It seems that California may not be able to reduce prison population levels to those required by the Ninth Circuit, as approved by the Supreme Court in Brown v. Plata.

California’s progress in relieving its teeming prisons has slowed so much that it probably won’t comply with a court-ordered population reduction, and judges have raised the prospect of letting some inmates out early.

Three federal jurists have given the state until Friday to come up with a schedule for identifying prisoners “unlikely to reoffend or who might otherwise be candidates for early release” and to detail other ways to hasten the emptying of double-bunked cells.

In the interim, the judges have ordered California to “take all steps necessary” to meet their existing deadline for population cuts.

In Plata, Justice Scalia chided Justice Kennedy’s majority opinion for its unrealistic expectations, but also for urging the court of appeals in advance to show flexibility in the event that California fails to meet the deadline.

I suspect, however, that this passage is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achievethe benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the releasedinmates. But it would achieve that at the expense of intellectual bankruptcy, as the Court’s “warning” is en- tirely alien to ordinary principles of appellate review of injunctions. When a party moves for modification of an injunction, the district court is entitled to rule on thatmotion first, subject to review for abuse of discretion if it declines to modify the order.
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So perhaps the coda is nothing more than a ceremonial washing of the hands—making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s responsibility. After all, did we not want, and indeed even suggest, something better?

Kennedy’s “coda,” urges the 9th Circuit to show all flexibility. Let’s see what the 9th does if California fails to meet its burden.