Earlier this week, Justices Antonin Scalia and Samuel Alito wrote scathing dissents to the 5-4 decision upholding an injunction that would force California to reduce its prison population because its overcrowded system violated Eight Amendment prohibitions against cruel and unusual punishment.
Both rulings contained some rather vivid imagery. Here's Scalia:
It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order--the 46,000 whose incarceration will be ended-- do not form part of any aggrieved class even under the Court's expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.
Here's Alito:
The three-judge court ordered the premature release of approximately 46,000 criminals—the equivalent of three Army divisions.
Tipped off by a blog post by Radley Balko, I looked into California's policies regarding weight-lifting and prison, and it turns out Scalia has been watching too much Oz. California banned weightlifting in prison in 1998. They weren't as worried about their unconstitutional prison overcrowding problem -- as Justice Anthony Kennedy noted in his majority opinion, California's prisons have been operating at nearly 200 percent capacity for more than a decade. Politicians had ample time to fix this problem and they didn't, because there was little incentive for them to respond to a voiceless constituency. The conservative dissenters would have ensured that this would be forever the case.
Moreover, while Alito's formulation allows that the actual number of prisoners to be released is not actually 46,000, owing to the fact that California has reduced the number of individuals incarcerated in state prisons by 13,000 already, Scalia seems utterly ignorant of that fact. Meanwhile both leave the impression that the response by the state of California will be to simply open the gates and indiscriminately release anyone who wants to leave until they've met the terms of the injunction. Then they'll form some kind of Spartacus-like militia, roaming the California countryside before pillaging Orange County.
What California officials have actually said is that the release of "some prisoners" remains a "possibility," while the goal will be to place inmates under some kind of correctional supervision. As Conor Friedersdorf notes, this seems like a golden opportunity to test the kind of innovations in criminal-justice policy that have shown a great deal of promise in reducing recidivism.
The hysterics from Scalia and Alito, however, reflect the degree to which the incarcerated have been dehumanized. As far as these two justices were concerned, the prisoners living in such conditions were barely human -- they were "fine physical specimens" to be counted as American military officers might attempt to discern the number of Taliban insurgents in an Afghan province. They are obviously in prison for a reason -- but the Constitution does not limit its protections to the virtuous.
There's been a lot of talk about the role of empathy in judging, with many asserting that empathy inevitably distorts a fair evaluation of the law. But with Scalia arguing that the court's role was to "bend every effort to read the law in such a way as to avoid that outrageous result," it's clear that lack of empathy doesn't necessarily reflect a dispassionate reading of it.
