The gist of what is going on is as follows:
In order to obtain a stay, the state has to show:
- a reasonable probability that four Justices will consider the issue sufficiently meritorious to . . . note probable jurisdiction;
- a fair prospect that a majority of the court will conclude that the decision below was erroneous; and
- a likelihood that "irreparable harm" will result from the denial of a stay.
- In close cases, the Court is called upon to do a balancing act of harms and interests.
The brief argues that these four conditions apply and require a stay in the Plata/Coleman case.
- The importance and drastic scope of the three-judge-panel's relief will probably merit jurisdiction. The Federal interference in this case is unprecedented and the injunctive relief is dramatic. Questions of law concerning the PLRA will be raised (see our previous post on this) as well as issues of federalism and judicial restraint.
- Overcrowding is not the "primary cause" for the constitutional violations; a myriad other factors that have to do with prison administration and personnel are also to blame. Even if overcrowding is the main factor in the violations, decrowding will not necessarily result in solving the problem (note that the State does not disagree that there are constitutional violations and the state is to blame! Also note that the gravity of the problem, and the fact that even overcrowding will not solve it, is offered as an argument on behalf of the State!). In addition (this, IMHO, is the strongest point in this brief), the court has not justified its decision to set the reduction level at 137.5%. There are also some procedural issues that might work on the State's behalf, such as the fact that no district court has ordered reduction.
- Obeying the order will create irreparable harm by diverting necessary resources to the decrowding plan (this is rather odd in light of the expected savings!) and by putting communities at risk;
- Finally, the brief argues, if this is a close case - which it isn't - then there's good reasons to weigh factors in favor of a stay. Since decrowding will probably take two years, there is less harm in waiting than there is in going ahead with the plan.
While it's difficult to be sympathetic to the State's arguments, especially in light of the fact that there is no argument about the ills and their reasons, two things stand out: first, the argument about the decrowding level is not bad and has not been addressed by the court in a tight enough way in the original decision. Second, SCOTUS may buy the argument that there is no harm in waiting. As to this second point, a plausible argument is that there is MUCH harm in waiting. In the meantime, more people are languishing without appropriate care and any time wasted is time during which unnecessary ailments and deaths may occur.
We'll be keeping a close watch on these proceedings and reporting on developments.