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.