Rounding Up Commentary on Supreme Court Argument on California Prison Overcrowding, Part II
As promised, here’s the second round of commentary on Tuesday’s oral arguments in Schwarzenegger v. Plata. And after the jump, some quick reax from yours truly.
I’ve gotta say, as a Texan reading this transcript, the same thought kept recurring: Thank God for the late Judge William Wayne Justice or Texas would be in the same mess or worse. TDCJ has its problems, but Judge Justice insisted the state address its most gaping flaws three decades ago, at a time when the state incarcerated around 30K inmates instead of 155K. Our system has plenty of shortcomings, but it’s not as big a mess as California’s.
Note the Justices’ shock at the California recidivism rates. They must truly be disconnected from the world they live in. … My impression, overall, is that many of the Justices already have their minds made up, and that the oral arguments might have done little beyond furnishing them with ammunition for writing the decision.
It’s hard to understand why California is so resistant to the common-sense notion that it needs to reduce prison overcrowding. Dozens of jurisdictions throughout the nation have implemented prison population reductions without an increase in crime, and cash-strapped California could save more than half a billion dollars per year by implementing population reduction measures recommended by its own experts.
Justice Stephen G. Breyer seemed shocked by photos from the crowded prisons, where bunk beds have taken over gymnasium floors and recreation areas, and medical facilities are located in former closets.
… if much of the recidivism involves drug possession, as opposed to robbery, rape, or murder, the public safety threat is less dramatic than Alito and Scalia imply. The first step toward alleviating overcrowding in prisons is to free people who don’t belong there—and stop locking them up.
My two cents:
(1) I think it’s lucky for the plaintiffs in this case that justices Breyer and Kennedy have personal ties to California. Ordinarily, Breyer can be fairly deferential to the government. And Kennedy, of course, serves as the Court’s swing vote; he rolls with the government as often as not. Yet both Breyer and Kennedy seemed fairly skeptical of all the arguments made on the state of California’s behalf on Tuesday — more so than perhaps they might have been had it been the state of New York or Florida or Tennessee? This is a state that these men well know and have reason to pay attention to. We already knew, for instance, that Kennedy dislikes California’s three-strikes law. We know that Breyer’s brother sits in San Francisco and witnesses the fallout of the California prison system in the form of the federal defendants that come before him each day, some number of whom have previously done state time. Just a thought.
(2) Justice Alito, as I mentioned yesterday, seemed most concerned of all the justices with “public safety.” But what is the meaning of “public safety”? The Plata/Coleman order included findings that California’s overcrowded prisons themselves harm public safety because it’s criminogenic to revolve so many people in and out of prisons on low-level parole violations, disrupting their mental health treatments and their employment prospects and their housing and their family lives, exposing them to harder criminals, breeding resentment, etc., etc., etc. Alito’s assumption seems to be that releasing prisoners equals risking public safety; but what about the argument that holding so many prisoners risks public safety? After all they almost all get out sometime, it’s just a question of when. And, too, what about the argument that prisoners are part of the public? Granted, I haven’t done any research on the statutory meaning of “public safety” within the terms of the Prison Litigation Reform Act, but it didn’t seem like Alito was limiting himself to the terms of the statute either, so if we’re just going to argue from common-sense reasoning, let’s take that argument to its logical limits. California’s prisons as currently operated are a risk to the safety of everyone within them, which is why the prison guards’ union joined the inmates in this lawsuit. And why the Los Angeles Times editorialized that overturning the release order would “be bad for public safety. Warehousing inmates in overcrowded spaces devoid of job or drug programs but packed with hardened gangsters makes them more likely to reoffend when they’re released.”
(3) Just as a reminder, this is what we’re talking about here: conditions so bad that they appalled the head of the Texas prison system under Gov. George W. Bush — not exactly a bleeding-heart liberal:
“The California state prison system is the worst overcrowded system that I have seen in my experience,” says Wayne Scott, who served for nearly 30 years in the Texas prison system, rising to be the state’s director of corrections under then-Gov. George W. Bush.
“I guess what shocked me the most,” he continues, “was taking over recreation space, classroom space, day room space and converting all that space into living space for offenders.”