Rounding Up Commentary on Schwarzenegger v. Plata, Part III

The commentary keeps rolling in on Tuesday’s Supreme Court oral arguments in Schwarzenegger v. Plata, the California prison overcrowding case:

Garrett Epps:

It’s common to speak of this Court as having a “liberal wing” and a “conservative wing.” But this Court has no real liberals on it, in the mold of Earl Warren, William Brennan, or Thurgood Marshall. The “conservative wing” is there, self-assured and aggressive. But arrayed against it is a group of cautious, pragmatic centrists, who are very willing to engage in the kind of calculation [Chief Justice] Roberts was concerned with, and less willing to speak from the heart about individual rights. …

Donald Specter, who has devoted his career to advocating for prisoners, was a most impressive advocate. He was up against Carter Phillips, one of the best Supreme Court lawyers of his generation. Specter matched him blow for blow, and refused to be intimidated by Roberts or Alito; and he did it in a quiet, measured voice, never rattled, never irritated, never intimidated: Mr. Rogers with a law degree.

Jonathan Simon:

I have been arguing for some time that mass incarceration rests almost completely on an exaggerated fear of the risks of homicide that America in general, and California in particular, embraced after the bloody 1970s, and which remains seared into our political consciousness more than thirty years later, despite substantial drops in homicides and violent crime since the early 1990s. You can talk about the war on drugs, tough sentences for burglars, and over imprisonment of technical parole violators; but they all come down to a fear of citizens being murdered by someone that state could have stopped first. …

Of course Californians are already dying of the state’s prison management. According to earlier fact finding by the Judge Thelton Henderson in the medical part of the case (Plata v. Schwarzenegger), a prisoner a week dies of routine medical problems that a constitutionally adequate prison health system could prevent. But those kinds of deaths do not count in twisted logic of governing through crime.