This column by ACRU Senior Legal Analyst Ken Klukowski was published May 26, 2011 on The Washington Examiner website.

In a shocking and unprecedented move, the Supreme Court suddenly discovered that overcrowded prisons are unconstitutional. As a result, it has ordered up to 46,000 convicted felons released from California prisons.

Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), specifying ways for managing prison populations and leaving it to state officials on how to achieve acceptable results. PLRA states that prison overcrowding can possibly violate federal rights.

California has overcrowded prisons. Some prisoners allege that as a result prisoners experience delays in receiving medical care or mental health treatment. Several inmates filed a federal suit, arguing that these prison conditions violate their right to due process under the Fourteenth Amendment and are also cruel and unusual punishment in violation of the Eighth Amendment.

In Brown v. Plata, by a 5 to 4 vote, the Supreme Court shocked many observers by holding that California’s entire prison system violates the Eighth Amendment. The Court calculated that the prison population is 46,000 inmates beyond what the Constitution will allow, and so California must immediately build or find additional housing–or release–every extra inmate onto the streets.

California has dealt with 9,000 inmates during this appeal, leaving 37,000 incarcerated felons to be relocated or released. While many media outlets reported this decision with the routine tone of reporting the weather, the two dissenting opinions in this case accurately reflect the astonishing nature of Justice Anthony Kennedy’s opinion for the Court’s narrow majority.

Justice Samuel Alito, joined by Chief Justice John Roberts, dissented that the Court’s decree is what PLRA was enacted to prevent. “The Constitution does not give federal judges the authority to run state penal systems. Decisions regarding state prisons have profound public safety and financial implications, and the States are generally free to make these decisions as they choose.”

Justice Antonin Scalia, joined by Justice Clarence Thomas, began his dissent, “Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history…[T]he Court disregards stringently drawn provisions of [Congress’s law], and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.” In short, this decision “takes federal courts wildly beyond their institutional capacity.”

The absurdity here, Scalia notes, is that the Eighth Amendment would only be violated here if one of the plaintiffs suffered “torture or a lingering death.” By agreeing with the plaintiffs claim to represent all abused prisoners despite not personally having suffered unconstitutional treatment, the Court ignores the bedrock rule that class-action litigation only applies where every member of the class has personally suffered the same injury. (In this case, torture due to a denial of care.)

Scalia also notes that the majority urges California to make some improvements, and then ask the lower court for an extension on releasing all those felons. He sardonically observes that such an extension, “would achieve the benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the released inmates.” These inmates, he quips with a typical Scalia-ism, “will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.”

It’s likely that other states likewise exceed the Court’s novel discovery that a prison system becomes unconstitutional if it exceeds 137.5% of its designed capacity. Lawsuits in other states are almost inevitable, if not already commenced.

Tens of thousands of convicted felons could be coming to a neighborhood near you. How do you feel about letting your kids go outside tonight?