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THE SUPREME COURT has now spoken. Prison overcrowding in California is not only a crisis; it is unconstitutional. The California prison system, the largest in the country and the most at risk legally, operated at almost 200 percent of rated holding capacity, with more than 160,000 inmates. A special three-judge federal court had found that these conditions, in which suicides, violence, and lack of health care and other social services were endemic, violate the Eighth Amendment's "cruel and unusual punishment" clause and ordered the state to reduce its prison census by as many as 46,000 inmates, to "only" 137.5 percent of capacity.
In May zoii, the Supreme Court, in a 5-4 decision (Brown v. Plata], affirmed the lower court, upholding what dissenting justices called "perhaps the most radical injunction issued by a court in our Nation's history," one based on "a judicial travesty." The razor-thin Court majority, adopting the lower court's findings, stated that transfers of prisoners to other states or county jails, construction of new prisons, additional spending, and hiring of additional prison staff would not suffice to satisfy the constitutional standard. The Court did not mandate that California change its laws - for example, by requiring the state to decriminalize certain illegal conduct, or to reduce the length of the minimum sentences that state law now requires its judges to impose. But the Court nevertheless went quite far. It held that population reduction - a euphemism for the mass releases of inmates convicted of serious crimes - must be a significant part of the remedy. Specifically, it ruled that the prison census must be reduced by 46,000 prisoners within two years.
How did we get to this point? How did prison capacity become so egregiously overstretched that the Supreme Court would impose such an extreme remedy on the state? There is no dearth of explanations. Decades of tougn-oncrime" politics, coupled with genuine concerns about high recidivism rates and studies showing the doubtful effectiveness of most rehabilitation programs? have led states to demand longer sentences. Many laws have made the longer sentences mandatory, depriving the sentencing judges of discretion. Caiifornia and some other states have enacted "three-strikes" laws, which have increased the number of very long sentences that courts must mete out, sometimes for...