SCOTUS approves Ninth Circuit prisoner-overcrowding order

Alas, my chapter on institutional reform litigation in Schools for Misrule has proved only too relevant to the headlines: In today’s 5-4 Brown v. Plata decision, the Supreme Court approved a Ninth Circuit panel’s order that 46,000 California prisoners be freed to relieve overcrowding (opinion PDF via Josh Blackman). Alito (with Roberts) dissented on the grounds that the Prisoner Litigation Reform Act requires nothing of the sort, and in fact was drafted with a mind to discourage such outcomes:

Before ordering any prisoner release, the PLRA commands a court to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” §3626(a)(1)(A). This provision unmistakably reflects Congress’ view that prisoner release orders are inherently risky. In taking this view, Congress was well aware of the impact of previous prisoner release orders. The prisoner release program carried out a few years earlier in Philadelphia is illustrative. In the early 1990’s, 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 an 18-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. Members of Congress were well aware of this experience.

Scalia (with Thomas) dissented on the grounds that, PLRA aside, the orders go far beyond the federal courts’ prescribed role and institutional competence:

It is important to recognize that the dressing-up of policy judgments as factual findings is not an error peculiar to this case. It is an unavoidable concomitant of institutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the anticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our system of government allocates to other government officials.

But structural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences. Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions. Thus, in the proceeding below the District Court determined that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity. This was an empirical finding it was utterly unqualified to make. Admittedly, the court did not generate that number entirely on its own; it heard the numbers 130% and 145% bandied about by various witnesses and decided to split the difference. But the ability of judges to spit back or even average-out numbers spoon-fed to them by expert witnesses does not render them competent decisionmakers in areas in which they are otherwise unqualified.

Concur: Ted Frank, Hans Bader. A contrasting view: Tim Lynch at Cato. Background: podcast with Sarah Hart, Federalist Society. And Jason Mazzone asks whether the majority’s inclusion of a photo of crowded prisoners really helps or hurts its case with the public.


  • The outcome of a similar wholesale release of prisoners in Philadelphia proves that the Court gave paid nothing more than lip service to their responsibility to ” give substantial weight to the adverse impact on public safety” this release will cause.

  • Assume, for the moment, that the prisoners in California were subject to cruel and unusual punishment.

    It is a given that for years California has known about this and done nothing.

    What other recourse is there? California will do nothing and the prisoners are left to rot. That is NOT what this country is about.

    I think many people were open to other options. There simply was no other option.

  • Prison is supposed to be cruel and unusual punishment!

    I would like to hear the opinion of the 79 murdered folks in Philly, oh wait they are no longer here……….

  • The Three Judge panel convened under the Prison Litigation Reform Act of 1995 (post-Philadelphia) did not order that prisoners be immediately released. It ordered the State to reduce the prison population to nor more than 137.5% of design capacity within two years and to submit a plan to the court for achieving this goal. It is totally up to the State how the goal is achieved: Building more prisons, paying county jails to house lower-security felons, contracting with private facilities, revamping parole supervision so that “technical” violators don’t necessarily go back to prison if they haven’t committed new crimes, diverting those whose crimes arise from mental illness to state hospitals rather than prisons…. There are many things the State can do without a wholesale release of felons. The trouble is that, for years, the State has refused to commit the funds necessary to do these things. Now it must.

  • Tents. Tents in Death Valley with cute little frilly pink uniforms.

    Works in Arizona, no reason it wouldn’t work in California.

    Well, other than some of the most flaming liberal politicians on the planet.

  • @Charlie: >Now it must.
    Too late.

    So those prisoners released in Philadelphia – did they stay in or around Philadelphia? Were those 79 murders, 90 rapes, etc only the ones they committed in Philadelphia or PA?
    Does PA have a limit on the number of murders and rapes one can commit before they put their foot down, dash it all?

  • California should start by releasing victimless offenders, notably drug cases, about 20% of most State prison populations. Prohibitionists have long reassured the public that their social-engineering scheme would not crowd out bona-fide public protection, but at a time of early prisoner releases, that is manifestly untrue.

    In some cases, prosecutors have found drug charges the easiest way to get genuine criminals off the streets. Such people can be screened out of a drug amnesty.

  • The people saying that prisoners are supposed to suffer are abominable. You’d be right at home guarding a concentration camp, because the conditions in many of the prisons in this country are almost as bad at this point.

    Not everyone, or even most people, in prison in the US have committed violent crimes. The vast majority are non-violent drug offenders.

  • It seems like the options are pretty simple. Build more capacity or reduce the prisoner population. The state of California has the legal authority to carry out either of these options, and just needs a bit of backbone to follow through.

  • There is a mantra amongst criminals and law enforcement, Don’t do the crime if you can’t do the time. So if you know the prisons in California are sub-human and you still commit a crime in California, you have pretty much agreed that if you are caught and convicted to be housed under sub-human conditions.

    As to why they are in that position in the first place, who cares. There was a law, they broke the law, got caught and were convicted and sent to prison. BTW according to the FBI, the majority of crimes in the U.S. are property crimes – nonviolent offenses like burglary and larceny. I suspect that many were committed to fuel a drug habit. So if that qualifies as a non-violent drug offender, then in my book, too bad, too sad. But let us not forget that many of these crimes start out as non-violent, but escalate to violent crime when things go bad.

  • In a country were human right mean anything prisoners are exposed only tot the sentence imposed on them by a court through due process, not to Iranian conditions and aggravated, sexual assault and HIV infection by fellow inmates. And if you don’t wanna spend your money on a western-standard prison system maybe you should abolish the court system all together and shoot shoplifters on the spot. Or kill them by strangulation, that’s cheaper …..

  • Gilles,

    Shoot shoplifters on the spot? That is immoral. We should strive for a system that prevents the criminals from repeating the crime. In the US, that is prison. But, perhaps, we should adopt the policy in countries like Iran. For example, they do not shoot shoplifters, they lop off an arm. We should not shoot rapists, we should cut off their genitals. And so on.

  • […] over 18 months, resulting in 1,113 assault charges, 90 rape charges and 79 murder charges. SCOTUS approves Ninth Circuit prisoner-overcrowding order Amazing what a little research will […]

  • Ahh, James – so much selfrighteousness, so little time.

  • Hah, you’d be singing a different tune if your kid or your brother or your parent ended up in jail. You can so blithely talk about torture, rape, and AIDS because it doesn’t affect you personally.

    This is the USA, and here we’re supposed to hold our government to a higher standard than third world dictatorships.

  • James wrote 05.23.11 at 10:35 pm:


    >Not everyone, or even most people, in prison in the US have >committed violent crimes. The vast majority are non-violent drug >offenders.

    Somewhat true for Federal prisoners (about 55% drug cases), but *not* true for the larger population in 50 State prison systems (nearer 20%). Even so, getting rid of that 20% would get California most of the way to compliance with the court order.

    The key word should be “victimless,” not “non-violent.” Habitual thieves and burglars, turned back on the street, do more damage than the cost of locking them up.

    Some such thieves, however, are junkies who might clean up their act if not raising money for exorbitant black-market drug prices. Switzerland has found that medically supervised drug maintenance lowers both crime and unemployment rates.

  • Yes. Unfortunately, in this country, politicans can easily get votes by jacking up drug sentencing to show they’re ‘tough on crime’. There are people in jail right now on life sentences because they smoked a joint, due to three strikes laws.

  • There are people in jail right now on life sentences because they smoked a joint, due to three strikes laws.

    Then technically, they are not there because they smoked a joint, but a combination of convictions.

  • A note to the “recent posts” editor:

    >”Hugo S. Cunningham on SCOTUS approves Ninth Circuit prisoner-overcrowding order”

    This statement is not really true. I did suggest the SCOTUS decision provides a good occasion to repeal Drug Prohibition (and other prosecutions of victimless offenders). I said nothing about the wisdom of the court order itself.

  • HSC> “Recent comments” and “recent posts” are generated automatically by WordPress, not by an editor. The understood syntax for the comment link you cite is “Hugo S. Cunningham on ‘SCOTUS approves Ninth Circuit prisoner-overcrowding order'”, with the material inside the inner quotes being the title of the post on which you commented.

  • […] reactions to the Supreme Court’s 5-4 Brown v. Plata decision (earlier) from Scott Greenfield, Heather Mac Donald, and Eli Lehrer. Steven Greenhut explains how […]

  • By the way, prison is not cruel and unusual. In some cases it is cruel, but that is not unusual.

    Since Iran was brought up,
    (tongue in cheek) Problem – overcrowding. Solution – move population to new territory, in this case, a penal colony. Problem with that is Australia is already taken. Ah ha! Send them to Iran!
    (tongue still stuck in cheek. Mom told me it would stick like that.)

  • I am not sure that this is the “compliance” that the SCOTUS had in mind:,0,6293602.story

    Computer errors let violent California prisoners go free

    A computer system that lacked key information about inmates factored in the release of an estimated 450 prisoners with a “high risk of violence,” according to the California inspector general.

  • […] for conditions), Sarah Hart, FedSoc SCOTUScast (sharing dissenters’ foreboding). Earlier here and […]