Don't panic

On May 23, 2011, a slip opinion, Brown v. Plata, was unobtrusively released into the main artery of American law, but its effects will be anything but inconspicuous. It requires California to release 46,000 prisoners from its jails into the general population because some inmates, denied medical care because of overcrowding, were suffering "cruel and unusual" punishment, a violation of the Eighth Amendment.

Virginia is exceptional among states in that it does not face the daunting challenge of prison overpopulation, so this decision will not immediately affect Virginia prison capacity. And hey, it's a good three-day drive here from California, and it'll take a while for those convicted felons to find vehicles. We're safe enough . . . probably.

The Court's affirmation of federal judicial control over state prison systems, however, should concern Virginians―and residents of every other state.

The case has provoked much controversy and is likely to be radically misunderstood. Every state official and prison administrator should read this case carefully to determine what the Court said and did not say about the relationship between prison overcrowding and the Eight Amendment. No state, not even California, should find itself ordered to release prematurely three Army divisions worth of criminals (thank you Justice Alito for supplying the comparison).

Justice Kennedy wrote the 5-4 decision, and he made at least an attempt to contain its scope. The order to reduce prison population responded to a legitimate harm in the California penal system. All justices agree that deprivation of necessary medical care is a cruel and unusual punishment under the Eighth Amendment and there are several documented instances of California's inability to give essential medical and mental health care to select prisoners. In 2008 alone, there were about 66 preventable deaths in California prisons. This case indisputably involved Constitutional violations, so California was bound to get its hand slapped somehow.

The Court also did not order the release of the prisoners, but rather the reduction of prison population. California has the option of building new prisons, sending prisoners out of state, or sending low-security felons to county jails. Given the status of California's economy and the practicalities of prison-shuffling, however, the Court admitted that release was inevitable.

Finally, the Court refused to supply a bright line rule. It ordered reduction of certain California prisons to 137.5% of design capacity, but it clearly stated that this was not a definitive standard applicable to all prisons in the United States. Determinations of when overpopulation constitutes an Eighth Amendment violation must be made on a case-by-case basis. This particular percentage does not directly impact Virginia, whose recidivism rates are among the lowest in the country. Low recidivism combined with effective work release programs and accurate recordkeeping means Virginia prisons currently operate at or below capacity.

Despite Kennedy's efforts at modesty, however, this decision contains many alarming components, not least the fact that the court referred to its own decision as "unprecedented."

The first error is legal and is the one that should concern Virginia: the Court compromises the Constitution's Case or Controversy requirement as well as separation of powers principles. If one prisoner had objected to particular treatment and sued for relief, or if a class of prisoners, all equally affected by an unconstitutional treatment, had sued, then it would be entirely appropriate for a court to grant relief to the parties or the affected class.

But this decision grants relief to ALL prisoners in the overcrowded prisons on the theory that SOME of the prisoners received inadequate medical care. This kind of sweeping structural injunction requires extensive policy determinations, expertise, and extended administration that render courts functionally indistinguishable from legislators and executives.

In his dissent, Justice Alito focuses on a more practical error: the resultant harm to public safety. Releasing so many prisoners prematurely can only "lead to a grim roster of victims" as non-rehabilitated, undeterred criminals are given back their freedom.

We can all appreciate the problems facing California, and relief to particular prisoners who have had their Eighth Amendment rights violated is certainly warranted. But when asked for justice with the precision of scalpel, the Supreme Court issued it with the blunt force of a wrecking ball. The collateral damage to the safety of Californians, constitutional principles, and federalism is potentially massive. As Justice Alito writes, "I hope I am wrong. In a few years, we will see."

Holly Vradenburgh is a student at the University of Virginia School of Law.

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