First, the Los Angeles Times' coverage says the court appears prepared to affirm the lower courts order to reduce California's prison numbers, and counting noses based on their comments, that's my takeaway as well. Justices Breyer, Ginsburg, Kagan, Sotomayor, and Kennedy all sounded as though they were inclined to uphold the order, or at least substantial portions of it.
California's recidivism rate is off the charts - 70% systemwide compared to about 28% in Texas. (I've discussed those disparities before, e.g., here and here). However, argued the plaintiff, "The 70 percent figure ... doesn't always include crimes. It includes lots of technical parole violators. People who have missed their appointments, for example. So it's not as grave as some of the figures that are informed by the other side." Ranked by risk category, the lowest risk offenders collectively had a 17% chance of recidivism, he said.
Also interesting to me: Even in resisting the court order, the state of California is not arguing for the status quo: They're claiming they need five years to reduce the prison population by 36,000 to 45,000, while the federal courts have given them two. That factbite was captured in this exchange, which made me chuckle:
JUSTICE KAGAN: Does the State stand by its representation that it can do this without any public safety impact in 5 years?Indeed, said the plaintiff's attorney, recently "the governor proposed to the legislature that he reduce the prison population. He said it could be done safely by the same amount, roughly 37,000 prisoners in 2 years. So what the court found was basically what the governor had believed was safe." The Democratic-controlled legislature quashed Schwarzenegger's Reaganesque reform plans, but I find it fascinating that there's more or less a consensus among the parties involved that California's prisons should hold about 40K fewer total inmates than they do right now; the debate is over how to get there and how long it should take. Justice Sotomayor said perhaps the state should be given more time for construction projects, but that two years wasn't unreasonable for implementation of various, identified policy changes that could be enacted immediately.
MR. PHILLIPS: Yes. I mean, we made that submission to the court and we -- we believe that we could comply with it. That said -
JUSTICE KAGAN: That means it's true.
Speaking of which, since I'm always looking at what other states are doing to reduce overincarceration pressures, I was interested to read the discussion of CA's new law increasing good-time credits for parole and reducing technical violations for probation and parole. (We have earned time in Texas but the parole board is regrettably free to disregard it, which they routinely do.) Justice Breyer listed other alternatives being suggested: "the technical parole violators go elsewhere. The elderly and infirm prisoners, some of them be released. The good time credits for older people were ... increased, and also, halfway houses and other kinds of prison facilities which used to be called less -- less physically restrictive punishments, or ... building new prisons. ... that seems to be the gamut."
If all sides agree California could reduce its prison population by 37,000 in 2-5 years without harming public safety, I see no reason why Texas, with a prison system about the same size and much lower recidivism rates, couldn't do the same thing. Doing so would let the state close, conservatively, 12 to 20 of its 112 prison units over the same period, saving hundreds of millions of dollars per year. Can you imagine?
I've gotta say, as a Texan reading this transcript, the same thought kept recurring: Thank God for the late Judge William Wayne Justice or Texas would be in the same mess or worse. TDCJ has its problems, but Judge Justice insisted the state address its most gaping flaws three decades ago, at a time when the state incarcerated around 30K inmates instead of 155K. Our system has plenty of shortcomings, but it's not as big a mess as California's.
MORE: See additional discussion at California Correctional Crisis, Sentencing Law & Policy, Crime and Consequences, the Prison Law Blog, Simple Justice, and a good backgrounder from KALW News describing how the state got to this point.