CA Braces for Coming Tidal Wave of Released Felons

If on November 6, 2012, you enter the voting booth and remain undecided on how to cast your ballot for president, pause to consider a single Supreme Court decision handed down last week. After weighing the legal reasoning of that decision, and more importantly its consequences, both actual and potential, go ahead and choose your candidate accordingly. But be warned: If you live in California, you may wish to mail in an absentee ballot at the earliest opportunity, as your chances of surviving until Election Day have just been somewhat diminished.


I refer to the case of Brown v. Plata (.pdf), in which Justice Anthony Kennedy joined his more reliably liberal colleagues in upholding a lower court order directing the California Department of Corrections and Rehabilitation to reduce the state’s prison population by as many as 46,000 within two years.

It is undeniable that California’s penitentiaries are overcrowded. The state’s prisons are  designed to hold 84,000 inmates but currently house about 143,000. There were more than 171,000 state prison inmates in California as recently as 2008, and indeed Justice Kennedy, who authored the opinion, notes that the state’s prisons “had operated at around 200% of design capacity for at least 11 years.”

The effect of this overcrowding, the Court ruled, was to deny some prisoners a constitutionally guaranteed level of medical and/or mental health care, a denial that in the majority’s opinion rose to such a level that it amounted to “cruel and unusual punishment” within the meaning of the Eighth Amendment. Kennedy cites the fact that California’s prison suicide rate was nearly 80 percent higher than the national average for prison populations and that nearly three-fourths of these suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.” He also cites prisoners who died after their medical conditions were improperly addressed. “A prisoner with severe abdominal pain,” he writes of one example, “died after a 5-week delay in referral to a specialist.”


Kennedy sums up the majority’s exasperation with the state of affairs in California’s prisons thus:

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. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short-term gains in the provision of care have been eroded by the long-term effects of severe and pervasive overcrowding.

No doubt there are many sad tales to be told about conditions within the walls of California’s prisons, but if it is needless suffering and death the majority truly wishes to avoid, they would not have decided this case as they did. Justice Samuel Alito, in a dissenting opinion joined by Chief Justice John Roberts, makes this point:

In the early 1990s, federal courts enforced a cap on the number of inmates in the Philadelphia prison system, and thousands of inmates were set free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses . . . .

The prisoner release ordered in this case is unprecedented, improvident, and contrary to the [Prison Litigation Reform Act]. 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.


Residents of Los Angeles and nearby communities should find this most troubling, as the greatest share of the coming tidal wave of released felons will be returning to a neighborhood just an easy drive down the freeway from … you!  Following the typical pattern, in 2010 more than two-thirds of all admissions into California prisons came from Southern California.  (The San Francisco Bay area’s share was 10 percent, and the entire rest of the state’s was only 22 percent.)

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.


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