A few more details on the oral arguments for the benefit of our readers:
The State's case, presented by Carter Phillips, started with strong statements regarding the receiver, and how his appointment and deeds were remedy enough. Phillips caught much flak on this from Justices Ginsburg and Sotomayor, who pointed out that the receiver himself declared several times that his efforts at improvement would be futile without a decrease in population.
Justice Sotomayor left little doubt as to where she stood on the state's failure to provide care (and generated some rudeness from Justice Scalia):
JUSTICE SOTOMAYOR: So when are you going to get to that? When are you going to avoid the needless deaths that were reported in this record? When are you going to avoid or get around people sitting in their feces for days in a dazed state? When are you going to get to a point where you are going to deliver care that is going to be adequate?
JUSTICE SCALIA: Don't be rhetorical.
MR. PHILLIPS: I'll do my best. Thank you, your Honor.
Justice Kennedy, who as many commentators said is key in this case, seemed to accept the idea that overcrowding is the cause for the medical crisis.
JUSTICE KENNEDY: Overcrowding is the principal -- overcrowding is the principal cause, as experts have testified, and it's now time for a remedy. The Court can't -- has to at some point focus on the remedy, and that's what it did, and that it seems to me was a perfectly reasonable decision.
But I think it means that overcrowding must not be ordered unless that is the only efficacious remedy in -- in a permissible period of time. And it seems to me there is massive expert testimony to support that proposition on the part of the prisoners.
Justice Breyer also seemed to be sympathetic to the appellees, from a pragmatic standpoint:
I mean, I read the newspaper. It doesn't seem to me California has been voting a lot of money for new programs. The -- the -- what is it -- what is it specifically that would happen that would cure this problem were we to say -- I mean, a big human rights problem -- what would we say -- what would happen if we were to say, no, this panel's wrong? What would happen that would cure the problem?
Justice Kagan highlighted the main problems with judicial review - to some extent providing support for the original three-judge panel and its dedication:
JUSTICE KAGAN: Mr. Phillips, my trouble listening to you is that it seems as though you are asking us to re-find facts. You know, you have these judges who have been involved in these cases since the beginning, for 20 years in the Plata case, who thought we've done everything we can, the receiver has done everything he can; this just isn't going anywhere and it won't go anywhere until we can address this root cause of the problem. And that was the view of the judges who had been closest to the cases from the beginning and the view of the three-judge court generally. So how can we reach a result essentially without, you know, re-finding the facts that they have been dealing with for 20 years?
Phillips: there have been big developments, but the state itself limited discovery from 2008 onward.
Phillips also distinguished the medical from the mental health problems. The Coleman problem, as he stated, was worse; and he said,
if the Court were to conclude ultimately that Coleman ought to go back for another analysis based on the problems there, I could understand that. And it would be a very different prisoner release order under those circumstances because then you would have to take out all of the evidence with respect to Plata and let that play out.
Questions to Don Specter, arguing for the appellees, focused on the fact that the "cutoff date" was 2008 and things may have vastly improved since then, as well as on the percentage of reduction.
By contrast to Justice Kennedy, Justice Alito expressed his opinion that there was a disconnect between overcrowding and medical care.
You could have a prison where the -- the cells themselves are crowded, and yet there are other facilities available for medical care and plenty of staff to attend to those things. So what's the connection?
He then pressed Specter to reflect on the fact that the released inmates are not necessarily of the class that is arguably compromised. Specter explained that population reduction could be done by a variety of ways, conceding that transferring inmates out of state is one possible way. (not talking about overcrowding in itself as making the operations difficult).
Justice Roberts seemed to lean toward a 145% capacity solution and pressed
The other issue on which Specter had to answer questions had to do with the public safety angle. Note the Justices' shock at the California recidivism rates. They must truly be disconnected from the world they live in. I found this exchange particularly illuminating, and to be honest and personal, quite distressing.
JUSTICE ALITO: In general, what is the recidivism rate?
MR. SPECTER: Well, overall, the risk is around 70 percent, but for low-risk prisoners the risk is 17 percent who reviolate.
CHIEF JUSTICE ROBERTS: I'm sorry. I couldn't -- what was the first -
MR. SPECTER: The first number when you take all parolees, all together, it's 70 percent.
CHIEF JUSTICE ROBERTS: 7-0?
MR. SPECTER: 7-0, because -- within three years. That's what -- the situation we have now, and that's the situation that the governor, the secretary,and the court described as a failure. With parole reform you could reduce that number in many ways, and the Court described how you could do that. But the lowest -
JUSTICE ALITO: What is the lowest? It's 17 percent.
MR. SPECTER: 17 percent, and California has a risk assessment instrument which the Court found - which the Court found could be used to make sure that what happened in Philadelphia doesn't happen again. If I understand it -
JUSTICE ALITO: Well, I understood that of the low-risk -- if only the low-risk people are released, around 3,000 of them are going to commit another crime.
MR. SPECTER: They -- but they don't have to be released, first off. I want to make sure I emphasize the point that this is a crowding reduction measure. You don't have to release 30,000 prisoners.
JUSTICE ALITO: They don't have to be released if you can build enough cells -
MR. SPECTER: Or you can divert, or you can improve the parole system so that parole violators don't commit so many crimes. If you offer rehabilitation alternatives, if you provide a number of diversion into the community, there are a number of options short of releasing prisoners. And the 70 percent figure concludes -
JUSTICE ALITO: The 17 percent figure goes exactly to my concern. This is going to have -- it seems likely this is going to have an effect on public safety. And the experts can testify to whatever they want, but you know what? If this order goes into effect, we will see. We will see, and the people of California will see. Are there more crimes or are there not?
MR. SPECTER: Well, if it's based on the experience in other jurisdictions, the court found we wouldn't. And I wanted to say -- to clarify one point, Your Honor: The 70 percent figure includes -- 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.
In rebuttal, Justice Kagan pressured phillips on whether the state could safely reduce population within five years.
My impression, overall, is that many of the Justices already have their minds made up, and that the oral arguments might have done little beyond furnishing them with ammunition for writing the decision. The big mystery, as Rory pointed out yesterday, is whether Justice Kennedy, who seems to see the causal connection between overcrowding and abysmal health care, will also approve of the remedy.