Last week the Supreme Court reentered the business of dubious liberal policymaking with its decision in a case from California, Plata v. Brown. With Justice Kennedy writing for himself and four colleagues, the Court sustained a lower court’s order requiring the state to reduce the number of convicted criminals in its correctional facilities by as many as 46,000.

California’s prison system was built to house 80,000 inmates and now holds almost twice that number. The system is overcrowded, and maybe Plata will motivate elective officeholders to reduce it in ways that make sense. Earlier this spring Governor Jerry Brown signed a bill that would transfer some inmates to county jails. Funds, however, have yet to be approved by a legislature notoriously strapped for cash. Work on some new correctional facilities authorized four years ago also has begun. But more jails—and the funds to build them—may be needed.

Law-abiding Californians have benefited over the past 20 years from policies that have locked up more felons for longer periods of time. In California and across the country crime rates have gone down—see the latest figures from the FBI, released the same day as Plata was decided—as the number of criminals actually incarcerated has gone up. But if Californians are safer than they used to be, they have yet to pay in full for that happier circumstance. It can be argued whose fault this is—the people or their political leadership. But, if public safety is a priority, the state should have funded facilities to accommodate the state’s large prison population.

In any case, Plata is the culmination of two prisoner lawsuits dating to the 1990s, one involving prisoners with serious mental disorders, the other prisoners with serious medical conditions. The district judges in the two cases both came to the view that reducing the prison population was the only effective cure for the constitutional violations they identified. Because authority to issue such a remedy is confided under the Prison Litigation Reform Act (PLRA) to a special three-judge court, the two judges asked for such a court to be convened.

It is the order of this court that was challenged in Plata. The order does not say how the state must reduce overcrowding. It is entirely possible that the state will have no place to relocate some prisoners other than on the streets of California. Just how many might be released, no one knows. But it could be in the thousands—even as many as 46,000. Given the relationship between incarceration and crime rates, it stands to reason that, as prisoners are prematurely released, crime will increase—a prospect that led Justice Alito, in dissent, to accuse the majority of “gambling with the safety of the people of California.”

It is also possible that the court will amend its order in ways that enable California to reduce overcrowding without having actually to release any prisoners—such as by extending the length of time (now two years) the state has to implement the order. On the other hand, it’s possible the judges will be less accommodating than not. And that is where the smart betting lies.

As Justice Alito pointed out, the judges’ order “flies in the face of the PLRA” and its requirement that remedies must be “narrowly tailored to address proven and ongoing constitutional violations.” Alito asks whether any of the deficiencies in the California prison health care system identified in the judges’ order and highlighted in the Court’s opinion could have been remedied without releasing (potentially) 46,000 prisoners. Not even the “not routinely disinfected” exam tables and counter tops? Not even the basic medical equipment that is “often not available or used”? Not even medications that “are too often not available when needed”?

Alito’s point is that the judges seemed so intent on attacking the broader problem of general overcrowding that they could not bother with trying to come up with truly “narrowly tailored” remedies, as the law requires and to which their authority only extends. Indeed, Alito called the judges out for having their own criminal justice agenda, one at odds in key respects with the sentencing policies adopted over the years by the legislature. It is not surprising, though it did not interest Justice Kennedy, just who was on the three-judge court: the two district judges in the original prisoner lawsuits, who indeed asked to be appointed to it, and Ninth Circuit judge Stephen Reinhardt, who is among the most liberal jurists in the nation. The lawyers for the prisoners could not themselves have picked a better (from their point of view) threesome.

It is not necessary to accept Justice Antonin Scalia’s characterization of the special court’s order as “perhaps the most radical injunction” ever issued by a court in American history. But it certainly is a radical injunction, at odds with the governing statute and betraying no concern for traditional constitutional limitations on the judicial power. Certainly it deserved more careful scrutiny than Kennedy, whose vote decides so many of the big 5-to-4 cases, gave it. The last thing the country needs are judges running our prisons. Unfortunately, that is precisely the state of affairs in California.

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