“Today the court affirms what is perhaps the most radical injunction issued by a court in our nation’s history.” So began Supreme Court Justice Antonin Scalia’s enraged dissent.

Release up to 46,000 convicted felons, the court recently ordered the state of California. In a 5-4 decision, the court gave California two years to reduce its prison “overcrowding” – or set tens of thousands free. The ACLU, which brought the suit, successfully argued that poor prison conditions violated the prisoners’ rights as a class, not individually, thus the threat of mass premature release.

Justice Anthony Kennedy, in his majority opinion, agreed with the lower court, which said that overcrowding and an undermanned medical staff mean “an inmate in one of California’s prisons needlessly dies every six to seven days.” California houses 143,000 inmates in 33 adult prisons designed for 80,000. The prison conditions, including under-treatment for the mentally ill, wrote Kennedy, “(fall) short of minimum constitutional requirements.”

Where to start with this outrageous decision?

First, elections matter. A Republican president would have seated neither Sonia Sotomayor nor Elena Kagan, who together comprised two-fifths of the majority. President Barack I-look-for-justices-with-empathy Obama filled two liberal vacancies with two liberal justices. Given that the major Republican presidential candidates promised to seat justices in the mold of Chief Justice John Roberts or Justice Sam Alito, this decision would have gone 6-3 the other way.

Second, criminals commit crimes when not locked up. Alito, in a separate dissent, wrote: “In the early 1990s, federal courts enforced a cap on the number of inmates in the Philadelphia prison system, and thousand of inmates were set free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes (emphasis added), that attempt was spectacularly unsuccessful. During an 18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries and 2,748 thefts, not to mention thousands of drug offenses.” These, of course, are only the ones who got caught and were charged.

Where’s the “empathy” for the future victims of crime? Alito attacked this “premature release of approximately 46,000 criminals – the equivalent of three Army divisions.” Even if California somehow managed to release only “nonviolent” prisoners, a 2004 study by the Justice Department’s Bureau of Justice Statistics shows that, after release, one out of every five “nonviolent” criminals are re-arrested for violent crimes – including murder.

Third, the dissents concede that some prisoners have died and some have inadequate medical care due to overcrowding. But the number is small and declining. Not all of the up to 46,000 will have suffered, let alone equally. “Most of them,” wrote Scalia, “will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” They are, after all, convicted felons deserving of nothing more than protection against cruel and unusual punishment.

Housing 200 prisoners in a gym violates the Eighth Amendment – for all 200? Fifty-four men per one bathroom violates the Eighth Amendment – for all 54? Surely there are ways of addressing the overcrowding short of one of the largest court-ordered mass prisoner releases in U.S. history.

What’s more, in January 2010, California’s “non-revocable parole law” went into effect. It grants the release, without parole supervision, of “less-serious” offenders that a computer program predicts are unlikely to re-offend. An inspector general report found that the computer was wrong 23.5 percent of the time in assessing 10,000 inmates under consideration for early release during the first seven months of the new law. One thousand five hundred were improperly released, including 450 carrying “a high risk for violence.”

Fourth, what gives courts the expertise to direct a state on how to run a prison system? “Three years of law school and familiarity with pertinent Supreme Court precedents,” wrote Scalia, “give no insight whatsoever into the management of social institutions. … (T)he problems of prisons in America are complex and intractable. … Running a prison is an inordinately difficult undertaking that requires expertise, planning and the commitment of resources. …” This is the job of the legislature, not the courts.

Finally, what does this order say about California, a state that produces an annual “structural deficit” between $20 billion and $30 billion? Its tax-the-rich, three-to-one Democrat vs. Republican electorate recently returned to the governorship the same man who, in the ‘70s, granted collective bargaining rights to public employee unions, one of the reasons for the state’s pathetic job-killing fiscal condition.

California owes $500 billion dollars in unfunded pension liabilities to its public employees. Prison guards, backed by the strongest union in the state, earn $71,000 per year before overtime. Texas pays its guards an average of $31,000. It costs California $47,000 to house an inmate each year, versus $18,000 in Texas.

The effect of California’s welfare-state-supporting, “environmentally conscious,” self-destructive left-wing policies has failed to convince voters to re-think. Maybe the impending murders will.

COPYRIGHT 2011 LAURENCE A. ELDER
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