• Facebook
  • Twitter
  • Subscribe
  • RSS

California Must Release 40,000 Prisoners

Citing the 8th Amendment prohibition on cruel and usual punishment, the U.S. Supreme court has upheld an order for California to release 38,000 to 46,000 prisoners from its overcrowded jails.

LAT (“Supreme Court orders California to release tens of thousands of prison inmates“):

The Supreme Court ordered California on Monday to release tens of thousands of its prisoners to relieve overcrowding, saying that “needless suffering and death” had resulted from putting too many inmates into facilities that cannot hold them in decent conditions.

Justices upheld an order from a three-judge panel in California that called for releasing 38,000 to 46,000 prisoners. Since then, the state has transferred about 9,000 state inmates to county jails. As a result, the total prison population is now about 32,000 more than the capacity limit set by the panel.

Justice Anthony M. Kennedy, speaking for the majority, said California’s prisons had “fallen short of minimum constitutional requirements” because of overcrowding. As many as 200 prisoners may live in gymnasium, he said, and as many as 54 prisoners share a single toilet. Kennedy insisted that the state had no choice but to release more prisoners. The justices, however, agreed that California officials should be given more time to make the needed reductions.

In dissent, Justice Antonin Scalia called the ruling “staggering” and “absurd.” He said the high court had repeatedly overruled the 9th Circuit Court of Appeals for ordering the release of individual prisoners. Now, he said, the majority were ordering the release of “46,000 happy-go-lucky felons.” He added that “terrible things are sure to happen as a consequence of this outrageous order.” Justice Clarence Thomas agreed with him.

In a separate dissent, Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. said the ruling conflicted with a federal law intended to limit the power of federal judges to order a release of prisoners.

NYT (“Justices, 5-4, Tell California to Cut Prisoner Population“):

Conditions in California’s overcrowded prisons are so bad that they violate the Eighth Amendment’s ban on cruel and unusual punishment, the Supreme Court ruled on Monday, ordering the state to reduce its prison population by more than 30,000 inmates.

Justice Anthony M. Kennedy, writing for the majority in a 5-to-4 decision that broke along ideological lines, described a prison system that failed to deliver minimal care to prisoners with serious medical and mental health problems and produced “needless suffering and death.”

Justices Antonin Scalia and Samuel A. Alito Jr. filed vigorous dissents. Justice Scalia called the order affirmed by the majority “perhaps the most radical injunction issued by a court in our nation’s history.” Justice Alito said “the majority is gambling with the safety of the people of California.”

The majority opinion included photographs of inmates crowded into open gymnasium-style rooms and what Justice Kennedy described as “telephone-booth-sized cages without toilets” used to house suicidal inmates. Suicide rates in the state’s prisons, Justice Kennedy wrote, have been 80 percent higher than the average for inmates nationwide. A lower court in the case said it was “an uncontested fact” that “an inmate in one of California’s prisons needlessly dies every six or seven days due to constitutional deficiencies.”

Monday’s ruling in the case, Brown v. Plata, No. 09-1233, affirmed an order by a special three-judge federal court requiring state officials to reduce the prison population to 110,000, which is 137.5 percent of the system’s capacity. There have been more than 160,000 inmates in the system in recent years, and there are now more than 140,000.

Prison release orders are rare and hard to obtain, and even advocates for prisoners’ rights said Monday’s decision was unlikely to have a significant impact around the nation.

“California is an extreme case by any measure,” said David C. Fathi, director of the American Civil Liberties Union’s National Prison Project, which submitted a brief urging the justices to uphold the lower court’s order. “This case involves ongoing, undisputed and lethal constitutional violations. We’re not going to see a lot of copycat litigation.”

[...]

“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,” Justice Kennedy wrote on Monday.

[...]

In his dissent, Justice Scalia wrote that the majority opinion was an example of the problem of courts’ overstepping their constitutional authority and institutional expertise in issuing “structural injunctions” in “institutional-reform litigation” rather than addressing legal violations one by one. He added that the prisoners receiving inadequate care were not necessarily the ones who would be released early. ”Most of them will not be prisoners with medical conditions or severe mental illness,” Justice Scalia wrote, “and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

While I’m deeply sympathetic to Scalia’s position, Kennedy got this one right. Prison is meant to be unpleasant; it’s a punishment for heinous transgressions against society. But even convicted felons are entitled to some measure of human dignity. The 8th Amendment’s prohibition against “cruel and unusual punishments” being “inflicted,” adopted in 1791, mirrored similar language in the English Bill of Rights of 1689.

As with other non-specific declarations, what constitutes a “cruel and unusual” punishment is subject to interpretation by the courts. And it’s an evolving standard, since the mores of society change. Some longstanding practices — drawing and quartering, disemboweling, burning alive–were understood to be banned outright from the earliest days. In 1910, the Supreme Court ruled that certain forms of hard labor, known as cadena temporal, were cruel. More recently, the courts have struck down punishments that were excessive in relation to the crime committed.

The ratcheting up of prosecution for drug offenses, mandatory minimum sentences, three strikes laws, and other “tough on crime” measures has been widely popular, causing an explosion in the prison population around the country. Building expensive new prisons to house all these new inmates has been decidedly less popular.

Courts have naturally been reluctant to order the wholesale release of prisoners when jails are overcrowded. Yet we saw a series of cases starting in the early 1970s where they did just that.

The U.S. Supreme Court frequently strikes down such orders from lower courts, tending to bend over backwards to defer to the judgment of state elected officials and the not unreasonable concern for the safety of the public.  So, for example, in a 1981 case called Rhodes v. Chapman, SCOTUS overruled an order from the 6th Circuit which ruled that doubling up inmates in cells designed for one person was cruel and unusual. They outlined a test:

    (a) Conditions of confinement, as constituting the punishment at issue, must not involve the wanton and unnecessary infliction of pain, nor may they be grossly disproportionate to the severity of the crime warranting imprisonment. But conditions that cannot be said to be cruel and unusual under contemporary standards are not unconstitutional. To the extent such conditions are restrictive and even harsh, they are part of the penalty that criminals pay for their offenses against society.
    (b) In view of the District Court’s findings of fact, virtually every one of which tends to refute respondents’ claim, its conclusion that double celling at the prison constituted cruel and unusual punishment is insupportable.
    (c) The five considerations on which the District Court relied are insufficient to support its constitutional conclusion. Such considerations properly are weighed by the legislature and prison administration rather than by a court. They fall far short in themselves of proving cruel and unusual punishment, absent evidence that double celling under the circumstances either inflicts unnecessary or wanton pain or is grossly disproportionate to the severity of the crime warranting imprisonment.
    (d) In discharging their oversight responsibility to determine whether prison conditions amount to cruel and unusual punishment, courts cannot assume that state legislatures and prison officials are insensitive to the requirements of the Constitution or to the sociological problems of how best to achieve the goals of the penal function in the criminal justice system.

In the present case, however, there’s very strong evidence that the overcrowding had reached a point well beyond mere inconvenience such that the inmates were actually being put in mortal danger. That’s simply unacceptable. In this context, Scalia’s plea for individual remedy for an institutional problem is absurd. The issue isn’t individual mistreatment but an overall set of conditions that are outrageous.

As to the risk to the decent people of California of having an additional 40,000-odd felons freed, one presumes officials will weigh the releases accordingly. Rather than some arbitrary across-the-board reduction of sentences–much less an absurd releasing of the most dangerous felons–the obvious solution is to find alternative punishment for non-violent offenders.

Related Posts:

About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. john personna says:

    As a Californian I’d call that a good summary. We have too many in jail, esp. where the 3rd strike was something stupid.

    Like or Dislike: Thumb up 1 Thumb down 1

  2. john personna says:

    (Another failure of our ballot initiative process.)

    Like or Dislike: Thumb up 0 Thumb down 1

  3. It’s also another clear failure of the war on drugs, but no one on SCOTUS is making that connection. What I’m wondering, is why doesn’t California privatize all its prisons! It’s in the people’s best interest, right? And saves money, right?

    Like or Dislike: Thumb up 0 Thumb down 0

  4. Anderson says:

    I had thought that California actually has the alternative of freeing the prisoners, or building sufficient prisons to hold them humanely.

    Of course, the latter would cost money.

    Like or Dislike: Thumb up 0 Thumb down 0

  5. Rock says:

    –the obvious solution is to find alternative punishment for non-violent offenders.

    Prior to initial incarceration for the crime they committed, right?

    Like or Dislike: Thumb up 0 Thumb down 0

  6. Robert in SF says:

    I don’t know the specifics, so does anyone know if these prisoners include fathers who weren’t paying child support as mandated by the family courts and were thrown in “debtor’s prison”? Or people who made illegal copies of music or movies?

    Like or Dislike: Thumb up 0 Thumb down 0

  7. john personna says:

    Rock, say someone with 2 prior cocaine arrests is caught with a crack pipe. How efficient is it to put him in prison? Sure, counseling might not have cured him, but let’s not pretend some time in those bunk-beds (photo above) will.

    It’s simply a waste, in money, but of course not only money.

    Like or Dislike: Thumb up 0 Thumb down 0

  8. James Joyner says:

    @Rock: There are means of punishing people for minor crimes aside from spending tens of thousands a year feeding and housing them in the presence of hardened thugs. Some combination of fines, community service, and monitoring should be adequate for DUIs, mere use of drugs, petty theft, and the like. Save incarceration for murderers, rapists, serious drug dealers, and violent offenders.

    Like or Dislike: Thumb up 4 Thumb down 0

  9. john personna says:

    Robert, I don’t belive so, no. Courts will garnish wages from the fathers, and there are vanishingly few convictions of the latter.

    Like or Dislike: Thumb up 0 Thumb down 0

  10. JKB says:

    Well, it appears California should have been building prisons instead of tilting at windmills these last few years. Or revamping their sentencing guidelines. But hey, they’ve got the Global Warming Initiative.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. James Joyner says:

    @john personna: I haven’t read the ruling in depth and understand that it gave California reasonable time to comply. I can’t imagine they gave them the years it would take to build new prisons, though.

    Like or Dislike: Thumb up 0 Thumb down 0

  12. tom p says:

    In a separate dissent, Justice Samuel A. Alito Jr. and Chief Justice John G. Roberts Jr. said the ruling conflicted with a federal law intended to limit the power of federal judges to order a release of prisoners.

    This from “balls and strikes” Roberts… I guess our esteemed Cheif Justice feels the Constitution is secondary to federal laws.

    BALK!

    Like or Dislike: Thumb up 0 Thumb down 0

  13. TG Chicago says:

    Scalia: “many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym”

    What about those who have developed “intimidating muscles” but whose sentences have ended? We shouldn’t let them out as long as Scalia thinks they’re scary?

    Such weak reasoning. Waving around the fear flag, like a good movement conservative.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. tom p says:

    I haven’t read the ruling in depth and understand that it gave California reasonable time to comply.

    2 years according to NPR yesterday.

    Some combination of fines, community service, and monitoring should be adequate for DUIs

    My wifes ex just got sentenced for his seventh DWI. His 6th one got him 4 years in prison (was sentenced to 8). He managed to stay clean for the 4 yrs of parole, then started smoking dope again, than back to alcohol, now back in the system. Not sure what the judge was thinking (“Well, prison didn’t work”?) but he got strict probation with ankle bracelet, counseling, AA meetings, etc etc. He fights it every inch of the way.

    Don’t know the answer as he will never change. Locking people up for things they might do is just plain wrong, but I fear someday we will lock this a**hole up for killing someone.

    Like or Dislike: Thumb up 0 Thumb down 0

  15. Dave Schuler says:

    One thing about the ruling puzzles me: why didn’t the Court use its powers in equity to force California to build more prisons? It seems to me that would be more consistent with a rule of law.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. Anderson says:

    Dave, I believe that’s an alternative, but (without having read the 3-judge panel’s decision) I’d imagine that simply ordering more prisons would be just the kind of judicial management that Scalia et al. are criticizing.

    I think a court could order a school district to build more schools, because you can’t “release” students, but if the state has more than one option that will achieve the necessary result, I would expect the court to allow the state to choose.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. john personna says:

    Two pragmatic governors have been trying to reduce populations:

    In recent years, California legislators and Schwarzenegger tried to find ways to reduce prison time for those less likely to commit new crimes. Schwarzenegger signed legislation that increased early release credits and made it more difficult to send ex-convicts back to prison for parole violations. He signed another law that rewards county probation departments for keeping criminals out of state prisons.

    One result of those changes is that the state has been able to do away with nearly two-thirds of its makeshift beds, although more than 7,000 inmates remain in temporary housing.

    Gov. Jerry Brown sought and signed a bill this year that would reduce the prison population by about 40,000 inmates by transferring jurisdiction for many low-level offenders to counties. The law is stalled until the lawmakers or voters authorize money to pay for the transfer. Much of the money is intended to help counties handle the responsibility of housing convicts.

    Scalia is either psycho, or just trawling for wingnut points.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. john personna says:

    And remember, California spends about $10.2B on prisons each year, as compared to $14.6B on higher education. That’s just dumb, $7.3 percent of the budget.

    Like or Dislike: Thumb up 1 Thumb down 0

  19. Franklin says:

    Locking people up for things they might do is just plain wrong

    tom p, I’m pretty sure that 7 DWIs is actually doing something. Unless you also think pilots should be allowed to be drunk, simply because they only might crash.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. Franklin says:

    This from “balls and strikes” Roberts… I guess our esteemed Cheif Justice feels the Constitution is secondary to federal laws.

    Not to mention, any such law that limits the power of judges seems to go against the standard direction of checks and balances.

    Like or Dislike: Thumb up 0 Thumb down 0

  21. Hiders says:

    It is unlawful, to keep this inmates overcrowded and waiting for medical care for days to be seen. They also deserve a second chance.

    Like or Dislike: Thumb up 0 Thumb down 0

  22. PJ says:

    A report on the demographics of California’s prisons from 2006.

    The court only game them two years to comply, but it’s not like that the problem has been unknown to the state…

    Like or Dislike: Thumb up 0 Thumb down 0

  23. JKB says:

    Look, these cases don’t suddenly appear at the SCOTUS. California has had notice of this ruling in the lower courts for years and was hoping the SCOTUS would let them kick the can down the road, yet again. So the whining by California is, well, just that, whining that they mean old law is making the politicians do hard work.

    Like or Dislike: Thumb up 0 Thumb down 0

  24. MM says:

    Didn’t Scalia once argue that something cannot be cruel and unusual if it is done often enough that it can’t be considered unusual? Also his reference to the sculpted adonises of thuggery is weird.

    Like or Dislike: Thumb up 0 Thumb down 0

  25. michael reynolds says:

    California needs to end its participation in the war on drugs. The state is broke.

    Close down the narcotics units and the drug prosecutors and reassign them to violent crime. The only drug crime should be sale to a minor. Change the asinine 3 strikes law to apply only to serious crimes — violent crimes or crimes against children.

    You’ll cut state and local police costs, jail costs, prison costs and social costs. Enough with Nixon’s drug war. Just enough already.

    Like or Dislike: Thumb up 1 Thumb down 0

  26. Ben says:

    I wonder how many people California has in prison that were convicted of non-violent drug offenses. There’s a pretty easy way to get rid of this entire problem …

    Like or Dislike: Thumb up 0 Thumb down 0

  27. CB says:

    but in our twisted politcal universe, any deviation from the war on drugs status quo translates into ‘ZOMGSOFTONCRIME!!!!111!1′

    were all truly screwed.

    Like or Dislike: Thumb up 0 Thumb down 0

  28. Ben says:

    Oh and by the way, just in case anyone is delusional enough to still consider Scalia a “strict constructionist”, check out this nugget. Outcome-based judging for the most “conservative” member of the court:

    “There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result.”

    Like or Dislike: Thumb up 0 Thumb down 0

  29. PD Shaw says:

    I think Scalia’s first point is interesting. Since when is the protection against cruel and unusuial punishment a collective right, as opposed to an individual right?

    In any event, this is Scalia’s position:

    I will state my approach briefly: In my view, a courtmay not order a prisoner’s release unless it determinesthat the prisoner is suffering from a violation of his consti-tutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that pris-oner (and no other remedy) would enable him to obtain medical treatment, then the court can order his release; but a court may not order the release of prisoners whohave suffered no violations of their constitutional rights,merely to make it less likely that that will happen to them in the future.

    Like or Dislike: Thumb up 0 Thumb down 0

  30. george says:

    The obvious solution is to end the war on drugs … though that would hurt organized crime, who apparently have pretty good lobbyists, so it’ll be hard to do.

    And when did conservatives become cheerleaders for being fearful? I always thought the conservative ideal was that people could stand up for themselves, even against iron-pumping ex-cons. In fact, isn’t that the whole point of being against gun control?

    Like or Dislike: Thumb up 0 Thumb down 0

  31. James Joyner says:

    @PD Shaw : The lower courts found, and SCOTUS agreed, that ALL of the prisoners were being punished in a cruel and unusual way in contravention of the guarantees of the 8th and 14th Amendments. All of them. There’s no need for individual members of a group that’s all suffering from a condition that applies to all of them to start an additional case.

    Nor is the court ordering the state to release any specific prisoner. Rather, they’re saying that, given the available facilities, they must have 40,000ish fewer prisoners and leaving it up to state officials to decide how to implement this requirement.

    Like or Dislike: Thumb up 0 Thumb down 0

  32. ponce says:

    Time to just put a wall around a city, Escape from New York-style?

    Scalia is showing signs of Alzheimer’s.

    Like or Dislike: Thumb up 0 Thumb down 0

  33. michael reynolds says:

    Scalia’s not anything — conservative or strict constructionist — except a Republican. He’s a Republican apparatchik who, much like Newt Gingrich, impresses the credulous with vast clouds of self-justifying bloviation. Republicans hear him echoing their own opinions and proclaim him a genius.

    Like or Dislike: Thumb up 0 Thumb down 0

  34. PD Shaw says:

    The lower courts found, and SCOTUS agreed, that ALL of the prisoners were being punished in a cruel and unusual way in contravention of the guarantees of the 8th and 14th Amendments.

    As I sped read it, the courts found that the members of the class (of people with serious medical conditions or mental illness) had had their constitutional rights violated by crowding, but that the remedy for the violation was extended to the entire prison system in part because some day that might get sick. “They arethat system’s next potential victims.”

    It just strikes me as procedurally odd; here we have a group of people who are in immediate risk of dying, but instead of looking at what can be done immediately to ameliorate their dire conditions, we’re going to examine the entire prison population over the next few years.

    Like or Dislike: Thumb up 0 Thumb down 0

  35. PD Shaw says:

    For all the Scalia hate, I think his opinion will be quite consistent on the Obamacare challenge. Instead of asking what special insight does a three year law degree give one in managing a prison, it will be what special insight does a three year law degree give on the meaning of “interstate commerce”?

    Like or Dislike: Thumb up 0 Thumb down 0

  36. [...] California Must Release 40,000 Prisoners (outsidethebeltway.com) [...]

    Like or Dislike: Thumb up 0 Thumb down 0

  37. Herb says:

    why didn’t the Court use its powers in equity to force California to build more prisons?

    Can California even afford to build more prisons? Seems to me that if the court forced the state to build more prisons, they’d actually force the state to use more private prisons. And how do private prisons make their money? Packing them in like sardines in the gym and skimping on healthcare.

    Like or Dislike: Thumb up 0 Thumb down 0

  38. Dr. Joyner, the problem is that when it comes to cuts most politicians seem to cut the most visible and painful things first. I’m becoming just cynical enough to wonder why they wouldn’t act accordingly when it comes to prisoner relief. What a perfect crisis that requires more taxes, more spending and more unionized government jobs?

    Don’t worry, only 1 out of every thousand Californians you encounter will be one of these prematurely released felons.

    I wonder if the citizens of California could file a class action suit that claims releasing 40,000 felons into the general population could be considered cruel and unusual punishment for them, and they haven’t even been convicted of anything.

    Like or Dislike: Thumb up 0 Thumb down 0

  39. PD Shaw says:

    I think Herb is right; from the synopsis of the opinion:

    The court also found no realistic possibility that Californiacould build itself out of this crisis, particularly given the State’s ongoing fiscal problems. Further, it rejected additional hiring as a realistic alternative, since the prison system was chronically understaffed and would have insufficient space were adequate personnel retained.

    Like or Dislike: Thumb up 0 Thumb down 0

  40. john personna says:

    I think we knew that PD, which is why the current and past governor were trying to reduce populations. If you don’t mind me saying so, duh.

    And it is certainly not surprising that the decision reinforces the only common sense solution.

    Of course, pushing inmates on localities probably isn’t common sense, or serious as a long term solution. It might be a tactic though. That is, “if you really want them in jail, keep them in jail. stop sending them to us.”

    Like or Dislike: Thumb up 0 Thumb down 0

  41. Artus Register says:

    Any chance the People’s Republic of California will release non-violent drug offenders instead of those who actually pose a risk to others, or does that make far too much sense?

    Like or Dislike: Thumb up 0 Thumb down 0

  42. john personna says:

    Pfft, the People’s Republic of California, home of Nixon, home of Reagan.

    Like or Dislike: Thumb up 0 Thumb down 0

  43. PD Shaw says:

    jp, ordering the building of jails is not a completely insane proposition; it would just require the courts to order tax hikes though.

    There was another solution though; focus on the medical and mental health needs of the inmates whose Constitutional rights were being violated. One of the lower courts rejected this option, however:

    “The only thing is we would be protecting the classmembers. And maybe that’s the appropriate thing to do. I mean, that’s what this case is about, but it would be . . . difficult for me to say yes, and the hell with everybody else.”

    Like or Dislike: Thumb up 0 Thumb down 0

  44. anjin-san says:

    California has more than enough prisons, thanks. What this is all really about is keeping the funding flowing for the criminal justice industry. This all goes back to to repeal of prohibition. End the failed war on drugs and a lot of this problem simply goes away.

    Like or Dislike: Thumb up 0 Thumb down 0

  45. john personna says:

    @PD, “ordering the building of jails is not a completely insane proposition”

    At what percentage incarceration does it become insane?

    (List of countries by incarceration rate)

    Like or Dislike: Thumb up 0 Thumb down 0

  46. john personna says:

    Sorry, goofed on that link

    Like or Dislike: Thumb up 0 Thumb down 0

  47. tom p says:

    tom p, I’m pretty sure that 7 DWIs is actually doing something. Unless you also think pilots should be allowed to be drunk, simply because they only might crash.

    Franklin, maybe I wasn’t clear enuf. Let me try again: Seeing as there is NO life sentence for simple DWI (not even 7), that means he will always get out sooner or later, and he will probably drink and drive again but we can not lock him up for something he has not yet done.

    IS it clear enuf now? Or do I need to draw a picture for you?

    Like or Dislike: Thumb up 0 Thumb down 0

  48. TG Chicago says:

    Scalia via PD:

    I will state my approach briefly: In my view, a court may not order a prisoner’s release unless it determines that the prisoner is suffering from a violation of his constitutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that prisoner (and no other remedy) would enable him to obtain medical treatment, then the court can order his release; but a court may not order the release of prisoners who have suffered no violations of their constitutional rights,merely to make it less likely that that will happen to them in the future.

    If I’m reading this right, this means that Scalia is saying we have to wait for a prisoner to actually fail to get needed medical care. Then that prisoner — lacking medical care — can petition the court for a remedy. As they spend the years waiting for the case to go through the courts, they will still not have the proper care. If it finally gets decided in their favor, then good for them. But not necessarily good for the guy in the next bed over who has a similar but different medical condition that isn’t being treated. Or the guy with the same condition who is housed at a different facility. They have to file their own cases.

    And if the petitioner who lacks proper healthcare dies before the case is properly decided, well, that’s just too bad.

    Like or Dislike: Thumb up 0 Thumb down 0

  49. Dave Schuler says:

    End the failed war on drugs and a lot of this problem simply goes away.

    I’d certainly be interested in seeing some statistics to support this.

    You may be right if you extend the end of the ban right up to all Class A drugs. However, my experience has been that when most people complain about the “war on drugs” they’re complaining that marijuana isn’t legal. I strongly suspect that relatively few of the prisoners in California prisons are there for simple possession of marijuana or even dealing in marijuana.

    As long as anything is illegal I’m skeptical that the benefits of ending the “war on drugs” will quite be what its critics believe.

    Would I be correct in concluding that you support the legalization of Class A drugs?

    Like or Dislike: Thumb up 0 Thumb down 0

  50. michael reynolds says:

    Dave:

    I’m not sure how one could provide statistics on an event that has not yet occurred — drug legalization. But one can apply logic.

    Right now drug gangs sell a menu of products ranging from pot to heroin. All analogies are imperfect, but let me try out a fast food restaurant. If McDonalds were suddenly told that they could no longer sell burgers or fries, but only the rest of their menu, and at the same time the identical McDonalds burgers and fries would be for sale at an even cheaper price right across the street, would you expect McDonalds sales to go up or down?

    Gangs cannot simply transform pot smokers into meth heads or junkies. Any more than McDonalds can suddenly turn everyone off beef and onto chicken. That pot market will go to legal vendors, that income will be lost to the gangs, and the gangs will become less profitable.

    Like or Dislike: Thumb up 0 Thumb down 0

  51. ratufa says:

    Even if one isn’t in favor of outright drug legalization, there are other changes one can make to the corrections system to reduce the need for incarceration. For example:

    http://www.washingtonmonthly.com/features/2009/0907.kleiman.html

    or some of the proposals talked about at:

    http://www.rightoncrime.com/

    These sorts of proposals have trouble taking off, in part because of risk-aversion by the public (some justified, some not) and lobbying from groups that benefit from our current system.

    Like or Dislike: Thumb up 0 Thumb down 0

  52. Dave Schuler says:

    I’m not sure how one could provide statistics on an event that has not yet occurred

    But you can provide define what is meant by “drug legalization” and provide statistics on the number of those currently incarcerated for different offenses.

    Nationwide the number of people in state prisons for pot-related offenses is about 35,000. How much of the total number is in California? 20%? That would be about 7,000 people. A significant number of people but not the greatest proportion of the 40,000. Maybe I’m missing something. Maybe legalizing Class A drugs is being proposed (something I think would be imprudent).

    Like or Dislike: Thumb up 0 Thumb down 0

  53. anjin-san says:

    Maybe legalizing Class A drugs

    I believe “Class A” is UK terminology. Are you referring to Schedule I & II drugs? It is a mistake to look at them all as a block, that vastly oversimplifies the situation. I can think of no rational argument for legalizing methamphetimine, but you can make a decent argument for legalizing morphine and heroin.

    Like or Dislike: Thumb up 0 Thumb down 0

  54. anjin-san says:

    Nationwide the number of people in state prisons for pot-related offenses is about 35,000

    How about federal? We may be talking primarily about state prisons, but lets not understate the amount of resources we are wasting as a nation by waging futile war on pot.

    Like or Dislike: Thumb up 0 Thumb down 0

  55. john personna says:

    Australia, a nation founded by selecting for criminals has a prison population 18% of our own. It may not be all drugs, but that is probably part of it, or typical of what’s wrong. Probably, uniformly, we have too many minor criminals in for “punishment” we cannot afford.

    Like or Dislike: Thumb up 0 Thumb down 0