Criminal Defense: Not Just Another Prison Overcrowding Case

Andrew Cohen provides a great analysis of the U.S. Supreme Court's recent prison overcrowding case of Brown v. Plata, a case that may result in the release of 37,000 California prison inmates.

For those unfamiliar with prison overcrowding cases - they work like this: county jails and state prisons become overcrowded based on "tough on crime" legislation. Every so often a suit is filed and the feds order a reduction in the population. State and local governments figure out a way to release inmates while announcing that the biggest crime spree in history is about to occur. We all know of course that releasing a drug possessor 4 months early is a blight on society and will only cause murder and mayhem in the coming days.

Justice Scalia started the trumpeting of what's to come in his dissent, calling the ruling a "staggering and radical event in the annals of law."

Cohen rightly says that the ruling marks a nadir in America's persistently zealous efforts to imprison its citizens: We still lead the world in that category by far.

Cohen goes on to say that the opinion's author, Justice Kennedy finally (did) the dirty work that has long needed to be done; to hold accountable lawmakers and prison officials who have tarried for decades in providing state prisoners with a constitutionally acceptable level of care and living conditions.

With language that is surely to cause the Nancy Grace minions to say "so what," Justice Kennedy, in addition to noting the needless suffering and death, writes: As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three officers. As many as 54 may share a single toilet.

Cohen pulls no punches:

Here, at last, after decades of short-sighted policy, comes the butcher's bill for the war on drugs, the state's dubious three-strikes law, and the magnetizing political pull of victims' rights groups. And it was delivered to the Golden State by the only tribunal in America with the power and the authority to speak on behalf of the nation's last lobbyless constituency -- our nation's prisoners. If this decision is a "slap in the face" to the victims of crime, as so many overheated commentators were suggesting Monday afternoon, it is not a slap delivered by the inmates themselves or even the federal judiciary. Like so much else about modern governance, we see here instead the consequences of the gulf between political promise and budgetary reality; between our short attention spans (lock 'em up, throw away the key) and life's long journey (in or out of a cell).

The article is a step by step history lesson as to how we got here. As Cohen says: Much of the extraordinary growth in the prison and jail population is attributable to a dramatic increase in prosecution and imprisonment for drug offenses. From 1980 to 1997, the number of people incarcerated for drug offenses increased by 1,100 percent. Drug convictions alone account for more than 80 percent of the total increase in the federal prison population from 1985 to 1995. In 2008, four of five drug arrests were for possession, and only one in five was for distribution; fully half of all drug arrests were for marijuana offenses.

And by the way, Cohen notes: many of the inmates in California's prisons appear to receive less care and consideration than do the terror law detainees at Guantanamo Bay, Cuba.

Cohen ends with a reminder of what our justice system is supposed to be about: Monday was a good day for the timeless proposition that our rule of law can on occasion protect even the least popular among us.

Every once in a while, after stuffing the criminal justice system with as much unfunded criminal justice legislation as will get a legislator re-elected, the rule of law chimes in. We are only occasionally reminded that if we say we have the best justice system in the world - that we must actually have it. We can't afford the system we think we want, nor can we continue to ignore the mess we've created.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.