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A bitterly divided U.S. Supreme Court, citing “needless suffering and death” in California prisons, on Monday upheld a court order requiring the state to reduce its prison population by an estimated 40,000 prisoners within two years to relieve overcrowding.

The 5-4 majority, led by Justice Anthony Kennedy, held that a three-judge court was correct in finding that overcrowding was the primary cause of unconstitutional conditions within the state’s prisons.

“The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment,” wrote Kennedy. “This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding.”

Kennedy read a summary from the bench of his extensive opinion that walked step by step through the long-running class action challenging the prison conditions and the work of the three-judge court that issued the prison reduction order.

His careful and calm delivery was countered by a vigorous and colorful dissent read from the bench by Justice Antonin Scalia. Scalia, whose dissent was j oined by Justice Clarence Thomas, charged that the majority had disregarded statutory and constitutional limits on the power of a federal judge in order “to uphold the absurd.” He said the Court affirmed “what is perhaps the most radical injunction issued by a court in our nation’s history.”

He added, “Bear in mind that the 46,000 prisoners ordered to be released are not those who have been denied needed medical treatment; they are not even those who suffer mental or physical illness that supposedly place them in danger of being denied needed medical treatment. They are just 46,000 happy-go-lucky felons fortunate enough to be s elected for release in order to make more space that the district court has ‘found’ is needed to solve the systemic deficiency.”

Justice Samuel Alito Jr., who filed a separate dissent j oined by Chief Justice John Roberts Jr., said the three-judge court that ordered the population reduction overstepped its authority, based its ruling on outdated information, and sought to attack the general problem of prison overcrowding instead of remedying the only constitutional violations that were proved — deficient medical and mental health care.

Noting that the release of approximately 46,000 criminals is the “equivalent of three Army divisions,” Alito wrote, “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.”

Kennedy, however, said expert witnesses before the three-judge court produced statistical evidence showing that prison populations had been reduced without harming public safety in a number of jurisdictions, including certain counties in California, as well as in Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida and Canada.

And Kennedy stressed that the lower court should give the state “considerable latitude” to find ways to implement the order, including, if necessary, an extension of the deadline.

Kennedy’s opinion included an unusual appendix containing three black-and-white photographs of areas within two California prisons jam-packed with beds and prisoners, and another of cages used as holding cells for prisoners waiting for mental health crisis beds.

The justices’ alignments in the decision closely tracked their comments during oral arguments in the case last November. Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, all of whom j oined the majority opinion, were particularly critical of the long delays by the state in addressing the unconstitutional conditions.

At one point, Sotomayor asked Carter Phillips of Sidley Austin, representing California, if the state can not remedy the constitutional violations in the two years given by the reduction order, “When are you going to get to it? When are you going to get around to people sitting in their feces in a dazed state?”

And during arguments, Alito was most skeptical of the court order and concerned about public safety, saying to the prisoners’ counsel, “This is going to have an effect on public safety. The experts can testify to whatever they want.”

The high court case — Brown v. Plata — stemmed from two class actions, one filed in 1990 over the lack of care for mentally ill inmates, and the other filed in 2001 targeting substandard medical care for all inmates. Both cases charged that the state was violating the Eighth Amendment’s ban on cruel and unusual punishment.

A special master and a receiver were appointed in the cases. After more than 70 court orders and numerous hearings, a three-judge panel was convened under the authority of the federal Prison Litigation Reform Act. In 2009, that panel found that overcrowding was the primary cause of the constitutional violations. The panel said “inmates are forced to wait months or years for medically necessary appointments and examinations and . . . seriously mentally ill inmates languish in horrific conditions without access to necessary mental health care, raising the acuity of mental illness throughout the system and increasing the risk of inmate suicide.”

The panel ordered the state to draft a plan to limit the prison population to 137.5% of capacity within two years. The state’s prisons currently operate at 200.2% above capacity, with approximately 140,000 inmates in 33 prisons designed to hold 80,000.

Donald Specter of the Prison Law Office, who argued the case in the Supreme Court, said in a statement that because of earlier prisoner releases by the state, an estimated 32,000 prisoners would be released under the reduction order.

“This landmark decision will not only help prevent prisoners from dying of malpractice and neglect, but it will make the prisons safer for the staff, improve public safety and save the taxpayers billions of dollars,” Specter said.

A spokesperson for the California attorney general’s office said the office would have no comment today.

California Gov. Jerry Brown has proposed reducing the prison population by 39,000 prisoners by transferring control of certain low level, non-violent offenders to the counties. Although the legislature has passed the realignment measure, its effect is stalled because of disputes over the state’s budget.

Marcia Coyle

The National Law Journal

May 23, 2011