May 29, 2011

Posted in Constitutionality of Social Cost

The Constitutionality of Social Cost and the Release of Dangerous Prisoners.

A headline from today’s LA Times:

“California won’t have to free dangerous criminals to meet the Supreme Court’s mandate.”

This headline sums up what I view as the real fear animating the dissents in Brown v. Plata, and most constitutional law–people don’t want dangerous people bothering them. That, in Lockean terms, is one of the reasons why people leave the state of nature and delegate their executive power to the state: they want the state to protect them. This concern takes on a constitutional element in what I have dubbed the Constitutionality of Social Cost. Putting aside all normative claims of constitutional law–originalism, textualism, living constitutionalism, etc.–the balance between individual liberty and the needs of the state all boils down to one concern. If people think that some right or privilege will harm them, they do not want that right to be exercised unabridged. Key among these rights is the Second Amendment, but likewise, the right of the prisoners in California to be released neatly fits into this dynamic. In dissent, Scalia warned “terrible things are sure to happen as a consequence of this outrageous order.” Alito cautioned “Before putting public safety at risk, every reasonable precaution should be taken . . . I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong. In a few years, we will see.”

Now, we see the LA Times pushing back against this fear, to normalize and de-stigmatize the release of these prisoners (effectively the liberty interest). The Times writes:

But Californians shouldn’t panic. The state won’t have to throw open the prison doors to meet the court’s order if it embraces very modest sentencing reforms.

California could safely reduce its prison population by modestly reducing time served for low-risk offenders (something Gov. Pete Wilson tried successfully), by transferring low-risk inmates to county supervision (as happened under Govs. Edmund G. “Pat” Brown and Ronald Reagan) and by slightly reforming the parole system (something that was partially enacted by Gov. Arnold Schwarzenegger and continued by Gov. Jerry Brown).

It is worth noting that a number of states, including Texas, Florida, Illinois, New York, Michigan, Ohio and Washington, have reduced their prison populations over the last 25 years, and independent research has found that not one of these states experienced an increase in crime or recidivism following the reductions. In fact, if drug treatment and other reentry services were provided, the rate of repeat offenses often went down.

There are some very dangerous people in California prisons, but these are not the inmates who will be released early. There are also, however, thousands of low-risk offenders who are incarcerated for minor drug crimes, petty violations of parole rules and other nonviolent and nonsexual crimes. There are almost 50,000 inmates who now serve fewer than 90 days before they are released. California prisons also house more than 10,000 women, most of whom are no real threat to public safety and are often victims of violent crimes themselves.

Jammed prisons offer no chance for education, mental health or rehabilitation programs. And they can be breeding grounds for more violent crime and victimization. To make our community safer, we must invest in reentry programs to ease the transition from prison back to our neighborhoods. The court’s ruling, far from being a threat to public safety, is an opportunity to reform the broken California penal system, which could mean better outcomes for all of us.

Now that doesn’t seem too bad? Releasing low-risk offenders. Demagoguing that the prisons will release murderers and rapists, rather than two-bit criminals, helps to minimize any concerns liberty interests of those incarcerated in deplorable conditions, and stoke fears among the populace. Rather, releasing low-risk offenders, who may be better served outside of prison in some sort of rehab than in a prison, is much more societally palatable.

I would love to see similar pieces extolling the benefits of the Second Amendment, and showing that firearm restrictions will not yield many of the doomsday concerns demagogues routinely preach.

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