Highlights from Yesterday’s Supreme Court Oral Argument on California Prison Overcrowding

So, I’ve now read the oral argument transcript (PDF here)… and actually, I don’t have much analysis to provide. If you’re familiar with the case, the argument was fairly straightforward, and the justices were mostly true to form. But to spare you from slogging through the 90+ page transcript, here’s how the most talkative justices reacted, in a nutshell:

Ginsburg: How long, how long must we sing this song? Takes umbrage at Carter Phillips’s suggestion that the district court acted hastily here. Points out that this litigation has been pending for 20 years, with 70+ district court orders. “So how much longer do we have to wait?”

Sotomayor: Let’s get real. California doesn’t have the money to build new prisons. Even if it could hire more staff, it doesn’t have the facilities to house them. “I don’t see how you wait for an option that doesn’t exist.” “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?”

Kennedy: Enough is enough. “At some point the Court has to say: You have been given enough time; the constitutional violation still persists, as the State itself acknowledges.”

Kagan: What do you think this is, a district court? “Mr. Phillips, my trouble listening to you is that it seems as though you are asking us to re-find facts. You know, you have these judges who have been involved in these cases since the beginning, for 20 years in the Plata case, who thought, we’ve done everything we can, the receiver has done everything he can; this just isn’t going anywhere and it won’t go anywhere until we can address this root cause of the problem. … So how can we reach a result essentially without, you know, re-finding the facts that they have been dealing with for 20 years?”

Alito: Isn’t this lawsuit about health care? Where’s the connection to overcrowding? “Why order the release of around 40,000 prisoners, many of whom, perhaps the great majority of whom, are not going to be within the class in either of these lawsuits? Why order the release of all those people, rather than ordering the provision of the construction of facilities for medical care, facilities to treat mental illness, hiring of staff to treat mental illness?” [Donald Specter of the Prison Law Office responded that 70 district court orders had been issued over the past 15 years ordering more focused remedies, and they hadn’t worked.]

Roberts: I’d like to interrupt this oral argument for a quick civics lesson on the potential pitfalls of impact litigation generally. “What happens when you have this case, another district court ordering the State to take action with respect to environmental damage, another court saying you have got to spend this much more on education for disabled, another court saying you have got to spend this much more on something else? How does the State sort out its obligations? Does it say: Well, I’ll spend more money to build prisons, but I will violate this other district court order saying I have to spend money to build water treatment plants?”

If I were a more conscientious prison blogger, I would probably also post something about how Justice Alito seemed very concerned about how “releasing prisoners” would create “more crime.” There’s certainly a lot to say there, but as I’ve mentioned before, criminologists don’t agree with Alito, and in any event, I found that entire line of questioning to be fairly uninteresting, as the justices (Alito but also Roberts and Scalia) seemed to be underinformed about the specifics of California’s sentencing and parole laws. Instead their questions seemed to be driven by a sort of common-sense equation of “prisoners” with “dangerous,” but I don’t need the Supreme Court to tell me that’s a common view in society, I can just read blog comments.

The basic divide that I sensed from the oral argument — I’d be interested to hear if readers reacted differently — was between justices willing to credit the district court’s factual findings on the severity of California’s overcrowding problem and the connection between overcrowding and sub-constitutional health care (Ginsburg, Breyer, Sotomayor, Kagan, Kennedy), and justices who seemed more skeptical and wanted to fancy themselves common-sense criminological experts (Alito, Scalia), plus Roberts who seemed most concerned with deferring to the state in figuring out what to do. But even the first group seemed to have some doubts about the specific remedy ordered by the district court (why a 2-year time frame for the population reduction order instead of 5 years, why a target of 137.5% instead of 145% of capacity, etc.). So, it’ll be interesting to see how the Court rules…. but I’d guess we’ll see some combination of a limited affirmance and/or remand to the district court for a more tailored order.

Justice Thomas didn’t say anything, but since we know he thinks the Eighth Amendment shouldn’t apply to prison conditions cases anyway, I’m fairly certain we can predict where he’ll come out on this case.

Since the ruling could take months, it seems like a good time as any to re-post one of my earliest posts, on the limits of litigation. As Judge Morris Lasker put it: “A change in the incarceration policy can only be achieved by political action, directed, for the most part, against Congress and state legislatures rather than, as in the cases of prison conditions litigation, against the executive.” While the California case superficially fits the paradigm of a conditions-of-confinement case that can, in theory, be resolved through litigation, California’s current level of overcrowding is the culmination of 30 years of bad policy, which ultimately, won’t be fully reformed at the behest of court orders but only in response to political pressure.

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