Reporting from Washington — California's bid to block a court order requiring the release or transfer of more than 40,000 inmates seemed in jeopardy Tuesday, with the U.S. Supreme Court sounding ready to force the state to significantly reduce its prison population.
During heated oral arguments, a slim majority of the justices sided with advocates who said the state had not provided humane care for sick and mentally ill prisoners. Despite decades of lawsuits and promises from the governor, the justices said, the state has not reduced the severe crowding related to the problem.
Some justices, however, said they feared a mass release would lead to a surge in crime.
"If I were a citizen of California, I would be concerned about the release of 40,000 prisoners," said Justice Samuel A. Alito Jr., noting that the forced release of prisoners elsewhere has led to an increase in rapes, robberies and assaults.
"I guarantee you that there is going to be more crime and people are going to die on the streets of California," said Carter G. Phillips, the attorney for the state.
Since 1990, California has faced lawsuits contending that its prisons are not providing adequate care for sick or suicidal inmates and that severe crowding is the main cause of the problem. Two years ago, a three-judge panel ruled that reducing the prison population was the only solution.
At issue before the high court is whether to uphold or reverse that ruling.
Phillips argued that the state should be given more time to reduce crowding through early release, transfer to other facilities and construction of prisons. California has about 148,000 inmates, he said, down from 165,000 two years ago.
"In the course of the last three or four years … there has been significant movement in the right direction," he said.
But when Phillips said it was "extraordinarily premature" for three judges in California to order the state to sharply reduce its number of prisoners, he ran into a buzz saw of pointed questions.
"How much longer do we have to wait? Another 20 years?" Justice Ruth Bader Ginsburg asked.
"I don't see how you wait for an option that doesn't exist," said Justice Sonia Sotomayor, saying state officials had repeatedly promised to make changes but not followed through.
Justice Stephen G. Breyer said the state had admitted it violated the Constitution by not providing decent care for its inmates. Photos from California's prisons "are pretty horrendous," he said.
When the state's attorney argued that the prisons weren't as bad as the critics said, Justice Elena Kagan said the judges who had heard the evidence disagreed. "You are asking us to re-find the facts," she said. "These judges have been involved in these cases since the beginning."
As usual, Justice Anthony M. Kennedy is likely to hold the deciding vote on the closely divided court.
As a Californian who hails from Sacramento, he has a special interest in the case. And he too said he thought the members of the special three-judge panel were right to order a remedy to the prison crowding.
"At some point, the court [in California] has to say, 'You have been given enough time.... The constitutional violation still exists. It's now time for a remedy,'" Kennedy said. "That's what it did, and that seems to me … a perfectly reasonable decision."
If the panel's order takes effect, the state will have to reduce the prison population to 137% of capacity within two years.
Five of the high court justices, including Kennedy, seemed to agree that the panel was right to order a change. But Kennedy also said he wasn't entirely convinced its remedy was exactly right.
He suggested several times that the judges may have gone too far in setting the specific target of 137% of capacity. Kagan also wondered whether the state should be given more time — perhaps five years rather than two — to meet the goal.
The court's more conservative justices said they shared Alito's fear that releasing prisoners would lead to an increase in crime. Chief Justice John G. Roberts Jr. said the release order could be overturned on those grounds
Donald Specter, a lawyer representing the inmates, tried to reassure the court that the state could safely release "low risk" inmates without endangering public safety.
Alito wasn't convinced. "If this order goes into effect, we will see.... The people of California will see," he said.
It's likely to be several months before the court hands down a decision in the case, Schwarzenegger vs. Plata.