California may be forced to release thousands of felons to reduce overcrowding: What this week’s Supreme Court decision could mean for prison populations and public safety.


  • Carter Phillips Partner, Sidley Austin
  • Joan Biskupic Supreme Court reporter for "USA Today." She has written biographies on Sandra Day O'Connor and Antonin Scalia.
  • Amy Fettig Senior staff counsel, ACLU
  • Kent Scheidegger Criminal Justice Legal Foundation


  • 10:06:54

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. In California, some state inmates are living in overcrowded filth and denied basic medical care. The Supreme Court, earlier this week, ruled the conditions, "incompatible with the concept of human dignity." The remedy may include release of convicted felons. Joining me here in the studio to talk about prisoner rights, state budget and public safety, Joan Biskupic, she is a Supreme Court reporter for USA Today, Amy Fettig, she is senior staff counsel for the ACLU.

  • 10:07:46

    MS. DIANE REHMJoining us from a studio in Sacramento, Calif., Kent Scheidegger of the Criminal Justice Legal Foundation. And, of course, throughout the hour, we'll take your calls, questions, comments. Join us on 800-433-8850. Send us your email to First, joining me from his office here in Washington, D.C., is Carter Phillips, who represented the State of California. Good morning to you, sir. Thanks for joining us.

  • 10:08:35

    MR. CARTER PHILLIPSHappy to do it, Diane.

  • 10:08:36

    REHMJustice Scalia called the Supreme Court's decision extraordinary and unprecedented. Give us some background on the case.

  • 10:08:48

    PHILLIPSWell, I think what the justice was referring to is that, since the passage of the statute that Congress adopted, the Prison Litigation Reform Act, no state had, in fact, been ordered to release prisoners as a remedy for any sort of condition, including overcrowding. And, therefore, in that sense, this was completely unprecedented.

  • 10:09:14

    PHILLIPSAnd in terms of the sweep of the relief, I think what he is reacting to, primarily there, is the notion that there's a determination that the entirety of the system of California is in violation of the Constitution, which is probably a little counterintuitive. I mean, there's no question that there are certain facilities that were in -- certainly, were in need of improvement. But because of the way the case had been litigated and it became what he would describe as this kind of institutional litigation, he thought that that clearly was excessive and extreme and that the -- and that thereby gave the district court undue authority to go ahead and began to run the prisons, frankly.

  • 10:10:08

    REHMBut, Carter, hasn't California been charged years ago with improving prison conditions? And, actually, there simply had not been very much progress.

  • 10:10:23

    PHILLIPSWell, there is no question that there was -- for a period of time, that California did not fulfill its responsibilities. And, in some instances, these were self-inflicted responsibilities, where they entered into a (word?) the first instance and then didn't comply with it. I think the question, ultimately though and at least the issue as we presented it on behalf of both the previous administration and, candidly, the new administration -- was that things had changed to some extent.

  • 10:10:52

    PHILLIPSWe were, you know, so we were moving in the right direction and that the district courts had, in fact, adopted much more aggressive -- the single-judge district courts, not the three-judge district court that will order prisoner release, but the single-judge district courts were taking a more aggressive position and that the state was, in fact, moving in the right course and that, in fact, the receiver had moved the ball pretty dramatically in a relatively short period of time that he had been in office.

  • 10:11:20

    PHILLIPSSo what our hope was is that the court, the Supreme Court would say, let's take our foot slightly off the pedal and allow that part of the process to work itself out.

  • 10:11:31

    REHMSo how much time does California have at this point to make some corrections to improve conditions so that, perhaps, no prisoners might end up being released?

  • 10:11:46

    PHILLIPSUnder the district court's order, they have two years. And, obviously, they've got to get to 137.5 percent of the design capacity -- not in every prison. The court was clear about that. It's simply on a system-wide basis. So you're going to have some prisons that will be above 137.5 percent and some that will be below that. And the Supreme Court was also very clear that the state, if it can meet certain unspecified guideposts as it goes along, will be in a position to go back to the district court and ask, if it needed to, for more time before it has to release any specific prisoners.

  • 10:12:28

    PHILLIPSAnd in the interim, it will try other measures, including obviously, trying to transfer some of the prisoners out of state if there are facilities that will accept them and modify, you know, who comes into the prison system based on technical parole violations, those kinds of ways of managing the size of the prison population without actually releasing prisoners into the street.

  • 10:12:52

    REHMIs the California situation unique? Or are other states right for this same kind of ruling?

  • 10:13:03

    PHILLIPSWell, you know, 18 other states filed a brief in support of California. And, obviously, this is a problem that is not just at the state level. It can obviously exist at the county and municipal levels because they also operate jails and prison systems of one sort or another.

  • 10:13:22

    PHILLIPSI mean, what the Supreme Court's decision says is that -- and, you know, there's a pretty easy guidelines to follow for a three-judge district court to convene itself and then to go forward in trying to formulate a particular remedy that obviously would be at least of some concern and that the court doesn't have to -- whatever a three-judge court says, it doesn't really have to button down precisely the public safety aspects of this problem because, here, there's a lot of guesswork as to exactly who's going to be released and at what numbers and what the public safety risks are embedded in that.

  • 10:14:05

    PHILLIPSAnd the three-judge district court basically said, well, you know, we have great confidence that the state will not release anybody who's going to be a harm to the public, and, certainly, the state is committed to that course. But it's -- there's a lot of faith enveloped in that in, you know, assuming that we can do that effectively.

  • 10:14:26

    REHMCarter Phillips, he represented the State of California in the recent case heard by the Supreme Court regarding overcrowding of prisons in that state. Thank you so much...

  • 10:14:42

    PHILLIPSOh, thank you, Diane.

  • 10:14:43

    REHM...for joining us.

  • 10:14:44

    PHILLIPSI appreciate it.

  • 10:14:44

    REHMAnd turning to you now, Joan Biskupic, this country has probably more prisoners per capita than any other country in the world. And here, Supreme Court is saying, you got to let some of these people have more room. How unprecedented, how surprising was this decision?

  • 10:15:13

    MS. JOAN BISKUPICIn some ways, in this day and age, it was surprising that the Supreme Court would endorse judicial involvement in what is essentially a legislative domain. But as Justice Kennedy wrote in his opinion for the majority, things had been so bad for so long that there was no other way. California has an extreme situation. At one point, its prison population was 156,000, twice the number that the buildings were designed for. Justice Kennedy went through, in 48 pages and with pictures appended to his opinion, all the horrific conditions that existed there.

  • 10:15:52

    REHMGive me an example.

  • 10:15:53

    BISKUPICWell -- and here's an example. I wanted to also let the listeners know that this started as a case brought by prisoners with serious mental health issues and medical concerns. So it was -- it didn't start as a crowding issue per se. It started as a care issue, a punishment issue, of it being cruel and unconstitutional. And Justice Kennedy referred to the fact that the suicide rate in California's prisons were, like, 80 percent above the national average for prisons.

  • 10:16:17

    BISKUPICInmates were being housed in telephone-size cages, standing in their own waste, urine and feces, that people were piled on top of each other. Two hundred people were housed in a gym. Some 50 people were sharing one toilet. So that, he, you know, I was going paragraph by paragraph, thinking, okay, we got the point, we got the point.

  • 10:16:39

    BISKUPICBut he -- I think the reason he went on for so many pages to say, look at what these conditions have been like, up to, actually, you know, some recent times. There's some dispute about how much material got in the record from recent occasions, but Justice Kennedy tried to bring it up to date to stress that these were really dire and that, normally, judges cannot intervene. But in California, with this kind of situation that had been going on for more than a decade, with the state being faced with orders to reduce the prison population, that it had to come to this.

  • 10:17:12

    REHMJustice Scalia's comments about this case were rather harsh.

  • 10:17:19

    BISKUPICYes. Yes. And he took the unusual step of reading parts of his dissent from the bench. So there we are in the courtroom at 10 o'clock on Monday. Justice Kennedy reads a very lengthy opinion himself. He had stopped to drink water and even said to the spectators watching, this is going on for a long time. He finishes it about 10 minutes after the hour. And Justice Scalia then says, I have a dissent to read.

  • 10:17:43

    BISKUPICAnd he opens with the fact that he believes that this order from the three judges in California was unprecedented. And, actually, he even said he thought that it marked the most outrageous order that any courts have done in the history of our country because of -- he cast it all in terms of freeing some 46,000 convicted felons. Now, that number is now down to maybe, potentially, 35,000.

  • 10:18:08

    BISKUPICAnd there's a lot of dispute, as you'll hear from Amy and from the folks on the phone, over how many people will actually be freed as opposed to being transferred to other locations.

  • 10:18:18

    REHMBut he was clearly very angry.

  • 10:18:21

    BISKUPICRight. And he was angry, I think, at the institutional litigation angle here, not just the public safety one, but the idea of judges intervening. And Justice Kennedy just sat, stone-faced, listening.

  • 10:18:33

    REHMJoan Biskupic, she is Supreme Court reporter for USA Today. We'll take a short break here. When we come back, more conversation and your calls.

  • 10:20:03

    REHMAnd in this hour, we're talking about the Supreme Court's decision that some California state inmates must be given far more humane living conditions. They are living in filth in overcrowded situations. They've been denied medical care. It was a 5-4 ruling. And Justice Antonin Scalia had some very strong things to say about that. Joan Biskupic, just before the break, you were telling us about some of the justice's comments.

  • 10:20:48

    BISKUPICYes. He read part of his dissent from the bench, and he said that this was -- first of all, he said terrible things were sure to happen as a consequence of what he termed as outrageous order. He said it is allowing judges to go wildly beyond their institutional capacity. And I know, Diane, you're so familiar with his rhetoric. It was so strong that, actually, two of the other dissenting justices did not sign on. Only Justice Clarence Thomas signed on to Scalia's dissent.

  • 10:21:17

    BISKUPICSeparately, Chief Justice John Roberts and Justice Samuel Alito had a different statement. They were all -- all four of the more conservative members of this court were very much against this majority ruling. But Justice Scalia's tone was so strong and his reasoning was so much in the attack mode -- as has marked him over the years -- that two of the other dissenters did not join.

  • 10:21:43

    REHMAmy Fettig, I'd be interested in your reactions to the kinds of conditions in which these prisoners were housed and what you think could happen as a result of this order.

  • 10:22:02

    MS. AMY FETTIGWell, I'd say, first of all, that California is an extreme example. We don't see any other system in the country, any other state with the types of extreme and longstanding problems that California has. I think one of the important things to remember about this case is that no one disputed that the state was violating the Constitution. And, indeed, the examples that Joan gave are realities in California prisons every single day.

  • 10:22:28

    MS. AMY FETTIGAnd those realities, as the court found, as the state admitted, amount to people dying needless deaths every single week in the California system.

  • 10:22:36

    REHMGive me an example.

  • 10:22:37

    FETTIGWell, for example, folks don't get the kind of follow-up medical care that they need, so they die needless deaths that could have been prevented. Or in the case of the mental health system in California, Gov. Schwarzenegger in 2006 came out and said, look, folks are committing suicide every single week in this system because we are so broken. That doesn't exist in any other part of this country. There are problems in every state system, but California is an outlier.

  • 10:23:06

    REHMAmy Fettig, she's senior staff counsel for the American Civil Liberties Union. Turning to you now, Kent Scheidegger of the Criminal Justice Legal Foundation, what was your reaction to the decision?

  • 10:23:24

    MR. KENT SCHEIDEGGERWell, I think this is a bad decision by the Supreme Court, affirming an atrocious decision by this three-judge panel that we had. This was a case about health care. And this three-judge panel took the case that was about health care and manipulated it into a case that was about the prison population, generally. The Congress has required, by law, that prisoner release cannot be ordered as a remedy unless the prison overcrowding is the primary cause of the violation.

  • 10:23:55

    MR. KENT SCHEIDEGGERAnd that's clearly not the case here. There are problems with the health care delivery system, but to say that the overall prison crowding is the primary cause of those problems is really quite preposterous. Health care problems can and should be addressed by dealing with health care. And, in fact, a new health care facility is under construction as we speak. That is the solution to the health care problems.

  • 10:24:19

    MR. KENT SCHEIDEGGERReducing the overall prison population will not directly affect the health care. It will make some things easier, for sure. But this is a case of a three-judge panel that had an agenda. And that's what Justice Alito's dissent was mostly about, to take this case and use it for a policy change that they wanted that was not directly the result or the cause of the health care issues.

  • 10:24:44

    REHMAll right. I understand that the prison population, current prison population in California is, like, 143,000 and would have to get down to something like 109,000. But before we get there, how much of that prison population is housed in state prisons? How much are housed in privately-run for-profit institutions, Kent?

  • 10:25:25

    SCHEIDEGGERI don't have those figures. California has not been, you know, wholesale into the private prison business. So most of...

  • 10:25:31


  • 10:25:33

    BISKUPICYeah, as -- just to clarify, that 143,000 figure is for the 33 prisons at issue in this case. The total prison population in California, actually, is higher for inmates that are elsewhere.

  • 10:25:46

    REHMBecause it's got privately run...

  • 10:25:50

    BISKUPICWell, not so much privately run, but who are already -- who have already been transferred elsewhere. But the number you used and that Kent was picking up on is the accurate figure for the purposes of this case, the 143,000.

  • 10:26:00

    REHMOkay. All right. And, Kent, you say that there are new prisons under construction as we speak?

  • 10:26:09

    SCHEIDEGGERYeah, there's been a health care facility, a large one to be built, but it hasn't been completed yet. Obviously, construction takes time.

  • 10:26:19

    REHMAmy, Kent is saying health care was really the issue here and should have been dealt with otherwise.

  • 10:26:27

    FETTIGWell, that's how this case started, the medical and mental health care of the California prisoner system. However, during the course of the case -- and this case has been going on for decades -- the court found that there were underlying reasons why the state could not comply with the Constitution in terms of medical care and mental health care.

  • 10:26:51

    FETTIGIts special masters and receivers in this case wrote directly to the court, finding that the state could not comply with the Constitution because the overcrowding was simply making it impossible for them to ever solve their problems. Indeed, former Gov. Schwarzenegger said the same thing, as did the former secretary of corrections in California.

  • 10:27:10

    REHMDo we have any idea what percentage of the California prison population are convicted on non-violent crimes, Amy?

  • 10:27:21

    FETTIGI don't have the direct figures, but we know tens of thousands are actually in the California prison system for non-violent reasons. And that's caused by a number of things. One of the main feeders of the population in California are technical parole violators, and these are people who have been released. They've served their sentence, or, you know, the system said we think you're safe to be in the community.

  • 10:27:45

    FETTIGBut they've done things like miss appointments with their parole officers or come back with a dirty urine or that they -- other technical violations. And those people are going right back to jail. What the courts have suggested, and what other systems actually do, is divert these people in the community rather than putting them back in prison automatically. So that's one part of the prison explosion.

  • 10:28:08

    FETTIGBut California also did something very -- I would say not too smart -- when they passed their three strikes law. This three strikes law has brought people into the system who are non-violent offenders. They've gotten three charges, three convictions, but now they're in there for life. So they're feeding the population, too....

  • 10:28:31

    REHMBecause of three strikes, you're out.

  • 10:28:32

    FETTIG...because of that third strikes -- absolutely. Other states said, hey, this is a harsh law. We're only going to apply such a law when we've got violent offenders.

  • 10:28:40

    REHMKent Scheidegger, what about that? What about the number of non-violent offenders?

  • 10:28:47

    SCHEIDEGGERWell, a majority of the people in California state prisons are, in fact, violent offenders. The ones who are there are for property crimes...

  • 10:28:53

    REHMHow would -- wait a minute. I'd like clarification here. Amy says otherwise. You say one thing. She says something else. How do we know?

  • 10:29:07

    SCHEIDEGGERNo. She didn't say that it was the majority. She just said that there were tens of thousands.

  • 10:29:10

    REHMOkay. Okay.

  • 10:29:11

    SCHEIDEGGERBut, in fact, a majority are in for violent offenses.

  • 10:29:15

    REHMDo you agree with that statement, Amy?

  • 10:29:16

    FETTIGNo. I would say about 30 to 40 percent usually are in prison for violent offenses across the board in this country. The vast majority of people are there for non-violent offenses, like drug convictions.

  • 10:29:28

    SCHEIDEGGERThat is simply not true.

  • 10:29:29

    FETTIGThat's feeding the system.

  • 10:29:30

    REHMSo he says...

  • 10:29:31

    SCHEIDEGGERLess than 18 percent of male prisoners are in for drug violations in California.

  • 10:29:35

    REHMJoan Biskupic.

  • 10:29:36

    BISKUPICWell, I can't quarrel with the stats from either side, but I can make the point that that entered part of the debate between the two camps of the justices with Justice Kennedy saying, okay, I know -- or we know that, even when somebody might be in for a lesser crime, maybe there had been some other kinds of crimes there. And he did say, look, there are grave concerns when any prisoner is going to be released before his time is served.

  • 10:30:02

    BISKUPICSo I think that there is an acknowledgement, no matter where you come down in terms of the statistics of who's there and who shouldn't be there, is once somebody has been put there and been in those kinds of horrific conditions, what will things be like when they are released? What Amy was starting to refer to is the front end of -- in California, of who ends up even getting to prison. And that's was the states has not tackled at all yet. And maybe this will push them to it.

  • 10:30:26

    BISKUPICBut, you know, it's not popular to be so-called soft on crime. And, as some of you might remember, the three strikes law actually came up to the Supreme Court. And the justices ruled it constitutional. So it's a very complicated situation that Justice Kennedy said cannot be solved in one way. But without this kind of order, there will be no pressure on the system to even start solving it in a significant way.

  • 10:30:49

    REHMAmy, is there any other precedent for releasing prisoners early or because of overcrowding?

  • 10:30:50

    SCHEIDEGGEROne important statistic...

  • 10:31:02

    FETTIGActually, a lot of states have taken a hard look at their population. And the majority opinion covers this in the analysis of whether or not the overcrowding order was going to have an impact on public safety. The three-court panel took extensive testimony. You know, this was a two-week trial. And they listened to countless former correctional officials about how you safely reduce a prison population

  • 10:31:30

    FETTIGThey heard from folks from Colorado, from Maine, from Pennsylvania. And all these folks said, yes, you can do it in an intelligent manner. We have the knowledge. We have scientific tools that allow us to assess risk. You know, you're never going to be 100 percent risk free, but we can do it in a smart manner. And that's what California needs.

  • 10:31:49

    REHMAnd, Kent, how do you feel about that?

  • 10:31:52

    SCHEIDEGGERWell, first of all, let me address this particular three-judge panel because this is a real big part of the problem in this case. The three-judge panel that was put together to hear this case are the judges that, if the attorneys for the prisoners could have picked their favorite three judges out of the entire federal judiciary, that's the three they would have picked. It was a very, very biased panel.

  • 10:32:15

    SCHEIDEGGERYes, people testify. Yes, the judges hear the people testifying. There is considerable amount of contradiction in what they say. And the judges chose to believe the ones they choose to believe. So it doesn't necessary follow that because that because this particular three-judge panel found something that that is necessarily the case. And this is a point made very clearly in Justice Scalia's dissent.

  • 10:32:34

    SCHEIDEGGERA lot of these so-called findings of fact are really just opinions based on one's orientation and one's penal philosophy. And we've got the Supreme Court saying these are findings of fact of the trial court. Therefore, we have to defer to them. And Justice Scalia is pointing out these aren't the kinds of historical, what happened, facts.

  • 10:32:54


  • 10:32:55

    SCHEIDEGGERSo it really isn't a fact that somebody testifies to something, and a court decides to believe it.

  • 10:33:00

    REHMThat sort of goes to the heart of our judicial system, doesn't it, Joan?

  • 10:33:07

    BISKUPICIt does. And, actually -- let me just make a couple points. One of Scalia's more colorful phrases -- one of Justice Scalia's more colorful phrases was when he accused the three-judge panel of "dressing-up policy judgments as factual findings." And Kent has a point about the composition of the three-judge panel. There was a Ninth Circuit Judge Steven Reinhardt who's very well known for his liberalism, who is part of this panel.

  • 10:33:33

    BISKUPICBut that's what makes this even more striking, that this panel and its findings were endorsed, upheld by this Supreme Court. This Supreme Court is not the Warren court. It's not even the Burger court. It's not even the Rehnquist court. This Supreme Court, with Justice Kennedy, is more conservative.

  • 10:33:51

    REHMJoan Biskupic, Supreme Court reporter for USA Today. And you're listening to "The Diane Rehm Show." I want to open the phones now. I know you, Joan, have to leave early, so let's try to get some calls in here. First to Terry in Concord, N.C. Good morning. You're on the air.

  • 10:34:19

    TERRYGood morning. I -- first of all, being a convicted felon myself and having experienced the overcrowding in prison, I have to tell you that it doesn't matter what state you're in. If you're in an overcrowded place, you're going to be genuinely denied medical care. Now, I was in for -- actually, I was fighting a drug addiction and unable to pay my child support in the Commonwealth of Kentucky. And their wisdom saw fit to give me two years in prison for not being able to pay child support.

  • 10:34:52

    TERRYI'm not saying they're right or they're wrong in that. But what got me out of prison was that the state legislature passed a law that eliminated $50 million from the prison budget annually. And the governor signed that into law, and, hence, there was a mass release of people like myself who were non-violent, non-sexual, non-drug offenders, who really shouldn't have been in prison to begin with.

  • 10:35:20

    TERRYAnd I just -- I take issue with the gentleman who said that the judges had a liberal agenda. I don't believe so. I believe that when there is inhumanity being done by the system that's supposed to be protecting the citizenry, it doesn't matter if they're being inhumane toward felons or the general citizenry, the law-abiding citizenry.

  • 10:35:47

    REHMAll right. Sir, thanks for calling. Kent Scheidegger.

  • 10:35:50

    SCHEIDEGGERWell, I think anybody who has litigated cases in California is well-aware of these three judges and well-aware that they do, indeed, have an agenda. And I think the outcome of the case, manipulating a health care case into a general prison population case speaks for itself.

  • 10:36:06

    REHMAll right. To Lenoir, N.C. Good morning, Gina. You're on the air.

  • 10:36:14

    GINAThank you, ma'am. Three very quick points. When they start releasing prisoners, I think, first, they need to start with the people who have been convicted on marijuana charges 'cause, let's face it, it's got some use. Two, if they got to release prisoners, do not release a single person who is convicted of a violent crime. And, to me, the bottom line is, once you cease to act like a human being, you give up your right to be treated like a human being.

  • 10:36:42

    GINASo if you murdered and raped and killed people, you're not a human being.

  • 10:36:46

    REHMI don't think there's any indication -- is there, Amy -- that anyone convicted of such a heinous crime would be eligible for release?

  • 10:36:58

    FETTIGAbsolutely not. The court opinion goes to great lengths to emphasize that the state is going to be the ultimate decider when it comes to who's going to be released. They have the discretion to reduce their population in a manner that they think is the best for public safety and for the management of their prisons.

  • 10:37:17

    REHMBut, Kent, I gather you're concerned that some violent offenders could be on the street.

  • 10:37:24

    SCHEIDEGGERWell, yeah, and the state is going to be the decider, but -- of who is going to be released. But the state must make those decisions under both a number cap and a time cap. And the state asserted to the court, and wasn't believed by them...

  • 10:37:39

    REHMAll right.

  • 10:37:39

    SCHEIDEGGER...that that could not be done consistently to public safety. And that's the problem.

  • 10:37:41

    REHMAll right. Short Break. We'll be right back.

  • 10:40:03

    REHMAnd we're back, talking about the recent Supreme Court decision in regard to California's prisons. We have an email from Danny in Tulsa, Okla., who says, "I was a corrections officer in California in '97 and '99, found myself supervising a housing unit alone with more than 520 inmates. It used to amaze me that one officer was expected to effectively police a single unit with so many inmates. And, truthfully, it was impossible." Amy.

  • 10:40:47

    FETTIGWell, I'm not surprised to hear this. In fact, the Correctional Officers Union of California filed an amicus brief in support of the prisoners in this case because the folks closest to what's happening on the ground in these prisons know that it's a public safety disaster for them, for the prisoners and, indeed, for the community.

  • 10:41:05

    REHMBut at the same time, here's another email from Mike here in Washington, D.C., who says, "What about the role of the Corrections Officers Union in keeping the three strikes law and opposing release and transfer?"

  • 10:41:24

    FETTIGWell, I would say, you know, sometimes positions are inconsistent. But in California, what the correctional officers union has learned is that the overcrowding is impacting their lives. It is putting them at danger and at risk. It's causing contagious diseases to run rife through the prison systems, that impact both the prisoners, the staff, as well as the community because these diseases come out. They come out to the correctional officers unions' families. No one is safe from this type of public safety disaster.

  • 10:41:57

    REHMAll right. Let's take a call from...

  • 10:41:59

    SCHEIDEGGERCould I just add for a second?

  • 10:42:00

    REHM...San Bernardino, Calif. Good morning, Andrea. You're on the air.

  • 10:42:06

    ANDREAGood morning. We need to address the revolving doors if we're going to lessen the prison population. I work for a group of nonprofits that are trying to address this. We've been working together for about six years and believe that a comprehensive community-based re-entry program is the way to go. These programs have to really address the individual needs of the folks, including case management, education, training, because these folks are going to come back, regardless.

  • 10:42:34

    GINAWe can't lock them away forever. So in order to stop them from going back, to not be in the same position we're in now, we need to really address their needs.

  • 10:42:43

    REHMKent Scheidegger.

  • 10:42:45

    SCHEIDEGGERWe do need to address re-entry issues and, as was mentioned earlier, the manner in which parole violation is handled is not the optimum way to do it. And that is a part of the solution, but it's not the whole solution.

  • 10:42:58

    REHMAll right.

  • 10:42:59

    SCHEIDEGGERIt's not going to get the numbers we need.

  • 10:43:01

    REHMTo Cincinnati, Ohio. Good morning, John. You're on the air. John.

  • 10:43:08

    JOHNHi, my name is John. I'm curious about what the outlook is on the entire point of, you know, like somebody already did comment. People commit terrible crimes, the violent ones. I don't know why we don't get to the root cause and figure out initially stopping these people from getting into the prison system and actually having penalties for committing these crimes.

  • 10:43:35

    PHILLIPSWell, we've been arguing about what root causes are for many, many decades, and there's still no consensus on that or what to do about it.

  • 10:43:44

    BISKUPICWell, and the other thing -- I just want to mention, that ties this caller to the previous woman who talked about some of the terrible things that people have done to get themselves into prison. Justice Kennedy said, when he was writing for the majority, that, as a consequence of their own actions, prisoners should be deprived of their right to liberty. That's why they're even in prison.

  • 10:44:02

    BISKUPICBut, once they get there, the law and the Constitution still demands recognition of other rights. And that's the right to be free of cruel and unusual punishment. That's the right to be fed, to have medical care, and those were the issues that came to a head here.

  • 10:44:15

    REHMBut I gather what you're saying, Kent, is that health care is what you see as the fundamental issue here and that people are getting adequate health care.

  • 10:44:32

    SCHEIDEGGERWell, health care is fundamental issue in this case, and those problems are being addressed. I wouldn't say the system is ideal at this point. No. I mean, there were some violations. Unfortunately, the three-judge panel refused to take evidence about the improvements that had been made in the years -- last couple of years. And that was one of the issues in the Supreme Court, and I think that the court went the wrong way on that issue.

  • 10:44:55

    REHMYou know, it was interesting. There was a photograph in the newspaper, the other day, of hundreds of inmates housed in a gymnasium...

  • 10:45:07


  • 10:45:09

    REHM...cheek by jowl, on cots.

  • 10:45:11

    SCHEIDEGGERThe -- yeah, the director of corrections' statement noted...

  • 10:45:14

    REHMGo ahead.

  • 10:45:15

    SCHEIDEGGER...those problems have largely been addressed, and there's been a great reduction in the number of that kind of housing.

  • 10:45:21

    BISKUPICBut the interesting thing here is that Justice Kennedy took the unusual action of including three pictures with his opinion, including one that showed these telephone booth-size dry cages, holding cells for people who were waiting for mental health unit bed, and then also two other pictures of just men piled on top of each other in these cots. So the pictures are quite compelling, and I think they added to the evidence that affected this court.

  • 10:45:48

    SCHEIDEGGERWell, that's a good reason to build a mental health facility.

  • 10:45:48

    REHMJoan Biskupic, she is Supreme Court reporter for USA Today. She has written biographies of Sandra Day O'Connor and Antonin Scalia. Thank you so much for joining us.

  • 10:46:02

    BISKUPICThank you, Diane.

  • 10:46:04

    REHMAnd, Amy, I know you want to comment.

  • 10:46:06

    FETTIGYeah, I just wanted to add that actually, in the majority opinion, the court notes that updated reports from the special master and the receiver who are monitoring the constitutional violations in California indicated that the situation was not improving. In fact, in some cases, it was getting worse since the three-court -- three-panel court made its decision. So we have no evidence that the situation in California has improved.

  • 10:46:35

    FETTIGAnd that's why the court really came down and said, look, enough is enough. The state needs to take measures to end the overcrowding 'cause otherwise we're never going to see a constitutional system in California.

  • 10:46:46

    REHMAll right. To Atlanta...

  • 10:46:47

    SCHEIDEGGERUpdated reports...

  • 10:46:48

    REHMGo ahead.

  • 10:46:50

    SCHEIDEGGERUpdated reports from the special master are not the same thing as allowing a party to the litigation to put on their evidence. To forbid a party to put on its evidence and then say we have no evidence is exactly the kind of shenanigans that we got from this three-judge panel, and that's the problem.

  • 10:47:04

    REHMAll right. To Keith in Atlanta, Ga. Good morning to you.

  • 10:47:11

    KEITHGood morning. My question is kind of pointed more directly at Kent. You know, I'm making some broad assumptions here that you're probably surely conservative. And my question would be, economically, how does it make sense for you to maintain your position when the State of California is severely challenged with just the sheer cost of housing some of these non-violent offenders? I mean, how does it make sense?

  • 10:47:38

    KEITHYou can't provide medical care for them. You obviously have to somewhat agree with that because it's not happening to what degree you can debate till the sky turns grey. But the bottom line is, economically, I'd like to understand the basis of your arguments for maintaining a system that can't afford itself.

  • 10:47:54

    SCHEIDEGGERWell, I wouldn't say it can't afford itself. I mean, the State of California does have problems financially. The Corrections Department is not as large a portion of the budget as is commonly believed. And we have made some changes, and we continue to make changes in the number of people and the kind of people we send to prison. But at a point, there is a cost if you keep them in prison and a greater cost if you let them go.

  • 10:48:18

    SCHEIDEGGERThe cost caused by people committing crimes is a terrible cost. It may not be borne by the government, but it's borne by people. And you can't just wash your hands of that and say, we're going to let them go and not care what they do and not care who they prey upon.

  • 10:48:34

    KEITHPersonal tax, a liability to afford some of this?

  • 10:48:38

    SCHEIDEGGERLiability, what do you mean?

  • 10:48:40

    KEITHWell, right now, let's just say you're in, I don't know, 20 percent tax bracket. Would you be willing to pay an extra 10 percent to maintain this level of corrections? Is that what you're asking people in California to do? Because, ultimately, somebody's got to pay for it, and I just want to know who you think should pay for it and how.

  • 10:48:59

    SCHEIDEGGERWell, there are other things we can do in government to make things more efficient. We can get rid of expensive government boondoggles. They're planning to build this high-speed rail system that's going to cost more than the whole corrections budget for years. We have employee unions that are basically paid off by the politicians to get lavish benefits. We could address that situation as they've done in Wisconsin and a couple other states. There are other things we can do in government.

  • 10:49:25

    REHMAll right. And here's an email from Keith in Cleveland, who says, "Over and over, we hear that America is exceptional and the greatest nation ever. But incarcerate our population at unprecedented rates in conditions that would make many Third World countries shudder." He goes on to say, "I applaud the Supreme Court ruling that at least begins to address this atrocious situation."

  • 10:50:01

    REHMAnd it would seem, in answer to our caller's question, that, perhaps, putting fewer people in prison for less violent crimes would be part of an answer, Amy.

  • 10:50:17

    FETTIGAbsolutely. And, indeed, the State of California found that if they lower their prison population by the amount that they are supposed to under this order, they're going to save half a billion dollars a year. That's really significant. And other states, indeed, have come to this recognition far sooner than California because the current system of locking up vast numbers of Americans, especially for non-violent crimes, is simply not sustainable.

  • 10:50:44

    REHMAll right. To Grand Rapids, Mich. Good morning, Don.

  • 10:50:50

    DON MOOREHello. My name is Don Moore. Thanks for bringing me on the show.

  • 10:50:54


  • 10:50:56

    MOOREI just want to ask your guests if they actually think there is a problem. And if they do, then how do you go about to rectify it? And any time -- any daytime court TV show that you watch, there are certain judges that sit there and make fun of and admit that rape is a form of a peer-to-peer punishment and beatings and things like that. And overcrowding can only hamper that type of behavior. So if there -- if they admit that there is a problem, how would they have gone about trying to repair?

  • 10:51:35

    REHMWell, I think you've just heard Kent Scheidegger say that he would reduce spending on other kinds of projects in California and elsewhere perhaps. Amy, what would you do?

  • 10:51:52

    FETTIGWell, I think there are a lot of things that can be done and are being done. California has started to make some changes, diverting people into drug treatment in the community rather than locking them up, reforming parole practices, reforming sentence practices. There's a lot going on across the state because they're in the financial crisis. States have recognized that they can no longer do business as usual.

  • 10:52:15

    REHMAll right.

  • 10:52:16

    FETTIGThe system just hasn't been working. And it can do better, and it must do better.

  • 10:52:20

    REHMAnd to Central Arizona. Good morning, Brian.

  • 10:52:24

    BRIANGood morning. I have just a few comments. I wanted to address Kent. Well, this idea that the three-judge panel in California has an agenda. I'd say, you know, all of our judges have agendas. I mean, it's pretty plain that the Supreme Court has an agenda, too. It was a good decision on the Supreme Court. It gave a little bit of the dignity, that I think humans deserve, back to the inmates. I'm a convicted felon myself.

  • 10:52:52

    BRIANYou know, I did something wrong, and I paid the price. I did it, you know, and it was just. You know, I stole something. I spent time in prison as a result of that. But I am not a throwaway person. You know, I have reformed myself. It wasn't the system that did it. I did it because I didn't want to be there anymore. These people are not throwaways. It's a callous attitude, I think, that other people have about prisons, or prisoners rather.

  • 10:53:14

    REHMBrian, thanks for your call. And congratulations on turning yourself around. You're listening to "The Diane Rehm Show." Amy?

  • 10:53:25

    FETTIGYeah, thank you for that call. I think that's absolutely right, that what the court did here is reaffirm that the Constitution applies everywhere in this country. This decision is really an affirmation of the rule of law in this country, that constitutional rights apply to each and every one of us. It is ultimately about the dignity of human beings, and that's what we've (word?) here.

  • 10:53:45

    REHMKent Scheidegger?

  • 10:53:46

    SCHEIDEGGERWell, nobody denies the Constitution and the law apply everywhere. But one of the laws is that courts can't release prisoners or order them released unless the overcrowding is the primary cause. And that law was not upheld and was not obeyed in this case. We have a case where a health care issue was exploited in order to release prisoners generally, which is not the primary cause of the violation. And I think that is not an obeying of the rule of law. It is a violation of the rule of law.

  • 10:54:13

    REHMKent, do we have any figures in terms of release of prison populations because of overcrowding? Do we have any stats on how these people, individually and as groups, behave?

  • 10:54:37

    SCHEIDEGGERWell, there are some figures in Justice Alito's dissent about the consequences of prior prisoner release orders about additional crimes being committed. And, of course, there are statistics on recidivism and the number of people who commit new crimes upon release. I mean, a lot of the parole violations are not technical. They are new crimes. And so whenever we release people, we know that there are going to be additional crimes committed.

  • 10:55:02

    SCHEIDEGGERYou know, I don't have numbers right at my fingertips. But some of those about...

  • 10:55:06

    REHMBut, I mean...

  • 10:55:07

    SCHEIDEGGER...the prior release are in Justice Alito's dissent.

  • 10:55:09

    REHMYeah, but, I mean, saying that we know that these people are going to commit new crimes...

  • 10:55:19

    SCHEIDEGGERWell, we don't know each individual person, but we do know that, of the group, a certain number will commit new crimes.

  • 10:55:25


  • 10:55:27

    FETTIGYou know, no one has a crystal ball. And the world is not 100 percent risk free, but we can do this smartly. California can do it smartly. Other states have done it smartly. Corrections has professionalized a great deal in the last 20 years. And I have confidence that the California system is going to be able to handle this. And I would actually point out the fact that the court's opinion doesn't require the state to release one prisoner.

  • 10:55:51

    FETTIGWhat it says is you have to reduce your overcrowding problem, and you can do it in any way you see fit. What California is now saying, Gov. Jerry Brown and the secretary of corrections, is, we, actually -- we don't need to release people. We're going to tackle this in another way. We're going to move some folks to county jails. Now, I hope that they're not going to play a constitutional shell game with that and just overcrowd the county jails.

  • 10:56:13

    FETTIGBut there are a lot of sentencing things that the state is not actually that concerned with releasing prisoners.

  • 10:56:19

    REHMKent Scheidegger, last word.

  • 10:56:21

    SCHEIDEGGERAlready over. Yeah, the county jails are already overcrowded. And, yes, Gov. Brown and the legislature have passed a bill already about shifting people to county jails. But that doesn't help you if there isn't any space in the jails. In most counties, the jails are already full with people that the judges have decided need to be there.

  • 10:56:38

    REHMAll right. We'll have to leave it there. Kent Scheidegger, the Criminal Justice Legal Foundation, and Amy Fettig, she's senior staff counsel for the American Civil Liberties Union. Thank you both so much.

  • 10:56:57

    FETTIGThank you.

  • 10:56:57

    REHMThanks for listening, all. I'm Diane Rehm.

  • 10:57:00

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Susan Nabors, Denise Couture, Monique Nazareth and Sarah Ashworth. The engineer is Tobey Schreiner. Dorie Anisman answers the phones. Visit for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our email address is And we're on Facebook and Twitter. This program comes to you from American University in Washington. This is NPR.

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