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Michael Gerson Mistakes a Law’s Purpose



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In his Washington Post column today, Michael Gerson comments on Monday’s Brown v. Plata ruling, in which a 5-4 Supreme Court affirmed a lower court’s order that California’s prison population be reduced by roughly 40,000.  One need not be a heartless beast about the plight of convicts in a badly overcrowded prison system to think that Gerson is too ready to let judges take on “systemic” problems of this kind.

And he gets one thing badly wrong.  Gerson writes:

Prison overcrowding exposes a democratic disability: Some states are unwilling to provide reasonable services to a group toward which the public is profoundly unsympathetic. So in 1996, Congress passed the Prison Litigation Reform Act, giving federal courts oversight over dysfunctional state systems. The law allows for caps on prison populations if there is no reasonable alternative.

He goes on to call the PLRA “an engraved invitation to judicial activism” that judges could “not refuse.”  Wrong twice over.  Acting under an expansive understanding of the Eighth Amendment (as “incorporated” to apply to states via the Fourteenth), coupled with a bloated modern notion of proper equitable remedies applicable in class action contexts, the federal courts were already deeply involved in administrative interference in the management of prisons long before PLRA was passed in 1995 (not 1996, as Gerson says).  After a federal judge set off a crime wave in Philadelphia with a prison-population cap in the early 1990s, Congress passed the Prison Litigation Reform Act in 1995 in order to restrain the penchant of some judges to engage in this kind of decision-making.  It did not “giv[e] federal courts oversight” over state prisons; they had already taken such oversight on themselves long before.  And it was not any kind of “invitation to judicial activism,” engraved or otherwise.  It was a response to judicial activism, an effort to rein it in.  And as Justice Alito wrote in his Plata dissent, Monday’s ruling is “a perfect example of what the [PLRA] was enacted to prevent.”  The lower court’s ruling swept beyond the certified classes of plaintiffs, and will result in the release of individuals whose own Eighth Amendment rights have never been litigated; it was not “narrowly drawn” as the statute required, and in fact arrived at the statewide prison-capacity limit quite arbitrarily; and it did not adequately take into account the fallout for public safety, again as the statute required.  Congress did not rule out prison-release orders by the federal courts, but it did not invite this kind of recklessness either.

The Plata ruling should prompt Congress to go back to the drawing board and think through how to legislate restraints on the judiciary that really work.  Meanwhile, if I were in the home-security business in California, I’d be hiring more people.



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