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Right on Crime | May 23, 2011
This morning, the Supreme Court issued its much-anticipated decision in Brown v. Plata. Justice Kennedy, as usual, was the swing vote, and in this case he joined the liberal wing of the court in holding that a court order forcing California to reduce its prison population did not violate the 1995 Prison Litigation Reform Act. The releases were ordered to alleviate prison overcrowding that had been deemed violative of the Eighth Amendment. In effect, the Court’s decision results in the release of tens of thousands of incarcerated persons. The full opinion is here.
The decision is a case study in why state legislators must take initiative on prison reform. When legislators ignore prison overcrowding – as California’s legislators have done for years – federal courts will step in and do the job for them via “structural injunctions” – and the results aren’t pretty. Economist Steven Levitt’s research suggests that in the three years following court decisions ordering inmate releases, violent crime rises by ten percent and property crime rises by five percent. As Justice Scalia explained in his scathing dissent today:
“Structural injunctions…[turn] judges into long-term administrators of complex social institutions such as schools, prisons, and police departments. Indeed, they require judges to play a role essentially indistinguishable from the role ordinarily played by executive officials….[Structural injunctions] force judges to engage in a form of factfinding-as-policymaking that is outside the traditional judicial role. The factfinding judges traditionally engage in involves the determination of past or present facts based…exclusively upon a closed trial record….When a judge manages a structural injunction, however, he will inevitably be required to make very broad empirical predictions necessarily based in large part upon policy views—the sort of predictions regularly made by legislators and executive officials, but inappropriate for the Third Branch.”
Justice Scalia went on to describe the release order as “perhaps the most radical injunction issued by a court in our nation’s history,” and he read his dissent (joined by Justice Thomas) from the bench.
This case, of course, never should have come this far. There was an alternative solution. Texas, for example, faced a looming overcrowding crisis in 2007, but state legislators confronted the crisis directly, made targeted changes that focused on diversion programs for nonviolent offenders, and ultimately prevented a “California-type” catastrophe. Texas, in fact, was actually able to close a prison this year. The state also enjoys the lowest crime rate it has had since 1973.
Under today’s order, California now has three years to comply. A good place to start might be improved treatment programs for the 28,736 California inmates currently incarcerated for drug offenses, including 10,358 for possession. The state should also take a look at the 32,677 property offenders in its prison system. California should follow Texas’s lead and use diversion programs to make sure that prisoners are not released carte blanche with no reentry services. California now has to get serious about reforming its criminal justice system – whether it wants to or not.