Now that the Supreme Court has given California the choice of shrinking its prison population drastically or making sufficient room for the prisoners it has, attention has naturally turned to how the financially strapped state will respond. But that focus shouldn’t obscure the remarkable nature of what the court did last week when it upheld a lower court’s order requiring California to reduce its prison population to no more than 137.5 percent of capacity within two years to cure overcrowding so severe that it amounts to cruel and unusual punishment.
Justice Kennedy’s opinion evokes the Supreme Court of the civil rights era.
Those were Justice Anthony M. Kennedy’s words in his majority opinion in the California case. I’ll repeat: remarkable.
By the time I began covering the court in the late 1970s, the sun was setting rapidly on the era of the “structural injunction,” the term for an order by which a court takes control of a public institution. (“[A] declaration that the judge will henceforth manage the reconstruction of an ongoing social institution,” is how Owen M. Fiss of Yale Law School defined it in a 1978 book, “The Civil Rights Injunction”).