 percent of design capacity. The state's prisons are designed to hold 80,000 inmates. (Be it noted, 100 percent capacity means one inmate per cell.)

Writing for the majority, Justice Anthony Kennedy cited ugly stories of inmates waiting months for needed medical and mental-health treatment -- a violation of Eighth Amendment protections against cruel and unusual punishment. And: "As many as 54 prisoners may share a single toilet." Kennedy argued, "Prisoners retain the essence of human dignity inherent in all persons."

Corrections head Matthew Cate chided the Big Bench for ignoring the many improvements in the system over the past five years. For example, the state has removed some 13,000 out of 20,000 nontraditional or "bad beds" -- think large rooms stuffed with bunk beds to warehouse unprocessed inmates. (I don't think Kennedy liked those beds -- he included two photos of them with his opinion.)

In his dissenting opinion, Justice Samuel Alito noted that the three-judge panel relied on old statistics and ignored more current (and favorable) data, such as the huge drop in "likely preventable deaths" from 18 in 2006 to 3 in 2007.

The worst part: Kennedy endorsed the three judges' finding that there was "substantial evidence that prison populations can be reduced in a manner that does not increase crime to a significant degree" and that reducing overcrowding "could even improve public safety." Yes, Virginia, a majority of the U.S. Supreme Court thinks Californians might be safer if it cuts the prison population by a quarter.

As Alito argued, his colleagues ignore history. When federal courts made Philadelphia release thousands of inmates in the 1990s, police re-arrested thousands over 18 months, resulting in 1,113 assault charges, 90 rape charges and 79 murder charges.

Justice Antonin Scalia called the decision "the most radical injunction issued by a court in our nation's history." He likened the decision to the granting of 46,000 criminal appeals. Scalia even wondered if Kennedy suggested a five-year time frame to achieve "a marginal reduction in the inevitable murders, robberies and rapes" likely to be committed by released convicts.

Gov. Jerry Brown correctly warned that the Big Bench might issue this ruling as he has tried to sell his plan to transfer some 37,000 state inmates to local jurisdictions. In turn, Kennedy wrote that Brown's proposed transfers -- which the Legislature has yet to ratify -- support the three judges' view that they can free thousands of inmates without "undue negative effect on public safety." The ink's barely dry and already they're sharing the credit in preparation for the cruel awakening that will prod them to spread the blame.

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