By Robert Barnes
Washington Post Staff Writer
Tuesday, November 30, 2010; 10:50 PM
A majority of the Supreme Court on Tuesday seemed prepared to uphold a court order that California reduce the population of its overcrowded prisons by more than 40,000 inmates, despite dire warnings that "people are going to die on the streets of California" if the release is approved.
The state at one time incarcerated twice as many people as its adult prisons were built to hold. A special federal court panel found the conditions were unconstitutional and led to such poor medical treatment that one inmate died every eight days of ailments that could have been prevented or delayed.
Washington lawyer Carter G. Phillips, representing the state in Tuesday's arguments, acknowledged that the conditions at times violated the Constitution. But he said the court panel was "extraordinarily premature" in imposing the "unprecedented" order to move out of prison 36,000 to 45,000 inmates over the next two years.
He ran into immediate trouble with the court's more liberal justices.
Justice Ruth Bader Ginsburg said one of the lawsuits challenging the lack of health care was filed in 1990. "How much longer do we have to wait?" she asked. "Another 20 years?"
Justice Stephen G. Breyer seemed shocked by photos from the crowded prisons, where bunk beds have taken over gymnasium floors and recreation areas, and medical facilities are located in former closets.
Justice Sonia Sotomayor was Phillips's most aggressive questioner, replying skeptically, "Oh, counsel," to one of his points and telling him to "slow down from the rhetoric" and detail how the state intended to fix conditions the lower court found.
"When are you going to avoid the needless deaths that were reported in this record?" Sotomayor asked. "When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?"
Phillips said the state has made "significant progress" in correcting problems in recent years. The prison population has dropped from a high of 167,000 inmates to a total of about 147,000, he said. The suicide rate, once twice the national average, has fallen, as has the number of homicides in the system.
But the reaction of Justice Anthony M. Kennedy, often the deciding vote between the court's liberal and conservative justices, was troubling for California's case. Kennedy said there was "massive expert testimony" that the overcrowding has led to the unconstitutional conditions regarding medical care.
The California court that dealt with the lawsuits "has to at some point focus on the remedy, and that's what it did, and that, it seems to me, was a perfectly reasonable decision," Kennedy said.
The Supreme Court was considering for the first time a procedure passed by Congress in 1996 that made it more difficult for prisoners to file lawsuits about conditions. The law set up a system in which a three-judge panel could order a release of prisoners as a last resort.
The California court panel said that the prison system could operate at no more than 137.5 percent of its capacity - it was built for 80,000 inmates - and still provide proper medical care It gave the state two years to make the changes, a goal Gov. Arnold Schwarzenegger (R) once thought was possible.
But the legislature has resisted some of his proposals and has budgeted far less for prison construction than requested.
Conservative justices questioned whether the panel in this case had followed all the dictates of the federal law. Chief Justice John G. Roberts Jr. seemed skeptical that the judges had paid enough attention to the requirement that any court-ordered remedy weigh heavily the effect on public safety.
Justice Samuel A. Alito Jr. said he did not think the court found the necessary link between overcrowding and the unconstitutional conditions, and said the court's order would result in more crime.
Donald Specter, a Berkeley, Calif., lawyer arguing the case for the inmates, said it was important to remember that the court had simply ordered the state to reduce the prison population, which could be done by placing some prisoners in county jails, sending some to out-of-state prisons, changing probation rules and other methods.
"The court is not ordering the state to throw open the gates of its doors and release people," Specter said.
"If I were a citizen of California, I would be concerned about the release of 40,000 prisoners," Alito replied. "And I don't care what you term it."
Phillips picked up on Alito's concern in his closing remarks: "I guarantee you that there is going to be more crime and people are going to die on the streets of California" if the order is upheld.
Two justices wondered whether there were ways to lighten the burden on California without overturning the court order.
Kennedy said that some experts had said the system could operate at 145 percent of capacity and still meet constitutional requirements. And Justice Elena Kagan noted that California has said it could meet the order without compromising public safety if it had five years to carry out the order, instead of two.
The case is Schwarzenegger v. Plata .