Incarceration is the great American exception. The rest of the world contemplates the US prison system with disgust; here, it arouses surprisingly little controversy.
You would expect American progressives to be far more exercised about it than they are. They are properly concerned about prolonged detention of terrorist suspects and the treatment of leakers of official secrets such as Bradley Manning, but apparently not much worried about criminal-justice issues that are quantitatively far more significant: questionable court practices (including default recourse to the plea bargain, which has made trial by jury a comparative rarity); extended periods of remand in custody; astonishingly long sentences (including for non-violent offenders); the erosion of judicial discretion in sentencing; outrageous "three strikes" laws; and often deplorable prison conditions. These things affect literally millions of US citizens. Waterboarding rightly shocks the progressive conscience; rape in prison is permissible material for chat-show comic monologues.
Even criminals have rights. Yet for every liberal I've heard complain about conditions in US prisons, I've heard ten say it's a disgrace that white-collar (ie, non-violent) offenders get off with short sentences at "Club Fed".
Good for the Supreme Court, therefore, in voting 5-to-4 to require California, whose prisons are especially notorious, to reduce its prison population and curb overcrowding. The judgment included photos of inmates crammed together, and tiny cages in which some are confined. It is a shame that the order was necessary--the courts should not have to make prison policy this way--but what was the alternative? As an FT editorial put it:
It is indeed a desperate and unsatisfactory measure - yet warranted under the circumstances, which are extreme.
The Washington Post came to the same conclusion.
California's three strikes rule has added to the problem. In 2003 the Supreme Court, in a pair of less creditable decisions, upheld this voter-passed initiative, and ruled in two cases that sentences of 50-years-to-life for stealing some videos and 25-years-to-life for stealing three golf clubs were constitutionally permissible. In a dissent, David Souter said, "If Andrade's sentence [the videos] is not grossly disproportionate, the principle has no meaning," which seems right to me. "If this isn't unconstitutional, said the lawyer representing Andrade, it's hard to imagine what would be."
Is Anthony Kennedy rethinking his position on these issues? He voted with the conservative majorities on three strikes in 2003, yet just wrote the opinion in the California overcrowding case, arousing the unconcealed anger of Antonin Scalia. Last year Kennedy reportedly told an audience, "The three-strikes law sponsor is the correctional officers' union and that is sick." The court should revisit three strikes. It should find a way to reverse itself on the principle; otherwise, maybe it can work backwards from the results-which it has just ruled unacceptable.
Aside from drumming up business with the three strikes law, by the way, the correctional officers' union does a very good job of protecting its members' interests in other ways, according to John Eastman.
Largely ignored by the Court was the real source of the problem: the exorbitant cost of running California's prisons. Taxpayers spend about $48,000 per prisoner--nearly double what other states, such as Texas, or the federal government spends. Those costs are driven into the stratosphere by the political power of the California Correctional Peace Officers Association, which routinely contributes millions of dollars to candidates for public office, who then gratefully respond by approving lucrative employment contracts that have made California's prison guards among the highest-paid in the nation. They enjoy lucrative health, dental, and vision benefits; unlimited accrual of vacation time, which can provide hundreds of thousands of dollars as a retirement bonus; more than eight weeks of paid vacation every year; overtime that can easily push the already high base salaries into annual pay in excess of $200,000; "fitness" bonuses that are now paid for simply getting an annual physical; pay for "walk time"--the time it takes to walk from your car to your duty station; and a pension system that locks in up to 90 percent of the final year's pay, bolstered by whatever overtime can be accrued, into a lifelong income worth millions in retirement.