A win for dignity

Not that unusual

ANTHONY KENNEDY, appointed to the Supreme Court by Ronald Reagan and in effect its swing vote nowadays, has for years been speaking out against the inhumane conditions inside America's prisons. As a native of California, he has also taken an interest in that state's particularly horrendous prison overcrowding. In Los Angeles last year, he called it “sick” that the state's prison-guards union had sponsored a notorious ballot measure that, with other sentencing excesses, now keeps far too many Californians locked up.

So it was no surprise that Mr Kennedy wrote the majority opinion in a 5-4 decision by the court this week that orders California to reduce its prison overcrowding. Full capacity is defined as one inmate per cell, which in California currently means 80,000 prisoners. But California's prisons have at times housed twice as many, with inmates stacked in bunk beds in gymnasiums. At the moment, the prisons are about 175% full. The court order requires that ratio to go down to a slightly less egregious 137.5% within two years.

Overcrowding has meant not only more violence but woefully inadequate health and mental care, with more deaths and suicides. “When are you going to avoid or get around people sitting in their faeces for days in a dazed state?” Justice Sonia Sotomayor testily demanded of a lawyer representing California last November. Mr Kennedy, in his opinion this week, referred to an inmate who had been held “in a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic.”

Such conditions are, in Mr Kennedy's words, “incompatible with the concept of human dignity” and amount to unconstitutional “cruel and unusual punishment”. The four judges who are considered liberal agreed; the four conservatives did not. For Justice Samuel Alito, the case was a matter not of dignity but of public safety. The decision, he said, will force California to release “46,000 criminals—the equivalent of three army divisions”.

That is quite an exaggeration, and not only in numbers. First, the decision itself does not order releases. In theory, California could build new prisons or send inmates out of state to reduce the ratio to 137.5%. Given the state's budget crisis, that is admittedly unlikely. But California can also transfer inmates to county jails. As it happens, Jerry Brown, the governor, is trying to do that anyway, and is haggling over the details with local administrations.

More generally, many prisoners can indeed be released without any threat to public safety. What caused this overcrowding in the first place were the draconian sentencing laws that now unnecessarily keep huge numbers of entirely non-violent inmates behind bars: for smoking dope or writing bad cheques, say, or for missing parole appointments.

More puzzling yet was the tone of the other dissent, by Antonin Scalia. Calling the proceedings “a judicial travesty”, Mr Scalia wrote that the decision will benefit inmates who “will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.” That was the language of sarcasm, not dignity.