Shrink the Prisons

Conservatives are as wrong about prison overcrowding as liberals were about welfare reform.

Sometimes the correct answer is genuinely hard to see. At other times it is obvious, but we are too blinded by our ideological prejudices to see it. That’s what happened to many liberals during the welfare reform debate 15 years ago. And it might be what is happening now to the conservatives protesting Plata vs. Brown, a recent Supreme Court ruling ordering California to relieve the massive overcrowding in its prisons.

Back in 1996, so convinced were liberals that the only thing standing between the poor and utter destitution was their beloved welfare state that they fought their own president’s reform effort like Don Quixote fought for his imaginary damsels. Disregarding years of evidence that doling out welfare checks without any time limit or work requirements perpetuated the very cycle of poverty that they were trying to cure, liberals made one gloomy prediction after another, even warning that the law would throw a million children into poverty. Sen. Frank Lautenberg (D-N.J.), even went so far as to warn that it would force children to “beg for money, beg for food, and…engage in prostitution.”

The opposite turned out to be the case: Not only did President Clinton’s reforms cause welfare rolls to plummet 65 percent in the first decade, but the poverty rate dropped too. Single moms’ incomes had gone up by 25 percent in inflation-adjusted dollars six years after reform. And the child-poverty rate among blacks had plunged 11 percentage points by 2005. 

But if liberals got it wrong on welfare reform, conservatives have it wrong on prison reform—especially the four dissenting Supremos who claim that the ruling will undermine the Constitution, public safety, and California’s fabled blue skies.

California has been stuffing its prisons for decades, at one point packing 160,000 inmates in facilities meant for 80,000. Even now, a decade-and-a-half after inmates won their first lawsuit, California houses 145,000 prisoners in the same facilities, creating living conditions more deplorable than in my son’s messy dorm room.

Up to 200 prisoners are sometimes crammed in one gymnasium, 54 to a toilet, triggering regular outbreaks of communicable diseases and violence. And that’s the good part. The worst is the care offered to sick inmates. Because of a shortage of treatment beds, mentally ill patients have been held in telephone-booth-sized cages for hours without toilets. Prisoners with physical illnesses sometimes die waiting for treatment. An inmate experiencing abdominal pain died after a five-week delay in referral to a specialist. Another experiencing chest pain died because the doctor didn’t see him for eight hours. In 2006, inmate suicide rate reached 80 percent higher than the national average.

In light of this, the court majority concluded that California was violating the Eighth Amendment’s prohibition against cruel and unusual punishment, giving it two years to cut back about 37,000 inmates.

But Justice Antonin Scalia condemned the ruling as a “judicial travesty,” claiming that it was “perhaps the most radical injunction issued in our Nation’s history.” (Even more radical than forced busing, apparently!) He lambasted the court for violating California’s sovereignty by ordering a broad fix of its prison system rather than offering targeted relief to affected inmates.

It is hard to keep a straight face when Scalia waxes eloquent about state’s rights given that, without any compunction, he over-rode the rights of medical marijuana users in California and assisted suicide patients in Oregon, although state voters had approved both measures. But Scalia’s proposal to limit relief to affected inmates means that the court can’t step in till after some prisoner has suffered serious injury or death. In other words, when it’s too late. Scalia is all for protecting constitutional rights—just posthumously.

But if Scalia is being obtuse, Justice Samuel Alito is apocalyptic (and apoplectic). In a separate dissent, he accused the majority of “gambling” with public safety in ordering the release of prisoners. But the majority did no such thing. It asked California to relieve overcrowding. Prisoner release is one way, but transferring inmates to other states, county jails, adding more prison capacity or some combination thereof are also options.

However, even if California released the equivalent of “three army divisions of prisoners,” as Alito insisted it would have to do, would that result in a “grim roster of victims”?

No. California keeps many non-violent offenders locked up for too long, thanks to its draconian three-strike laws. Twenty-five states have such laws, but only California gives 25 years to life to repeat offenders for such minor felonies as shoplifting and burglary. In one particularly tragic case, a homeless pickpocket whose third crime involved breaking into a church pantry got sent away for life. Repeat offenders constituted about 43,000 of California’s inmate population (or four Army divisions) in 2004. Many of their sentences could be commuted without endangering public safety given that California’s own Legislative Analyst’s office found that these laws have had little impact on crime rates.

Alito pointed to Philadelphia’s experience with a court-imposed prison cap in the 1990s to support his gloom-and-doom. But that cap was poorly implemented. Once it was reached, it barred the city from imprisoning literally anyone except hardcore murderers and rapists. The upshot was that many hardened, violent offenders were put back on the street to commit crimes again. Since then, Wisconsin, Illinois, Texas, and others have reduced their prison populations without any adverse effect.

We knew in 1996 that welfare reform would work because there was a vast body of literature gathered over years of painstaking experimentation by 45 states demonstrating that it would. But hardline liberals refused to recognize this because they cared more about the welfare state than the human beings trapped in it. Likewise, we have strong evidence showing that California can reform its sentencing laws without going to hell, but tough-on-crime conservatives refuse to see it.

Sadly, the triumph of ideology over humanity is the one thing that unites both sides.

Shikha Dalmia is a senior analyst at the Reason Foundation and a columnist at The Daily, America’s first iPad newspaper, where a version of this column originally appeared.

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  • ||

    "But Justice Antonin Scalia condemned the ruling as a “judicial travesty,” claiming that it was “perhaps the most radical injunction issued in our Nation’s history.”

    When it comes to criminal justice issues, Scalia is often an ass clown. He is know nothing elite who has never practiced law at its lower level. So he has no idea what cops and prosecutors actually do. And thus lives in a fantasy world where all cops are professional and only the right people ever go to prison. He claims to be, by virtue of attending the best schools, among the best and brightest. But increasingly he is an embarrassing old fool.

  • ||

    And a disgusting excuse for a human being.

  • Yeah||

    It's almost like he's a crackpot.

  • rather ||

    but we are too blinded by our ideological prejudices to see it

    The 'why' any political associations fail

  • Alan Vanneman||

    Guys, you already ran this piece. But thanks for the shot of Scalia explaining why "salami" beats "weiner" any time.

  • Hey||

    Where's your obligatory "Ayn Rand's swinging dick" reference? That is, truly, funny every time.

  • Abdul||

    Alito pointed to Philadelphia’s experience with a court-imposed prison cap in the 1990s to support his gloom-and-doom. But that cap was poorly implemented. Once it was reached, it barred the city from imprisoning literally anyone except hardcore murderers and rapists. The upshot was that many hardened, violent offenders were put back on the street to commit crimes again

    Seriously, if CA mismanaged their prison system so badly that 50 dudes have to share a toilet, what makes you think they can avoid Philadelphia's mistakes?

    And why should a majority of 9 lawyers in DC be in charge of California's prision system?

  • ||

    Because at some point their mismanagement gets so bad that it constitutes cruel and unusual punishment. I agree with you that California will fuck this up. But I don't see how "I know we are subjecting people to illegal punishment, but you shouldn't do anything about it because if we release people we will just fuck it up even more" is a very compelling argument.

  • Mr Whipple||

    I don't see how taking non-violent offenders, and sticking them in halfway houses, and making them pick up trash in the parks while on house arrest is going to fuck anything up. It might actually help, and it's a Hell of a lot cheaper. There's absolutely no reason for non-violent offenders to be in any type of prison environment for any extended period of time. NJ uses a "point system". You start out inside the wall, and work your way to minimum. The lesser the offense, the easier to get into minimum, with some offenders getting minimum from the gate.

  • ||

    I agree. There is no reason to fuck it up. And if they do, it is the California's fault not the court's.

  • robc||

    Seems easiest solution is to buy a shit load of ankle bracelets.

    Of course, ending the WoD would be the best solution, but lets assume that isnt going to happen today. Home arrest for any non-violent crimes should ease things a great deal.

  • "Snake" Plissken||

    Ankle bracelets? Get serious.

  • SIV||

    Define "non-violent crime"?
    Property crime?
    Burglary of a dwelling or auto theft are non-violent. I want these offenders imprisoned (or worse).

    Some would define Michael Vick or Plaxico Burress as "violent criminals".
    I don't think their offenses are crimes.

  • cynical||

    So, you want people who live at the expense of society to be punished... by letting society take care of their room and board? Restitution makes more sense.

  • ||

    Burress' weapon possession charges were horseshit but he was guilty of reckless endangerment. Carrying a holsterless gun in the waistband of your sweatpants and then trying to grab a falling gun are both dangerously idiotic.

  • Ryan||

    So in other words, you don't think we should jail football players? How do you define dog fighting as non-violent?

  • Scruffy Nerfherder||

    What was the vote breakdown on this one?

  • ||

    Alito, Scalia, Roberts, and Thomas against and Kennedy, the magic Latina, Ginsburg, Keagan, and Suiter for.

  • Scruffy Nerfherder||

    Thomas is showing his law and order streak again dammit.

  • Rev. Blue Moon ||

    I did not read the decision, but the conservatives are likely making a legalistic point. When a guy walks in with a Section 1983 lawsuit, the appropriate response is usually specific relief for the individual, not generalized policy prescriptions that the police (as an example) have to do X, Y, and Z to avoid violating the plaintiff's constitutional rights. If Prisoner A was subjected to Eighth Amendment violations, then Prisoner A should be released or be granted specific relief individual to that litigant.

  • ||

    Thomas is the pedophile justice. I don't give a fuck what he has to say anymore either.

  • Mr Whipple||

    And the child-poverty rate among blacks had plunged 11 percentage points by 2005.

    The Earned Income Tax Credit was part of Clinton's Welfare reform. So, naturally it lifted families out of poverty, simply by paying them to work.

  • ||

    paying them to work.

    With other people's money.

  • The Derider||

    Paying them to work with their own money wouldn't work, because they didn't have very much.

  • Mr Whipple||

    Alito pointed to Philadelphia’s experience with a court-imposed prison cap in the 1990s to support his gloom-and-doom.

    I'm not sure I remember Philly's problem. I don't think they operated a prison, just a jail in the Roundhouse. I was always under the impression that if you got sentenced to prison time in Philly, you went to Graterford.

  • sarcasmic||

    But Scalia’s proposal to limit relief to affected inmates means that the court can’t step in till after some prisoner has suffered serious injury or death.

    Seems to be a theme here.
    Police and prison guards have license to do whatever the heck they want, and their victims may sue them after the fact if they can afford a lawyer.

  • l0b0t||

    I don't know about the police part of your claim but prison guards and officials are sued quite often. I once knew a person pretty high up the food-chain in the inmate grievances division of the Florida Bureau of Prisons and she was dealing with half a dozen new lawsuits every week; the suits encompass everything from beatings by the staff to claims of microwave mind-control.

  • sarcasmic||

    Wasn't there a recent ruling that said a citizen may not resist a policeman even if what the policeman is doing is illegal? That the best the citizen can do is sue the department (if he can afford a lawyer) while the officer is punished with a paid vacation?
    Seems like the same thing is going on here. Prison officials can do whatever they want with no risk of discipline, and the best their victims can do is sue.
    If the lawsuit prevails then the taxpayers foot the bill.
    Disgusting.

  • ||

    Indiana ruling that was where justices appointed by daniels ignored the historic rulings and doing so, you are correct, here in ny the police do what they want or corrections or most places and don't get punished or trained, and taxpayers foot the bill, caps can reduce the cost, but will not compensate the party or stop wrongs, seems like training and discipline for government workers is ignored.

  • ||

    The upshot of this is, it's California. Who gives a fuck?

  • J[o]h[nn]y L[o][n]gt[o]rs[o]||

    Speaking of prison overcrowding, I'm off to the dentist. No GG links for you today.

  • ||

    You disappoint me Longtorso.

  • Mr Whipple||

    Here's something that might make you piss yourself:

    http://www.youtube.com/watch?v.....r_embedded

  • Otto||

    Here's a disturbing one.

  • Draco||

    This column is one of the weakest I've read here in some time. It's basically liberal hand-wringing and emotionalism substituting for logic.

    California keeps many non-violent offenders locked up for too long, thanks to its draconian three-strike laws.

    Then tell that to California voters, who, through a democratic process, opted for these laws and policies.

    Yes, I'm well aware that the subtext of your piece is that drug users shouldn't be criminals, and therefore that we shouldn't be locking them up in the first place, but while I'm sympathetic to that position, it's not an effective argument for the proposition that a federal court should take precedence over the CA legislature when it comes to CA's criminal justice system.

    Meanwhile, in NJ, the state courts have ruled that the governor and legislature must increase funding for schools in poorer districts, in defiance of the sitting governor and legislature.

    How about we just have unelected wise men and women (and Latinas) in robes make all of the decisions, and just chuck the idea of democratic government altogether?

  • Spoonman.||

    See, we have this thing called a Constitution, which says that no matter what the voters and legislature want, the government has to follow certain rules.

    Among these rules is a proscription on cruel and unusual punishment.

  • Draco||

    How about this? I'll take Scalia's understanding of the Constitution, and you can take Dalmia's?

  • Fluffy||

    Then I sincerely hope to see you one day tortured to death inside an iron maiden for some trivial crime.

    Hey, in for a penny, in for a pound, right? If the legislatures can impose whatever cruel and unusual punishments it wants, let's fucking not have any half measures.

  • Rev. Blue Moon ||

    I elucidated below, but your analogy is inapt. Specific harms are the courts' bailiwick - the legal system knows how to address specific harms, made by specific people against other specific people, and how to calculate damages, etc.

    Saying that some number of prisoners, that goes from a pile of sand to a heap, somehow violates the Eighth Amendment, is slippery logic and bad law.

  • Wind Rider||

    On the contrary, that sounds like an ideological 'that's not their job' argument in support of the 'lets just do this one case at a time no matter how overwhelming it is to a rational person that we're dealing with the symptoms of a deeper systemic problem that we must assiduously ignore with imaginary outcomes' position. Are you fucking insane, or just hopelessly obtuse or something? I'll onkloy give you a pass for such stupidity by taking into account that most fooks don't see cause, effect, and correlation without having their fucking noses rubbed in it, then explained to them what just happened with a fucking coloring book educational supplement. Bottom line, in the aggregate, is that it's a culimination of severely fucked up policies and practices by the state that, in sum, add up to cruel and unusual punishment. In a sense, the majority did basically the minimum effort on this - in no way did they address to California exactly how they were to suck eggs, now did they? Nope. And it takes about all of three and a half seconds for someone waking up out of an induced coma to figure out that the state is locking up far too many citizens to be sustainable. So someone is doing something wrong. But go ahead and blame it on the poor, the spics, and the niggers, Harry Anslinger, Jr. wannabe. . .then go dance naked in a fire.

  • ||

    "How about this? I'll take Scalia's understanding of the Constitution, and you can take Dalmia's?"

    You've never even read the U.S. Constitution, have you?

  • sarcasmic||

    Among these rules is a proscription on cruel and unusual punishment.

    What is more cruel and unusual than locking someone up in a cage with rapists and murderers, taking away years of their life that they will never get back?

    Pain and public humiliation is much less cruel and unusual.

    Bring back the stocks and the whipping post. Let justice be swift, humiliating and painful.

    All warehousing prisoners does is transfer money to the politically connected who build and run the prisons.

  • Barack Obama||

    How about we just have unelected wise men and women (and Latinas) in robes make all of the decisions, and just chuck the idea of democratic government altogether?

    Let me be clear.

    FTFY.

  • ||

    I would agree with you 99% of the time Daco. But the conditions of the California prisons are so bad something has to be done. What if the people of California voted to put all of its prisoners in five by seven underground cages 24/7? Would that be okay? The electorate can't vote to violate the Constitution.

  • Draco||

    I hear you John, and respect your views, as always. It just rankles to think that the solution is this kind of top down injunction.

  • ||

    I don't blame the Court as much as California. The idiot voters out there have manage to make it into a third world country complete with awful jails. With bad cases comes bad laws.

  • Wind Rider||

    I blame individual Cali voters less than the fucking assholes that put the dumb crap on the ballots over the years and then convinced the sheeple through fear that they were good ideas. At this point, everyone is pissed off at the Courts because of the way they're directing fire hoses at the bonfire.

  • Same Here||

    It's not like Cali hasn't had time to figure this one out. They just seem unable/unwilling to fix things. An overcrowded prison system is just one of the state's failings.

    But I guess when you have the option of going to the beach instead of coming up with solutions to your budget crisis, the beach wins.

    The 3-strikes rule is one of those things that seems to be reasonable until you realize the cost and that there are shades of grey.

    Sometimes that third strike was just a foul tip.

  • Easy Peasy||

    In many places a five by seven room to yourself is luxury. Its all perspective.

  • KPres||

    I assure you it's never luxury. The only people locked up who don't want out are the ones hiding from the mob. But yeah, it's definitely worse for some than others.

  • Fluffy||

    The New Jersey constitution is stupidly written.

    The New Jersey education decision, while offensive, was an inevitable as Dred Scott given the text of the New Jersey constitution.

  • Fluffy||

    How about we just have unelected wise men and women (and Latinas) in robes make all of the decisions, and just chuck the idea of democratic government altogether?

    The only parts of our system of governance that actually work are the parts that give the courts the power to strike down acts of the legislature.

    Every single enumerated right gives unelected wise men and women the power to make all the decisions with regard to matters concerning that right.

    And those are the only areas where our government is even remotely just or effective.

    Every last thing the legislature has power over or has usurped power over is a gigantic clusterfuck of brutality, dishonesty and theft.

    That, to me, implies that if we could simply extend the ability of the courts to frustrate and thwart the will of the legislature, things would improve.

  • Fluffy||

    I have to conclude that in this matter, as in the "actual innocence is no grounds for appeal", Scalia is so wedded to the technical procedures of the courts that it blinds him.

    Basically, his demand that individual prisoners seek specific relief through their own individual court cases if taken literally would mean that if a state passed a law mandating amputation and blinding for petty theft, no one could make a blanket constitutional challenge to that law, and only persons who had actually suffered amputation and blinding could bring suit, and only after the fact.

  • Rev. Blue Moon ||

    Disagree. Once one litigant prevails on blinding/amputation as a violation of the Eighth Amendment, then there is precedent. What is the precedent here? That 120,000 people housed in complexes "designed" to house half is de jure unconstitutional? What if there are only 100,000? What if 40 people are sharing a toilet, rather than 50?

  • ||

    What if it is a thousand? By your logic the Court could never draw a line no matter how bad the circumstances.

  • Fluffy||

    But that is insane.

    That would mean that if the Court ruled that having ten dogs maul a prisoner for sport was cruel and unusual, if the next prisoner in line was mauled by nine dogs he'd have to relitigate it.

    The budget laws are laws like any other laws. If a law decreeing amputation and blinding can be struck down, then a law making the food budget for prisons $0 and decreeing that the prisoners should eat each other can also be struck down. And what California has done is simply a less extreme version of just that.

    If not, you would empower the states to achieve by the budget process what they could not achieve directly by statute - the imposition of cruel and unusual punishments. And that would make the constitutional prohibition on such punishments meaningless.

  • Rev. Blue Moon ||

    The general propositions / legal points that would be made could be condensed as possible:

    1. Executing child rapists is a violation of the Eighth Amendment
    2. Subjecting prisoners to mauling by animals for sport, entertainment, or other purposes (etc. etc.) is unconstitutional.
    3. Amputation/blinding is cruel and unusual punishment and is automatically unconstitutional.

    Now, your turn: what is the essence of the legal theory or concept? "Too many people, at a certain pile/heap sand threshold, is unconstitutional"? I submit that sort of law makes no sense.

  • Rev. Blue Moon ||

    In other words, "mauling" and "amputation" are concepts that do not require measurement, or, at least, are more subject to measurement-omission, within reason. "Overcrowding", by definition, requires a number, and not only does it require a number, it requires that number to be placed within full context of a whole host of other numbers: hygiene facilities, living quarters, medical and correctional staff, etc.

  • Fluffy||

    I mean, seriously, that's your objection?

    We can know the right number of people that can safely occupy a nightclub, or a plane, but not a prison?

    That's just too vague and unknowable a standard to impose on the states?

    Come on, get serious.

  • Rev. Blue Moon ||

    So the Supreme Court should decide what the Eighth Amendment means based on...what the local fire marshal says? What the Federal Aviation Administration says?

  • Fluffy||

    Well, as in many civil matters, the plaintiffs would produce evidence for one number and the defense would produce evidence for another number.

    In this case, we can go by the state of California's own admissions, since their own engineers designed prisons to hold a certain number of prisoners.

    Does that invite repeated litigation over marginal cases? Yup. So what? I really don't care one way or another about the burden on the federal court docket.

  • pudge||

    "We can know the right number of people that can safely occupy a nightclub, or a plane, but not a prison?"

    No, we cannot know those things either. You're not much of a libertarian, are you? We pretend we can know them, but no, we cannot. Those are fictions.

    YOU get serious, please.

  • Zeb||

    That's a little silly. I agree that the numbers determined by the fire marshal or whatever may not actually be the absolute maximum safe number of people that can be in a place, but there is some such number. I would argue that there is some level of crowding in prisons where the punishment becomes cruel and unusual. Can you determine an exact number? Of course not. But a line has to be drawn somewhere.

  • Fluffy||

    You're not much of a libertarian, are you? We pretend we can know them, but no, we cannot.

    This is idiotic.

    We can disagree about the propriety of employing licensing schemes and prior restraint to limit the number of people who occupy a nightclub, but if some nightclub owner jams 1000 people into 50 square feet and the place burns down, we can absolutely, positively know that he behaved with criminal negligence and had too many people in his facility.

    "Knowing" is a lot easier than you appear to think it is.

    And "caveat emptor" doesn't apply to prisons. Prisons don't have customers, they have chattels. If we are going to deny people their liberty via the judicial process and make those persons wards of the state, we then get to follow the constitution when we do so. And if that means we have to spend money building more prisons, that's just too damn bad.

  • Wind Rider||

    This is where you discredit yourself and your argument by pretending to be of the 'I know nothing, lets start from a blank slate and have a purely ideological discussion. No messiness, ipuh-leeez.

    Here's some knowledge that should be crammed down the throat of a litigant that walked into court so poorly prepared and opened their yap to ease insertion - yes, Virginia, we DO know, in a quantifiable measure, easily, how and when a given prison system is 'overcrowded' - compare designed and constructed capacity to meet minimum standards which are agreed to be 'humane' conditions, to the actual numbers of prisoners in the system. When population exceeds designed capacity, bingo. When it gets to over 150% of designed capacity, is there really any doubt that there is inhumane treatment and conditions being experienced, even if you may not have personally reviewed each individual tale of woe? Are you really that dis-associative of material presented to you? Good thing you're not a goddamned puppy, or your fucking nose would be constantly flat from being rubbed into the goddamned carpet.

  • Rev. Blue Moon ||

    When it gets to over 150% of designed capacity, is there really any doubt that there is inhumane treatment and conditions being experienced, even if you may not have personally reviewed each individual tale of woe?

    Apparently, yes, which is why I am extraordinarily amused that you are essentially question-begging through your hyperbolic bloviations.

  • Fluffy||

    Apparently, yes

    Not any more.

  • Fluffy||

    How about "States that maintain prisons are required to provide a baseline of humane conditions within those prisons"?

    We don't specifically detail every last way that you can be guilty of cruelty to animals, either.

    But if I jammed 100 horses in a barn meant for ten, and some of the horses were sick, I would get cited for animal cruelty. And if I threw up my hands in response to orders to improve the condition of the animals in my care, as California has repeatedly done ("Your honor, your honor, I just don't know what to do to fix this!") the court would eventually say, "Guess what? You just lost 90 horses."

    If we can do that for animals, we certainly can do that for men.

    Does that require the courts to make specific judgments about conditions in prisons? Yup. I have no problem with that.

    California knew exactly what it was doing. The prisons are built with a certain carrying capacity that is known in advance. That means they shouldn't be allowed to cram in more prisoners than that. If it was a chain of nightclubs that was saying, "Well, golly gee. How can we possibly know what the right number is? It's too vague. Poor us, however will we figure this out?" they would be laughed out of court.

  • pudge||

    "How about "States that maintain prisons are required to provide a baseline of humane conditions within those prisons"?"

    Sure. But who decides that? The STATE does. That's the point. You're ALMOST getting it!

    "But if I jammed 100 horses in a barn meant for ten ..."

    So what? That tells us absolutely nothing. Maybe it was meant for ten, but designed for a customer that thinks each horse needs its own football-field-sized stable. Fitting 100 into that barn would be quite easy and almost certainly humane.

    This is what you're not getting: what someone says something is "meant" or "designed" for means nothing, especially in terms of the Eight Amendment. What matters is the actual effects. That's why Justice Kennedy looked at the effects, and highlighted them as the most important factor. That's fair. Pointing fingers at what something was "meant" for isn't reasonable.

    "Does that require the courts to make specific judgments about conditions in prisons? Yup. I have no problem with that."

    Neither do I: but that's not the whole story here. First we have to look at the court in question has jurisdiction, not just in the problem (no one questions whether the SCOTUS has jurisdiction in Eighth Amendment claims), but in the proposed remedy; the Court has no authority to provide for specific solutions, for example: it can't say "you will reduce population by letting out the oldest prisoners first." The federal Court can only say that an offense exists, and provide for penalties if it is not fixed.

    But we also have to look at whether those conditions violate the rights of EVERYONE, or even most people, or just a few people. And if the latter, are those the people represented by the case? This is not unimportant: it is of the utmost importance.

    "California knew exactly what it was doing. The prisons are built with a certain carrying capacity that is known in advance. That means they shouldn't be allowed to cram in more prisoners than that."

    That's just wrong. No "carrying capacity" -- unless it is based precisely on physical constraints, such as the weight capacity of an elevator -- is gospel truth. It's based on many arbitrary assumptions, decisions, and conclusions. The barn example above demonstrates quite clearly how wrong you are here.

  • Wind Rider||

    Disagree, Pudge - the 'design capacity' for prisons (at least in the recent past) HAS included consideration for basic standards of treatment when arriving at a number. Arguing wheter one or two additional transitory prisoners is a violation is pretty dumb, but not as dumb as seeing over a 150% use rate, but then pretending 'well, it's not really about numbers, per se, because, really who knows how the fuck those work, anyway?'

  • Fluffy||

    but in the proposed remedy; the Court has no authority to provide for specific solutions, for example: it can't say "you will reduce population by letting out the oldest prisoners first." The federal Court can only say that an offense exists, and provide for penalties if it is not fixed.

    If a federal court can set penalties for not remediating an offense, it can make that penalty be "You have to let all your prisoners go if you don't fix this."

    Tough shit, California.

    You can either run your prisons in accordance with the requirements of the US constitution or you can not run them at all.

    If the court can compel the release of an individual prisoner for a due process violation by a state, it can compel the release of categories of prisoners if those prisoners are all currently being subjected to an 8th amendment violation.

    When the court voided the death penalty, that changed the sentences of all prisoners impacted by such sentences. They didn't have each prisoner relitigate their sentence individually.

  • pudge||

    "Scalia is so wedded to the technical procedures of the courts that it blinds him."

    You're committing the question-begging fallacy, pretending that because YOU think "the technical procedures of the court" don't matter much, therefore neither should Scalia.

    But he is a strong believer in the rule of law, where the technical procedures are of extremely high importance.

    "his demand that individual prisoners seek specific relief through their own individual court cases if taken literally would mean that if a state passed a law mandating amputation and blinding for petty theft, no one could make a blanket constitutional challenge to that law, and only persons who had actually suffered amputation and blinding could bring suit, and only after the fact."

    This is obviously incorrect. You're confused. Even in the worst possible case, you would have the opportunity to challenge the constitutionality of the penalty before the penalty is actually put into effect. You're conflating things: there is no penalty in the law that says you shall have inadequate health services when you go to prison. That's the thing: this isn't law, this isn't policy, and this isn't intentional: it's something unfortunate that sometimes happens, and you can't claim you've been harmed just because you're in the prison.

    "The budget laws are laws like any other laws. If a law decreeing amputation and blinding can be struck down, then a law making the food budget for prisons $0 and decreeing that the prisoners should eat each other can also be struck down."

    Again you're conflating. Those are two different things: a law saying prisoners should eat each other is unconstitutional. A law setting the food budget at $0 is not. The point is that adequate food has to be provided, not that it has to be provided in a certain way. So unless the law sets a minimum standard for funding for food (which federal law does not), that budget law could not be unconstitutional, because there are obviously other ways to provide food than through direct funding (the prison could self-provide food through its own garden, for example).

    "And what California has done is simply a less extreme version of just that."

    Exactly right, and therefore it too is not unconstitutional. The EFFECTS may be unconstitutional, but that is why we have rules for who may claim to have been harmed. And the procedures must be followed if we care even the slightest bit about the rule of law.

    The real problem here is that we are trying to mix politics and law in a stupid way. This is a problem that should be solved by electing people who will fix the problem. Instead we're trying to claim policies are unconstitutional because of their effects on a relatively few people, and then pretending that everyone in the prison is caused harm. It makes no legal sense, and Scalia was absolutely right to dismiss it as the extrajudicial activism it obviously is.

  • Stormy Dragon||

    Again you're conflating. Those are two different things: a law saying prisoners should eat each other is unconstitutional. A law setting the food budget at $0 is not. The point is that adequate food has to be provided, not that it has to be provided in a certain way. So unless the law sets a minimum standard for funding for food (which federal law does not), that budget law could not be unconstitutional, because there are obviously other ways to provide food than through direct funding (the prison could self-provide food through its own garden, for example).

    I'm pretty sure this is what they meant by "technical procedures" that don't count. You're essentially arguing that there's no actual requirement the government obey any of its laws, merely that it have them. They just have to have a law saying prisoners will be fed, but there's no requirement anyone actually ever be fed. If someone starves to death, well we just shrug and throw up our hands at the tragic unpredictability of the universe.

    The most galling part is that you have the nerve to call this the rule of law, when it's pretty much the exact opposite.

  • Stormy Dragon||

    This is a problem that should be solved by electing people who will fix the problem.

    As noted in the original article, California has had more than a decade to elect people who will fix the problem. At what point should the court stop waiting?

  • Fluffy||

    The EFFECTS may be unconstitutional, but that is why we have rules for who may claim to have been harmed. And the procedures must be followed if we care even the slightest bit about the rule of law.

    Um, says who?

    The habits of legal practice are not part of the constitution.

    Only the constitution is part of the constitution.

    The constitution says that the state may not impose a cruel or unusual punishment.

    You may want to whine and say, "Well, in the civil law we have always had their procedures for determining who has standing and when they may sue and blah blah blahdy blah blah" and I honestly don't give a damn. If the civil law procedures for a given district allow the state of California to continue to impose cruel and unusual punishments then the SCOTUS can disregard them.

    The constitution trumps all civil law.

    California is trying to play Andrew Jackson and defy the court just by malingering.

    and you can't claim you've been harmed just because you're in the prison.

    Says who? If the conditions in California prisons are cruel and unusual, then every prisoner being subjected to those conditions can, in fact, claim just that.

    If California was holding prisoners in shark tanks, they couldn't claim that the guys who hadn't gotten bitten yet had no claim.

    If the conditions are cruel and unusual, then every prisoner has such a claim for as long as the conditions persist. As a practical matter, as California releases prisoners at some point the situation will be ameliorated and the cruel and unusual conditions will no longer exist. To me that's the only reason they shouldn't have to release ALL of their prisoners.

  • Fluffy||

    Those are two different things: a law saying prisoners should eat each other is unconstitutional. A law setting the food budget at $0 is not.

    This is just absolutely false.

    If a state legislature passed a police budget that included a rider saying that no police funds could be expended on protecting the lives or properties of Jews or responding to crimes against Jews, that would be an unconstitutional law on its face.

    You couldn't come back to me and say, "Well, a law saying Jews have no rights would be unconstitutional, but a law setting the police budget for protecting them at $0 isn't 'cause that's different."

    You want to empower state governments to use their budget process to trump their duties to their citizens under the constitution, and that just doesn't cut it with me.

    "It's not law, it's not policy, we just don't have any money to protect Jews from crime. Those Jews can't claim they've been harmed just because we aren't spending money on them! There are other ways they can protect themselves. Maybe they can plant land mines in their gardens!"

  • ||

    The Black Hole of Calcutta was no big deal, I guess.

  • Stormy Dragon||

    Anyone can play this game. Does a ban on amputation mean prison's can't cut the hair of prisoners? Does a ban on animal maulings prohibit any use of guard dogs in prisons? Banning amputations and maulings is an intolerable interference in the operation of the prisons!

  • ||

    The State of California should use the inmates as slave labor to build more prisons.

  • ||

    Right, like the unions are going to let that happen.

    Actually, I realize it was a joke, but if I understand the language of the 13th Amendment correctly, that would pass constitutional muster.

    Unfortunately, randomly selected slave labor like you would get from a prison population is unlikely to have many of the skill sets required for a task like building a prison.

  • Easy Peasy||

    The prisons could easily hold triple their current capacity. Put the prisons on a eight hour rotation and hire a few more guards. Eight hours in a cell, eight hours forced labor, eight hours leisure. Eating, bathing, and infirmary come out of leisure time.

    Meals consist of vitamin enriched rice and water. Inmates can use the credits they earn from working to purchase improved meals, access to exercise facilities, the library, education, etc.

    The real reason prisons are overcrowded is because prison is not a horrible place to live.

  • Zeb||

    I'm pretty sure prison is a horrible place to live. It may be slightly less horrible than some alternatives, but still horrible.

  • Wind Rider||

    So, I'm guessing this is why your long term retirement strategy includes being incarcerated for the remainder of your life? Ever spent more than 10 minutes in prison? Other than visiting your mom?

  • Easy Peasy||

    Nor do I commit crime to get locked up their in the first place.

  • pudge||

    Sorry, you cannot ignore the rule-of-law issues raised by Scalia, pretending they don't matter because you think Scalia doesn't really believe them, and hope to be taken seriously.

  • ||

    Scalia himself does not take the rule of law seriously. There can be no rule of law where the state gets to exempt itself from liability and to make diffferent rules for the rulemakers. Scalia supports the foregoing.

  • ||

    The writer missed a couple facts about the California prison system. The low-level inmates being shifted from prison to the counties under Governor Brown’s realignment are essentially the same low-level offenders shifted to prisons because of long term county jail bed shortages. Because jail bed operating costs are about $24,000 less than a prison bed, the change will save the State about $1.2 billion annually if the counties are reimbursed at the rate of $28,000 per bed. The jail bed shortage will probably require the counties to rely on use of contract facilities to house them. That will still save almost $1 billion annually in operating costs. Not bad but the real savings will occur in avoiding spending most of the $6.5 billion in unspent AB 900 construction bonds. There will also be savings of about $290 million per year due to the courts handling technical parole violations. Most taxpayers probably view such savings as significant but the politicians could have made these changes decades ago and saved billions. Only the deficit crisis has emboldened them to make the long over-due changes. Better late than never of course - and the realignment would never have occurred without the deficit crisis!

  • ||

    The primary question I would have re Governor Brown’s realignment plan, is whether California's counties actually have enough surplus jail space to accommodate these excess prisoners, or is this just kicking the can so that in a year or so we'll have a court decision ordering the counties to relieve overcrowding in their facilities.

    From what I've heard, the LA county jail is in pretty much the same shape as the state prisons.

  • Res Publica Americana||

    This summarizes the deplorable stupidity of most people, and I think I’ll to clear this up. This has been addressed on countless occasions.

    The United States is a constitutional republican confederacy (in its balance of powers and divisions of authority). There are 50 sovereign nations that are joined together in political union, all delegating a select few specific and limited powers to a central government THEY COALESCE TO CREATE.

    The central (federal) government is granted legitimacy and authority BY THE STATES, WHICH ARE SOVEREIGN NATIONS, to exercise this short list of explicit powers through the establishment of supreme law, the Constitution of the United States.

    This supreme law institutes a confederal constitutional republic with democratic elements of governance, not an actual democracy. Any and all of these democratic elements of governance may act SOLELY, without exception, within the DEFINITIVE and MINISCULE confines of supreme law.

    People, no matter the scope of the majority, may not vote to rescind rights. People, no matter the scope of the majority, may not vote to alter the form of government. Democratically enacted items of policy (primarily laws), whether ordained by direct voting or by the democratically elected representatives of the people, that transcend the extremely and rightly minute powers and flexibility given to democracy within the framework of the republic are absolutely and entirely null and void. Enforcement of such laws is effectively a repudiation of the legitimacy of whichever governmental entity is trying to impose them upon the citizenry.
    This creates a duality of function; in a just world, federal tyranny would be met with violent deposition by the states; likewise, the collapse of republicanism and democratic mutilation of supreme law in and by a state would be met with a similar reaction from the federal government, which must, after all, guarantee to every state in this Union a republican form of government.

    So when mother-fucking California treats people it's imprisoned for non-crimes this way, you bet your sorry ass the Supreme Court can step in and tell it to get its shit together.

    The tragedy of places like California isn’t merely that it’s a god-fucking-awful abomination, gut-wrenchingly disgusting in the moral depravity of its laws and policy and the ruinous effects they bring, but that it was made so by the people themselves, who voted each other into bondage and subservience. As long as people like us are alive, this country WILL remain a republic of laws and a land of principle, at least to whatever extent we can keep it as such. Democrats can go fucking die. Socialists can go fucking die. Faux-republicans can go fucking die. If you want to live in a place where you can vote yourself and your neighbor into slavery, pack the fuck up and get the fuck out – the rest of the world is just waiting for dumbfuck cock-suckers like you.

  • ||

    THIS^

  • JT||

    I'm just waiting for someone to make that "if it wasn't C&U when the Constitution was written" argument.

  • dnha14||

    I deplore inhumane conditions in some of the prisons in this country, but the author fails to mention the following:
    If you don't like the living conditions in the prisons, then don't commit crimes.
    If you do commit crimes don't expect to be sent to the Waldorf.

  • ||

    California's prison crisis and their packing prisoners in like cattle at a feedlot adversely affects every Californian. They are spending our children's education and our infrastructure repair money on criminal justice and incarceration practices that do not make us safer, but do reduce the quality of life in California. Thank you Supreme Court of upholding the constitution.

    FOLLOW THE MONEY.

    Who profits from failed criminal justice and horrifically overcrowded prisons that are bankrupting states across the nation?

    District attorneys and prosecutors who are promoted for winning cases and harsh sentences at any cost;

    Tough-on-crime, fear-mongering politicians hoping for votes;

    Guard employee unions;

    For-profit-contract-bed-privatized-corporation prisons that profit
    not from reforming people, but when the recidivism rate goes up;

    Parole department in California where everyone released is on parole;

    Three strikes law that sends people to prison for 25+ years over petty crimes such as stealing a pizza;

    The bail bond industry that benefits from unnecessary criminal justice practices that increase incarceration;

    Rigged line-ups that get faulty convictions and promotions;

    Increased incarceration due to requirement of checking prior-arrest/conviction boxes on employment, government, and rental applications for those who have been crime-free for years. It makes it harder to stay out of prison;

    Serving high calorie, high carb meals that increase health problems and pay to medical institutions.

    Private companies that raise heck when prisons contract to do labor;

    The list goes on.....

  • Pandora UK||

    Increased incarceration due to requirement of checking prior-arrest/conviction boxes on employment, government, and rental applications for those who have been crime-free for years

  • nike dunk||

    is good

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