Federal Appeals Court Orders California to Release 40,000 Inmates

A panel of the Ninth Circuit Court of Appeals has ordered California to reduce its prison population by 27% -- or 40,000 inmates -- over the next 2 years. The court held that overcrowding in the prison system imperils the health of the inmates and leads to one unnecessary death per week. As a result of massive overcrowding the state cannot adequately attend to the inmates' health needs, including mental health concerns.

Ruling Justified? Probably.
After reading the mammoth ruling -- 180 pages -- the court's decision looks quite solid, even though it sounds very dramatic on the surface. The litigation consolidates two separate cases involving illegal conditions in the prison system. One case began in 1990 and the other in 2005. In both instances, the record shows an almost complete lack of compliance by state officials and worsening conditions in the prisons over time. Also, the record demonstrates that judges pursued less invasive remedies in the past, and gave the state several opportunities to comply before ordering the release of inmates.

Furthermore, even though the state has resisted the release of inmates, a closer look at the record reveals a more complicated picture. For example, earlier this year, Governor Arnold Schwarzenegger proposed releasing 27,000 inmates, but he abandoned the plan after victims' rights groups condemned it. Schwarzenegger has also publicly stated that overcrowding endangers inmates and prison staff. In 2006, he declared a "state of emergency" in the state prison system, observing that overcrowding causes "'conditions of extreme peril' that threaten 'the health and safety of the men and women who work inside [severely overcrowded] prisons and the inmates housed in them . . . .'" Accordingly, the court's ruling comports with prior opinions of the state's chief executive. This is not a clear case of a judicial invasion of the political branches of government.

The Structural Injunction Lives
Lawyers refer to this type of "massive" injunction as a "structural injunction" or "restructuring injunction" because it involves a series of orders, usually over the course of several years, that reform public institutions found to violate a constitutional or statutory provision.

Structural injunctions became popular during the late-1960s and early-1970s, as courts began implementing desegregation orders. Because of the inherent complexity of school systems and the flagrant, often violent, resistance to integration by many school districts, courts had to supervise school officials closely in order to ensure their compliance with the law. Although the desegregation cases popularized the structural injunction, this type of intense judicial involvement in public institutions took place in other complex settings as well, such as prisons, mental health facilities, foster care and hospitals.

Conservatives typically criticize structural injunctions, arguing that "activist" courts are exceeding the scope of their authority. Of course, conservatives also tend to disagree with the underlying legal theories in this cases, which typically involve allegations of civil rights violations. Liberals, on the other hand, who favor strong civil rights enforcement, have defended structural injunctions, arguing that courts are only responding to the foot-dragging by defendants and to the unavoidable complexity of the cases. In many instances, the toughest remedies come only after years of bad faith and noncompliance by state actors and after softer remedies have failed.

The Rehnquist revolution (which has curtailed civil rights law and remedies) and conservative legislation from Congress (like the Prison Litigation Reform Act) have reduced the structural injunction to a relic of the past. Accordingly, the Ninth Circuit ruling is very "old school" (and surprising to me as a Remedies Law professor). This, however, does not make it a bad decision.

Final Take
California basically created this situation with its "tough on crime" antics that began in the 1970s and which became extremely popular once again in the 1990s. As the court opinion details, California's prison population has increased by over 750 percent since the mid-1970s. The state has repeatedly enacted longer sentences, and it has adopted a 3-strikes measure that mandates a life sentence after the defendant commits a third felony (even if the crime is shoplifting).

While voters strongly favor these laws, they do not want to pay for the consequences of having them in a society that enforces constitutional norms -- like freedom against cruel and unusual punishment. The chickens are merely coming home to roost in California.

The ruling advises the state to release nonviolent offenders, and I suspect that it will take this route, unless the ruling is reversed. And while commentators like Ross Douthat have argued that liberal policy has devastated California's economy, his (weak) thesis does not acknowledge the negative economic and social impact of conservative policies, such as the "tough on crime" measures that contributed to the expensive situation the state now faces regarding its prison system.