To my surprise, the Supreme Court last month upheld, in Brown v. Plata, a lower-court order directing California to reduce its prison population within two years by approximately one-third, some 46,000 people -- all of them, as justice Scalia notes in his fierce dissent, "convicted felons."
Basically, this is good.
But saying why and to what degree it's good is a more complex matter than I'd expected. So I will discuss it in a number of posts, as I work out my own thinking about it.
I'll begin, here, with why it's good. One answer could be that California imprisons too many people. I think it is true that criminal sentencing in the US is harsh compared to many other nations, and also true that our heavy use of imprisonment has fallen most severely on minority communities, with very painful results. But the issue of sentencing policy is not an entirely simple. Chief Justice Roberts in his dissent quotes a scholar saying that "'[t]here is a general consensus that the decline in crime is, at least in part, due to more and longer prison sentences.'" Even more to the point, the case wasn't decided on the ground that sentencing policies were or were not unconstitutional -- so if the case benefits us by reducing incarceration, that's a collateral effect rather than a legal ground for the decision.
Rather, the reason the decision is good is that, whatever sentencing policies we choose to have, we have to be prepared to pay the price for them. If we want to lock lots of people up, then we have to deliver constitutionally adequate health care and mental health care -- the issues in this case -- to all those people. If we want to do that, we have to pay for it. No legislature in a time of budget shortages will readily make prisons a priority -- and California's budget troubles have been acute. Perhaps only the Constitution, and courts' enforcement of it, have a chance of doing that.
I think that's the central reason for the Supreme Court's decision. Justice Kennedy, as so often the swing vote and here the author of the majority opinion, is no radical. Nor does he appear comfortable with the two-year timeline for the prison population cuts set by the lower court -- he upholds it but suggests, at some length, that California might seek, and the lower court might grant, various modifications, including an extension to 5 years. (It's worth adding that even in its original form, the lower court's order did not actually specify that prisoners had to be released. What it did was to require that California reduce its prison population to no more than 137.5% of design capacity -- something the state in theory could accomplish in various ways, including by transferring prisoners to other facilities or by building new facilities. But as Justice Kennedy put it, perhaps understating the point, "[t]he population reduction potentially required is nevertheless of unprecedented sweep and extent.")
But, he writes, "[a] prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society." The Constitution, this case teaches, simply won't permit violations of its guarantees so persistent as to suggest they will never be honored. Faced with that prospect, Justice Kennedy -- and a majority of our quite conservative Supreme Court -- made clear that California did not have the option to disobey the Constitution.