Justice Scalia's Overheated Dissent

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In the Supreme Court ruling on California prisoner release, the court's arch-conservative gets a bit carried away

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"Terrible things [are] sure to happen," including many "murders, robberies, and rapes."

That was dissenting Justice Antonin Scalia's dire prediction on May 23, when by a 5-to-4 vote the Supreme Court sort-of-ordered California to reduce its prison population of about 150,000 by 37,000 as a remedy for "cruel and unusual" denial of medical care to inmates.

Thirty-seven thousand hardened criminals loosed among us! Soaring rates of murders, robberies, and rapes!

I don't think so. For two reasons.

First, 37,000 prisoners are not going to be released anytime soon, if at all, as a result of this decision. Lost in the noise was the majority's strong suggestion that the lower court extend from two to five years California's deadline for reducing its prison population. Also drowned out was the majority's hope that the state may find ways to fix prison medical care with no mass release at all.

Second, while several thousand prisoners have already been released early and thousands more will be, many or most of these will be minor, nonviolent, non-dangerous drug offenders and the like who should never have been given long prison terms in the first place.

This is not to deny that some of those released will commit violent crimes. People released from prison after serving their time often commit violent crimes. It's called recidivism.

Nor is this to deny that the dissenters in the prison release case, Brown v. Plata, made some strong points, especially as to the flaws in the lower court decision - by three of the most liberal activist judges in the country - that the majority nominally affirmed.

This case presented the justices with a tragic choice. Understandably, the five-justice majority did not want say, "Turn 37,000 criminals loose and let's hope they don't kill, rape, and rob too many people." And the four conservative dissenters - or, at least, Justice Samuel Alito and Chief Justice John Roberts -- did not want to say, "Let the cruel and unusual punishment continue forever."

(Justices Scalia and Clarence Thomas did not say that either. But they ruled out any and all broad court-ordered prison reforms, no matter how barbaric the treatment of thousands of prisoners nor how clear it be that the cruelty will continue without such court-ordered reforms.)

But after more than 15 years of litigation over disastrously deficient mental-health and other medical care in California's overcrowded prisons, the choice looks almost that stark.

And that helps explain why there may be less than meets the eye both to the decision and to the apparent gulf between the majority and the thoughtful Alito-Roberts dissent.

Indeed, the give-California-five-years admonition and other hedges in Justice Anthony Kennedy's opinion for himself and the four more liberal justices look like backhanded concessions to the strength of Alito's critique of the three-judge lower court.

Kennedy's hedges also go some distance toward satisfying the concerns that underlie the Alito-Roberts dissent -- although not, by a long shot, the far angrier Scalia-Thomas.

Scalia, who took the unusual step of reading his dissent from the bench, trashed the majority's decision as "radical," "absurd," "outrageous" and a "judicial travesty," all in his first three paragraphs.

But let's get back to the semi-convergence between the logic of the far more measured Alito-Roberts dissent and that of Kennedy's majority opinion.

  • Alito argues persuasively that the three-judge lower court "relied heavily on outdated information and findings and refused to permit California to introduce new evidence" showing recent improvements in prison conditions and medical care.

Kennedy sort-of-responds by excusing the lower court's odd approach while making clear that it should modify the decree either if evidence that the lower court has not yet considered shows that prison medical care has already improved, as demonstrated to some extent by Alito, or if new evidence shows improvement over the next five years.

  • Alito argues that the state has been given too little time to try curing constitutional deficiencies in medical care by measures short of mass releases of prisoners, such as buying more medicines, hiring more medical personnel, increasing salaries, expanding medical facilities, improving sanitary procedures, and targeted releases of relatively small numbers of the prisoners most in need of medical care.

Kennedy counters that many years of court-supervised efforts to implement such improvements have fallen far short. But he also hedges that "time and experience may reveal targeted and effective remedies that will end the constitutional violations even without a significant decrease in the general prison population" (emphasis added).

So, suggests Kennedy, if the measures cited by Alito indeed work, the lower court's order to reduce the prison population by 37,000 should be modified or even rescinded.

And if such measures do not work, and it becomes clear that mass prisoner releases are the only hope of bringing the prisons into compliance with the Constitution, will Alito and Roberts continue to oppose that last-ditch remedy -- as Scalia and Thomas have already indicated they will?

I strongly suspect that the majority was well aware of the problems with the work of the three lower court judges. The special court, made up of two district judges and one appeals court judge relied on two class action lawsuits challenging prison mental-health and medical care to push their own agendas and attack overcrowding.

But while prison overcrowding is a grave problem in California, it has not been proved so severe as to violate the Constitution apart from the medical-care problems.

And while overcrowding is a major contributor to the medical-care problems, there's at least some chance, as Alito stresses, that prison medical care can be brought up to constitutional standards without a mass release of prisoners.

The Supreme Court majority preferred to launch a repair job on the lower court's flawed handiwork rather than scrapping it, sending the litigation back to square one, and letting the California legislature continue to lock more and more people up indefinitely without providing minimally adequate medical care for many years to come.

I have some sympathy for the majority's repair-job approach. For this case is replete with evidence of prison conditions so horrible as to inflict unconstitutionally cruel and unusual punishment on the countless sick inmates who are denied minimally adequate medical care.

The record shows prisoner after prisoner suffering and dying due to shocking medical neglect, with psychotic prisoners locked up for many hours in phone-booth-sized cages for lack of anyplace else to put them.

Consider the testimony of Doyle Wayne Scott, former head of corrections in Texas, which is hardly known for coddling prisoners. He described California's prison conditions as "appalling" and "inhumane," stating that in "more than 35 years of prison work experience, I have never seen anything like it."

The majority's decision, for all its warts, has the virtue of putting far more pressure on the state to stop the cruel and unusual punishment than would a decision overturning the release order.

And Alito doesn't really deny that many years of court-supervised efforts to provide decent medical care have so far failed -- thanks in large part to the inexorable increase in the number of prisoners and California's fiscal crisis - to end what the majority calls "needless suffering and death."

At the same time, Alito is properly concerned, as is Scalia, that the majority is "gambling with the safety of the people of California" -- that the lower court's order could precipitate the kind of crime wave that occurred in Philadelphia in the early 1990s after courts forced a mass release of prisoners there. Within 18 months, thousands were rearrested for 9,732 new crimes, including 79 murders.

The lower court in the California case waved aside any such risk, suggesting that several states had reduced prison populations without causing crime waves and confidently predicting that releasing tens of thousands of California prisoners would make the state more safe.

Justice Kennedy, sounding less confident, hopes for the best and hedges his bets.

But a repeat of the prison-release-fed Philadelphia crime wave seems unlikely, even if large numbers of prisoners are eventually released early. One reason is that California has used its "three strikes" law and other draconian measures for many years to impose long prison terms on minor, nonviolent offenders and technical parole violators who just aren't that dangerous. If the state has any sense, those will be the people who get released early.

And if the state wants to keep even such non-dangerous prisoners locked up, it will have to spend what it takes to end the cruel and unusual neglect of their medical needs.

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Stuart Taylor Jr., a contributing editor for National Journal, is teaching a course on the news media and the law at Stanford Law School.

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