Saving California

Another 5-4 decision.  Another scathing Scalia dissent.  The Supreme Court, in  Brown v. Plata, upheld the injunction, that overcrowding in California’s prison system reached the level of cruel and unusual punishment in violation of the 8th Amendment, and ordered it remedied within two years.

Hooray?  Well, yes, better than Scalia’s answer:

There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa.  One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.  Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.

While the number, 46,000, may be a bit hyperbolic, Nino gets in touch with his activist side in recognizing that, hey, these are criminals. You can’t let criminals out of prison. Are you nuts?

But before we pat ourselves on the back and make toasts to the best legal system on earth, let’s consider some other numbers.



The special court’s decision, issued in 2009, addressed two consolidated class-action suits, one filed in 1990, the other in 2001. In 2006, Arnold Schwarzenegger, then governor, said conditions in the state’s prisons amounted to a state of emergency.


The majority seemed persuaded that the passage of time required the courts to act.


The Supreme Court’s decision derives from two actions, the older of which was commenced in 1990.  If it was a person, it would have come of age to celebrate the win with a stiff bourbon.  Here’s a nice photo, from Justice Kennedy’s majority opinion of how mentally ill inmates were housed awaiting the opening of a bed:

Somebody, some person, was made to live in this cage the size of a telephone booth for lack of anyplace else to put him.  In 1990.  Twenty one years ago.

It’s not as though California was unaware that it had a problem, but having created the problem by grabbing hold of every half-baked idea of imposing mandatory sentencing and three strikes and ever-longer, stiffer, harsher sentences, every politically beneficial tough-on-crime mindless knee-jerk opportunity to throw people in prison, it was stuck with the product of its own invention. 

That some very large number of people, most of whom are indeed criminals, will be unceremoniously freed over the next couple of years, is a scary proposition.  Not nearly as scary as Justices Scalia and Alito suggest, since under a slightly more thoughtful regime, they wouldn’t be in prison to begin with, or at least would have been out already, having completed sentences that a rational system would have thought appropriate.  The justices forget that the California prison system didn’t get overcrowded by accident, or because Californians are just more criminal than the rest of us.

But it took 21 years to reach this point, where a final decision has been made.  And it will still take another two to remedy the problem, assuming it actually happens.  After all, if California somehow fails to reduce its prison population sufficiently to satisfy the injunction, what exactly will be happen?  It’s not like the governor will be held in contempt and made to live in a caged phone booth.

If, as the majority concluded, the overcrowding of California’s prison amounts to cruel and unusual punishment, then those in the system have suffered it for decades.  Decades!  Our legal system is incapable of stopping cruel and usual punishment for decades.

If ever a case demonstrated the impotence of a legal system to right itself, to fix a problem, to address a failure of epic proportions, this is it.  Among our many platitudes designed to rationalize any situation, there is “justice delayed is justice denied.”  Tell all the inmates in the system between 1990 and, well, two years from now, how the system has vindicated their rights. 

To blame crazy politics for creating this situation over decades, layering one tough-on-crime initiative over another until the prisons are bursting at the seams, is easy.  What a bunch of pandering fools, no one looking at the consequences because they will come to pass tomorrow, and the politicians are only interested in getting elected today.  So the bill has finally come due.

We cannot forget that California took 21 years to pay the bill.  We ought to get some interest on this past due debt, but we won’t.  It will be surprising if they pay the bill at all.  And this is the best legal system ever.

6 comments on “Saving California

  1. Bad Lawyer

    This was a subject for the Boys at ‘Bucks this AM. Even these lay-types were cynical about Scalia’s jeremiad–the takeaway being, in a population of 40,000 “bad sh*t happens” regardless. I bet bad sh*t would happen if 40k celibate priests wee unleashed on the population all at once–hell, that’s a scary scenario.

    As an aside it might be nice to be in the “home monitoring” biz in California about now.

  2. ExPat ExLawyer

    To top it off, California prison expenditures have increased since 2001 more than any other category of government expenditures. Where did all this dinero go? Virtually every cent went to the Screws Union.

    I predict to protect these fat #$%@’s pay, Cali will release not the non-violent, but the violent – just as other government agencies made the cuts that most pissed people off – a point intended to make the taxpayers believe government spending cuts are oh so dangerous. The good news is I think more people are catching on to the ruse. I hope so.

  3. A Voice of Sanity

    “And this is the best legal system ever.”

    Are you going to replace my monitor and keyboard with ones that DON’T have coffee sprayed in them?

    Search for (Lamer Inquiry Newfoundland) for an example of what SHOULD happen in a good legal system – not even “the best”.

  4. SHG

    I enjoy few things more than knowing that there is a monitor covered in coffee.  Now if it came out of your nose, well, it doesn’t get any better.

  5. Colin Samuels

    Though the “Screws Union” was a key voice opposing the State’s pro-overcrowding position in the case, it’s unlikely that this decision will divert more funding to them, if for no other reason than the fact that they’ve just completed negotiating a new contract with the Governor which could easily be made any more lucrative.

    Instead, the money already sent their way will simply reduce the amount left in the budget to address California’s overcrowding problem. Yes, the State could play with the numbers a bit by sending more prisoners to out-of-state for-profit prisons, but those cost; similarly, plans to reduce the cyclical return of parole violators to prison for minor transgressions and to shift some of the housing requirements to county facilities instead of state ones will chip at the edges of the problem.

    The core problem will remain unchanged, however. Overcriminalization coupled with more harsh mandatory sentencing has produced more population than California’s prisons can bear. They’ve compensated by building new facilities which we can’t afford (thanks in part to the Screws Union), but mainly by overcrowding. That overcrowding won’t end as a result of the SCOTUS’ decision, but it now has limits both in terms of size and time. Choices are already being made and harder choices will need to be.

    For all the poor and poorly-motivated decision-making which brought us to this point, and despite the pronouncements of doom in the SCOTUS dissents, California’s political leadership, the judiciary, and the administrators more directly responsible for the prisons are not going to knowingly endanger the citizens of this state if it can be at all avoided. They’re simply not going to release the most dangerous felons in the hopes that blame for a crime spree can be laid on the doorstep at One First Street in DC.

    Fortunately, there are alternatives. Many of the unsustainable choices made in recent years — principally the lengthy imprisonment of non-violent offenders — will be revisited. This decision wasn’t entirely unforeseeable or unexpected. The State would rather go on as it has; time and again, it’s declined to solve its own issues. When a choice is imposed from above, however, it can and will be made.

    The main issue at this point is how much the outcry over this decision from law-and-order folks in California and elsewhere will result in the feds somehow subsidizing our unsustainable prison habits. California may have to make some hard choices in the coming months and years, but it might have to make fewer of them with just a few of your federal tax dollars. Prepare yourself for that fight and hold California’s feet to the fire. We know that the problem should be ours to fix; like a bunch of spoiled children, we’d just prefer that you all fix it for us and pick up a good portion of the tab.

  6. Dan

    I wonder how many of the dangerous criminals overcrowding the prisons are folks who committed a rather low level crime and are just rotting away on their third strike.

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