Today the Supreme Court heard arguments in Schwarzenegger v. Plata, California's challenge to a federal court order requiring it to reduce its prison population. The order, in response to complaints that the medical care offered by California's prisons is so abysmal that it violates the Eighth Amendment's ban on cruel and unusual punishment, demands that the state reduce overcrowding from more than 200 percent of designed capacity to 137.5 percent within two years. Such a cut would require the release of 38,000 to 46,000 prisoners. Margaret Dooley-Sammuli of the Drug Policy Alliance notes that California could meet a large fraction of that goal simply by releasing the 10,000 people who are serving time for drug possession.
The Supreme Court has to decide whether the court order violates the Prison Litigation Reform Act, which says remedies for unconstitutional conditions must be closely tied to the specific facts of the case. The three-judge panel that issued the order concluded that medical care in California's prisons cannot be improved enough to satisfy the Eighth Amendment as long as overcrowding persists. Not surprisingly, that argument was treated skeptically by the more conservative members of the court, who suggested that ordering the release of prisoners unjustifiably infringed on state authority and endangered the public:
"If I were a citizen of California, I would be concerned about the release of 40,000 prisoners," Justice Samuel Alito stated.
Alito further pressed attorney Donald Specter, of the Berkeley-based Prison Law Office, to acknowledge that the overall recidivism rate for California prisoners currently released on parole is 70 percent.
"Seven, zero," Justice Antonin Scalia reiterated, driving the point home.
But 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.