Close ruling on prison crowding likely for Supreme Court?

McClatchy NewspapersNovember 30, 2010 

WASHINGTON — Arguments over a judicial order to slash California's prison population exposed sharp divisions Tuesday among Supreme Court justices.

In a closely watched case, Republican appointees challenged the proposed prisoner-release plan as a threat to public safety while Democratic appointees suggested it was necessary to alleviate horrific penal conditions.

The ideological divisions in evidence during an unusually long oral argument probably foreshadow another difficult decision for a court that frequently splits along 5-4 lines. The argument also underscores the high stakes and heated emotions in a pair of long-running prison overcrowding cases.

"When are you going to avoid the needless deaths?" Justice Sonia Sotomayor asked Carter G. Phillips, the attorney for California. "When are you going to avoid or get around people sitting in their own feces for days in a dazed state?"

Justice Stephen Breyer noted that the pictures of California prison conditions "are pretty horrendous," while Justice Ruth Bader Ginsburg stressed that one of the overcrowding cases considered Tuesday began in 1990.

"How much longer do we have to wait (for improvements)?" Ginsburg pressed Phillips. "Another 20 years?

But while at least three justices seemingly endorsed a lower court's order to cut California's prison population, three others raised alarms. State officials have said the lower court's order would require reducing the prison population by 38,000 to 46,000.

"If I were a citizen of California, I would be concerned about the release of 40,000 prisoners," Justice Samuel Alito said.

Alito further pressed attorney Donald Specter, of the Prison Law Office in Berkeley, Calif., to acknowledge that the recidivism rate for California prisoners released on parole is 70 percent.

"Seven zero," Justice Antonin Scalia reiterated, driving the point home.

Chief Justice John Roberts Jr. added his own conservative-tinted concern about activist judges taking over jobs that elected officials could do best.

"The point is, this is a budget prioritization that the state has to go through every day, and now it's being transferred from the state legislature to federal district courts throughout the state," Roberts said skeptically.

The twin cases called Schwarzenegger v. Plata and Coleman v. Schwarzenegger deal with the poor health care provided in California prisons. Lower courts have ruled that this poor care violates the Eighth Amendment's protections against cruel and unusual punishment.

Lower courts have identified overcrowding as the "primary cause" of the Eighth Amendment violations, while Phillips countered Tuesday that the real primary cause was a "culture of disregard" that once permeated California corrections. Pinpointing the primary cause of the constitutional violation could be a key part of the Supreme Court's final decision, due by the end of June.

California's 33 state prisons currently hold roughly 147,000 inmates, Phillips told justices Tuesday. This is down from a high of some 160,000 previously cited in legal filings. The higher figure amounted to "190 percent of design capacity," officials said.

Last January, a three-judge panel ordered California to reduce its inmate population to 137.5 percent of design capacity within two years. That's the equivalent of about 110,000 inmates.

"California's prisons are bursting at the seams and are impossible to manage," the judges wrote.

California officials argue that they deserve more time to act before a panel of judges forces their hand.

"The reality is the population levels have dropped pretty significantly," Phillips asserted, adding that "the remedy of a prisoner release order should be a remedy of last resort."

Reducing overcrowding, though, doesn't necessarily mean that thousands of inmates will let loose. Alternatives include transferring them to other jurisdictions, diverting nonviolent inmates to jails and restructuring parole so that fewer violators are returned to prison.

"The (lower) court is not ordering the state to throw open the gates ... and release people," Specter said.

The cases considered Tuesday mark the first time that the Supreme Court has considered a court-ordered prisoner release since the current procedure was established under the 1996 Prison Litigation Reform Act.

Eighteen states — including Texas, Alaska and South Carolina — joined an amicus brief that supports California's bid for more time. These states worry that they, too, might face court orders to release inmates.

As often happens, the prison overcrowding decision could rest with Justice Anthony Kennedy. The California native cited "massive expert testimony" about dangerous overcrowding, and said that "at some point, the court has to say, 'You've been given enough time.' "

Kennedy, though, also repeatedly questioned whether the 137.5 percent of design capacity order might be modified.

Justice Clarence Thomas sat silently throughout the 80-minute hearing, as is his habit.

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