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John C. Eastman
Serious Constitutional Concessions
If thousands of prisoners are set free in California, the Supreme Court won’t be solely to blame.
May 27, 2011

When the U.S. Supreme Court recently approved a court order that may require California to release 37,000 felons from prison, the five-justice majority said that the drastic measure was necessary to address “serious constitutional violations.” The reference was to the plaintiffs’ charge that California officials were violating the Eighth Amendment rights of the state’s prison population—in particular, their right not to undergo cruel and unusual punishment. Justice Anthony Kennedy, writing for the court, acknowledged that the order was “of unprecedented sweep and extent.” However, he wrote, “overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve.”

The decision was just the culmination of a long series of legal and political blunders by legislators, bureaucrats, and state officeholders. Start with the fact that the federal law authorizing courts to order the release of felons is expressly limited to instances in which the rights of particular individuals have been violated. It reads: “Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” Kennedy does not discuss how the medical care for particular prisoners violates the minimum constitutional standard; indeed, he concedes that the court never addressed allegations of unconstitutional conduct toward individual prisoners. “Because plaintiffs do not base their case on deficiencies in care provided on any one occasion,” he notes, “this Court has no occasion to consider whether these instances of delay—or any other particular deficiency in medical care complained of by the plaintiffs—would violate the Constitution.”

So how did the court arrive at “serious constitutional violations”? For that, we can thank California’s former attorney general, Bill Lockyer, who in 2001 “conceded that deficiencies in prison medical care violated prisoners’ Eighth Amendment rights,” as Kennedy writes, and thereby absolved the plaintiffs of the inconvenience of proving a connection between individual instances of mistreatment and a system-wide problem. In fact, undoubtedly as a result of Lockyer’s concession, the three-judge federal trial court whose order the Supreme Court just upheld refused to admit “evidence relevant solely to the existence of an ongoing constitutional violation.” Because Lockyer had already conceded that constitutional violations had taken place, the only questions the Supreme Court considered were whether overcrowding was the “primary” cause of the constitutional violations and whether a prisoner-release order was the only way to ease the overcrowding.

Largely ignored by the Court was the real source of the problem: the exorbitant cost of running California’s prisons. Taxpayers spend about $48,000 per prisoner—nearly double what other states, such as Texas, or the federal government spends. Those costs are driven into the stratosphere by the political power of the California Correctional Peace Officers Association, which routinely contributes millions of dollars to candidates for public office, who then gratefully respond by approving lucrative employment contracts that have made California’s prison guards among the highest-paid in the nation. They enjoy lucrative health, dental, and vision benefits; unlimited accrual of vacation time, which can provide hundreds of thousands of dollars as a retirement bonus; more than eight weeks of paid vacation every year; overtime that can easily push the already high base salaries into annual pay in excess of $200,000; “fitness” bonuses that are now paid for simply getting an annual physical; pay for “walk time”—the time it takes to walk from your car to your duty station; and a pension system that locks in up to 90 percent of the final year’s pay, bolstered by whatever overtime can be accrued, into a lifelong income worth millions in retirement.

The union’s opposition to private prisons, which have demonstrably lower costs and which can often be built much more quickly than public prisons, has also contributed greatly to California’s overcrowding problem. Instead of addressing the cost side of the equation, which would obviously free up resources to hire more staff, build new facilities, and provide additional care, California’s elected officials have abdicated their responsibility to manage prisons in a cost-effective manner. They have allowed the prisons to be used as a money pit for the union, while reaping the benefits of the union’s generous campaign contributions. What gave the Supreme Court a pretext to find “serious constitutional violations,” in short, was a failure of political will. Californians should remember that when these freshly released felons move into their neighborhoods.

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