By most accounts, oral argument in Schwarzenegger v. Plata was a raucous affair. The case pits two competing and irreconcilable interests, prison over-crowding and lack of health care against the release of criminals. From Josh Blackman, the exchange is telling:
And then there’s Justice Alito:JUSTICE SOTOMAYOR: Can you do it in 5 years?
MR. PHILLIPS: I don’t know. I — you know, if — balancing all of the policies that the State has to take into account, can it get there and is that in the best interest of the State of California? If it is, yes, then we can get there.
JUSTICE SOTOMAYOR: Well, the best interest of the State of California, isn’t it to deliver adequate constitutional care to the people that it incarcerates? That’s a constitutional obligation.
MR. PHILLIPS: Absolutely. And California recognizes that.
JUSTICE SOTOMAYOR: So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?
JUSTICE SCALIA: Don’t be rhetorical.
JUSTICE ALITO: That is a very indirect way of addressing the problem and it has collateral consequences. If — if I were a citizen of California, I would be concerned about the release of 40,000 prisoners. And I don’t care what you term it, a prison release order or whatever the terminology you used was. If 40,000 prisoners are going to be released, you really believe that if you were to come back here 2 years after that, you would be able to say, they haven’t — they haven’t contributed to an increase in crime in the State of California?Rarely does a case put the screws to the system as well, and predictably, as this. Pitting all the rules and niceties that underlie our civilized society in its treatment of prisoners against the anticipation that 40,000 of them will be cut loose and, at least to some extent, go out and commit crime.
The deprivation of constitutional rights on the street can often be hidden behind artful testimony and rhetoric, but prisoner numbers aren’t so easily wiggled away. That didn’t stop the justices from toying with numbers when it suited their purpose. From SCOTUSBlog :
As Alito and then the Chief Justice criticized the order, and openly wondered about the need for it, Justice Kennedy and some of the more liberal Justices began offering suggestions for some modification of the District Court’s mandate. Justice Kagan, for example, suggested that perhaps the state could be given five years instead of two to reach the prison population reduction. And then Kennedy began a defense of a design capacity goal of 145 percent, instead of the District Court’s figure of 137.5 percent.Notably, it was never seriously considered that 100% of capacity meant exactly that. In the frenzy to lock people up, why would anyone think that either capacity needs to be increased to meet demand? What a crazy notion? It’s like saying you can’t fit 27 kids in a Volkswagen. Everybody knows you really can, even though there are only four seat belts.
One of the more curious notions comes from our newest Justice, Elena Kagan, who suggests elongating the time frame for compliance from two to five years, thus reducing the number of criminals let out on the streets to rape and pillage at any given time. How this addresses conditions for the inmates over those extra three years remains a mystery. After all, what’s an extra three years of dazed inmates sitting in feces in overcrowded cells?
Clearly, the concern about a massive release of prisoners isn’t without justification, as there is a very high probability that Justice Alito’s concerns will come to pass. Many are, indeed, criminals. If released, and particularly if released unceremoniously, they will return to crime. That’s a really bad thing for their future victims, and not something unworthy of attention.
But on the other hand, California is totally empty when it comes to dealing with the conditions in its prisons. It has no plan, nothing, to cure its failures. In the scheme of ways to spend tax money, prisoners aren’t on the list. Given its fiscal situation, that’s understandable, but unhelpful. It’s taken years to blind refusal to see the problem it was creating, and now it’s in a terrible jam.
For the Supreme, however, rarely has an issue been more squarely framed. Platitudes about justice won’t change the numbers, and California’s failure has put the justices into a revealing position. It’s bad. It’s wrong. So what are you going to do about it? You can bet your life that Justice Alito won’t lose sleep when he puts to rest any notion of a remedy for societal failure to adhere to the requirements of prisoner treatment.
Ultimately, it appears this case, like so many, will come down to the swing man, Justice Anthony Kennedy. Once again, one man will decide the fate of 40,000 prisoners in California, and the sincerity of our legal system in caring for those who are our compelled guests.
When Berkeley lawyer Donald Specter argued in favor of the district court’s release order, he faced the problem:
Specter, in fact, seemed to irritate the Chief Justice when the lawyer, asked about budget priorities, said “I believe that state’s have an obligation to enforce constitutional rights.” The Chief Justice shot back: “I believe that, too, counsel. But what is a state supposed to do?”
Those nasty constitutional rights again. What is a state supposed to do? Did you ever think you would hear that question uttered by the Chief Justice of the United States of America?