California Governor Jerry Brown has put forward a plan to transfer inmates from state prisons to county jails and thereby avoid outright releases, but this would require tax increases that may be politically untenable. And in any event, Los Angeles County jails are themselves already overcrowded, and an influx of state prisoners will merely invite the type of lawsuit that engendered the Brown v. Plata decision. Indeed, the ACLU of Southern California puts out an annual report (.pdf) on what it sees as the appalling conditions in the L.A. County Men’s Central Jail.
Corrections officials assure Californians that if prisoners are to be released and not merely transferred to local jails, only those determined to be “low risk” will qualify. Some skepticism is called for in evaluating such assurances. California already has an early release program for so-called low-risk inmates, but “low risk” is a term of almost infinite elasticity. To cite one example, in July 2010, LAPD officers exchanged gunfire with Javier Joseph Rueda, who months earlier had been granted an early release from prison. Rueda, an active gang member, was paroled in January 2010 after serving just two years of a ten-year sentence for a 2007 conviction for evading an officer, auto theft, possession of a silencer, and possession of a controlled substance while armed with a firearm. Rueda was killed in the gunfight, and one officer was wounded and a second was injured when he fell while trying to avoid Rueda’s bullets. Surely there was a miscalculation when evaluating Rueda’s level of risk.
Some would have you believe that California could achieve the mandated reduction in prison population merely by releasing non-violent drug offenders. But in 2009 only 17 percent of California’s inmates were incarcerated for drug-related charges, with only 6 percent convicted of simple drug possession. And if my experience in such cases is reflective of a broader trend, my guess is that some large percentage of these inmates plea-bargained their way out of more serious charges. Contrary to what you might believe, most prisoners in California, 55 percent, have been convicted of “crimes against persons,” with 17 percent of the total incarcerated for murder or manslaughter. Will any of these inmates be classified as “low risk”? And as for those who think entire cellblocks in California’s prisons are full of harmless pot smokers, fewer than 1 percent of the state’s inmates are locked up on marijuana-related charges, with the bulk of these serving time for sales or possession for sale, charges for which no first-time offender is sent to prison.
While Justice Alito’s dissent in Brown v. Plata was stinging, for pure evisceration of the liberal majority we must look, as is often the case, to Justice Antonin Scalia, who took the unusual step of delivering his dissent from the bench. His opinion, which was joined by Justice Clarence Thomas, began as follows:
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.
In Brown v. Plata we see the line between the Court’s liberals and conservatives drawn with iridescent clarity. Four of the current Supreme Court justices are more than 72 years old and must surely be contemplating retirement. In making your choice for president next year, consider which candidate you would prefer to nominate their replacements.