SUPREME COURT HEAR ORAL ARGUMENTS REGARDING PRISON OVERCROWDING

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Wednesday, December 1 2010
By JESS BRAVIN

WASHINGTON—Supreme Court justices criticized California's 20-year failure to bring its prisons up to constitutional standards, but several suggested that releasing 40,000 inmates—the drastic remedy a lower court found necessary—could imperil public safety.

The Supreme Court is hearing arguments on a lower court's order to relieve overcrowding in California's state prisons. In a facility in Corcoran, Calif., some inmates were housed in a gymnasium last year.

Two decades have passed without a fix for California's inmate medical care, which the state has conceded violated the Eighth Amendment prohibition of "cruel and unusual punishments."

"When are you going to avoid the needless deaths that were reported in this record?" Justice Sonia Sotomayor said at arguments on Tuesday. "When are you going to get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?"

California prisons hold 164,000 inmates, double their intended capacity. That overcrowding is the main cause of the state's inability to provide inmates the minimal level of health care the Constitution requires, a special three- judge panel found last year.

The panel gave California two years to cut the inmate population to 137.5% of capacity, which would be about 110,000 prisoners this year. While the order didn't specify how to comply, the only realistic way would be releasing about 40,000 prisoners.

That order "is extraordinarily premature," Carter Phillips, a Washington lawyer representing the state, told the justices. California should be permitted to try several alternatives it has in the works, and freeing prisoners should be a "remedy of last resort," he said.

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Over the past four years, the state has reduced the inmate population by about by sending some to out-of-state jails and releasing others on updated terms of good behavior. A 2007 plan also envisions changes in sentencing laws to cut the number of people sent to prison.

But Mr. Phillips had trouble satisfying justices who asked for concrete steps in the state's effort to comply with panel's order.

Justice Stephen Breyer said he was shocked by photographs of prison conditions in the court record.

"The pictures are pretty horrendous to me," he said. "It's obvious. Just look at it. You cannot have mental health facilities that will stop people from killing themselves and you cannot have medical facilities that will stop staph and tubercular infection in conditions like this."

The three-judge panel found in a 184-page opinion that the lack of facilities and medical personnel left severe physical and psychological conditions untreated for months or years. "As of mid-2005, a California inmate was dying needlessly every six or seven days," the panel found.

Justice Samuel Alito, however, disputed the lower court's remedy, questioning the connection between overcrowding and substandard health care.

"Why order the release of all those people, rather than ordering the provision of the construction of facilities for medical care, facilities to treat mental illness, hiring of staff to treat mental illness? Why not go directly to the problem rather than address what seems to be a different issue altogether?" he told Donald Specter, the Berkeley, Calif., lawyer representing the inmates.

Mr. Specter replied that more than 15 years of litigation and 70 separate court orders to cure the violations with less dramatic means "have proven singularly to be ineffective."

"If I were a citizen of California, I would be concerned about the release of 40,000 prisoners," Justice Alito responded.

California's prison population, which was over 20,000 in the 1970s, exploded after voters and lawmakers imposed tough sentencing laws in recent decades.

Building and operating prisons is expensive, and corrections spending is unpopular. Nonetheless, said Mr. Specter, if California "chooses to incarcerate 148,000 prisoners in a space built for 80 [thousand], it's going to incur certain obligations," he said.

Chief Justice John Roberts and Justices Anthony Kennedy and Elena Kagan probed for a middle ground that could avoid a mass prisoner release without letting the state off the hook.

If given five years to comply, "you think you could do it without any public safety impact?" Justice Kagan asked.

"I think so," Mr. Phillips said. But if forced to release 30,000 inmates or more, "I guarantee you that there is going to be more crime and people are going to die on the streets of California," he said.

A decision is expected by July.