« Lots and lots of interesting commentary on SCOTUS Plata prison ruling | Main | DOJ gets in way of Arizona execution based on illegal acquisition of lethal injection drug »

May 24, 2011

A simple take on Plata: Congress asked for this in the PLRA

I am still working my way through the various opinions in Plata, but I keep coming back to one simple idea when considering the case and the Supreme Court's ruling: when enacting the Prison Litigation Reform Act in 1996, Congress clearly contemplated and clearly authorized federal courts to enter a "prisoner release order" under the PLRA.  See 18 U.S.C. § 3626(a)(3) (setting forth in detail the requirements for court issuance of a "prisoner release order").  Given that Congress envisioned the possibility of such an order, combined with the extraordinary record of constitutional problems in California's operation of its prison system and the extraordinarily long period in which California has been unable to correct these problems, the Plata case seems to be "perfect storm" fact pattern that would require a federal court to issue such an order.

In other words, anyone who does not like the idea of federal courts ordering a state to release prisoners really should be complaining about the fact that Congress in 1996 clearly contemplated and clearly authorized federal courts to enter such an order through the enactment of the PLRA.  And especially given the reality that Republicans controlled both houses of Congress when the PLRA was enacted, there is a certain irony to any complaints by Republicans now about the seemingly straight-forward application of the PLRA in Plata.

Prior posts on the Plata ruling:

May 24, 2011 at 06:18 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference A simple take on Plata: Congress asked for this in the PLRA:


"Given that Congress envisioned the possibility of such an order, combined with the extraordinary record of constitutional problems in California's operation of its prison system and the extraordinarily long period in which California has been unable to correct these problems, the Plata case seems to be 'perfect storm' fact pattern that would require a federal court to issue such an order."


(1) Do you think it's fair to characterize a statute that says "under no circumstances shall a federal court shall do X unless A, B, C" as explicitly "authoriz[ing]" federal courts to do X? Contemplating, maybe, if the prerequisites are met; but authorizing?

(2) I realize that the dissents didn't carry the day, but what of the criticism by Justice Alito that at least part of the problem was attributable to the lower court judges' unwillingness to entertain possible solutions if they wouldn't accomplish the lower-court judges' goal of reducing prisoner populations for its own sake? (E.g., the unwillingness to entertain proposals to send prisoners to less-crowded out-of-state prisons for housing and treatment.)

Posted by: guest | May 24, 2011 6:28:53 PM


The state conceded that they could not guarantee out of state facilities would provide a constitutional level of care. The litigants are due relief now (and in fact have been due relief for a couple decades for some of them). I would say that means the state no longer gets to flop around in hopes of stumbling into something that works. California should be glad to get the two years rather than an order that just puts all inmates into a release lottery.

Posted by: Soronel Haetir | May 24, 2011 7:44:31 PM

Um, Doug, you do realize that prisoner release orders were common pre-PLRA, and you do realize that Congress was trying to curb abuses.

SH, forcing California to litigate the issue of other states' constitutional compliance is just ridiculous, and your defense of it is just plain dumb. Bottom line, as Justice Alito noted, the burden should have been on the prisoners to prove otherwise.

Posted by: federalist | May 24, 2011 8:23:45 PM

If/when I tell my kids they cannot watch TV before bed unless/until they finish their homework and get into PJs and brush their teeth, I fully understand and mean to "authorize" them watching TV after doing all the pre-reqs. If I do not want then to watch TV before bed, I say simply no TV tonight.

As for whether the 3-judge panel could have tried other approaches, sure. That is the nature of all equitable remedies: lots of other approaches may be viable. But a majority of SCOTUS concluded, sensibly in my view, concluded that the factual record supported the panel's view that this case finally demanded the prisoner release order allowed by the PLRA. Indeed, I continue to find it hard to contemplate that a responsible state could/would let things get so bad in their prisons so as to have made such a factual record to justify the need for the federal court involvement. It is truly an embarrassment to CA, and I comment the majority of the Court for recognizing that judges can and must sometimes say enough is enough.

Posted by: Doug B. | May 24, 2011 8:28:42 PM

What is truly irritating about all the crowing in here on the part of those who agree with this rigged-game decision is the utter "nyah nyah nyah nyah" attitude, as if the release of tens of thousands of prisoners serves California right etc. Unfortunately, if history is any guide, there will be a price in blood to pay (notwithstanding the utterly ridiculous conclusion by the panel that the releases won't threaten public safety). And did California ask for all the alien criminals in its midst--there is something perverse about California having them foisted on it by the utter failure of the federal government to enforce the law, and then told by a federal court that it must release criminals.

Well, I hope Stephen Reinhardt and all the other hacks like blood on their hands because they will have it.

Posted by: federalist | May 24, 2011 9:18:10 PM

The Law of Necessity trumps all laws, and decisions. California should declare this devastating decision as void out of Necessity. They should do it openly, and brazenly. They should defend the prisons from any federal thugs enforcing this order with armed guards. Such a step would not be in insurrection. It would be in a resistance to the open insurrection of the Supreme Court against the Constitution. It should arrest all Federal judges and throw them in California prisons. To deter their further insurrection against the US Constitution.

Prof. Berman's support of this decision is irresponsible. The release will be based on the adjudicated charges' being non-violent. These charges are fictions of the plea bargain in 95% of the cases, and markedly underestimate the violence of the inmate in 100% of the cases. The resulting crime wave will generate bigger government, and more lawyer employment, the sole value to the Supreme Court, and to left wing academics.

Posted by: Supremacy Claus | May 24, 2011 10:30:31 PM


You need to see the money picture. California cannot do as you propose.

California is bankrupt and their governing bodies (public unions, LE, corrections, politicians, teachers (non-educators) i.e., the usual suspects) are waiting for federal baillouts since the feds can print "real" money.

Because California is bankrupt, (know how much my home in California is worth?), we are all bankrupt.

Why are we so stupid?

BTW, federalist!

It has been a good couple of days now.


Posted by: albeed | May 24, 2011 11:22:44 PM

This whole "blood on their hands" thing is just so offensive. It's just nonsense conservative fear mongering. It makes me think conservatives are just a bunch of babies afraid of their own shadow – or else dishonest and manipulative.

The truth is that California already releases 60k prisoners a year onto parole. The extra 30k necessary to comply with the opinion can easily be achieved by shipping some inmates to county jails, releasing some prisoners a year early, and perhaps releasing a small number of nonviolent drug users convicted of mere possession. It could also merely choose to violate fewer parolees for technical violations. Enough with the fear mongering. The California prison system is already a very dynamic place, with people moving into and out of it at very high rates.

Might there be some small increase in crime? Sure. I think we can all agree there would be even less crime if we just locked everyone up for life. But the goal is not to prevent all insecurity, it is to provide a reasonable and cost effective amount of security. We could also have fire stations on every block, but we don't do that, because it isn't warranted.

Posted by: dm | May 24, 2011 11:38:54 PM

i figure the state and the fed's set the stage for this in 2002 in the u.s. supreme court ruling that created the sex offender registry!

In that ruling the court said what the state was doing was LEGAL becasue they were NOT as doug says doing X, Y, Z and once the govt got the ruling they immediatly went and and demanded on pain of INPRISONMENT that those on the registry start doing X, Y, Y and every time anyone manages to get a court case anywhere near a judge its

TOUCH SHIT the U.S. SUPREME COURT said the registry was legal! NEVER MIND that it said one that didnt' require x, y, z was legal....

so that same ruling is now coming home to roost for those in calif!

hope it spreads though every state in the union!

Posted by: rodsmith | May 25, 2011 1:15:52 AM

Doug, exactly what you argue here is why I wrote that the dissents read more like op eds than legal opinions. The GOP-passed PLRA so obviously grants that authority, under conditions clearly met in California, that the dissents didn't include much actual legal argument, just lots of hand-wringing and kvetching. Scalia sees the plain reading, knows it sides with the majority but since it disagrees with his own policy preference, all of a sudden he's a utilitarian for whom "tradition and common sense" trump the law.

Also, I'd like to know what history federalist is guided by. Please provide examples - not anecdotes about individual people (there will always be some recidivism), but institutional examples where large-scale prisoner reductions resulted in statistically documentable crime spikes. Texas just depopulated our youth prisons by more than 70% and are in the process of shutting most of them down, but juvenile crime has continued to steadily decline (juvie arrests were down 9.3% last year). New York has been de-incarcerating, closing upstate prisons, etc., and their crime rates are quite low for a large state. So what de-incarceration example can you point to that contradicts those? I hear the "bloody" rhetoric but have yet to see anyone document this supposed historical precedent.

Posted by: Gritsforbreakfast | May 25, 2011 7:28:41 AM

"Congress in 1996 clearly contemplated and clearly authorized federal courts to enter such an order through the enactment of the PLRA"; to paraphrase a famous orator; Really? Really? I guess CLEARLY is in the eye of the beholder. 5 justices see it one way and 4 another. PLRA is anything but clear; any change by congress now would be appreciated.

Posted by: DeanO | May 25, 2011 8:05:58 AM

DeanO, Even Scalia said, "Because these 'findings' have support in the record, it is difficult to reverse them under a plain-error standard of review." He just disagreed with the result that accepting those findings would entail and so wished to ignore that standard and impose his own political preferences. Scalia obviously knew the majority was right on the law, he was simply unwilling to follow it.

Posted by: Gritsforbreakfast | May 25, 2011 8:35:32 AM

Federalist: This is awfully simple. If, as a society, we feel we want to lock up X people, then we need to build prisons with the capacity of X. To enact the laws that lock people up, without enacting laws that create the prisons to house them, is not credible.

Instead of criticizing the “hack” judges who ruled against the state, why aren’t you focusing your laser insight on the “hack” legislators whose irresponsible inaction created the problem in the first place?

Even if you believe the court decisions were wrong, the state lost over and over again, before many judges, over a period of many years. California certainly had plenty of notice before a judicially imposed solution was imposed. And that solution still gives them a couple of years’ leeway, and it won’t even reduce prison populations to design capacity; it will merely reduce them to “less overcapacity” than they are now.

Posted by: Marc Shepherd | May 25, 2011 8:50:53 AM

I'm curious to see how frequently release orders were entered before PLRA. It's been a long time since I've been involved in prison litigation, and my involvement was pretty limited, but it was always my impression that actual orders to release prisoners were pretty rare. There were a lot of decrees to reduce overcrowding, but that is a different animal, since courts left the mechanism up to the states--e.g., shifting population, building facilities, etc. I imagine there were also consent decrees where states agreed to release prisoners as part of a plan to reduce overcrowding. Still, I'd be interested to see how frequently injunctions were imposed that actually directed states to release prisoners.

Posted by: C.A. | May 25, 2011 10:12:22 AM

Scalia shows his true colors as a result-oriented hack.

Posted by: ------ | May 25, 2011 11:50:12 AM

the Plata case seems to be "perfect storm" fact pattern that would require a federal court to issue such an order

Posted by: Wholesale Snapback Hats | Jun 20, 2012 9:58:59 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