A bitterly divided Supreme Court on Monday upheld a judicial order that could result in the release of nearly 40,000 prisoners from a California penal system so overcrowded that its conditions are, the court wrote, “incompatible with the concept of human dignity.”
Justice Anthony M. Kennedy, a California native, joined the court’s four consistent liberals in agreeing that, after nearly two decades of litigation, it is time for the courts to force the state to act.
“The release of prisoners in large numbers — assuming the state finds no other way to comply with the order — is a matter of undoubted, grave concern,” Kennedy wrote. “Yet so too is the continuing injury and harm resulting from these serious constitutional violations.”
He was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
Justice Antonin Scalia signaled the extent of his disagreement with the decision by reading his dissent from the bench.
He said the justices were affirming “perhaps the most radical injunction issued by a court in our nation’s history” and warned of “terrible things sure to happen as a consequence of this outrageous order.” He was joined in his biting dissent by Justice Clarence Thomas.
Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. also dissented. They gave different reasons for disagreeing with the majority but arrived at the same conclusion about what the ruling portended.
“The majority is gambling with the safety of the people of California,” Alito wrote. “I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong.”
The number of prisoners in California continues to fluctuate, but at one time the prison system there held nearly twice as many inmates as the 80,000 it was meant to hold. When a special three-judge panel first ordered the release, it said that about 46,000 inmates would need to be freed in order to reduce the prison population to a manageable 110,000.
Since then, Kennedy said, 9,000 inmates have been released. An attorney for the inmates said after the ruling that 32,000 inmates should be released.
Acknowledging the possibility that “mistaken or premature release of even one prisoner can cause injury and harm,” Kennedy nonetheless went to lengths to document the prison conditions, saying the lower court was right to decide that they violated the Eighth Amendment’s prohibition against cruel and unusual punishment.
For at least 11 years, Kennedy said, California prisons operated at double their design capacity.
“As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correctional officers,” he wrote. “As many as 54 prisoners may share a single toilet.” Suicides averaged one a week, he said; a report that found one inmate died about every week from ailments that could have been prevented.
Kennedy said the conditions are not safe for the prisoners or correctional officers, and he even included photos of the overcrowding as part of his opinion.
Kennedy said reducing the prison population could be accomplished in a number of ways besides simply releasing inmates. Some could be transferred to local jails or to prisons outside the state, something California already is doing. Expanding the use of “good-time” credits would allow the release of those least likely to reoffend; so would excusing prisoners now incarcerated for technical violations of parole.
“Diverting low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring would likewise lower the prison population without releasing violent convicts,” he wrote.
He also said the state “may wish” to ask the three-judge panel to amend its order so that it has five years to accomplish the release instead of the two years in the lower court’s order.
Scalia called that a “bizarre coda” to the decision.
“Perhaps the coda is nothing more than a ceremonial washing of the hands — making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this court’s responsibility,” Scalia said in his remarks from the bench.
He said the two classes of inmates certified to bring the suit — those alleging inadequate mental health treatment and those claiming a lack of medical treatment — should not have been allowed.
He noted that those prisoners would not necessarily be the ones slated for release; rather, those leaving prison would be “just 46,000 happy-go-lucky felons” fortunate enough to be selected.
Alito said the lower court did not abide by the requirements of the Prison Litigation Reform Act of 1995, which he said was enacted to prevent massive releases. “The Constitution does not give federal judges the authority to run state penal systems,” Alito wrote in his dissent, joined by Roberts.
“The three-judge court would have us believe that the early release of 46,000 inmates will not imperil — and will actually improve — public safety,” Alito wrote. “Common sense and experience counsel greater caution.”