It is impossible to read the details of Justice Kennedy's majority opinion without noting that many of the inmates in California's prisons appear to receive less care and consideration than do the terror law detainees at Guantanamo Bay, Cuba. For example, as Justice Kennedy wrote: "Prisoners with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had "no place to put him" (citations omitted by me).
And it is impossible to read the two separate dissents -- from Justice Scalia and from Justice Samuel Alito -- without feeling the scorn with which the Court's conservative minority clearly views Justice Kennedy's opinion. It practically drips from the pages. For example, Justice Scalia wrote:
It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order--the 46,000 whose incarceration will be ended-- do not form part of any aggrieved class even under the Court's expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.
Justice Alito was even more blunt. He ended his dissent with a chilling warning:
In largely sustaining the decision below, the majority is gambling with the safety of the people of California. Before putting public safety at risk, every reasonable precaution should be taken. The decision below should be reversed, and the case should be remanded for this to be done. 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.
Justice Scalia took aim at the structure of the remedy. He wrote: "What has been alleged here, and what the injunction issued by the Court is tailored (narrowly or not) to remedy is the running of a prison system with inadequate medical facilities. That may result in the denial of needed medical treatment to "a particular [prisoner] or [prisoners]," thereby violating (according to our cases) his or their Eighth Amendment rights. But the mere existence of the inadequate system does not subject to cruel and unusual punishment the entire prison population in need of medical care, including those who receive it."
Justice Alito, on the other hand, focused upon the scope of the remedy. He wrote: "It is plausible that none of these deficiencies can be remedied without releasing 46,000 prisoners? Without taking that radical and dangerous step, exam tables and counter tops cannot properly be disinfected? None of the system's dilapidated facilities can be repaired? Needed medications and equipment cannot be purchased and used? Staff vacancies cannot be filled? The qualifications of prison physicians cannot be improved? A better records management system cannot be developed and implemented?"