The Supreme Court has given the state of California two years to relieve chronic overcrowding in its prisons–a move that’s raising fears about returning criminals to the streets. But Gov. Jerry Brown has a plan to relocate some inmates to county jails. We’ll explore the effort to reduce the prison population without increasing crime.


  • Adam Liptak Reporter, The New York Times
  • David Fathi Director, ACLU's National Prison Project


  • 13:06:48

    MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, NPR Ombudsman Alicia Shepard joins us. She is in the final months of her three-year term.

  • 13:07:14

    MR. KOJO NNAMDIBut first, Justice Antonin Scalia called it perhaps the most radical injunction issued by a court in our nation's history. Yesterday, the Supreme Court ordered California to reduce its prison population by more than 30,000 inmates. Even with that reduction prisons in California will be operating well over their intended capacity. So, what next? We'll talk about Governor Jerry Brown's existing plan to move some inmates to county jails and whether the court ruling has any implications beyond the Eureka State.

  • 13:07:46

    MR. KOJO NNAMDIJoining us by telephone is Adam Liptak, the New York Times reporter covering the Supreme Court. Adam, thank you for joining us.

  • 13:07:52

    MR. ADAM LIPTAKHey Kojo.

  • 13:07:53

    NNAMDIAdam, the roots of this case date back to 1990. What were the conditions that led to the original lawsuits?

  • 13:08:00

    LIPTAKThere are two sets of lawsuits, one concerning medical conditions and the other concerning services for people with mental illnesses. And it is undisputed. The State concedes that they were delivering unconstitutional care, that people were dying as a consequence of the care that the prison system was delivering.

  • 13:08:20

    LIPTAKOne of the courts said that it was uncontested that somebody died needlessly every six or seven days. So there was absolutely no question that there were some real serious problems and problems that had been in place for decades in California's prison system.

  • 13:08:34

    NNAMDIMost people don't think the Supreme Court ruling will necessarily set a precedent for other states. Why is California's prison system so much more crowded than prisons in the rest of the country?

  • 13:08:45

    LIPTAKWell, California is, first of all, big and second of all, has a very tough on crime attitude particularly in regard to the three strikes laws. You know, those are the laws where you can commit three relatively minor crimes, the third one being something as small as a petty theft and find yourself in prison for life. So that will really pump up the numbers and it will also result in lots of older people being in prison who need medical care.

  • 13:09:15

    NNAMDIThat means there are quite a few people in prison who are there because of what in other jurisdictions might be considered relatively minor offences and non-violent offences. And people in California are worried therefore about the potential release of a large number of prisoners. Is that likely to happen?

  • 13:09:33

    LIPTAKWell, to hear the majority tell it, there is a threat to public safety that probably the various alternatives available, including building new prisons or shipping prisoners out of state or moving them to county facilities, won't take care of everybody who in the next two years the Supreme Court said needs to be taken care of in some fashion.

  • 13:09:57

    LIPTAKAnd that means some prisoners may well be released. On the other hand, it's perfectly plausible that you can be selective about whom to release. Maybe a quarter of the prisoners in California's prison system are not there for violent crime and have no record of violent crime. So being smart and selective and focusing on parole violations and things like that you might be able to get where you need to be releasing prisoners, but not prisoners who will be a significant threat to public safety.

  • 13:10:24

    NNAMDIWe're talking with New York Times reporter Adam Liptak about yesterday's Supreme Court ruling ordering California to reduce its prison population. Inviting your calls at 800-433-8850 or you can go to our website,

  • 13:10:39

    NNAMDIAdam, last month, California Governor Jerry Brown signed a law that would allow tens of thousands of felons convicted of non-violent crimes to serve their time in county jails, rather than state prisons. But the transfer program he envisions can't begin until the state finds funding. What impact is this Supreme Court ruling likely to have on Brown's transfer plan?

  • 13:11:02

    LIPTAKWell, it helps the governor. It allows the governor to say, listen, folks, we have no choice. The Supreme Court has told us we have to do something and of the available options, this is the most attractive one. So you would think that politically this might help him get the money he needs, but of course these are expensive things. The decision to put 150,000 people into prison in California, which, like the rest of the United States, has, by international standards, an exceptionally punitive prison system. It costs a lot of money.

  • 13:11:32

    NNAMDIHow do counties in California feel about Governor Brown's plan?

  • 13:11:37

    LIPTAKAccording to our California report today, some of them are receptive so long as the funding comes and some of them are wary. It probably depends on the space they have available.

  • 13:11:49

    NNAMDIEven after the reduction just mandated by the court is completed, California's prisons will still be overcrowded. What is being done to address the underlying problems?

  • 13:12:01

    LIPTAKPrecious little. California has for decades claimed that it was going to try to reduce prisons to their built capacity of about 80,000 people, but it's in dribs and drabs that it's pushed the number down. But it's a long, long way from where the planners of the prison systems thought it should be. And even the Supreme Court order, when finally implemented, only takes it to 110,000, which is still 137 percent of capacity. So it doesn't seem that this is going to be an ideal solution, but the Supreme Court thought the problems attended to having this many people in prison, were just too much to tolerate and violated the Constitution.

  • 13:12:43

    NNAMDIHas the state ever considered reconsidering the three strikes law?

  • 13:12:48

    LIPTAKIt comes up from time to time, but it's generally not good politics to be seen to be anything but tough on crime so it's very hard to persuade legislators to vote for anything that would leave them open to the accusation that they're being soft on crime.

  • 13:13:01

    NNAMDIAdam, thank you so much for joining us.

  • 13:13:03

    LIPTAKMy pleasure.

  • 13:13:04

    NNAMDIAdam Liptak is a New York Times reporter who covers the Supreme Court. Joining us now by telephone is David Fathi, director of the National Prison Project at the American Civil Liberties Union. David, thank you for joining us. David Fathi, can you hear me?

  • 13:13:18

    MR. DAVID FATHIYes, I can.

  • 13:13:19

    NNAMDIDavid, outside of California, are there pieces of this Supreme Court ruling that will have an impact on prison populations in other states?

  • 13:13:27

    FATHIWell, California really is a unique case. I'm not aware of any other state that has the kind of long-standing undisputed and lethal constitutional violations in its prisons. As Adam said, in one of these cases, a constitutional violation was found in 1995 and has persisted un-remedied for the intervening 16 years. So I don't think that we're going to see any opening of the floodgates. But that said, other states should certainly take this opportunity to take a hard look at their prison populations and implement the same kind of prudent, cost-effective measures that California is now implementing so that they can avoid becoming the next California.

  • 13:14:11

    NNAMDIThe court said California has to reduce its prison population by more than 30,000 inmates. Aside from Governor Brown's plan to transfer some inmates to county jails, what alternatives are available to the prison system?

  • 13:14:25

    FATHIWell, one obvious one is to reduce the number of technical parole violators who cycle back into the prison system. These are people who have been found to be safe to be released on parole. They're out in the community, but then they violate their parole, not by committing a new crime, but by missing an appointment with their parole officer or by failing a drug test, something of that nature.

  • 13:14:49

    FATHIRight now, those people are taken back into the prison system and that is a major driver of California's prison crowding crisis. If even some of those people were dealt with in the community rather than being automatically returned to prison, that would make a significant dent in the California population.

  • 13:15:07

    NNAMDIAnd to address the question that Adam raised earlier in terms of reconsidering three strikes, we live in a political culture where being seen as not being tough on crime for a lot of people is a major political vulnerability. So are there ways to reduce the nation's prison population in the long run by addressing the underlying trend toward incarceration?

  • 13:15:31

    FATHIWell, as Adam said, the United States is really an extreme outlier compared to all of its peer nations in its overuse of incarceration. We have the highest incarceration rate in the world, a rate that is five times higher than Great Britain, six times higher than Canada. And yes, the long-term solution is going to have to be a fundamental reconsidering of the extremely punitive nature of our prison system.

  • 13:15:59

    FATHIGovernor Brown's plan to shift prisoners from the state prison system to the counties will probably provide some short-term relief to the prison system, but absent sentencing reform, reforming three strikes as well as other sentencing practices in California, it's just moving the bulge and it doesn't amount to a permanent solution.

  • 13:16:21

    NNAMDIDavid Fathi, thank you for joining us.

  • 13:16:23

    FATHIMy pleasure.

  • 13:16:24

    NNAMDIDavid Fathi is director of the National Prison Project of the American Civil Liberties Union. We're going to take a short break. When we come back, we'll be talking with Alicia Shepard. She is the ombudsman for National Public Radio in the final months of her term in that position. I suspect you'll want to start calling early and often. 800-433-8850 or join that conversation at our website, I'm Kojo Nnamdi.

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