The Court’s decision amounts to an unfunded mandate since California prison administrators will have to come up with money they don’t have to carry out a command that will almost certainly cost lives.

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Like so much else that is wrong in California, the United States Supreme Court’s order to release up to 46,000 felons shows that there are real life consequences to saying yes to a good idea, and then failing to adequately fund it. 

Critics of Justice Anthony Kennedy’s majority opinion in Brown v. Plata are right to be outraged at the thought of so many hardened criminals being put back on the streets.  No one wants to live in a community teeming with felons released early for no reason other than overcrowding.   

To make matters worse, Kennedy’s opinion provides absolutely no money to enforce his order, nor does it give much guidance on how to conduct the release without risking further litigation.  In this regard, the Court’s decision amounts to an unfunded mandate since California prison administrators will have to come up with money they don’t have to carry out a command that will almost certainly cost lives. 

The fact that federal judges lack the power to appropriate money and write rules for such an operation should have cautioned Kennedy and his liberal court colleagues against finding violations of the Eighth Amendment’s cruel and unusual punishment clause.  Characteristically, such facts were unpersuasive. 

But the facts that were compelling to Kennedy and Co. included: 54 inmates sharing 1 toilet; a mentally ill prisoner standing for hours in a cage filled with his own urine; months-long waits for medical care that effectively denied treatment, and prisoners stacked sardine-like three to four bunk beds high on all available floor space. 

Tellingly, the lack of floor space is the key to understanding the entire problem. 

To get a handle on California’s prison problem, it is essential to understand the state’s unofficial policy motto: something for nothing.  As Nathan Gardels of the Think Long Committee for California told the Economist in an April special report, the Golden State has become “a diet coke civilization of consumer democracy, of services without taxes, like sweetness without calories, of rights without duties.” 

This is particularly true when it comes to paying for popular initiatives.   

In less than twenty years, California’s voters and inmates have asserted rights against one another, but neither has acknowledged a duty to pay for them. 

As with Kennedy’s dramatic release order, the state’s Three Strikes law was motivated by appalling facts.  Prior to passage as Proposition 184 in 1994, a series of high-profile murders were committed by career criminals.  Each of the murderers was an ex-felon that many argued should have been off the streets. 

In voting for Three Strikes, Californians made two decisions that drastically increased the state’s prison population.  The first was to double automatically the prison sentence of any “second striker;” i.e., a person convicted of any felony who was previously convicted of at least one serious or violent felony. 

The other policy change was to require 25-years-to-life-in-prison for any felony committed by a criminal with two or more prior convictions for serious or violent felonies.  (Charging previous felonies as strikes is left to the prosecutor’s discretion.) 

As of 2005, California’s parole had never granted an early release to a three-strikes prisoner. 

Those mandatory sentencing laws – and the politics of looking tough on crime – thus guaranteed a much larger prison population.  Though not every prisoner is a “striker,” this group’s mandatory time behind bars means that prison administrators are unable to control the ebb and flow of their populations. 

Unfortunately, neither the majority of Democrats in the state legislature nor voters when asked at the ballot box have been willing to spend the money necessary to adequately house California’s growing number of taxpayer-supported felons.  

Like much of California’s public policy, the state’s prison system is mandated to deliver a service without a specific source of funding.  The result has been a prison-population time bomb waiting for the worst possible moment to explode. 

It’s often said that bad facts create bad law.  With its decision to force the release of up to 46,000 felons back onto California’s streets, the United States Supreme Court is adding its name to the list of groups mandating unfunded policies based on horrible facts.