« An innocence-based pitch for California capital clemency for Kevin Cooper | Main | US Sentencing Commission unveils pretty new website »

December 1, 2010

Will the Chief Justice seek consensus in the California prison overcrowding case?

I had a chance last night to read the full and lengthy transcript of the oral argument in Schwarzenegger v. Plata (which is available here), and the whole thing is fascinating.  Justice Alito's tough questions to the prisoner advocate continued to burnish his well-deserved reputation of being the most pro-government, pro-prosecution of the current Justices, while Justices Breyer, Ginsburg and Sotomayor posed some of the toughest questions to California's lawyer.  And not only old swing Justice Kennedy, but also new (swing?) Justice Kagan seemed to be trying to figure out how the potent prison crowding reduction order might be tweaked to engineer a resolution of Plata that everyone could live with.

Because the legal and factual issues in Plata are dynamic and uncertain, the Justice I am now thinking is most important to the resolution of this case is Chief Justice Roberts.  There is no crisp, plain right/wrong resolution in Plataand really no enduringly significant jurisprudential concerns, and yet the outcome of the case and also the reasoning (and rhetoric) used by the Court in reaching an outcome will still surely have lots of sentencing law and policy reverberations. 

For these reasons, the Chief's oft-stated interest in having more consensus on the Court could (and perhaps should) come to the fore in Plata.  And, as suggested above, it seems that both Justices Kennedy and Kagan may be especially interested and eager to find split-the-difference resolution to this case that all (or almost all) of the Justices can join.

Candidly, I am not sure if I would prefer to see a unanimous minimalist opinion in Plata that delicately balances all the competing issues, or would instead like the Justices to deliver a 5-4 opinion with lots of rhetoric flying.  But I am sure that the Chief Justice seems to me to be the key player in shaping just what becomes of Plata.

December 1, 2010 at 11:49 AM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e2013489a71618970c

Listed below are links to weblogs that reference Will the Chief Justice seek consensus in the California prison overcrowding case?:

Comments

"But I am sure that the Chief Justice seems to me to be the key player in shaping just what becomes of Plata."

I am equally sure that Justice Kennedy will be the key player. Bet you a beer.

Posted by: Kent Scheidegger | Dec 1, 2010 12:38:05 PM

i dont' see what the big deal is. If the engineers who built the buildings say they hold "x" number of people ...that's ALL you put in them. The govt doesn't get a pass on the legal occupancy rules anymore than anyone else.

Only question is if the govt will get off it's ass to change the laws to stop putting too many NO-CRIME criminals in prison to leave room for REAL criminals and go back and look as the 10's of THOUSANDS of people locked up on junk crimes and order their release or will they force the courts to simply use the engineer's numbers and say guess what... your 40,000 over legal limit and 40,000 of those who have been in prison the longerst are now released....DEAL WITH IT!

Posted by: rodsmith | Dec 1, 2010 1:36:54 PM

Rodsmith: Is the offense of switching tags at a Home Depot one of your "junk crimes"?

I would direct your attention to today's LA Times (Multiple murder suspect had benefitted from three-strikes leniency) which details the tragic consequences of criminal justice actors who thought they could discern a "real criminal" from someone who deserved a break!

Posted by: mjs | Dec 1, 2010 2:37:53 PM

I'd rather choose the Justices to deliver a 5-4 opinion with lots of rhetoric flying.

Posted by: Blue Cross medical insurance | Dec 1, 2010 2:41:11 PM

I would make the case that a similar fate awaits those who pompously believe the line of demarcation between violent and non-violent criminals is bright and that prison is no place for non-violent offenders.

Posted by: mjs | Dec 1, 2010 2:44:09 PM

This has been going on 20 years? Shameful.

Is the worst of it, or is it California's counsel's attribution of the problems to negligence, as opposed to overcrowding?

There is a problem. Politicians cannot fix the problem. So the Court's come in with their war ax to fix it. No, we don't like it, but what other solution is there?

Posted by: allan | Dec 1, 2010 3:31:32 PM

When Justice Alito says: "The 17 percent figure goes exactly to my concern. This is going to have -- it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. We will see, and the people of California will see. Are there more crimes or are there not?" He doesn't sound like a judge, he sounds like a hysterical layman giving a subjective opinion. The facts of the case were that EXPERTS had said it would not cause more crime, that was a fact of the case. I wish Alito wasn't on that court.

Posted by: DLJ | Dec 1, 2010 9:33:10 PM

Oh, well, if EXPERTS said it, that certainly settles it. Like the EXPERTS who told us LBJ's Great Society would lower crime rates by addressing "root causes." We all remember the dramatic drop in crime rates during the late 60s and the 70s, proving the EXPERTS were right, don't we?

Posted by: Kent Scheidegger | Dec 1, 2010 10:09:29 PM

Only a fool could possibly think that the release of tens of thousands of prisoners can be done with no danger to public safety. If the Supreme Court signs off on this nonsense, particularly given the rigged panel, the blood is on its hands. And if Kagan and/or Sotomayor join a majority in doing so, the blood is also on Obama's and every other Senator that voted for these two. It's not like Sotomayor's criminal coddling tendencies weren't apparent, given her ridiculous position on prisoner voting rights. And Kagan, given her kiss up/kick down tendencies on full display with respect to the military at HLS, doesn't have the moral courage to stand up to the left on an issue of public safety. It would be interesting (and I am not wishing this on anyone) to see what some of these people who are clamoring for an affirmance of the three-judge panel's reckless order would think if they suffered as a result. The problem is, of course, that someone will.

Posted by: federalist | Dec 1, 2010 10:42:07 PM

Federalist,

That's all very nice but at some point the public has to actually pay for the facilities required to house prisoners. California went on an incarceration binge knowing the legal requirements beforehand and have failed to meet (even by the state's own admission) that level of care.

How long need an admitted constitutional violation be tolerated? I think twenty years is more than long enough.

Posted by: Soronel Haetir | Dec 1, 2010 11:17:58 PM

"Rodsmith: Is the offense of switching tags at a Home Depot one of your "junk crimes"?

I would direct your attention to today's LA Times (Multiple murder suspect had benefitted from three-strikes leniency) which details the tragic consequences of criminal justice actors who thought they could discern a "real criminal" from someone who deserved a break!

Posted by: mjs | Dec 1, 2010 2:37:53 PM"

Cute but the problem is that for 20 years.... they have had a prison system that will hold 100,000 people filled with 200,000+ they know they have a problem and what they are legally required to do in the area of how they hold prisoners but have not bothered to even TRY and come into compliance. If the state of calif is that stupid then it's time to FORCE the release of ANYONE over that limit and the same idiots in calif who refused to fix the problem can jsut suffer for it. Maybe that will sink it into their thick heads...

Posted by: rodsmith | Dec 1, 2010 11:26:41 PM

and there is no way in hell id' give them even 2 YEARS to come into compliance. They have dragged their feet over this for least least 10-15 years. They know they have been BREAKING THE LAW the ENTIRE TIME. They'd have 60 days to make a list and RELEASE anyone over the legal max capacity of their system

Posted by: rodsmith | Dec 1, 2010 11:28:38 PM

Rodsmith, your assumption that so-called "design capacity" is a legal maximum is incorrect.

Posted by: Kent Scheidegger | Dec 2, 2010 1:14:39 AM

For once I agree with rodsmith. I too wonder how the judge came with a figure that anything over 100% capacity was acceptable (although I would give some amount of leeway for converting space not originally designated for housing that has since been converted). I would, however, also require that whatever standards apply to prisoners in cells still have to be met for those being held in such converted space. And even one prisoner over that limit is one prisoner that needs to be elsewhere, whether released, out of state, in a new state facility or whatever.

Posted by: Soronel Haetir | Dec 2, 2010 1:20:52 AM

well kent i'm sure my numbers are off. Part of the problem is NOBODY has went into the sysytem since it was built and looked at what they had based on the original designs and any changes like in the remodeled buildings....that's something a set of engineers using the present legal requirments for prison housing would have to do. but most numbers i've seen put calif's system as running between 50-100% OVER capacity! that's what i'm using.

All i'm saying is that just like any other buildings that hold PEOPLE they have a max capacity listed SOMEWHERE they are LEGALLY REQUIRED to hold no more t han that.

Posted by: rodsmith | Dec 2, 2010 11:22:04 AM

from what i just read on another forum what the calif govt is fighting is an order from the court that would basically get the calif prison system DOWN to ONLY 37% over capacity!

http://californiacorrectionscrisis.blogspot.com/

But the Justices’ reactions at this argument are not surprising – the underlying cases have generated similar frustrations and emotions for some two decades, as unconstitutional conditions in California’s state prisons have defied solution despite an unprecedented amount of executive, legislative, and judicial concentration.

At issue is the order from a special three-judge federal trial court, issued after over 70 prior orders failed to correct problems in the prisons, that directs the State to find a way to reduce its prison population to 137% -- that’s right, “reduce” to 37% over design capacity."


i'm going to have to figure the judges that have spent 20 YEARS looking at this know at little about what they are talking bout!.

Posted by: rodsmith | Dec 2, 2010 11:30:20 AM

Since the "experts" are so sure, of course they will be willing to indemnify the future victims of prisoners released based on their testimony. Since, according to them, there will be no such victims, this will cost them nothing.

Any bets on how many "experts" are going to sign up?

Posted by: Bill Otis | Dec 2, 2010 12:32:32 PM

Bill Otis,

I agree that people are going to suffer if prisoners are released, I just don't see that as being particularly relevant.

Prison space is not an unlimited commodity and California has for too long been allowed to vastly exceed (again, even by the state's own admission) what capacity the state does possess. I would prefer SC's 1-2-3 D but that option has been removed from consideration. California taxpayers have over the years indicated a refusal to pay more (though that may have changed with the last election cycle?) and by that measure the citizens have indicated their choice, they would rather take their chances with released felons than building and running the facilities needed to segregate the apprehended criminal population. It is past time that the consequences of that choice be felt by the population.

Posted by: Soronel Haetir | Dec 2, 2010 4:19:58 PM

Actually, this opinion may have substantial impact. It is the first case to present the Supreme Court with an opportunity to interpret the Prison Litigation Reform Act's provisions relating to orders designed to relieve overcrowding. If the proof submitted by the plaintiff's in Plata/Coleman isn't sufficient to meet the PLRA standard, then it is hard to imagine what proof could possibly be sufficient.

Of course, the real issue--which is not an issue for the Supreme COurt--is how in the world Congress managed to include a provision limiting relief in the PLRA--which was sold as a means of eliminating frivolous prisoner lawsuits. By definition, if the court is ordering relief, then the case wasn't frivolous!

Posted by: Alan Mills | Dec 2, 2010 7:16:52 PM

"How long need an admitted constitutional violation be tolerated? I think twenty years is more than long enough."

That's not really the issue, is it? The question is the remedy.

Posted by: federalist | Dec 2, 2010 9:31:12 PM

Federalist,

Federal courts have no business ordering states to reorder their budget priorities (although I admit such orders have already been tried in this matter). I actually believe that release orders are the least offensive remedy under the circumstances.

The state of California has been holding people under illegal conditions (again, by the state's own admission while trying to gain time to fix those same problems), the federal courts cannot order the state to pay damages to the prisoners for the illegal conditions of confinement, the courts should not be able to /order/ the state to pay for more facilities (though if the state were to offer I believe the court would be required to accept that solution, so long as the state then carried through with it on a very short time frame).

You worry about the people on the outside and that is fine, however it is the choices of those on the outside that have created the illegal conditions of confinement that are required to be fixed.

Posted by: Soronel Haetir | Dec 2, 2010 10:49:24 PM

hmm

"Federal courts have no business ordering states to reorder their budget priorities (although I admit such orders have already been tried in this matter). I actually believe that release orders are the least offensive remedy under the circumstances."

I'll give you this one. Of course the Fed CAN hold the state liable for it's budget! IF that budget results in any condition that violates FEDERAL LAW or the U.S. Constution.

"The state of California has been holding people under illegal conditions (again, by the state's own admission while trying to gain time to fix those same problems), the federal courts cannot order the state to pay damages to the prisoners for the illegal conditions of confinement,"

I think your wrong here. Since by the state's own admittions it's been violating FEDERAL law for about 2 DECADES. Therefore they have viiolated the civil rights of 10's of THOUSANDS of inmates for decades...if those individuals are to have any justice at all it will be at the FEDERAL lvl! and the federal courts CERTAINLY have the jurisdiction to order restution and penalty fines in anyother area where a state violates someones civil rights...just being in a state facility doesn't abrogate that authority!


"the courts should not be able to /order/ the state to pay for more facilities (though if the state were to offer I believe the court would be required to accept that solution, so long as the state then carried through with it on a very short time frame)."

i agree with this is as well but on the other side if the state REFUSES to bring it's facilities inline with it's population requirements...the federal courts have EVERY LEGAL RIGHT to order them to remove anyone OVER that limit! IMMEDIATELY! upon their refusal.

"You worry about the people on the outside and that is fine, however it is the choices of those on the outside that have created the illegal conditions of confinement that are required to be fixed."

on this one all ic an say is BINGO! Just like calif's idiotic power system...they spend 15-20 years and never build a new power plant....then suprise! suprise! suddenly they didn't have enough power. What did they expect when during that same time calif's population almost doubled!

Posted by: rodsmith | Dec 3, 2010 12:11:49 AM

Rod Smith,

I believe the states would have immunity (based on the 11th amendment) against suits for money damages brought by the prisoners. That was the basis of my discounting such a possibility. If that belief is correct it leaves ordering the state to somehow cease the illegal conditions of confinement.

Posted by: Soronel Haetir | Dec 3, 2010 9:19:43 AM

"Rod Smith,

I believe the states would have immunity (based on the 11th amendment) against suits for money damages brought by the prisoners. That was the basis of my discounting such a possibility. If that belief is correct it leaves ordering the state to somehow cease the illegal conditions of confinement."

I don't know how. If ANY citizen in their state can take them to court and get a judgement against the state for a civil rights violation then it applies to ANY CITIZEN doesn't matter WHERE in the state they are. Sorry that's a non-starter. If anything somoene under COMPLETE control of the state would have an even BETTER case since unlike someone on the outside who can simply MOVE if the state wants to act like idiots...they are stuck!

Posted by: rodsmith | Dec 3, 2010 11:33:25 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB