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May 23, 2011

Some big-time rhetoric in big-time SCOTUS Plata prison ruling

Based on my very quick first pass through the majority and dissenting opinions in the Plata prison ruling this morning (basics here), there appears to be a lot of rhetoric flying in all directions.  Here are just a few of the lines from each opinion that caught my eye at the outset:

From Justice Kennedy's opinion for the Court (with quotes/cited left out):

For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners’ basic health needs.  Needless suffering and death have been the well-documented result....

As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty.  Yet the law and the Constitution demand recognition of certain other rights.  Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.  The basic concept underlying the Eighth Amendment is nothing less than the dignity of man....

From the start of Justice Scalia's dissent:

Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.

There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa.  One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.  Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.

The proceedings that led to this result were a judicial travesty.  I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.

From the end of Justice Alito's dissent:

The prisoner release ordered in this case is unprecedented, improvident, and contrary to the PLRA.  In largely sustaining the decision below, the majority is gambling with the safety of the people of California.  Before putting public safety at risk, every reasonable precaution should be taken.  The decision below should be reversed, and the case should be remanded for this to be done.

I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims.  I hope that I am wrong.

In a few years, we will see.

May 23, 2011 at 10:26 AM | Permalink


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Poor California. Is there anyway left now for California to avoid unleashing 46,000 criminals all at once?

Posted by: alpino | May 23, 2011 11:17:03 AM

Actually, I've just seen this from a commenter on the LA Times site:

"Ross2010 at 7:57 AM May 23, 2011

Well, then CA should just take 46,000 illegals and deport them. That should clear the prisions and satisfy the liberal judges. Over a third of our prison population are illegals, so what's the problem send them packing?"

It doesn't seem like such a bad idea to me either. Would it actually be feasible?

Posted by: alpino | May 23, 2011 11:23:31 AM

For a minute I thought some of Scalia's rhetoric was referring to Bush v. Gore.

Oh, wait....

Posted by: anonymous | May 23, 2011 11:38:38 AM

What an extraordinary statement from so-called originalists Scalia and Thomas that the "proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa." So much for plain readings, etc.. These two have now formally embraced the whole "Living Constitution" concept, to judge by this quote. They're explicitly advocating that "tradition and common sense" should trump "the law" when judges disagree with the outcome that following the law would create. Wow.

alpino, the commenter you cite was using flawed estimates from politicized sources. There are not 46,000 illegal immigrants in CA prisons but about 18,300, or 11.2%. For the nonviolent offenders, older offenders, etc., it might make sense to parole them early and deport them. Texas considered legislation to do just that this year, but mostly retributivist arguments derailed the plan.

CA didn't have to release 46,000 prisoners "all at once"; they could have begun moving toward compliance long before now and facilitated releases in a more thoughtful, managed fashion. But their dysfunctional Lege buried their heads in the sand and pretended they needn't comply with federal court orders, so now they reap what they sowed.

Posted by: Gritsforbreakfast | May 23, 2011 12:28:29 PM


Well, to be fair they have already released something like 9k of the 48k and I'm guessing the courts will let them get away with starting the clock from whenever the remand to the three judge panel becomes official, rather than saying the clock started when the panel judgement was entered. So they'll have a couple years to release 40k inmates and the language about allowing appriopriate modifications to the order at the state's request does not make me think they'll be held to either the target population or the target date.

Posted by: Soronel Haetir | May 23, 2011 1:19:15 PM

Certainly this decision is no surprise. What is surprising is how poorly California has planned for what was certain to happen. It is not just a matter of reducing the population, but changing the sentencing system so the population can be maintained at a lower level.

Posted by: Tom McGee | May 23, 2011 1:29:17 PM

how true grits! these two cases have been dragging though the courts in calif for almost TWENTY YEARS! the calif govt has ignored court order after court order after court order!

like the court has said over and over again. they may be criminals and may be convicts BUT they are still HUMAN!

personaly i think the court should have given them no more than 90 days to release them all.

Posted by: rodsmith | May 23, 2011 1:46:35 PM

It is not just a matter of reducing the population, but changing the sentencing system so the population can be maintained at a lower level.

Either that, or building more prisons. Unfortunately, California pols wanted to seem “tough on crime” by beefing up sentences, without figuring out how to pay for it.

Posted by: Marc Shepherd | May 23, 2011 1:48:34 PM

Dump 3 strikes law..Too many minor crimes driving excessive sentences and lower the non violent drug crimes. Do away with petty infractions for paroles....

Calif had more than enough time to make changes and/or build new prisons....Not sure is this the same state that had huge budget troubles...Ah, so theres 1 direction to go, lower sentences and let'em out if there elederly and non violent for the 3 strike. These are are the offenders that could be let out Maybe marahuana offenders, they want to make it legal out that way anyway....For there 3rd strike they stole a 12 pack of beer, 3 packs of smokes, etc...Thats the kind I'm refering to...Not Armed robbery, Grand theft etc.

It doesn't take Wiley Coyote, Super Genius to figure this one out..

Posted by: Abe | May 23, 2011 2:25:25 PM

overcrowding in California prisons was the “primary” cause of the continuing violations of prisoners’ constitutional rights to adequate health care; moreover, the Court explained, the evidence supported the conclusion of the three-judge panel that a population limit was necessary to remedy the overcrowding problem.

Just release the mental cases and death row killers...save the taxpayers millions...get better health care for the illegal alien prisoners and reduce the general population of CA by allowing these killers more victims.

Posted by: DeanO | May 23, 2011 3:42:24 PM

Unfortunately, those who reap what today's decision will sow will not be the irresponsbile California officials (e.g., Governors Davis, Schwarzenegger (when not otherwise occupied) and Brown, among numerous others), but a whole bunch of unaware and innocent average-Joe citizens who will be victimized by some of the thousands of criminals prematurely released as a result of today's ruling.

Posted by: Bill Otis | May 23, 2011 3:47:01 PM


And I really don't care about those future victims. They have the option of being willing to pay for a much larger prison system, one capable of housing the entire population that has been ordered released. But over and over California voters have said no to higher taxes. At some point that choice is theirs and they have to bear both the cost as well as the benefits of that choice.

And I would say they have far passed that point when people are standing around in a cage for 24 hours without a toilet, waiting to be seen for medical care.

Posted by: Soronel Haetir | May 23, 2011 4:32:02 PM

Soronel --

It's true that Californians as a whole bear responsibility for their system. The problem is that any individual Californian victimized by a criminal released as a result of today's decision does not, in any meaningful way, "deserve" to get robbed (or beaten up or raped or what have you).

I'm all for requiring the INDIVIDUALS who act irresponsibly to bear the consequences of their behavior. But that won't happen here. In any practical sense, future victims will turn up at random (including, quite surely, people who voted in favor of spending more on prisons).

The random distribtion of adverse consequences may be many things, but justice isn't one of them.

Posted by: Bill Otis | May 23, 2011 4:52:28 PM


Which is one reason I advocate executing the majority of felons. By the time someone makes such a serious transgression against society they should face a high likelihood of forfeiting their life.

Posted by: Soronel Haetir | May 23, 2011 5:00:41 PM

Maybe Bill, Soronel and several others making such pessimistic opinions would be better off spending their time running in circles and crying 'the sky is falling, the sky is falling' rather than optimistically looking at the situation, realizing the state has done nothing to alleviate the conditions and be slightly more optimistice that the low level felons expected to be released might still have something positive to contribute to our society given the opportunity at a second chance. Never leaving your homes could possibly be a good solution for those of you feeling so threatened because the state has been severely tried at providing even the most basic care for these individuals in their custody. Unfortunately frightened small minded people are becoming more and more of the norm these days. I think the word 'sheeple' is another term that's used quite frequently to describe people such as these.

Posted by: james | May 23, 2011 5:50:38 PM

james --

Less than four months ago, Doug posted about the results of a smiley-faced, "optimistic" view of prisoner releases, this one undertaken by a body you no doubt consider "enlightened." Moreover, no court order was needed. Gotta have compassion! And we certainly wouldn't want "small minded people" to inconvenience you by raising a question about this.

The decision to let the inmate out was undertaken because the experts thought, as you say, that he "might still have something positive to contribute to our society given the opportunity at a second chance."

And sure enough, he did have something to contribute.

http://sentencing.typepad.com/sentencing_law_and_policy/2011/02/massachusetts-killing-shines-light-on-state-parole-boards.html (Posted 2-2-11).

A case like that is hopefully mostly exceptional. Nonetheless, pretending that today's decision will not have costs is dishonest. You are probably correct, however, in thinking that you won't pay them. It's merely OTHERS who will. There are those of us who think they count too.

Posted by: Bill Otis | May 23, 2011 6:32:22 PM

Yes, a case I would expect to be cited by someone who quite possibly might be be a 'Willy Horton' enthusiast also. Your general paranoia and subsequent re-enforcing opinions unfortuantely coincide and reflect the general consensus of the times and is truly representative of the countries present incarceration rate.

Posted by: james | May 23, 2011 8:04:46 PM

james --

So I should pretend, with you, that the case Doug posted about doesn't exist, and that the errors made there in assessing who is "safe" to release will not be repeated? Is that the size of it?

P.S. The problem here is not paranoia. The problem is complacency, at least among those believing that only others will pay the price.

Posted by: Bill Otis | May 23, 2011 8:18:07 PM

"And I really don't care about those future victims." Unless, of course, you wind up knowing someone who suffers the consequences.

Additionally, it may be a kid.

A really crappy thing to say.

Posted by: federalist | May 23, 2011 8:43:50 PM


I'm curious why I would get lumped in with this particular complaint (I can fully understand getting lumped into other complaints). I am in near full agreement with this ruling. My only qualms are that it may well not go far enough.

Posted by: Soronel Haetir | May 23, 2011 9:26:23 PM

"Unfortunately frightened small minded people are becoming more and more of the norm these days. I think the word 'sheeple' is another term that's used quite frequently to describe people such as these."

I'd write something in response, but the statement speaks for itself in terms of condescension, stupidity and the arrogance of those who never have to walk the walk they talk in an internet blog.

Posted by: federalist | May 23, 2011 10:03:15 PM

I think some are making too much of this...So what if some get an early out...Almost all get out some day...Fair number got burned by 3 strikes..They will let out the non violent ones and the ones that got burned and life goes on.
The point is, they are living in a sh@t hole..As Arnold would say Collifornya,
has had ample time to build or release, they did zero...The show must go on..
So what if one of these inmates does a bad act, his time is up or would be soon.
Thats what you guys don't get.. Else why not arrest people off the street based on the future potential of them committing a bad act...Wouldn't make sense,
But now its the law and court ordered and you guys are squabling like kids. Most of these felons have an alcohol or drug problem...Maybe no worse than some of you, by the sounds of your whining.....Too many whine tasting partys....

Posted by: Josh | May 23, 2011 10:22:50 PM

federalist --

Note that james does not answer the question whether he's sure errors like the release of a cop killer will never happen again.

I have to admit, though, the silence is well-advised.

You would think it's not too much to ask the other side to admit the obvious, i.e., that prematurely releasing thousands and thousands of inmates is going to produce more crime. One can argue about how much more, or about whether it's worth it anyway, but the basic fact is incontestable. Yet to admit it is to acknowledge that it's not all one way and that balancing has to be done. To admit that is, in turn, to foresake the holier-than-thou, prosecutors-are-Nazis attitude. And that's why it's like pulling rhinoceros teeth to get the admission.

Posted by: Bill Otis | May 23, 2011 10:37:56 PM

Josh --

If in the end it doesn't make all that much difference, is there any reason we shouldn't just release everyone right now?

Posted by: Bill Otis | May 23, 2011 10:40:46 PM

Alito: I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims....

Exactly which orders led to a grim roster? Dates? Orders? Victim's names?

Posted by: Richard Greene | May 23, 2011 11:19:32 PM


Oh the horror. Saying no to higher taxes. You must be a liberal!


"It's true that Californians as a whole bear responsibility for their system. The problem is that any individual Californian victimized by a criminal released as a result of today's decision does not, in any meaningful way, "deserve" to get robbed (or beaten up or raped or what have you)."

Oh Boo Hoo!

As I have said many times in the past, but which you chose to ignore, quit being dumb on crime and start being SMART on crime.

There are two or more standards in this country, and the government (and its liberal apologists) are on one side. Guess which side you are on unwittingly?

Dumb and Liberal!

Posted by: albeed | May 23, 2011 11:39:49 PM

ahh bill but that is one of the problems!

"You would think it's not too much to ask the other side to admit the obvious, i.e., that prematurely releasing thousands and thousands of inmates is going to produce more crime."

Who says it's premature? considering the idiotic and outragous sentence guildlines used in the last few decades. Plus the unwinnable war on drugs and other little social wars being fought in the criminal justice system.... if calif had gotten off it's ASS years ago and starting getting ready for the DAY THEY KNEW WAS COMING! they would have stopped locked some idiot up for like for swipping a disney video or a golf club and so on under the 3 strikes laws. They would have stopped giving people 10-20 years for mj! and so on.

the calif public wanted to lock em up all up and forget em! but failed to pay for it!

this is the same stupdity that cost the state billions in the energy game!

state prohibited the building of new power plants for 20 years. population doubled....not enough power! system crashed! now they are mad the power companies took them to the cleaners...

again they wanted it. they got it! TOUGH! now they can pay for it!

Posted by: rodsmith | May 24, 2011 12:15:52 AM

as for comitting new crimes. OF COURSE THEY ARE! calif has stuck people into holes and treated them like ANIMALS for years and DECADES.... now calif is suprised they are being forced to release ANIMALS! NO SHIT that what the state has turned them into.

if i remember the study numbers i've seen calif has one of the highest reoffence rates in the country for newly released prisoners 50% or better in first 3 years! sad thing is most of that is NOT new crimes but technical violations!

Posted by: rodsmith | May 24, 2011 12:18:26 AM

It's worth mentioning - not to spoil the fun of all the demagogues but just for the sake of accuracy - that California doesn't plan to "release" most of them but house them in county jails.

And despite the overhyped rhetoric on both sides, it's absolutely true this is a function of voters wanting long sentences they're not willing to pay for. One hears many calls for truth in sentencing, but what's missing is truth in budgets to pay for those sentences.

Bill and federalist want someone to promise there will "never again" be someone released who kills a cop or commit other terrible crimes before following a court order, but that's not a legitimate argument unless those making it are also calling for tax hikes sufficient to pay for the incarceration they apparently think should go on forever. If voters aren't willing to pay for it - and in CA they haven't been - at some point reality must intervene and yesterday in California it did. That's the part of the equation I never see from the tuff-on-crime crowd. Indeed, they're usually the ones screaming loudest for "no new taxes."

Posted by: Gritsforbreakfast | May 24, 2011 7:41:49 AM

I find it fascinating that while there is ample discussion of future possible effects of releasing prisoners, there is little to no commentary here about the conditions in CA prisons which was the basis of this case.

There are many severe effects of overcrowding, affecting everything from health services to restricting family visits, to putting prisoners on continued lockdown. The lack of medical services are noted in press accounts, but overcrowding has enormous effects in many ways that are not often contemplated. I write just to give a glimpse of just a few of these effects:

I was in overcrowded California prisons for years, including Valley State Prison which CDCR proudly proclaims is "the largest, most violent women's prison" in the world. in reality, very minimum security prisoners to the most violent get housed together at VSP. I was initially in a large gym/dayroom converted into housing, where in this room about 480 women slept in double and triple high bunks. There were two bathrooms for this amount of women, and eight showers were shared with 150 additional women who were housed in additional group cells in this one building. In those cells - designed for four persons- ten women were housed in each cell.

Every month or two officials from Sacramento came through to walk through our housing. The day before they came a massive reorganization happened, and CDC officials shifted hundreds of women out of the dayroom/gyms into additional bunks that were additionally crammed into the group cells. CDCR always told us that had to empty the gyms and dayrooms before Sacto. came. After the officials left, all the bunks were shifted back.

We sometimes went three to four weeks without getting outside for exercise because, due to overcrowding, there simply were not enough guards to monitor prisoners on the yard.With so many prisoners crammed together, fights broke out, and the SHU became overcrowded with people.

Basic hygiene and services were scant due to what CDCR said was just "too many" prisoners" . At one point, CDCR said it had run out of toilet paper and sanitary pads for several weeks. They told the 600 women in our one building to use paper towels instead of toilet paper and sanitary pads for a month. At this same time, the prison stopped taking prisoner laundry, saying that the volume was too onerous, and absurdly simultaneously disciplined any prisoner caught washing inmate clothing in cell or general sinks. Soap was also harshly restricted. With numerous sick/ ill women in an crowded institutionalized environment, without toilet paper, laundry or soap, this became an untenable situation and illness (colds flus and skin infections) quickly began to spread. It was only by drafting a complaint which we signed and got out to Sacramento that prison officials brought in more soap, toilet paper and sanitary napkins, and restored laundry.

Restriction of health appointments and medical services is perhaps even more appalling and is documented in the media and courts. Family visiting is also severely curtailed due to overcrowding- affecting not only prisoners, but primarily the families and children of prisoners who greatly desire to visit and are prevented from doing so by the great state of California.

I think it is important for advocates on the outside who watch the Plata case to understand the lengths that CDC went to to cover up practices from civilian oversight (as I indicated in part above), and also to be aware the prisoners on the inside who spoke up and advocated, through the system, for simply the most fundamental provisions that prison regulations provide for in order to ward off illness and remain healthy, and who were very harshly disciplined, not only with solitary confinement, but in some cases with lengthened sentences.

Posted by: CDCRsurvivor | May 24, 2011 11:46:42 AM

What were you in for, CDCsurvivor?

Posted by: alpino | May 24, 2011 11:50:20 AM

CDCRsur...nice to hear a first person account from an individual whose experiences were attributed to first hand knowledge. Unlike some of the more vocal posters here who tend to sound like people from the other side who only deal with the promotion of putting people there. Having personal experiences inside the system cetainly provides a whole different outlook on the system as I would also agree that is does at the federal level as well.

Posted by: james | May 24, 2011 2:06:55 PM

Why does that matter, alpino?

Posted by: def atty | May 24, 2011 2:49:54 PM

Simple curiosity. Especially since she seems quite articulate for an ex-con, I was curious what she was in for (maybe something white-collar?). Anyway, it's quite a normal question to ask of an ex-con.

Posted by: alpino | May 24, 2011 2:54:17 PM

she also proves what i said. for years if not decades the state of calif has treated the HUMANS in their prisons like animals NOW they will pay for it!

Posted by: rodsmith | May 24, 2011 3:27:50 PM

'simple curiosity' about the reason your doing time is not an accepted nor appropriate question to ask if you've been inside or are presently doing time if your not looking to have problems. Stereotypical remarks and surprise that a person that's been convicted can actually be articulate and intelligent also adds insult to injury. Just because they've made wrong choices doesn't mean they're completely devoid of intelligence too.

Posted by: james | May 24, 2011 5:43:19 PM

Devoid of intelligence, no. But some blowhards on this blog would have you believe all ex-cons lack any redeeming value and should rot in prison for the rest of their lives, no matter what the "wrong choice" may have been.

Posted by: centrist | May 24, 2011 8:33:32 PM

Well, until you've had personal dealings with our criminal justice system and it's prison system including being an alumni of it first hand most people will never have a clue of what takes place when you're are absorbed by it. Sorry to say in too many cases the individuals responsible for the incarcerated are the ones in need of additional education and psychiatric screening.

Posted by: james | May 24, 2011 9:22:27 PM

how true james how true!

Posted by: rodsmith | May 25, 2011 1:22:12 AM

Thanks James (and others) for your comments.

Posted by: CDCRsurvivor | May 25, 2011 10:35:52 PM

Good post, I like it very much! I would like to leave a comment, because it gives more bloggers who participate and the opportunity to perhaps learn from each other.

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