BROWN v. PLATA

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
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No. 09–1233

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EDMUND G. BROWN, JR., GOVERNOR OF CAL-

IFORNIA, ET AL., APPELLANTS v. MARCIANO

PLATA ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTS

FOR THE EASTERN DISTRICT AND THE NORTHERN

DISTRICT OF CALIFORNIA

[May 23, 2011]

JUSTICE KENNEDY delivered the opinion of the Court.

This case arises from serious constitutional violations in California’s prison system. The violations have persisted for years. They remain uncorrected. The appeal comes to this Court from a three-judge District Court order directing California to remedy two ongoing violations of the Cruel and Unusual Punishments Clause, a guarantee binding on the States by the Due Process Clause of the Fourteenth Amendment. The violations are the subject of two class actions in two Federal District Courts. The first involves the class of prisoners with serious mental disorders. That case is Coleman v. Brown. The second involves prisoners with serious medical conditions. That case is Plata v. Brown. The order of the three-judge District Court is applicable to both cases.

After years of litigation, it became apparent that a remedy for the constitutional violations would not be effective absent a reduction in the prison system population. The authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amendment is a power reserved to a three-judge district court, not a single-judge district court. 18 U. S. C. §3626(a). In accordance with that rule, the Coleman and Plata District Judges independently requested that a three-judge court be convened. The Chief Judge of the Court of Appeals for the Ninth Circuit convened a three-judge court composed of the Coleman and Plata District Judges and a third, Ninth Circuit Judge. Because the two cases are interrelated, their limited consolidation for this purpose has a certain utility in avoiding conflicting decrees and aiding judicial consideration and enforcement. The State in this Court has not objected to consolidation, although the State does argue that the three-judge court was prematurely convened. The State also objects to the substance of the three-judge court order, which requires the State to reduce overcrowding in its prisons.

The appeal presents the question whether the remedial order issued by the three-judge court is consistent with requirements and procedures set forth in a congressional statute, the Prison Litigation Reform Act of 1995 (PLRA). 18 U. S. C. §3626; see Appendix A, infra. The order leaves the choice of means to reduce overcrowding to the discretion of state officials. But absent compliance through new construction, out-of-state transfers, or other means—or modification of the order upon a further showing by the State—the State will be required to release some number of prisoners before their full sentences have been served. High recidivism rates must serve as a warning that mistaken or premature release of even one prisoner can cause injury and harm. The release of prisoners in large numbers—assuming the State finds no other way to comply with the order—is a matter of undoubted, grave concern.

At the time of trial, California’s correctional facilities held some 156,000 persons. This is nearly double the number that California’s prisons were designed to hold, and California has been ordered to reduce its prison population to 137.5% of design capacity. By the three-judge court’s own estimate, the required population reduction could be as high as 46,000 persons. Although the State has reduced the population by at least 9,000 persons during the pendency of this appeal, this means a further reduction of 37,000 persons could be required. As will be noted, the reduction need not be accomplished in an indiscriminate manner or in these substantial numbers if satisfactory, alternate remedies or means for compliance are devised. The State may employ measures, including good-time credits and diversion of low-risk offenders and technical parole violators to community-based programs, that will mitigate the order’s impact. The population reduction potentially required is nevertheless of unprecedented sweep and extent.

Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California’s prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners’ basic health needs. Needless suffering and death have been the welldocumented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California’s prison system. Short term gains in the provision of care have been eroded by the long-term effects of severe and pervasive overcrowding.

Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsanitary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the “primary cause of the violation of a Federal right,” 18 U. S. C. §3626(a)(3)(E)(i), specifically the severe and unlawful mistreatment of prisoners through grossly inadequate provision of medical and mental health care.

This Court now holds that the PLRA does authorize the relief afforded in this case and that the court-mandated population limit is necessary to remedy the violation of prisoners’ constitutional rights. The order of the threejudge court, subject to the right of the State to seek its modification in appropriate circumstances, must be affirmed.

I

A

The degree of overcrowding in California’s prisons is exceptional. California’s prisons are designed to house a population just under 80,000, but at the time of the threejudge court’s decision the population was almost double that. The State’s prisons had operated at around 200% of design capacity for at least 11 years. Prisoners are crammed into spaces neither designed nor intended to house inmates. As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correctional officers. App. 1337–1338, 1350; see Appendix B, infra. As many as 54 prisoners may share a single toilet. App. 1337.

The Corrections Independent Review Panel, a body appointed by the Governor and composed of correctional consultants and representatives from state agencies, concluded that California’s prisons are “ ‘severely overcrowded, imperiling the safety of both correctional employees and inmates.’ ”1 Juris. Statement App., O. T. 2009, No. 09–416, p. 56a (hereinafter Juris. App.). In 2006, then-Governor Schwarzenegger declared a state of emergency in the prisons, as “ ‘immediate action is necessary to prevent death and harm caused by California’s severe prison overcrowding.’ ” Id., at 61a. The consequences of overcrowding identified by the Governor include “ ‘increased, substantial risk for transmission of infectious illness’ ” and a suicide rate “ ‘approaching an average of one per week.’ ” Ibid.

Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. See Appendix C, infra. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had “ ‘no place to put him.’ ” App. 593. Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. Id., at 704. In 2006, the suicide rate in California’s prisons was nearly 80% higher than the national average for prison populations; and a courtappointed Special Master found that 72.1% of suicides involved “some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable.”2 Id., at 1781.

Prisoners suffering from physical illness also receive severely deficient care. California’s prisons were designed to meet the medical needs of a population at 100% of design capacity and so have only half the clinical space needed to treat the current population. Id., at 1024. A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment. Tr. 597–599. The number of staff is inadequate, and prisoners face significant delays in access to care. A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”3 California Prison Health Care Receivership Corp., K. Imai, Analysis of CDCR Death Reviews 2006, pp. 6–7 (Aug. 2007). Doctor Ronald Shansky, former medical director of the Illinois state prison system, surveyed death reviews for California prisoners. He concluded that extreme departures from the standard of care were “widespread,” Tr. 430, and that the proportion of “possibly preventable or preventable” deaths was “extremely high.” Id., at 429.4 Many more prisoners, suffering from severe but not life-threatening conditions, experience prolonged illness and unnecessary pain.

B

These conditions are the subject of two federal cases. The first to commence, Coleman v. Brown, was filed in 1990. Coleman involves the class of seriously mentally ill persons in California prisons. Over 15 years ago, in 1995, after a 39-day trial, the Coleman District Court found “overwhelming evidence of the systematic failure to deliver necessary care to mentally ill inmates” in California prisons. Coleman v. Wilson, 912 F. Supp. 1282, 1316 (ED Cal.). The prisons were “seriously and chronically understaffed,” id., at 1306, and had “no effective method for ensuring . . . the competence of their staff,” id., at 1308. The prisons had failed to implement necessary suicideprevention procedures, “due in large measure to the severe understaffing.” Id., at 1315. Mentally ill inmates “languished for months, or even years, without access to necessary care.” Id., at 1316. “They suffer from severe hallucinations, [and] they decompensate into catatonic states.” Ibid. The court appointed a Special Master to oversee development and implementation of a remedial plan of action.

In 2007, 12 years after his appointment, the Special Master in Coleman filed a report stating that, after years of slow improvement, the state of mental health care in California’s prisons was deteriorating. App. 489. The Special Master ascribed this change to increased overcrowding. The rise in population had led to greater demand for care, and existing programming space and staffing levels were inadequate to keep pace. Prisons had retained more mental health staff, but the “growth of the resource [had] not matched the rise in demand.” Id., at 482. At the very time the need for space was rising, the need to house the expanding population had also caused a “reduction of programming space now occupied by inmate bunks.” Id., at 479. The State was “facing a four to fiveyear gap in the availability of sufficient beds to meet the treatment needs of many inmates/patients.” Id., at 481. “[I]ncreasing numbers of truly psychotic inmate/patients are trapped in [lower levels of treatment] that cannot meet their needs.” Ibid. The Special Master concluded that many early “achievements have succumbed to the inexorably rising tide of population, leaving behind growing frustration and despair.” Id., at 489.

C

The second action, Plata v. Brown, involves the class of state prisoners with serious medical conditions. After this action commenced in 2001, the State conceded that deficiencies in prison medical care violated prisoners’ Eighth Amendment rights. The State stipulated to a remedial injunction. The State failed to comply with that injunction, and in 2005 the court appointed a Receiver to oversee remedial efforts. The court found that “the California prison medical care system is broken beyond repair,” resulting in an “unconscionable degree of suffering and death.” App. 917. The court found: “[I]t is an uncontested fact that, on average, an inmate in one of California’s prisons needlessly dies every six to seven days due to constitutional deficiencies in the [California prisons’] medical delivery system.” Ibid. And the court made findings regarding specific instances of neglect, including the following: “[A] San Quentin prisoner with hypertension, diabetes and renal failure was prescribed two different medications that actually served to exacerbate his renal failure. An optometrist noted the patient’s retinal bleeding due to very high blood pressure and referred him for immediate evaluation, but this evaluation never took place. It was not until a year later that the patient’s renal failure was recognized, at which point he was referred to a nephrologist on an urgent basis; he should have been seen by the specialist within 14 days but the consultation never happened and the patient died three months later.” Id., at 928 (citations omitted). Prisons were unable to retain sufficient numbers of competent medical staff, id., at 937, and would “hire any doctor who had ‘a license, a pulse and a pair of shoes,’ ” id., at 926. Medical facilities lacked “necessary medical equipment” and did “not meet basic sanitation standards.” Id., at 944. “Exam tables and counter tops, where prisoners with . . . communicable diseases are treated, [were] not routinely disinfected.” Ibid.

In 2008, three years after the District Court’s decision, the Receiver described continuing deficiencies in the health care provided by California prisons: “Timely access is not assured. The number of medical personnel has been inadequate, and competence has not been assured. . . . Adequate housing for the disabled and aged does not exist. The medical facilities, when they exist at all, are in an abysmal state of disrepair. Basic medical equipment is often not available or used. Medications and other treatment options are too often not available when needed. . . . Indeed, it is a misnomer to call the existing chaos a ‘medical delivery system’—it is more an act of desperation than a system.” Record in No. 3:01–CV–01351–TEH (ND Cal.), Doc. 1136, p. 5. A report by the Receiver detailed the impact of overcrowding on efforts to remedy the violation. The Receiver explained that “overcrowding, combined with staffing shortages, has created a culture of cynicism, fear, and despair which makes hiring and retaining competent clinicians extremely difficult.” App. 1031. “[O]vercrowding, and the resulting day to day operational chaos of the [prison system], creates regular ‘crisis’ situations which . . . take time [and] energy . . . away from important remedial programs.” Id., at 1035. Overcrowding had increased the incidence of infectious disease, id., at 1037–1038, and had led to rising prison violence and greater reliance by custodial staff on lockdowns, which “inhibit the delivery of medical care and increase the staffing necessary for such care.” Id., at 1037. “Every day,” the Receiver reported, “California prison wardens and health care managers make the difficult decision as to which of the class actions, Coleman . . . or Plata they will fail to comply with because of staff shortages and patient loads.” Id., at 1038.

D

The Coleman and Plata plaintiffs, believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, moved their respective District Courts to convene a threejudge court empowered under the PLRA to order reductions in the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. The State has not challenged the validity of the consolidation in proceedings before this Court, so its propriety is not presented by this appeal.

The three-judge court heard 14 days of testimony and issued a 184-page opinion, making extensive findings of fact. The court ordered California to reduce its prison population to 137.5% of the prisons’ design capacity within two years. Assuming the State does not increase capacity through new construction, the order requires a population reduction of 38,000 to 46,000 persons. Because it appears all but certain that the State cannot complete sufficient construction to comply fully with the order, the prison population will have to be reduced to at least some extent. The court did not order the State to achieve this reduction in any particular manner. Instead, the court ordered the State to formulate a plan for compliance and submit its plan for approval by the court.

The State appealed to this Court pursuant to 28 U. S. C. §1253, and the Court postponed consideration of the question of jurisdiction to the hearing on the merits. Schwarzenegger v. Plata, 560 U. S. ___ (2010).

II

As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. “ ‘The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.’ ” Atkins v. Virginia, 536 U. S. 304, 311 (2002) (quoting Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion)).

To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison’s failure to provide sustenance for inmates “may actually produce physical ‘torture or a lingering death.’ ” Estelle v. Gamble, 429 U. S. 97, 103 (1976) (quoting In re Kemmler, 136 U. S. 436, 447 (1890)); see generally A. Elsner, Gates of Injustice: The Crisis in America’s Prisons (2004). Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.

If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U. S. 678, 687, n. 9 (1978). Courts must be sensitive to the State’s interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals. See Bell v. Wolfish, 441 U. S. 520, 547–548 (1979). Courts nevertheless must not shrink from their obligation to “enforce the constitutional rights of all ‘persons,’ including prisoners.” Cruz v. Beto, 405 U. S. 319, 321 (1972) (per curiam). Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration.

Courts faced with the sensitive task of remedying unconstitutional prison conditions must consider a range of available options, including appointment of special masters or receivers and the possibility of consent decrees. When necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison’s population. By its terms, the PLRA restricts the circumstances in which a court may enter an order “that has the purpose or effect of reducing or limiting the prison population.” 18 U. S. C. §3626(g)(4). The order in this case does not necessarily require the State to release any prisoners. The State may comply by raising the design capacity of its prisons or by transferring prisoners to county facilities or facilities in other States. Because the order limits the prison population as a percentage of design capacity, it nonetheless has the “effect of reducing or limiting the prison population.” Ibid.

Under the PLRA, only a three-judge court may enter an order limiting a prison population. §3626(a)(3)(B). Before a three-judge court may be convened, a district court first must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. §3626(a)(3)(A). The party requesting a three-judge court must then submit “materials sufficient to demonstrate that [these requirements] have been met.” §3626(a)(3)(C). If the district court concludes that the materials are, in fact, sufficient, a three-judge court may be convened. Ibid.; see also 28 U. S. C. §2284(b)(1) (stating that a three-judge court may not be convened if the district court “determines that three judges are not required”); 17A C. Wright, A. Miller, E. Cooper, & V. Amar, Federal Practice and Procedure §4235 (3d ed. 2007).

The three-judge court must then find by clear and convincing evidence that “crowding is the primary cause of the violation of a Federal right” and that “no other relief will remedy the violation of the Federal right.” 18 U. S. C. §3626(a)(3)(E). As with any award of prospective relief under the PLRA, the relief “shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs.” §3626(a)(1)(A). The three-judge court must therefore find that the relief is “narrowly drawn, extends no further than necessary . . . , and is the least intrusive means necessary to correct the violation of the Federal right.” Ibid. In making this determination, the three-judge court must give “substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” Ibid. Applying these standards, the three-judge court found a population limit appropriate, necessary, and authorized in this case.

This Court’s review of the three-judge court’s legal determinations is de novo, but factual findings are reviewed for clear error. See Anderson v. Bessemer City, 470 U. S. 564, 573–574 (1985). Deference to trial court factfinding reflects an understanding that “[t]he trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Id., at 574. The three-judge court oversaw two weeks of trial and heard at considerable length from California prison officials, as well as experts in the field of correctional administration. The judges had the opportunity to ask relevant questions of those witnesses. Two of the judges had overseen the ongoing remedial efforts of the Receiver and Special Master. The three-judge court was well situated to make the difficult factual judgments necessary to fashion a remedy for this complex and intractable constitutional violation. The three-judge court’s findings of fact may be reversed only if this Court is left with a “ ‘definite and firm conviction that a mistake has been committed.’ ” Id., at 573 (quoting United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948)).

A

The State contends that it was error to convene the three-judge court without affording it more time to comply with the prior orders in Coleman and Plata.

1

The parties dispute this Court’s jurisdiction to review the determinations of the Coleman and Plata District Courts that a three-judge court should be convened. Plaintiffs claim the State was required to raise this issue first in the Court of Appeals by appealing the orders of the District Courts. When exercising jurisdiction under 28 U. S. C. §1253, however, this Court “has not hesitated to exercise jurisdiction ‘to determine the authority of the court below,’ ” including whether the three-judge court was properly constituted. Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 95, n. 12 (1974) (quoting Bailey v. Patterson, 369 U. S. 31, 34 (1962) (per curiam)); see also Gully v. Interstate Natural Gas Co., 292 U. S. 16, 18 (1934) (per curiam) (“The case is analogous to those in which this Court, finding that the court below has acted without jurisdiction, exercises its appellate jurisdiction to correct the improper action”). The merits of the decision to convene the three-judge court, therefore, are properly before this Court.

2

Before a three-judge court may be convened to consider whether to enter a population limit, the PLRA requires that the court have “previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied.” 18 U. S. C. §3626(a)(3)(A)(i). This provision refers to “an order.” It is satisfied if the court has entered one order, and this single order has “failed to remedy” the constitutional violation. The defendant must also have had “a reasonable amount of time to comply with the previous court orders.” §3626(a)(3)(A)(ii). This provision refers to the court’s “orders.” It requires that the defendant have been given a reasonable time to comply with all of the court’s orders. Together, these requirements ensure that the “ ‘last resort remedy’ ” of a population limit is not imposed “ ‘as a first step.’ ” Inmates of Occoquan v. Barry, 844 F. 2d 828, 843 (CADC 1988).

The first of these conditions, the previous order requirement of §3626(a)(3)(A)(i), was satisfied in Coleman by appointment of a Special Master in 1995, and it was satisfied in Plata by approval of a consent decree and stipulated injunction in 2002. Both orders were intended to remedy the constitutional violations. Both were given ample time to succeed. When the three-judge court was convened, 12 years had passed since the appointment of the Coleman Special Master, and 5 years had passed since the approval of the Plata consent decree. The State does not claim that either order achieved a remedy. Although the PLRA entitles a State to terminate remedial orders such as these after two years unless the district court finds that the relief “remains necessary to correct a current and ongoing violation of the Federal right,” §3626(b)(3), California has not attempted to obtain relief on this basis.

The State claims instead that the second condition, the reasonable time requirement of §3626(a)(3)(A)(ii), was not met because other, later remedial efforts should have been given more time to succeed. In 2006, the Coleman District Judge approved a revised plan of action calling for construction of new facilities, hiring of new staff, and implementation of new procedures. That same year, the Plata District Judge selected and appointed a Receiver to oversee the State’s ongoing remedial efforts. When the three-judge court was convened, the Receiver had filed a preliminary plan of action calling for new construction, hiring of additional staff, and other procedural reforms.

Although both the revised plan of action in Coleman and the appointment of the Receiver in Plata were new developments in the courts’ remedial efforts, the basic plan to solve the crisis through construction, hiring, and procedural reforms remained unchanged. These efforts had been ongoing for years; the failed consent decree in Plata had called for implementation of new procedures and hiring of additional staff; and the Coleman Special Master had issued over 70 orders directed at achieving a remedy through construction, hiring, and procedural reforms. The Coleman Special Master and Plata Receiver were unable to provide assurance that further, substantially similar efforts would yield success absent a population reduction. Instead, the Coleman Special Master explained that “many of the clinical advances . . . painfully accomplished over the past decade are slip-sliding away” as a result of overcrowding. App. 481–482. And the Plata Receiver indicated that, absent a reduction in overcrowding, a successful remedial effort could “all but bankrupt” the State of California. App. 1053.

Having engaged in remedial efforts for 5 years in Plata and 12 in Coleman, the District Courts were not required to wait to see whether their more recent efforts would yield equal disappointment. When a court attempts to remedy an entrenched constitutional violation through reform of a complex institution, such as this statewide prison system, it may be necessary in the ordinary course to issue multiple orders directing and adjusting ongoing remedial efforts. Each new order must be given a reasonable time to succeed, but reasonableness must be assessed in light of the entire history of the court’s remedial efforts. A contrary reading of the reasonable time requirement would in effect require district courts to impose a moratorium on new remedial orders before issuing a population limit. This unnecessary period of inaction would delay an eventual remedy and would prolong the courts’ involvement, serving neither the State nor the prisoners. Congress did not require this unreasonable result when it used the term “reasonable.”

The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy. Indeed, although 5 years have now passed since the appointment of the Plata Receiver and approval of the revised plan of action in Coleman, there is no indication that the constitutional violations have been cured. A report filed by the Coleman Special Master in July 2009 describes ongoing violations, including an “absence of timely access to appropriate levels of care at every point in the system.” App. 807. A report filed by the Plata Receiver in October 2010 likewise describes ongoing deficiencies in the provision of medical care and concludes that there are simply “too many prisoners for the healthcare infrastructure.” Id., at 1655. The Coleman and Plata courts acted reasonably when they convened a three-judge court without further delay.

B

Once a three-judge court has been convened, the court must find additional requirements satisfied before it may impose a population limit. The first of these requirements is that “crowding is the primary cause of the violation of a Federal right.” 18 U. S. C. §3626(a)(3)(E)(i).

1

The three-judge court found the primary cause requirement satisfied by the evidence at trial. The court found that overcrowding strains inadequate medical and mental health facilities; overburdens limited clinical and custodial staff; and creates violent, unsanitary, and chaotic conditions that contribute to the constitutional violations and frustrate efforts to fashion a remedy. The three-judge court also found that “until the problem of overcrowding is overcome it will be impossible to provide constitutionally compliant care to California’s prison population.” Juris. App. 141a.

The parties dispute the standard of review applicable to this determination. With respect to the three-judge court’s factual findings, this Court’s review is necessarily deferential. It is not this Court’s place to “duplicate the role” of the trial court. Anderson, 470 U. S., at 573. The ultimate issue of primary cause presents a mixed question of law and fact; but there, too, “the mix weighs heavily on the ‘fact’ side.” Lilly v. Virginia, 527 U. S. 116, 148 (1999) (Rehnquist, C. J., concurring in judgment). Because the “district court is ‘better positioned’ . . . to decide the issue,” our review of the three-judge court’s primary cause determination is deferential. Salve Regina College v. Russell, 499 U. S. 225, 233 (1991).

The record documents the severe impact of burgeoning demand on the provision of care. At the time of trial, vacancy rates for medical and mental health staff ranged as high as 20% for surgeons, 25% for physicians, 39% for nurse practitioners, and 54.1% for psychiatrists. Juris. App. 105a, 108a. These percentages are based on the number of positions budgeted by the State. Dr. Ronald Shansky, former medical director of the Illinois prison system, concluded that these numbers understate the severity of the crisis because the State has not budgeted sufficient staff to meet demand.5 According to Dr. Shansky, “even if the prisons were able to fill all of their vacant health care positions, which they have not been able to do to date, . . . the prisons would still be unable to handle the level of need given the current overcrowding.” Record in No. 2:90–CV–00520–LKK–JFM (ED Cal.), Doc. 3231–13, p. 16 (hereinafter Doc. 3231–13). Dr. Craig Haney, a professor of psychology, reported that mental health staff are “managing far larger caseloads than is appropriate or effective.” App. 596. A prison psychiatrist told Dr. Haney that “ ‘we are doing about 50% of what we should be doing.’ ” Ibid. In the context of physical care Dr. Shansky agreed that “demand for care, particularly for the high priority cases, continues to overwhelm the resources available.” Id., at 1408.

Even on the assumption that vacant positions could be filled, the evidence suggested there would be insufficient space for the necessary additional staff to perform their jobs. The Plata Receiver, in his report on overcrowding, concluded that even the “newest and most modern prisons” had been “designed with clinic space which is only one-half that necessary for the real-life capacity of the prisons.” App. 1023 (emphasis deleted). Dr. Haney reported that “[e]ach one of the facilities I toured was short of significant amounts of space needed to perform otherwise critical tasks and responsibilities.” Id., at 597–598. In one facility, staff cared for 7,525 prisoners in space designed for one-third as many. Juris. App. 93a. Staff operate out of converted storage rooms, closets, bathrooms, shower rooms, and visiting centers. These makeshift facilities impede the effective delivery of care and place the safety of medical professionals in jeopardy, compounding the difficulty of hiring additional staff.

This shortfall of resources relative to demand contributes to significant delays in treatment. Mentally ill prisoners are housed in administrative segregation while awaiting transfer to scarce mental health treatment beds for appropriate care. One correctional officer indicated that he had kept mentally ill prisoners in segregation for “ ‘6 months or more.’ ” App. 594. Other prisoners awaiting care are held in tiny, phone-booth sized cages. The record documents instances of prisoners committing suicide while awaiting treatment.6

Delays are no less severe in the context of physical care. Prisons have backlogs of up to 700 prisoners waiting to see a doctor. Doc. 3231–13, at 18. A review of referrals for urgent specialty care at one prison revealed that only 105 of 316 pending referrals had a scheduled appointment, and only 2 had an appointment scheduled to occur within 14 days. Id., at 22–23. Urgent specialty referrals at one prison had been pending for six months to a year. Id., at 27.

Crowding also creates unsafe and unsanitary living conditions that hamper effective delivery of medical and mental health care. A medical expert described living quarters in converted gymnasiums or dayrooms, where large numbers of prisoners may share just a few toilets and showers, as “ ‘breeding grounds for disease.’ ”7 Juris. App. 102a. Cramped conditions promote unrest and violence, making it difficult for prison officials to monitor and control the prison population. On any given day, prisoners in the general prison population may become ill, thus entering the plaintiff class; and overcrowding may prevent immediate medical attention necessary to avoid suffering, death, or spread of disease. After one prisoner was assaulted in a crowded gymnasium, prison staff did not even learn of the injury until the prisoner had been dead for several hours. Tr. 382. Living in crowded, unsafe, and unsanitary conditions can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Crowding may also impede efforts to improve delivery of care. Two prisoners committed suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could support a noose. The repair was not made because doing so would involve removing prisoners from the cells, and there was no place to put them. Id., at 769–777. More generally, Jeanne Woodford, the former acting secretary of California’s prisons, testified that there “ ‘are simply too many issues that arise from such a large number of prisoners,’ ” and that, as a result, “ ‘management spends virtually all of its time fighting fires instead of engaging in thoughtful decision-making and planning’ ” of the sort needed to fashion an effective remedy for these constitutional violations. Juris. App. 82a.

Increased violence also requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. In 2006, prison officials instituted 449 lockdowns. Id., at 116a. The average lockdown lasted 12 days, and 20 lockdowns lasted 60 days or longer. Ibid. During lockdowns, staff must either escort prisoners to medical facilities or bring medical staff to the prisoners. Either procedure puts additional strain on already overburdened medical and custodial staff. Some programming for the mentally ill even may be canceled altogether during lockdowns, and staff may be unable to supervise the delivery of psychotropic medications.

The effects of overcrowding are particularly acute in the prisons’ reception centers, intake areas that process 140,000 new or returning prisoners every year. Id., at 85a. Crowding in these areas runs as high as 300% of design capacity. Id., at 86a. Living conditions are “ ‘toxic,’ ” and a lack of treatment space impedes efforts to identify inmate medical or mental health needs and provide even rudimentary care. Id., at 92a. The former warden of San Quentin reported that doctors in that prison’s reception center “ ‘were unable to keep up with physicals or provid[e] any kind of chronic care follow-up.’ ” Id., at 90a. Inmates spend long periods of time in these areas awaiting transfer to the general population. Some prisoners are held in the reception centers for their entire period of incarceration.

Numerous experts testified that crowding is the primary cause of the constitutional violations. The former warden of San Quentin and former acting secretary of the California prisons concluded that crowding “makes it ‘virtually impossible for the organization to develop, much less implement, a plan to provide prisoners with adequate care.’ ” Id., at 83a. The former executive director of the Texas Department of Criminal Justice testified that “ ‘[e]verything revolves around overcrowding” and that “ ‘overcrowding is the primary cause of the medical and mental health care violations.’ ” Id., at 127a. The former head of corrections in Pennsylvania, Washington, and Maine testified that overcrowding is “ ‘overwhelming the system both in terms of sheer numbers, in terms of the space available, in terms of providing healthcare.’ ” Ibid. And the current secretary of the Pennsylvania Department of Corrections testified that “ ‘‘the biggest inhibiting factor right now in California being able to deliver appropriate mental health and medical care is the severe overcrowding.’ ” Id., at 82a.

2

The State attempts to undermine the substantial evidence presented at trial, and the three-judge court’s findings of fact, by complaining that the three-judge court did not allow it to present evidence of current prison conditions. This suggestion lacks a factual basis.

The three-judge court properly admitted evidence of current conditions as relevant to the issues before it. The three-judge court allowed discovery until a few months before trial; expert witnesses based their conclusions on recent observations of prison conditions; the court admitted recent reports on prison conditions by the Plata Receiver and Coleman Special Master; and both parties presented testimony related to current conditions, including understaffing, inadequate facilities, and unsanitary and unsafe living conditions. See supra, at 4–8, 19–24. Dr. Craig Haney, for example, based his expert report on tours of eight California prisons. App. 539. These tours occurred as late as August 2008, two weeks before Dr. Haney submitted his report and less than four months before the first day of trial. Id., at 585; see also id., at 563, 565, 580 (July tours). Other experts submitted reports based on similar observations. See, e.g., Doc. 3231–13, at 6 (Dr. Shansky); App. 646 (Dr. Stewart); id., at 1245 (Austin); id., at 1312 (Lehman).

The three-judge court’s opinion cited and relied on this evidence of current conditions. The court relied extensively on the expert witness reports. See generally Juris. App. 85a–143a. The court cited the most current data available on suicides and preventable deaths in the California prisons. Id., at 123a, 125a. The court relied on statistics on staff vacancies that dated to three months before trial, id., at 105a, 108a, and statistics on shortages of treatment beds for the same period, id., at 97a. These are just examples of the extensive evidence of current conditions that informed every aspect of the judgment of the three-judge court. The three-judge court did not abuse its discretion when it also cited findings made in earlier decisions of the Plata and Coleman District Courts. Those findings remained relevant to establish the nature of these longstanding, continuing constitutional violations.

It is true that the three-judge court established a cutoff date for discovery a few months before trial. The order stated that site inspections of prisons would be allowed until that date, and that evidence of “changed prison conditions” after that date would not be admitted. App. 1190. The court also excluded evidence not pertinent to the issue whether a population limit is appropriate under the PLRA, including evidence relevant solely to the existence of an ongoing constitutional violation. The court reasoned that its decision was limited to the issue of remedy and that the merits of the constitutional violation had already been determined. The three-judge court made clear that all such evidence would be considered “[t]o the extent that it illuminates questions that are properly before the court.” App. 2339.

Both rulings were within the sound discretion of the three-judge court. Orderly trial management may require discovery deadlines and a clean distinction between litigation of the merits and the remedy. The State in fact represented to the three-judge court that it would be “appropriate” to cut off discovery before trial because “like plaintiffs, we, too, are really gearing up and going into a pretrial mode.” Id., at 1683. And if the State truly believed there was no longer a violation, it could have argued to the Coleman and Plata District Courts that a threejudge court should not be convened because the District Courts’ prior orders had not “failed to remedy the deprivation” of prisoners’ constitutional rights. 18 U. S. C. §3626(a)(3)(A)(i); see also supra, at 16–17. Once the threejudge court was convened, that court was not required to reconsider the merits. Its role was solely to consider the propriety and necessity of a population limit.

The State does not point to any significant evidence that it was unable to present and that would have changed the outcome of the proceedings. To the contrary, the record and opinion make clear that the decision of the threejudge court was based on current evidence pertaining to ongoing constitutional violations.

3 The three-judge court acknowledged that the violations were caused by factors in addition to overcrowding and that reducing crowding in the prisons would not entirely cure the violations. This is consistent with the reports of the Coleman Special Master and Plata Receiver, both of whom concluded that even a significant reduction in the prison population would not remedy the violations absent continued efforts to train staff, improve facilities, and reform procedures. App. 487, 1054.8 The three-judge court nevertheless found that overcrowding was the primary cause in the sense of being the foremost cause of the violation.

This understanding of the primary cause requirement is consistent with the text of the PLRA. The State in fact concedes that it proposed this very definition of primary cause to the three-judge court. “Primary” is defined as “[f]irst or highest in rank, quality, or importance; principal.” American Heritage Dictionary 1393 (4th ed. 2000); see also Webster’s Third New International Dictionary 1800 (2002) (defining “primary” as “first in rank or importance”); 12 Oxford English Dictionary 472 (2d ed. 1989) (defining “primary” as “[o]f the first or highest rank or importance; that claims the first consideration; principal, chief ”). Overcrowding need only be the foremost, chief, or principal cause of the violation. If Congress had intended to require that crowding be the only cause, it would have said so, assuming in its judgment that definition would be consistent with constitutional limitations.

As this case illustrates, constitutional violations in conditions of confinement are rarely susceptible of simple or straightforward solutions. In addition to overcrowding the failure of California’s prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic administrative failures. The Plata District Judge, in his order appointing the Receiver, compared the problem to “ ‘a spider web, in which the tension of the various strands is determined by the relationship among all the parts of the web, so that if one pulls on a single strand, the tension of the entire web is redistributed in a new and complex pattern.’ ” App. 966–967 (quoting Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L. J. 635, 645 (1982)); see also Hutto, 437 U. S., at 688 (noting “the interdependence of the conditions producing the violation,” including overcrowding). Only a multifaceted approach aimed at many causes, including overcrowding, will yield a solution.

The PLRA should not be interpreted to place undue restrictions on the authority of federal courts to fashion practical remedies when confronted with complex and intractable constitutional violations. Congress limited the availability of limits on prison populations, but it did not forbid these measures altogether. See 18 U. S. C. §3626. The House Report accompanying the PLRA explained:

“While prison caps must be the remedy of last resort, a court still retains the power to order this remedy despite its intrusive nature and harmful consequences to the public if, but only if, it is truly necessary to prevent an actual violation of a prisoner’s federal rights.” H. R. Rep. No. 104–21, p. 25 (1995). Courts should presume that Congress was sensitive to the real-world problems faced by those who would remedy constitutional violations in the prisons and that Congress did not leave prisoners without a remedy for violations of their constitutional rights. A reading of the PLRA that would render population limits unavailable in practice would raise serious constitutional concerns. See, e.g., Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 681, n. 12 (1986). A finding that overcrowding is the “primary cause” of a violation is therefore permissible, despite the fact that additional steps will be required to remedy the violation.

C

The three-judge court was also required to find by clear and convincing evidence that “no other relief will remedy the violation of the Federal right.” §3626(a)(3)(E)(ii).

The State argues that the violation could have been remedied through a combination of new construction, transfers of prisoners out of State, hiring of medical personnel, and continued efforts by the Plata Receiver and Coleman Special Master. The order in fact permits the State to comply with the population limit by transferring prisoners to county facilities or facilities in other States, or by constructing new facilities to raise the prisons’ design capacity. And the three-judge court’s order does not bar the State from undertaking any other remedial efforts. If the State does find an adequate remedy other than a population limit, it may seek modification or termination of the three-judge court’s order on that basis. The evidence at trial, however, supports the three-judge court’s conclusion that an order limited to other remedies would not provide effective relief.

The State’s argument that out-of-state transfers provide a less restrictive alternative to a population limit must fail because requiring out-of-state transfers itself qualifies as a population limit under the PLRA.9 Such an order “has the purpose or effect of reducing or limiting the prison population, or . . . directs the release from or nonadmission of prisoners to a prison.” §3626(g)(4). The same is true of transfers to county facilities. Transfers provide a means to reduce the prison population in compliance with the three-judge court’s order. They are not a less restrictive alternative to that order.

Even if out-of-state transfers could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The State complains that the Coleman District Court slowed the rate of transfer by requiring inspections to assure that the receiving institutions were in compliance with the Eighth Amendment, but the State has made no effort to show that it has the resources and the capacity to transfer significantly larger numbers of prisoners absent that condition.

Construction of new facilities, in theory, could alleviate overcrowding, but the three-judge court found no realistic possibility that California would be able to build itself out of this crisis. At the time of the court’s decision the State had plans to build new medical and housing facilities, but funding for some plans had not been secured and funding for other plans had been delayed by the legislature for years. Particularly in light of California’s ongoing fiscal crisis, the three-judge court deemed “chimerical” any “remedy that requires significant additional spending by the state.” Juris. App. 151a. Events subsequent to the three-judge court’s decision have confirmed this conclusion. In October 2010, the State notified the Coleman District Court that a substantial component of its construction plans had been delayed indefinitely by the legislature. And even if planned construction were to be completed, the Plata Receiver found that many so-called “expansion” plans called for cramming more prisoners into existing prisons without expanding administrative and support facilities. Juris. App. 151a–152a. The former acting secretary of the California prisons explained that these plans would “ ‘compound the burdens imposed on prison administrators and line staff’ ’ ” by adding to the already overwhelming prison population, creating new barriers to achievement of a remedy. Id., at 152a.

The three-judge court also rejected additional hiring as a realistic means to achieve a remedy. The State for years had been unable to fill positions necessary for the adequate provision of medical and mental health care, and the three-judge court found no reason to expect a change. Although the State points to limited gains in staffing between 2007 and 2008, the record shows that the prison system remained chronically understaffed through trial in 2008. See supra, at 20. The three-judge court found that violence and other negative conditions caused by crowding made it difficult to hire and retain needed staff. The court also concluded that there would be insufficient space for additional staff to work even if adequate personnel could somehow be retained. Additional staff cannot help to remedy the violation if they have no space in which to see and treat patients.

The three-judge court also did not err, much less commit clear error, when it concluded that, absent a population reduction, continued efforts by the Receiver and Special Master would not achieve a remedy. Both the Receiver and the Special Master filed reports stating that overcrowding posed a significant barrier to their efforts. The Plata Receiver stated that he was determined to achieve a remedy even without a population reduction, but he warned that such an effort would “all but bankrupt” the State. App. 1053. The Coleman Special Master noted even more serious concerns, stating that previous remedial efforts had “succumbed to the inexorably rising tide of population.” App. 489. Both reports are persuasive evidence that, absent a reduction in overcrowding, any remedy might prove unattainable and would at the very least require vast expenditures of resources by the State. Nothing in the long history of the Coleman and Plata actions demonstrates any real possibility that the necessary resources would be made available.

The State claims that, even if each of these measures were unlikely to remedy the violation, they would succeed in doing so if combined together. Aside from asserting this proposition, the State offers no reason to believe it is so. Attempts to remedy the violations in Plata have been ongoing for 9 years. In Coleman, remedial efforts have been ongoing for 16. At one time, it may have been possible to hope that these violations would be cured without a reduction in overcrowding. A long history of failed remedial orders, together with substantial evidence of overcrowding’s deleterious effects on the provision of care, compels a different conclusion today.

The common thread connecting the State’s proposed remedial efforts is that they would require the State to expend large amounts of money absent a reduction in overcrowding. The Court cannot ignore the political and fiscal reality behind this case. California’s Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding. There is no reason to believe it will begin to do so now, when the State of California is facing an unprecedented budgetary shortfall. As noted above, the legislature recently failed to allocate funds for planned new construction. Supra, at 30–31. Without a reduction in overcrowding, there will be no efficacious remedy for the unconstitutional care of the sick and mentally ill in California’s prisons.

D

The PLRA states that no prospective relief shall issue with respect to prison conditions unless it is narrowly drawn, extends no further than necessary to correct the violation of a federal right, and is the least intrusive means necessary to correct the violation. 18 U. S. C. §3626(a). When determining whether these requirements are met, courts must “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system.” Ibid.

1

The three-judge court acknowledged that its order “is likely to affect inmates without medical conditions or serious mental illness.” Juris. App. 172a. This is because reducing California’s prison population will require reducing the number of prisoners outside the class through steps such as parole reform, sentencing reform, use of good-time credits, or other means to be determined by the State. Reducing overcrowding will also have positive effects beyond facilitating timely and adequate access to medical care, including reducing the incidence of prison violence and ameliorating unsafe living conditions. According to the State, these collateral consequences are evidence that the order sweeps more broadly than necessary.

The population limit imposed by the three-judge court does not fail narrow tailoring simply because it will have positive effects beyond the plaintiff class. Narrow tailoring requires a “ ‘ “fit” between the [remedy’s] ends and the means chosen to accomplish those ends.’ ” Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989). The scope of the remedy must be proportional to the scope of the violation, and the order must extend no further than necessary to remedy the violation. This Court has rejected remedial orders that unnecessarily reach out to improve prison conditions other than those that violate the Constitution. Lewis v. Casey, 518 U. S. 343, 357 (1996). But the precedents do not suggest that a narrow and otherwise proper remedy for a constitutional violation is invalid simply because it will have collateral effects.

Nor does anything in the text of the PLRA require that result. The PLRA states that a remedy shall extend no further than necessary to remedy the violation of the rights of a “particular plaintiff or plaintiffs.” 18 U. S. C. §3626(a)(1)(A). This means only that the scope of the order must be determined with reference to the constitutional violations established by the specific plaintiffs before the court.

This case is unlike cases where courts have impermissibly reached out to control the treatment of persons or institutions beyond the scope of the violation. See Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 420 (1977). Even prisoners with no present physical or mental illness may become afflicted, and all prisoners in California are at risk so long as the State continues to provide inadequate care. Prisoners in the general population will become sick, and will become members of the plaintiff classes, with routine frequency; and overcrowding may prevent the timely diagnosis and care necessary to provide effective treatment and to prevent further spread of disease. Relief targeted only at present members of the plaintiff classes may therefore fail to adequately protect future class members who will develop serious physical or mental illness. Prisoners who are not sick or mentally ill do not yet have a claim that they have been subjected to care that violates the Eighth Amendment, but in no sense are they remote bystanders in California’s medical care system. They are that system’s next potential victims.

A release order limited to prisoners within the plaintiff classes would, if anything, unduly limit the ability of State officials to determine which prisoners should be released. As the State acknowledges in its brief, “release of seriously mentally ill inmates [would be] likely to create special dangers because of their recidivism rates.” Consolidated Reply Brief for Appellants 34. The order of the threejudge court gives the State substantial flexibility to determine who should be released. If the State truly believes that a release order limited to sick and mentally ill inmates would be preferable to the order entered by the three-judge court, the State can move the three-judge court for modification of the order on that basis. The State has not requested this relief from this Court.

The order also is not overbroad because it encompasses the entire prison system, rather than separately assessing the need for a population limit at every institution. The Coleman court found a systemwide violation when it first afforded relief, and in Plata the State stipulated to systemwide relief when it conceded the existence of a violation. Both the Coleman Special Master and the Plata Receiver have filed numerous reports detailing systemwide deficiencies in medical and mental health care. California’s medical care program is run at a systemwide level, and resources are shared among the correctional facilities.

Although the three-judge court’s order addresses the entire California prison system, it affords the State flexibility to accommodate differences between institutions. There is no requirement that every facility comply with the 137.5% limit. Assuming no constitutional violation results, some facilities may retain populations in excess of the limit provided other facilities fall sufficiently below it so the system as a whole remains in compliance with the order. This will allow prison officials to shift prisoners to facilities that are better able to accommodate overcrowding, or out of facilities where retaining sufficient medical staff has been difficult. The alternative—a series of institution-specific population limits—would require federal judges to make these choices. Leaving this discretion to state officials does not make the order overbroad.

Nor is the order overbroad because it limits the State’s authority to run its prisons, as the State urges in its brief. While the order does in some respects shape or control the State’s authority in the realm of prison administration, it does so in a manner that leaves much to the State’s discretion. The State may choose how to allocate prisoners between institutions; it may choose whether to increase the prisons’ capacity through construction or reduce the population; and, if it does reduce the population, it may decide what steps to take to achieve the necessary reduction. The order’s limited scope is necessary to remedy a constitutional violation.

As the State implements the order of the three-judge court, time and experience may reveal targeted and effective remedies that will end the constitutional violations even without a significant decrease in the general prison population. The State will be free to move the three-judge court for modification of its order on that basis, and these motions would be entitled to serious consideration. See infra, at 45–48. At this time, the State has not proposed any realistic alternative to the order. The State’s desire to avoid a population limit, justified as according respect to state authority, creates a certain and unacceptable risk of continuing violations of the rights of sick and mentally ill prisoners, with the result that many more will die or needlessly suffer. The Constitution does not permit this wrong. 2

In reaching its decision, the three-judge court gave “substantial weight” to any potential adverse impact on public safety from its order. The court devoted nearly 10 days of trial to the issue of public safety, and it gave the question extensive attention in its opinion. Ultimately, the court concluded that it would be possible to reduce the prison population “in a manner that preserves public safety and the operation of the criminal justice system.” Juris. App. 247a–248a.

The PLRA’s requirement that a court give “substantial weight” to public safety does not require the court to certify that its order has no possible adverse impact on the public. A contrary reading would depart from the statute’s text by replacing the word “substantial” with “conclusive.” Whenever a court issues an order requiring the State to adjust its incarceration and criminal justice policy, there is a risk that the order will have some adverse impact on public safety in some sectors. This is particularly true when the order requires release of prisoners before their sentence has been served. Persons incarcerated for even one offense may have committed many other crimes prior to arrest and conviction, and some number can be expected to commit further crimes upon release. Yet the PLRA contemplates that courts will retain authority to issue orders necessary to remedy constitutional violations, including authority to issue population limits when necessary. See supra, at 28–29. A court is required to consider the public safety consequences of its order and to structure, and monitor, its ruling in a way that mitigates those consequences while still achieving an effective remedy of the constitutional violation.

This inquiry necessarily involves difficult predictive judgments regarding the likely effects of court orders. Although these judgments are normally made by state officials, they necessarily must be made by courts when those courts fashion injunctive relief to remedy serious constitutional violations in the prisons. These questions are difficult and sensitive, but they are factual questions and should be treated as such. Courts can, and should, rely on relevant and informed expert testimony when making factual findings. It was proper for the three-judge court to rely on the testimony of prison officials from California and other States. Those experts testified on the basis of empirical evidence and extensive experience in the field of prison administration.

The three-judge court credited substantial evidence that prison populations can be reduced in a manner that does not increase crime to a significant degree. Some evidence indicated that reducing overcrowding in California’s prisons could even improve public safety. Then-Governor Schwarzenegger, in his emergency proclamation on overcrowding, acknowledged that “ ‘overcrowding causes harm to people and property, leads to inmate unrest and misconduct, . . . and increases recidivism as shown within this state and in others.’ ” Juris. App. 191a–192a. The former warden of San Quentin and acting secretary of the California prison system testified that she “ ‘absolutely believe[s] that we make people worse, and that we are not meeting public safety by the way we treat people.’ ”10 Id., at 129a. And the head of Pennsylvania’s correctional system testified that measures to reduce prison population may “actually improve on public safety because they address the problems that brought people to jail.” Tr. 1552– 1553.

Expert witnesses produced statistical evidence that prison populations had been lowered without adversely affecting public safety in a number of jurisdictions, including certain counties in California, as well as Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida, and Canada. Juris. App. 245a.11 Washington’s former secretary of corrections testified that his State had implemented population reduction methods, including parole reform and expansion of good time credits, without any “deleterious effect on crime.” Tr. 2008–2009. In light of this evidence, the three-judge court concluded that any negative impact on public safety would be “substantially offset, and perhaps entirely eliminated, by the public safety benefits” of a reduction in overcrowding. Juris. App. 248a.

The court found that various available methods of reducing overcrowding would have little or no impact on public safety. Expansion of good-time credits would allow the State to give early release to only those prisoners who pose the least risk of reoffending. Diverting low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring would likewise lower the prison population without releasing violent convicts.12 The State now sends large numbers of persons to prison for violating a technical term or condition of their parole, and it could reduce the prison population by punishing technical parole violations through community-based programs. This last measure would be particularly beneficial as it would reduce crowding in the reception centers, which are especially hard hit by overcrowding. See supra, at 23–24. The court’s order took account of public safety concerns by giving the State substantial flexibility to select among these and other means of reducing overcrowding.

The State submitted a plan to reduce its prison population in accordance with the three-judge court’s order, and it complains that the three-judge court approved that plan without considering whether the specific measures contained within it would substantially threaten public safety. The three-judge court, however, left the choice of how best to comply with its population limit to state prison officials. The court was not required to secondguess the exercise of that discretion. Courts should presume that state officials are in a better position to gauge how best to preserve public safety and balance competing correctional and law enforcement concerns. The decision to leave details of implementation to the State’s discretion protected public safety by leaving sensitive policy decisions to responsible and competent state officials.

During the pendency of this appeal, the State in fact began to implement measures to reduce the prison population. See Supp. Brief for Appellants 1. These measures will shift “thousands” of prisoners from the state prisons to the county jails by “mak[ing] certain felonies punishable by imprisonment in county jail” and “requir[ing] that individuals returned to custody for violating their conditions of parole ‘serve any custody term in county jail.’ ” Ibid. These developments support the three-judge court’s conclusion that the prison population can be reduced in a manner calculated to avoid an undue negative effect on public safety.

III

Establishing the population at which the State could begin to provide constitutionally adequate medical and mental health care, and the appropriate time frame within which to achieve the necessary reduction, requires a degree of judgment. The inquiry involves uncertain predictions regarding the effects of population reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various population levels. Courts have substantial flexibility when making these judgments. “ ‘Once invoked, “the scope of a district court’s equitable powers . . . is broad, for breadth and flexibility are inherent in equitable remedies.” ’ ” Hutto, 437 U. S., at 687, n. 9 (quoting Milliken v. Bradley, 433 U. S. 267, 281 (1977), in turn quoting Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 15 (1971)).

Nevertheless, the PLRA requires a court to adopt a remedy that is “narrowly tailored” to the constitutional violation and that gives “substantial weight” to public safety. 18 U. S. C. §3626(a). When a court is imposing a population limit, this means the court must set the limit at the highest population consistent with an efficacious remedy. The court must also order the population reduction achieved in the shortest period of time reasonably consistent with public safety.

A

The three-judge court concluded that the population of California’s prisons should be capped at 137.5% of design capacity. This conclusion is supported by the record. Indeed, some evidence supported a limit as low as 100% of design capacity. The chief deputy secretary of Correctional Healthcare Services for the California prisons testified that California’s prisons “ ‘were not designed and made no provision for any expansion of medical care space beyond the initial 100% of capacity.’ ” Juris. App. 176a. Other evidence supported a limit as low as 130%. The head of the State’s Facilities Strike Team recommended reducing the population to 130% of design capacity as a long-term goal. Id., at 179a–180a. A former head of correctional systems in Washington State, Maine, and Pennsylvania testified that a 130% limit would “ ‘give prison officials and staff the ability to provide the necessary programs and services for California’s prisoners.’ ” Id., at 180a. A former executive director of the Texas prisons testified that a limit of 130% was “ ‘realistic and appropriate’ ” and would “ ‘ensure that [California’s] prisons are safe and provide legally required services.’ ” Ibid. And a former acting secretary of the California prisons agreed with a 130% limit with the caveat that a 130% limit might prove inadequate in some older facilities. Ibid. According to the State, this testimony expressed the witnesses’ policy preferences, rather than their views as to what would cure the constitutional violation. Of course, courts must not confuse professional standards with constitutional requirements. Rhodes v. Chapman, 452 U. S. 337, 348, n. 13 (1981). But expert opinion may be relevant when determining what is obtainable and what is acceptable in corrections philosophy. See supra, at 37–38. Nothing in the record indicates that the experts in this case imposed their own policy views or lost sight of the underlying violations. To the contrary, the witnesses testified that a 130% population limit would allow the State to remedy the constitutionally inadequate provision of medical and mental health care. When expert opinion is addressed to the question of how to remedy the relevant constitutional violations, as it was here, federal judges can give it considerable weight.

The Federal Bureau of Prisons (BOP) has set 130% as a long-term goal for population levels in the federal prison system. Brief for Appellants 43–44. The State suggests the expert witnesses impermissibly adopted this professional standard in their testimony. But courts are not required to disregard expert opinion solely because it adopts or accords with professional standards. Professional standards may be “helpful and relevant with respect to some questions.” Chapman, supra, at 348, n. 13. The witnesses testified that a limit of 130% was necessary to remedy the constitutional violations, not that it should be adopted because it is a BOP standard. If anything, the fact that the BOP views 130% as a manageable population density bolsters the three-judge court’s conclusion that a population limit of 130% would alleviate the pressures associated with overcrowding and allow the State to begin to provide constitutionally adequate care.

Although the three-judge court concluded that the “evidence in support of a 130% limit is strong,” it found that some upward adjustment was warranted in light of “the caution and restraint required by the PLRA.” Juris. App. 183a, 184a. The three-judge court noted evidence supporting a higher limit. In particular, the State’s Corrections Independent Review Panel had found that 145% was the maximum “operable capacity” of California’s prisons, id., at 181a–182a, although the relevance of that determination was undermined by the fact that the panel had not considered the need to provide constitutionally adequate medical and mental health care, as the State itself concedes. Brief for Coleman Appellees 45. After considering, but discounting, this evidence, the three-judge court concluded that the evidence supported a limit lower than 145%, but higher than 130%. It therefore imposed a limit of 137.5%.

This weighing of the evidence was not clearly erroneous. The adversary system afforded the court an opportunity to weigh and evaluate evidence presented by the parties. The plaintiffs’ evidentiary showing was intended to justify a limit of 130%, and the State made no attempt to show that any other number would allow for a remedy. There are also no scientific tools available to determine the precise population reduction necessary to remedy a constitutional violation of this sort. The three-judge court made the most precise determination it could in light of the record before it. The PLRA’s narrow tailoring requirement is satisfied so long as these equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. In light of substantial evidence supporting an even more drastic remedy, the three-judge court complied with the requirement of the PLRA in this case.

B

The three-judge court ordered the State to achieve this reduction within two years. At trial and closing argument before the three-judge court, the State did not argue that reductions should occur over a longer period of time. The State later submitted a plan for court approval that would achieve the required reduction within five years, and that would reduce the prison population to 151% of design capacity in two years. The State represented that this plan would “safely reach a population level of 137.5% over time.” App. to Juris. Statement 32a. The three-judge court rejected this plan because it did not comply with the deadline set by its order.

The State first had notice that it would be required to reduce its prison population in February 2009, when the three-judge court gave notice of its tentative ruling after trial. The 2-year deadline, however, will not begin to run until this Court issues its judgment. When that happens, the State will have already had over two years to begin complying with the order of the three-judge court. The State has used the time productively. At oral argument, the State indicated it had reduced its prison population by approximately 9,000 persons since the decision of the three-judge court. After oral argument, the State filed a supplemental brief indicating that it had begun to implement measures to shift “thousands” of additional prisoners to county facilities. Supp. Brief for Appellants at 1.

Particularly in light of the State’s failure to contest the issue at trial, the three-judge court did not err when it established a 2-year deadline for relief. Plaintiffs proposed a 2-year deadline, and the evidence at trial was intended to demonstrate the feasibility of a 2-year deadline. See Tr. 2979. Notably, the State has not asked this Court to extend the 2-year deadline at this time.

The three-judge court, however, retains the authority, and the responsibility, to make further amendments to the existing order or any modified decree it may enter as warranted by the exercise of its sound discretion. “The power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible.” New York State Assn. for Retarded Children, Inc. v. Carey, 706 F. 2d 956, 967 (CA2 1983) (Friendly, J.). A court that invokes equity’s power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order. Id., at 969–971. Experience may teach the necessity for modification or amendment of an earlier decree. To that end, the threejudge court must remain open to a showing or demonstration by either party that the injunction should be altered to ensure that the rights and interests of the parties are given all due and necessary protection.

Proper respect for the State and for its governmental processes require that the three-judge court exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans to correct the violations in a prompt and effective way consistent with public safety. In order to “give substantial weight to any adverse impact on public safety,” 18 U. S. C. §3626(a)(1)(A), the three-judge court must give due deference to informed opinions as to what public safety requires, including the considered determinations of state officials regarding the time in which a reduction in the prison population can be achieved consistent with public safety. An extension of time may allow the State to consider changing political, economic, and other circumstances and to take advantage of opportunities for more effective remedies that arise as the Special Master, the Receiver, the prison system, and the three-judge court itself evaluate the progress being made to correct unconstitutional conditions. At the same time, both the three-judge court and state officials must bear in mind the need for a timely and efficacious remedy for the ongoing violation of prisoners’ constitutional rights.

The State may wish to move for modification of the three-judge court’s order to extend the deadline for the required reduction to five years from the entry of the judgment of this Court, the deadline proposed in the State’s first population reduction plan. The three-judge court may grant such a request provided that the State satisfies necessary and appropriate preconditions designed to ensure that measures are taken to implement the plan without undue delay. Appropriate preconditions may include a requirement that the State demonstrate that it has the authority and the resources necessary to achieve the required reduction within a 5-year period and to meet reasonable interim directives for population reduction. The three-judge court may also condition an extension of time on the State’s ability to meet interim benchmarks for improvement in provision of medical and mental health care.

The three-judge court, in its discretion, may also consider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release. Even with an extension of time to construct new facilities and implement other reforms, it may become necessary to release prisoners to comply with the court’s order. To do so safely, the State should devise systems to select those prisoners least likely to jeopardize public safety. An extension of time may provide the State a greater opportunity to refine and elaborate those systems.

The State has already made significant progress toward reducing its prison population, including reforms that will result in shifting “thousands” of prisoners to county jails. See Supp. Brief for Appellants at 1. As the State makes further progress, the three-judge court should evaluate whether its order remains appropriate. If significant progress is made toward remedying the underlying constitutional violations, that progress may demonstrate that further population reductions are not necessary or are less urgent than previously believed. Were the State to make this showing, the three-judge court in the exercise of its discretion could consider whether it is appropriate to extend or modify this timeline.

Experience with the three-judge court’s order may also lead the State to suggest other modifications. The threejudge court should give any such requests serious consideration. The three-judge court should also formulate its orders to allow the State and its officials the authority necessary to address contingencies that may arise during the remedial process.

These observations reflect the fact that the three-judge court’s order, like all continuing equitable decrees, must remain open to appropriate modification. They are not intended to cast doubt on the validity of the basic premise of the existing order. The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding. The relief ordered by the three-judge court is required by the Constitution and was authorized by Congress in the PLRA. The State shall implement the order without further delay.

The judgment of the three-judge court is affirmed. It is so ordered. APPENDIXES A 18 U. S. C. §3626: “(a) REQUIREMENTS FOR RELIEF.

“(1) PROSPECTIVE RELIEF.—(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.

. . . . .

“(3) PRISONER RELEASE ORDER.—(A) In any civil action with respect to prison conditions, no court shall enter a prisoner release order unless—

“(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and

“(ii) the defendant has had a reasonable amount of time to comply with the previous court orders.

“(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met.

“(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request for a three-judge court and materials sufficient to demonstrate that the requirements of subparagraph (A) have been met.

“(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered.

“(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that—

“(i) crowding is the primary cause of the violation of a Federal right; and

“(ii) no other relief will remedy the violation of the Federal right.

“(F) Any State or local official including a legislator or unit of government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of prison facilities, or the prosecution or custody of persons who may be released from, or not admitted to, a prison as a result of a prisoner release order shall have standing to oppose the imposition or continuation in effect of such relief and to seek termination of such relief, and shall have the right to intervene in any proceeding relating to such relief.

. . . . (g) DEFINITIONS.—As used in this section

. . . . .

“(4) the term “prisoner release order” includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison . . . .” . B Mule Creek State Prison Aug. 1, 2008 California Institution for Men Aug. 7, 2006 C Salinas Valley State Prison July 29, 2008 Correctional Treatment Center (dry cages/holding cells for people waiting for mental health crisis bed)

1 A similar conclusion was reached by the Little Hoover Commission, a bipartisan and independent state body, which stated that “[o]vercrowded conditions inside the prison walls are unsafe for inmates and staff,” Solving California’s Corrections Crisis: Time is Running Out 17 (Jan. 2007), and that “California’s correctional system is in a tailspin,” id., at i. At trial, current and former California prison officials also testified to the degree of overcrowding. Jeanne Woodford, who recently administered California’s prison system, stated that “ ‘[o]vercrowding in the [California Department of Corrections and Rehabilitation (CDCR)] is extreme, its effects are pervasive and it is preventing the Department from providing adequate mental and medical health care to prisoners.’ ” Juris. App. 84a. Matthew Cate, the head of the California prison system, stated that “ ‘overpopulation makes everything we do more difficult.’ ” Ibid. And Robin Dezember, chief deputy secretary of Correctional Healthcare Services, stated that “we are terribly overcrowded in our prison system” and “overcrowding has negative effects on everybody in the prison system.” Tr. 853, 856. Experts from outside California offered similar assessments. Doyle Wayne Scott, the former head of corrections in Texas, described conditions in California’s prisons as “appalling,” “inhumane,” and “unacceptable” and stated that “[i]n more than 35 years of prison work experience, I have never seen anything like it.” App. 1337. Joseph Lehman, the former head of correctional systems in Washington, Maine, and Pennsylvania, concluded that “[t]here is no question that California’s prisons are overcrowded” and that “this is an emergency situation; it calls for drastic and immediate action.” Id., at 1312.

2 At the time of the three-judge court’s decision, 2006 was the most recent year for which the Special Master had conducted a detailed study of suicides in the California prisons. The Special Master later issued an analysis for the year 2007. This report concluded that the 2007 suicide rate was “a continuation of the CDCR’s pattern of exceeding the national prison suicide rate.” Record in No. 2:90–CV–00520– LKK–JFM (ED/ND Cal.), Doc. 3677, p. 1. The report found that the rate of suicides involving inadequate assessment, treatment, or intervention had risen to 82% and concluded that “[t]hese numbers clearly indicate no improvement in this area during the past several years, and possibly signal a trend of ongoing deterioration.” Id., at 12. No detailed study has been filed since then, but in September 2010 the Special Master filed a report stating that “the data for 2010 so far is not showing improvement in suicide prevention.” App. 868.

3 Because plaintiffs do not base their case on deficiencies in care provided on any one occasion, this Court has no occasion to consider whether these instances of delay—or any other particular deficiency in medical care complained of by the plaintiffs—would violate the Constitution under Estelle v. Gamble, 429 U. S. 97, 104–105 (1976), if considered in isolation. Plaintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to “substantial risk of serious harm” and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society. Farmer v. Brennan, 511 U. S. 825, 834 (1994).

4 In 2007, the last year for which the three-judge court had available statistics, an analysis of deaths in California’s prisons found 68 preventable or possibly preventable deaths. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2007 Death Reviews 18 (Nov. 2008). This was essentially unchanged from 2006, when an analysis found 66 preventable or possibly preventable deaths. Ibid. These statistics mean that, during 2006 and 2007, a preventable or possibly preventable death occurred once every five to six days. Both preventable and possibly preventable deaths involve major lapses in medical care and are a serious cause for concern. In one typical case classified as a possibly preventable death, an analysis revealed the following lapses: “16 month delay in evaluating abnormal liver mass; 8 month delay in receiving regular chemotherapy . . . ; multiple providers fail to respond to jaundice and abnormal liver function tests causing 17 month delay in diagnosis.” California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2009 Inmate Death Reviews—California Prison Health Care System 12 (Sept. 2010) (hereinafter 2009 Death Reviews). The three-judge court did not have access to statistics for 2008, but in that year the number of preventable or possibly preventable deaths held steady at 66. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2008 Death Reviews 9 (Dec. 2009). In 2009, the number of preventable or possibly preventable deaths dropped to 46. 2009 Death Reviews 11, 13. The three-judge court could not have anticipated this development, and it would be inappropriate for this Court to evaluate its significance for the first time on appeal. The three-judge court should, of course, consider this and any other evidence of improved conditions when considering future requests by the State for modification of its order. See infra, at 45–48.

5 Dr. Craig Haney likewise testified that the State had “significantly underestimated the staffing needed to implement critical portions of the Coleman Program Guide requirements,” that “key tasks were omitted when determining staffing workloads,” and that estimates were based on “key assumptions” that caused the State to underestimate demand for mental health care. App. 596–597.

6 For instance, Dr. Pablo Stewart reported that one prisoner was referred to a crisis bed but, “[a]fter learning that the restraint room was not available and that there were no crisis beds open, staff moved [the prisoner] back to his administrative segregation cell without any prescribed observation.” App. 736. The prisoner “hanged himself that night in his cell.” Ibid.; see also Juris. App. 99a.

7 Correctional officials at trial described several outbreaks of disease. One officer testified that antibiotic-resistant staph infections spread widely among the prison population and described prisoners “bleeding, oozing with pus that is soaking through their clothes when they come in to get the wound covered and treated.” Tr. 601, 604–605. Another witness testified that inmates with influenza were sent back from the infirmary due to a lack of beds and that the disease quickly spread to “more than half ” the 340 prisoners in the housing unit, with the result that the unit was placed on lockdown for a week. Id., at 720–721.

8 The Plata Receiver concluded that those who believed a population reduction would be a panacea were “simply wrong.” App. 1054–1055. The Receiver nevertheless made clear that “the time this process will take, and the cost and the scope of intrusion by the Federal Court cannot help but increase, and increase in a very significant manner, if the scope and characteristics of [California prison] overcrowding continue.” Id., at 1053. The Coleman Special Master likewise found that a large release of prisoners, without other relief, would leave the violation “largely unmitigated” even though deficiencies in care “are unquestionably exacerbated by overcrowding” and “defendants’ ability to provide required mental health services would be enhanced considerably by a reduction in the overall census” of the prisons. App. 486– 487.

9 A program of voluntary transfers by the State would, of course, be less restrictive than an order mandating a reduction in the prison population. In light of the State’s longstanding failure to remedy these serious constitutional violations, the three-judge court was under no obligation to consider voluntary population-reduction measures by the State as a workable alternative to injunctive relief.

10 The former head of correctional systems in Washington, Maine, and Pennsylvania, likewise referred to California’s prisons as “ ‘criminogenic.’ ” Juris. App. 191a. The Yolo County chief probation officer testified that “ ‘it seems like [the prisons] produce additional criminal behavior.’ ” Id., at 190a. A former professor of sociology at George Washington University, reported that California’s present recidivism rate is among the highest in the Nation. App. 1246. And the threejudge court noted the report of California’s Little Hoover Commission, which stated that “ ‘[e]ach year, California communities are burdened with absorbing 123,000 offenders returning from prison, often more dangerous than when they left.’ ” Juris. App. 191a.

11 Philadelphia’s experience in the early 1990’s with a federal court order mandating reductions in the prison population was less positive, and that history illustrates the undoubted need for caution in this area. One congressional witness testified that released prisoners committed 79 murders and multiple other offenses. See Hearing on S. 3 et al. before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 45 (1995) (statement of Lynne Abraham, District Attorney of Philadelphia). Lead counsel for the plaintiff class in that case responded that “[t]his inflammatory assertion has never been documented.” Id., at 212 (statement of David Richman). The Philadelphia decree was also different from the order entered in this case. Among other things, it “prohibited the City from admitting to its prisons any additional inmates, except for persons charged with, or convicted of, murder, forcible rape, or a crime involving the use of a gun or knife in the commission of an aggravated assault or robbery.” Harris v. Reeves, 761 F. Supp. 382, 384–385 (ED Pa. 1991); see also Crime and Justice Research Institute, J. Goldkamp & M. White, Restoring Accountability in Pretrial Release: The Philadelphia Pretrial Release Supervision Experiments 6–8 (1998). The difficulty of determining the precise relevance of Philadelphia’s experience illustrates why appellate courts defer to the trier of fact. The three-judge court had the opportunity to hear testimony on population reduction measures in other jurisdictions and to ask relevant questions of informed expert witnesses.

12 Expanding such community-based measures may require an expenditure of resources by the State to fund new programs or expand existing ones. The State complains that the order therefore requires it to “divert” savings that will be achieved by reducing the prison population and that setting budgetary priorities in this manner is a “severe, unlawful intrusion on the State authority.” Brief for Appellants 55. This argument is not convincing. The order does not require the State to use any particular approach to reduce its prison population or allocate its resources.

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–1233

_________________

EDMUND G. BROWN, JR., GOVERNOR OF CAL-

IFORNIA, ET AL., APPELLANTS v. MARCIANO

PLATA ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTS

FOR THE EASTERN DISTRICT AND THE NORTHERN

DISTRICT OF CALIFORNIA

[May 23, 2011]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.

Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.

There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result. Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.

The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity. I

A

The Prison Litigation Reform Act (PLRA) states that “[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs”; that such relief must be “narrowly drawn, [and] exten[d] no further than necessary to correct the violation of the Federal right”; and that it must be “the least intrusive means necessary to correct the violation of the Federal right.” 18 U. S. C. §3626(a)(1)(A). In deciding whether these multiple limitations have been complied with, it is necessary to identify with precision what is the “violation of the Federal right of a particular plaintiff or plaintiffs” that has been alleged. What has been alleged here, and what the injunction issued by the Court is tailored (narrowly or not) to remedy is the running of a prison system with inadequate medical facilities. That may result in the denial of needed medical treatment to “a particular [prisoner] or [prisoners],” thereby violating (according to our cases) his or their Eighth Amendment rights. But the mere existence of the inadequate system does not subject to cruel and unusual punishment the entire prison population in need of medical care, including those who receive it.

The Court acknowledges that the plaintiffs “do not base their case on deficiencies in care provided on any one occasion”; rather, “[p]laintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to ‘substantial risk of serious harm’ and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society.” Ante, at 7, n. 3. But our judgeempowering “evolving standards of decency” jurisprudence (with which, by the way, I heartily disagree, see, e.g., Roper v. Simmons, 543 U. S. 551, 615–616 (2005) (SCALIA, J., dissenting)) does not prescribe (or at least has not until today prescribed) rules for the “decent” running of schools, prisons, and other government institutions. It forbids “indecent” treatment of individuals—in the context of this case, the denial of medical care to those who need it. And the persons who have a constitutional claim for denial of medical care are those who are denied medical care—not all who face a “substantial risk” (whatever that is) of being denied medical care.

The Coleman litigation involves “the class of seriously mentally ill persons in California prisons,” ante, at 8, and the Plata litigation involves “the class of state prisoners with serious medical conditions,” ante, at 9. The plaintiffs do not appear to claim—and it would absurd to suggest— that every single one of those prisoners has personally experienced “torture or a lingering death,” ante, at 13 (internal quotation marks omitted), as a consequence of that bad medical system. Indeed, it is inconceivable that anything more than a small proportion of prisoners in the plaintiff classes have personally received sufficiently atrocious treatment that their Eighth Amendment right was violated—which, as the Court recognizes, is why the plaintiffs do not premise their claim on “deficiencies in care provided on any one occasion.” Ante, at 7, n. 3. Rather, the plaintiffs’ claim is that they are all part of a medical system so defective that some number of prisoners will inevitably be injured by incompetent medical care, and that this number is sufficiently high so as to render the system, as a whole, unconstitutional.

But what procedural principle justifies certifying a class of plaintiffs so they may assert a claim of systemic unconstitutionality? I can think of two possibilities, both of which are untenable. The first is that although some or most plaintiffs in the class do not individually have viable Eighth Amendment claims, the class as a whole has collectively suffered an Eighth Amendment violation. That theory is contrary to the bedrock rule that the sole purpose of classwide adjudication is to aggregate claims that are individually viable. “A class action, no less than traditional joinder (of which it is a species), merely enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits. And like traditional joinder, it leaves the parties’ legal rights and duties intact and the rules of decision unchanged.” Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. ___, ___ (2010) (plurality opinion) (slip op., at 14).

The second possibility is that every member of the plaintiff class has suffered an Eighth Amendment violation merely by virtue of being a patient in a poorly-run prison system, and the purpose of the class is merely to aggregate all those individually viable claims. This theory has the virtue of being consistent with procedural principles, but at the cost of a gross substantive departure from our case law. Under this theory, each and every prisoner who happens to be a patient in a system that has systemic weaknesses—such as “hir[ing] any doctor who had a license, a pulse and a pair of shoes,” ante, at 10 (internal quotation marks omitted)—has suffered cruel or unusual punishment, even if that person cannot make an individualized showing of mistreatment. Such a theory of the Eighth Amendment is preposterous. And we have said as much in the past: “If . . . a healthy inmate who had suffered no deprivation of needed medical treatment were able to claim violation of his constitutional right to medical care . . . simply on the ground that the prison medical facilities were inadequate, the essential distinction between judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons.” Lewis v. Casey, 518 U. S. 343, 350 (1996).

Whether procedurally wrong or substantively wrong, the notion that the plaintiff class can allege an Eighth Amendment violation based on “systemwide deficiencies” is assuredly wrong. It follows that the remedy decreed here is also contrary to law, since the theory of systemic unconstitutionality is central to the plaintiffs’ case. The PLRA requires plaintiffs to establish that the systemwide injunction entered by the District Court was “narrowly drawn” and “extends no further than necessary” to correct “the violation of the Federal right of a particular plaintiff or plaintiffs.” If (as is the case) the only viable constitutional claims consist of individual instances of mistreatment, then a remedy reforming the system as a whole goes far beyond what the statute allows.

It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the release order—the 46,000 whose incarceration will be ended— do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.

B

Even if I accepted the implausible premise that the plaintiffs have established a systemwide violation of the Eighth Amendment, I would dissent from the Court’s endorsement of a decrowding order. That order is an example of what has become known as a “structural injunction.” As I have previously explained, structural injunctions are radically different from the injunctions traditionally issued by courts of equity, and presumably part of “the judicial Power” conferred on federal courts by Article III: “The mandatory injunctions issued upon termination of litigation usually required ‘a single simple act.’ H. McClintock, Principles of Equity §15, pp. 32–33 (2d ed. 1948). Indeed, there was a ‘historical prejudice of the court of chancery against rendering decrees which called for more than a single affirmative act.’ Id., §61, at 160. And where specific performance of contracts was sought, it was the categorical rule that no decree would issue that required ongoing supervision. . . . Compliance with these ‘single act’ mandates could, in addition to being simple, be quick; and once it was achieved the contemnor’s relationship with the court came to an end, at least insofar as the subject of the order was concerned. Once the document was turned over or the land conveyed, the litigant’s obligation to the court, and the court’s coercive power over the litigant, ceased. . . . The court did not engage in any ongoing supervision of the litigant’s conduct, nor did its order continue to regulate its behavior.” Mine Workers v. Bagwell, 512 U. S. 821, 841–842 (1994) (SCALIA, J., concurring).

Structural injunctions depart from that historical practice, turning judges into long-term administrators of complex social institutions such as schools, prisons, and police departments. Indeed, they require judges to play a role essentially indistinguishable from the role ordinarily played by executive officials. Today’s decision not only affirms the structural injunction but vastly expands its use, by holding that an entire system is unconstitutional because it may produce constitutional violations.

The drawbacks of structural injunctions have been described at great length elsewhere. See, e.g., Lewis, supra, at 385–393 (1996) (THOMAS, J., concurring); Missouri v. Jenkins, 515 U. S. 70, 124–133 (1995) (THOMAS, J., concurring); Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L. J. 1265. This case illustrates one of their most pernicious aspects: that they force judges to engage in a form of factfinding-as-policymaking that is outside the traditional judicial role. The factfinding judges traditionally engage in involves the determination of past or present facts based (except for a limited set of materials of which courts may take “judicial notice”) exclusively upon a closed trial record. That is one reason why a district judge’s factual findings are entitled to plain-error review: because having viewed the trial first hand he is in a better position to evaluate the evidence than a judge reviewing a cold record. In a very limited category of cases, judges have also traditionally been called upon to make some predictive judgments: which custody will best serve the interests of the child, for example, or whether a particular one-shot injunction will remedy the plaintiff’s grievance. When a judge manages a structural injunction, however, he will inevitably be required to make very broad empirical predictions necessarily based in large part upon policy views—the sort of predictions regularly made by legislators and executive officials, but inappropriate for the Third Branch.

This feature of structural injunctions is superbly illustrated by the District Court’s proceeding concerning the decrowding order’s effect on public safety. The PLRA requires that, before granting “[p]rospective relief in [a] civil action with respect to prison conditions,” a court must “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U. S. C. §3626(a)(1)(A). Here, the District Court discharged that requirement by making the “factual finding” that “the state has available methods by which it could readily reduce the prison population to 137.5% design capacity or less without an adverse impact on public safety or the operation of the criminal justice system.” Juris. Statement App., O. T. 2009, No. 09-416, p. 253a. It found the evidence “clear” that prison overcrowding would “perpetuate a criminogenic prison system that itself threatens public safety,” id., at 186a, and volunteered its opinion that “[t]he population could be reduced even further with the reform of California’s antiquated sentencing policies and other related changes to the laws.” Id., at 253a. It “reject[ed] the testimony that inmates released early from prison would commit additional new crimes,” id., at 200a, finding that “shortening the length of stay through earned credits would give inmates incentives to participate in programming designed to lower recidivism,” id., at 204a, and that “slowing the flow of technical parole violators to prison, thereby substantially reducing the churning of parolees, would by itself improve both the prison and parole systems, and public safety.” Id., at 209a. It found that “the diversion of offenders to community correctional programs has significant beneficial effects on public safety,” id., at 214a, and that “additional rehabilitative programming would result in a significant population reduction while improving public safety,” id., at 216a.

The District Court cast these predictions (and the Court today accepts them) as “factual findings,” made in reliance on the procession of expert witnesses that testified at trial. Because these “findings” have support in the record, it is difficult to reverse them under a plain-error standard of review. Ante, at 38. And given that the District Court devoted nearly 10 days of trial and 70 pages of its opinion to this issue, it is difficult to dispute that the District Court has discharged its statutory obligation to give “substantial weight to any adverse impact on public safety.”

But the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course they were relying largely on their own beliefs about penology and recidivism. And of course different district judges, of different policy views, would have “found” that rehabilitation would not work and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism. Yet, because they have been branded “factual findings” entitled to deferential review, the policy preferences of three District Judges now govern the operation of California’s penal system.

It is important to recognize that the dressing-up of policy judgments as factual findings is not an error peculiar to this case. It is an unavoidable concomitant of institutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the anticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our system of government allocates to other government officials.

But structural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences. Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions. Thus, in the proceeding below the District Court determined that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity. This was an empirical finding it was utterly unqualified to make. Admittedly, the court did not generate that number entirely on its own; it heard the numbers 130% and 145% bandied about by various witnesses and decided to split the difference. But the ability of judges to spit back or even average-out numbers spoon-fed to them by expert witnesses does not render them competent decisionmakers in areas in which they are otherwise unqualified.

The District Court also relied heavily on the views of the Receiver and Special Master, and those reports play a starring role in the Court’s opinion today. The Court notes that “the Receiver and the Special Master filed reports stating that overcrowding posed a significant barrier to their efforts” and deems those reports “persuasive evidence that, absent a reduction in overcrowding, any remedy might prove unattainable and would at the very least require vast expenditures of resources by the State.” Ante, at 31–32. The use of these reports is even less consonant with the traditional judicial role than the District Court’s reliance on the expert testimony at trial. The latter, even when, as here, it is largely the expression of policy judgments, is at least subject to cross-examination. Relying on the un-cross-examined findings of an investigator, sent into the field to prepare a factual report and give suggestions on how to improve the prison system, bears no resemblance to ordinary judicial decisionmaking. It is true that the PLRA contemplates the appointment of Special Masters (although not Receivers), but Special Masters are authorized only to “conduct hearings and prepare proposed findings of fact” and “assist in the development of remedial plans,” 18 U. S. C. §3626(f)(6). This does not authorize them to make factual findings (unconnected to hearings) that are given seemingly wholesale deference. Neither the Receiver nor the Special Master was selected by California to run its prisons, and the fact that they may be experts in the field of prison reform does not justify the judicial imposition of their perspectives on the state. C

My general concerns associated with judges’ running social institutions are magnified when they run prison systems, and doubly magnified when they force prison officials to release convicted criminals. As we have previously recognized: “[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. . . . [T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. . . . Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.” Turner v. Safley, 482 U. S. 78, 84–85 (1987) (internal quotation marks omitted).

These principles apply doubly to a prisoner-release order. As the author of today’s opinion explained earlier this Term, granting a writ of habeas corpus “ ‘disturbs the State’s significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.’ ” Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13) (quoting Harris v. Reed, 489 U. S. 255, 282 (1989) (KENNEDY, J., dissenting)). Recognizing that habeas relief must be granted sparingly, we have reversed the Ninth Circuit’s erroneous grant of habeas relief to individual California prisoners four times this Term alone. Cullen v. Pinholster, 563 U. S. ___ (2011); Felkner v. Jackson, 562 U. S. ___ (2011) (per curiam); Swarthout v. Cooke, 562 U. S. ___ (2011) (per curiam); Harrington, supra. And yet here, the Court affirms an order granting the functional equivalent of 46,000 writs of habeas corpus, based on its paean to courts’ “substantial flexibility when making these judgments.” Ante, at 41. It seems that the Court’s respect for state sovereignty has vanished in the case where it most matters.

II

The Court’s opinion includes a bizarre coda noting that “[t]he State may wish to move for modification of the three-judge court’s order to extend the deadline for the required reduction to five years.” Ante, at 46–47. The District Court, it says, “may grant such a request provided that the State satisfies necessary and appropriate preconditions designed to ensure the measures are taken to implement the plan without undue delay”; and it gives vague suggestions of what these preconditions “may include,” such as “interim benchmarks.” Ante, at 47. It also invites the District Court to “consider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend,” and informs the State that it “should devise systems to select those prisoners least likely to jeopardize public safety.” Ibid. (What a good idea!)

The legal effect of this passage is unclear—I suspect intentionally so. If it is nothing but a polite remainder to the State and to the District Court that the injunction is subject to modification, then it is entirely unnecessary. As both the State and the District Court are undoubtedly aware, a party is always entitled to move to modify an equitable decree, and the PLRA contains an express provision authorizing District Courts to modify or terminate prison injunctions. See 18 U. S. C. §3626(b).

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 achieve the benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the released inmates. But it would achieve that at the expense of intellectual bankruptcy, as the Court’s “warning” is entirely 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 that motion first, subject to review for abuse of discretion if it declines to modify the order. Horne v. Flores, 557 U. S. ___, ___, ___ (2009) (slip op., at 10, 20). Moreover, when a district court enters a new decree with new benchmarks, the selection of those benchmarks is also reviewed under a deferential, abuse-of-discretion standard of review—a point the Court appears to recognize. Ante, at 45. Appellate courts are not supposed to “affirm” injunctions while preemptively noting that the State “may” request, and the District Court “may” grant, a request to extend the State’s deadline to release prisoners by three years based on some suggestions on what appropriate preconditions for such a modification “may” include.

Of course what is really happening here is that the Court, overcome by common sense, disapproves of the results reached by the District Court, but cannot remedy them (it thinks) by applying ordinary standards of appellate review. It has therefore selected a solution unknown in our legal system: A deliberately ambiguous set of suggestions on how to modify the injunction, just deferential enough so that it can say with a straight face that it is “affirming,” just stern enough to put the District Court on notice that it will likely get reversed if it does not follow them. In doing this, the Court has aggrandized itself, grasping authority that appellate courts are not supposed to have, and using it to enact a compromise solution with no legal basis other than the Court’s say-so. That we are driven to engage in these extralegal activities should be a sign that the entire project of permitting district courts to run prison systems is misbegotten.

But perhaps I am being too unkind. The Court, or at least a majority of the Court’s majority, must be aware that the judges of the District Court are likely to call its bluff, since they know full well it cannot possibly be an abuse of discretion to refuse to accept the State’s proposed modifications in an injunction that has just been approved (affirmed) in its present form. An injunction, after all, does not have to be perfect; only good enough for government work, which the Court today says this is. 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?

III

In view of the incoherence of the Eighth Amendment claim at the core of this case, the nonjudicial features of institutional reform litigation that this case exemplifies, and the unique concerns associated with mass prisoner releases, I do not believe this Court can affirm this injunction. I will state my approach briefly: In my view, a court may not order a prisoner’s release unless it determines that the prisoner is suffering from a violation of his constitutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that prisoner (and no other remedy) would enable him to obtain medical treatment, then the court can order his release; but a court may not order the release of prisoners who have suffered no violations of their constitutional rights, merely to make it less likely that that will happen to them in the future.

This view follows from the PLRA’s text that I discussed at the outset, 18 U. S. C. §3626(a)(1)(A). “[N]arrowly drawn” means that the relief applies only to the “particular [prisoner] or [prisoners]” whose constitutional rights are violated; “extends no further than necessary” means that prisoners whose rights are not violated will not obtain relief; and “least intrusive means necessary to correct the violation of the Federal right” means that no other relief is available. *

I acknowledge that this reading of the PLRA would severely limit the circumstances under which a court could issue structural injunctions to remedy allegedly unconstitutional prison conditions, although it would not eliminate them entirely. If, for instance, a class representing all prisoners in a particular institution alleged that the temperature in their cells was so cold as to violate the Eighth Amendment, or that they were deprived of all exercise time, a court could enter a prisonwide injunction ordering that the temperature be raised or exercise time be provided. Still, my approach may invite the objection that the PLRA appears to contemplate structural injunctions in general and mass prisoner-release orders in particular. The statute requires courts to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief” and authorizes them to appoint Special Masters, §3626 (a)(1)(A), (f), provisions that seem to presuppose the possibility of a structural remedy. It also sets forth criteria under which courts may issue orders that have “the purpose or effect of reducing or limiting the prisoner population,” §3626(g)(4).

I do not believe that objection carries the day. In addition to imposing numerous limitations on the ability of district courts to order injunctive relief with respect to prison conditions, the PLRA states that “[n]othing in this section shall be construed to . . . repeal or detract from otherwise applicable limitations on the remedial powers of the courts.” §3626(a)(1)(C). The PLRA is therefore best understood as an attempt to constrain the discretion of courts issuing structural injunctions—not as a mandate for their use. For the reasons I have outlined, structural injunctions, especially prisoner-release orders, raise grave separation-of-powers concerns and veer significantly from the historical role and institutional capability of courts. It is appropriate to construe the PLRA so as to constrain courts from entering injunctive relief that would exceed that role and capability.

* * *

The District Court’s order that California release 46,000 prisoners extends “further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs” who have been denied needed medical care. 18 U. S. C. §3626(a)(1)(A). It is accordingly forbidden by the PLRA—besides defying all sound conception of the proper role of judges. * Any doubt on this last score, at least as far as prisoner-release orders are concerned, is eliminated by §3626(a)(3)(E) of the statute, which provides that to enter a prisoner-release order the court must find “by clear and convincing evidence that— (i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.”

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–1233

_________________

EDMUND G. BROWN, JR., GOVERNOR OF CAL-

IFORNIA, ET AL., APPELLANTS v. MARCIANO

PLATA ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT COURTS

FOR THE EASTERN DISTRICT AND THE NORTHERN

DISTRICT OF CALIFORNIA

[May 23, 2011]

JUSTICE ALITO, with whom THE CHIEF JUSTICE joins, dissenting.

The decree in this case is a perfect example of what the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321–66, 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. See Turner v. Safley, 482 U. S. 78, 85 (1987).

The Eighth Amendment imposes an important—but limited—restraint on state authority in this field. The Eighth Amendment prohibits prison officials from depriving inmates of “the minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U. S. 337, 347 (1981). Federal courts have the responsibility to ensure that this constitutional standard is met, but undesirable prison conditions that do not violate the Constitution are beyond the federal courts’ reach.

In this case, a three-judge court exceeded its authority under the Constitution and the PLRA. The court ordered a radical reduction in the California prison population without finding that the current population level violates the Constitution.

Two cases were before the three-judge court, and neither targeted the general problem of overcrowding. Indeed, the plaintiffs in one of those cases readily acknowledge that the current population level is not itself unconstitutional. Brief for Coleman Appellees 56. Both of the cases were brought not on behalf of all inmates subjected to overcrowding, but rather in the interests of much more limited classes of prisoners, namely, those needing mental health treatment and those with other serious medical needs. But these cases were used as a springboard to implement a criminal justice program far different from that chosen by the state legislature. Instead of crafting a remedy to attack the specific constitutional violations that were found—which related solely to prisoners in the two plaintiff classes—the lower court issued a decree that will at best provide only modest help to those prisoners but that is very likely to have a major and deleterious effect on public safety.

The three-judge court ordered the premature release of approximately 46,000 criminals—the equivalent of three Army divisions.

The approach taken by the three-judge court flies in the face of the PLRA. Contrary to the PLRA, the court’s remedy is not narrowly tailored to address proven and ongoing constitutional violations. And the three-judge court violated the PLRA’s critical command that any court contemplating a prisoner release order must give “substantial weight to any adverse impact on public safety.” 18 U. S. C. §3626(a)(1)(A). The three-judge court would have us believe that the early release of 46,000 inmates will not imperil—and will actually improve—public safety. Juris. Statement App., O. T. 2009, No. 09–416, pp. 248a–249a (hereinafter Juris. App.). Common sense and experience counsel greater caution. I would reverse the decision below for three interrelated reasons. First, the three-judge court improperly refused to consider evidence concerning present conditions in the California prison system. Second, the court erred in holding that no remedy short of a massive prisoner release can bring the California system into compliance with the Eighth Amendment. Third, the court gave inadequate weight to the impact of its decree on public safety.

I

Both the PLRA and general principles concerning injunctive relief dictate that a prisoner release order cannot properly be issued unless the relief is necessary to remedy an ongoing violation. Under the PLRA, a prisoner release may be decreed only if crowding “is the primary cause” of an Eighth Amendment violation and only if no other relief “will remedy” the violation. §3626(a)(3)(E) (emphasis added). This language makes it clear that proof of past violations alone is insufficient to justify a court-ordered prisoner release.

Similarly, in cases not governed by the PLRA, we have held that an inmate seeking an injunction to prevent a violation of the Eighth Amendment must show that prison officials are “knowingly and unreasonably disregarding an objectively intolerable risk of harm, and that they will continue to do so . . . into the future.” Farmer v. Brennan, 511 U. S. 825, 846 (1994). The “deliberate indifference” needed to establish an Eighth Amendment violation must be examined “in light of the prison authorities’ current attitudes and conduct,” Helling v. McKinney, 509 U. S. 25, 36 (1993), which means “their attitudes and conduct at the time suit is brought and persisting thereafter,” Farmer, supra, at 845.

For these reasons, the propriety of the relief ordered here cannot be assessed without ascertaining the nature and scope of any ongoing constitutional violations. Proof of past violations will not do; nor is it sufficient simply to establish that some violations continue. The scope of permissible relief depends on the scope of any continuing violations, and therefore it was essential for the threejudge court to make a reliable determination of the extent of any violations as of the time its release order was issued. Particularly in light of the radical nature of its chosen remedy, nothing less than an up-to-date assessment was tolerable.

The three-judge court, however, relied heavily on outdated information and findings and refused to permit California to introduce new evidence. Despite evidence of improvement,1 the three-judge court relied on old findings made by the single-judge courts, see Juris. App. 76a–77a, including a finding made 14 years earlier, see id., at 170a (citing Coleman v. Wilson, 912 F. Supp. 1282, 1316, 1319 (ED Cal. 1995)). The three-judge court highlighted death statistics from 2005, see Juris. App. 9a, while ignoring the “significant and continuous decline since 2006,” California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2008 Death Reviews 31 (Dec. 2009) (hereinafter 2008 Death Reviews). And the court dwelled on conditions at a facility that has since been replaced. See Juris. App. 19a–20a, 24a, 89a–90a, 94a, 107a, 111a.

Prohibiting the State from introducing evidence about conditions as of the date when the prisoner release order was under consideration, id., at 76a–78a, and n. 42, the three-judge court explicitly stated that it would not “evaluate the state’s continuing constitutional violations.” Id., at 77a. Instead, it based its remedy on constitutional deficiencies that, in its own words, were found “years ago.” Ibid.2

The three-judge court justified its refusal to receive upto-date evidence on the ground that the State had not filed a motion to terminate prospective relief under a provision of the PLRA, §3626(b). See Juris. App. 77a. Today’s opinion for this Court endorses that reasoning, ante, at 26. But the State’s opportunity to file such a motion did not eliminate the three-judge court’s obligation to ensure that its relief was necessary to remedy ongoing violations.3 Moreover, the lower court’s reasoning did not properly take into account the potential significance of the evidence that the State sought to introduce. Even if that evidence did not show that all violations had ceased—the showing needed to obtain the termination of relief under §3626(b)—that evidence was highly relevant with respect to the nature and scope of permissible relief.4 The majority approves the three-judge court’s refusal to receive fresh evidence based largely on the need for “[o]rderly trial management.” Ante, at 26. The majority reasons that the three-judge court had closed the book on the question of constitutional violations and had turned to the question of remedy. Ibid. As noted, however, the extent of any continuing constitutional violations was highly relevant to the question of remedy.

The majority also countenances the three-judge court’s reliance on dated findings. The majority notes that the lower court considered recent reports by the Special Master and Receiver, ante, at 18–19, but the majority provides no persuasive justification for the lower court’s refusal to receive hard, up-to-date evidence about any continuing violations. With the safety of the people of California in the balance, the record on this issue should not have been closed.

The majority repeats the lower court’s error of reciting statistics that are clearly out of date. The Court notes the lower court’s finding that as of 2005 “an inmate in one of California’s prisons needlessly dies every six to seven days.” See ante, at 9. Yet by the date of the trial before the three-judge court, the death rate had been trending downward for 10 quarters, App. 2257, and the number of likely preventable deaths fell from 18 in 2006 to 3 in 2007, a decline of 83 percent.5 Between 2001 and 2007, the California prison system had the 13th lowest average mortality rate of all 50 state systems.6

The majority highlights past instances in which particular prisoners received shockingly deficient medical care. See ante, at 5, 6–7, 10 (recounting five incidents). But such anecdotal evidence cannot be given undue weight in assessing the current state of the California system. The population of the California prison system (156,000 inmates at the time of trial) is larger than that of many medium-sized cities,7 and an examination of the medical care provided to the residents of many such cities would likely reveal cases in which grossly deficient treatment was provided. Instances of past mistreatment in the California system are relevant, but prospective relief must be tailored to present and future, not past, conditions.

II

Under the PLRA, a court may not grant any prospective relief unless the court finds that the relief is narrowly drawn, extends no further than necessary to correct the “violation of [a] Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” §3626(a)(1)(A). In addition, the PLRA prohibits the issuance of a prisoner release order unless the court finds “by clear and convincing evidence that . . . crowding is the primary cause of the violation of a Federal right” and that “no other relief will remedy the violation of the Federal right.” §3626(a)(3)(E).

These statutory restrictions largely reflect general standards for injunctive relief aimed at remedying constitutional violations by state and local governments. “The power of the federal courts to restructure the operation of local and state governmental entities is not plenary. . . . Once a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.” Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 419–420 (1977) (internal quotation marks omitted).

Here, the majority and the court below maintain that no remedy short of a massive release of prisoners from the general prison population can remedy the State’s failure to provide constitutionally adequate health care. This argument is implausible on its face and is not supported by the requisite clear and convincing evidence.

It is instructive to consider the list of deficiencies in the California prison health care system that are highlighted in today’s opinion for this Court and in the opinion of the court below. The deficiencies noted by the majority here include the following: “ ‘[e]xam tables and counter tops, where prisoners with . . . communicable diseases are treated, [are] not routinely disinfected,’ ” ante, at 10; medical facilities “ ‘are in an abysmal state of disrepair,’ ” ibid.; medications “ ‘are too often not available when needed,’ ” ante, at 10–11; “ ‘[b]asic medical equipment is often not available or used,’ ” ante, at 10; prisons “would ‘hire any doctor who had “a license, a pulse and a pair of shoes,” ’ ” ibid.; and medical and mental health staff positions have high vacancy rates, ante, at 20. The three-judge court pointed to similar problems. See Juris. App. 93a–121a (citing, among other things, staffing vacancies, too few beds for mentally ill prisoners, and an outmoded records management system).

Is it plausible that none of these deficiencies can be remedied without releasing 46,000 prisoners? Without taking that radical and dangerous step, exam tables and counter tops cannot properly be disinfected? None of the system’s dilapidated facilities can be repaired? Needed medications and equipment cannot be purchased and used? Staff vacancies cannot be filled? The qualifications of prison physicians cannot be improved? A better records management system cannot be developed and implemented?

I do not dispute that general overcrowding contributes to many of the California system’s healthcare problems. But it by no means follows that reducing overcrowding is the only or the best or even a particularly good way to alleviate those problems. Indeed, it is apparent that the prisoner release ordered by the court below is poorly suited for this purpose. The release order is not limited to prisoners needing substantial medical care but instead calls for a reduction in the system’s overall population. Under the order issued by the court below, it is not necessary for a single prisoner in the plaintiff classes to be released. Although some class members will presumably be among those who are discharged, the decrease in the number of prisoners needing mental health treatment or other forms of extensive medical care will be much smaller than the total number of prisoners released, and thus the release will produce at best only a modest improvement in the burden on the medical care system.

The record bears this out. The Special Master stated dramatically that even releasing 100,000 inmates (twothirds of the California system’s entire inmate population!) would leave the problem of providing mental health treatment “largely unmitigated.” App. 487. Similarly, the Receiver proclaimed that “ ‘those . . . who think that population controls will solve California’s prison health care problems . . . are simply wrong.’ ” Juris. App. 282a.

The State proposed several remedies other than a massive release of prisoners, but the three-judge court, seemingly intent on attacking the broader problem of general overcrowding, rejected all of the State’s proposals. In doing so, the court made three critical errors.

First, the court did not assess those proposals and other remedies in light of conditions proved to exist at the time the release order was framed. Had more recent evidence been taken into account, a less extreme remedy might have been shown to be sufficient.

Second, the court failed to distinguish between conditions that fall below the level that may be desirable as a matter of public policy and conditions that do not meet the minimum level mandated by the Constitution. To take one example, the court criticized the California system because prison doctors must conduct intake exams in areas separated by folding screens rather than in separate rooms, creating conditions that “do not allow for appropriate confidentiality.” Id., at 88a. But the legitimate privacy expectations of inmates are greatly diminished, see Hudson v. Palmer, 468 U. S. 517, 525–526 (1984), and this Court has never suggested that the failure to provide private consultation rooms in prisons amounts to cruel and unusual punishment.

Third, the court rejected alternatives that would not have provided “ ‘immediate’ ” relief. Juris. App. 148a. But nothing in the PLRA suggests that public safety may be sacrificed in order to implement an immediate remedy rather than a less dangerous one that requires a more extended but reasonable period of time.

If the three-judge court had not made these errors, it is entirely possible that an adequate but less drastic remedial plan could have been crafted. Without up-to-date information, it is not possible to specify what such a plan might provide, and in any event, that is not a task that should be undertaken in the first instance by this Court. But possible components of such a plan are not hard to identify.

Many of the problems noted above plainly could be addressed without releasing prisoners and without incurring the costs associated with a large-scale prison construction program. Sanitary procedures could be improved; sufficient supplies of medicine and medical equipment could be purchased; an adequate system of records management could be implemented; and the number of medical and other staff positions could be increased. Similarly, it is hard to believe that staffing vacancies cannot be reduced or eliminated and that the qualifications of medical personnel cannot be improved by any means short of a massive prisoner release. Without specific findings backed by hard evidence, this Court should not accept the counterintuitive proposition that these problems cannot be ameliorated by increasing salaries, improving working conditions, and providing better training and monitoring of performance.

While the cost of a large-scale construction program may well exceed California’s current financial capabilities, a more targeted program, involving the repair and perhaps the expansion of current medical facilities (as opposed to general prison facilities), might be manageable. After all, any remedy in this case, including the new programs associated with the prisoner release order and other proposed relief now before the three-judge court, will necessarily involve some state expenditures.

Measures such as these might be combined with targeted reductions in critical components of the State’s prison population. A certain number of prisoners in the classes on whose behalf the two cases were brought might be transferred to out-of-state facilities. The three-judge court rejected the State’s proposal to transfer prisoners to out-of-state facilities in part because the number of proposed transfers was too small. See id., at 160a. See also ante, at 30. But this reasoning rested on the court’s insistence on a reduction in the State’s general prison population rather than the two plaintiff classes.

When the State proposed to make a targeted transfer of prisoners in one of the plaintiff classes (i.e., prisoners needing mental health treatment), one of the District Judges blocked the transfers for fear that the out-of-state facilities would not provide a sufficiently high level of care. See App. 434–440. The District Judge even refused to allow out-of-state transfers for prisoners who volunteered for relocation. See id., at 437. And the court did this even though there was not even an allegation, let alone clear evidence, that the States to which these prisoners would have been sent were violating the Eighth Amendment.

The District Judge presumed that the receiving States might fail to provide constitutionally adequate care, but “ ‘in the absence of clear evidence to the contrary, courts presume that [public officers] have properly discharged their official duties.’ ” United States v. Armstrong, 517 U. S. 456, 464 (1996) (quoting United States v. Chemical Foundation, Inc., 272 U. S. 1, 14–15 (1926)); Postal Service v. Gregory, 534 U. S. 1, 10 (2001) (“[A] presumption of regularity attaches to the actions of Government agencies”); see also McKune v. Lile, 536 U. S. 24, 51 (2002) (O’Connor, J., concurring in judgment) (“[W]e may assume that the prison is capable of controlling its inmates so that respondent’s personal safety is not jeopardized . . . , at least in the absence of proof to the contrary”).8

Finally, as a last resort, a much smaller release of prisoners in the two plaintiff classes could be considered. Plaintiffs proposed not only a systemwide population cap, but also a lower population cap for inmates in specialized programs. Tr. 2915:12–15 (Feb. 3, 2009). The three-judge court rejected this proposal, and its response exemplified what went wrong in this case. One judge complained that this remedy would be deficient because it would protect only the members of the plaintiff classes. The judge stated: “The only thing is we would be protecting the class members. And maybe that’s the appropriate thing to do. I mean, that’s what this case is about, but it would be . . . difficult for me to say yes, and the hell with everybody else.” Id., at 2915:23–2916:2. Overstepping his authority, the judge was not content to provide relief for the classes of plaintiffs on whose behalf the suit before him was brought. Nor was he content to remedy the only constitutional violations that were proved—which concerned the treatment of the members of those classes. Instead, the judge saw it as his responsibility to attack the general problem of overcrowding.

III

Before ordering any prisoner release, the PLRA commands a court to “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” §3626(a)(1)(A). This provision unmistakably reflects Congress’ view that prisoner release orders are inherently risky.

In taking this view, Congress was well aware of the impact of previous prisoner release orders. The prisoner release program carried out a few years earlier in Philadelphia is illustrative. In the early 1990’s, federal courts enforced a cap on the number of inmates in the Philadelphia prison system, and thousands of inmates were set free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an 18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses.9 Members of Congress were well aware of this experience.10

Despite the record of past prisoner release orders, the three-judge court in this case concluded that loosing 46,000 criminals would not produce a tally like that in Philadelphia and would actually improve public safety. Juris. App. 248a–249a. In reaching this debatable conclusion, the three-judge court relied on the testimony of selected experts, id., at 248a, and the majority now defers to what it characterizes as the lower court’s findings of fact on this controversial public policy issue, ante, at 15, 19–20, 24.

This is a fundamental and dangerous error. When a trial court selects between the competing views of experts on broad empirical questions such as the efficacy of preventing crime through the incapacitation of convicted criminals, the trial court’s choice is very different from a classic finding of fact and is not entitled to the same degree of deference on appeal.

The particular three-judge court convened in this case was “confident” that releasing 46,000 prisoners pursuant to its plan “would in fact benefit public safety.” Juris. App. 248a–249a. According to that court, “overwhelming evidence” supported this purported finding. Id., at 232a. But a more cautious court, less bent on implementing its own criminal justice agenda, would have at least acknowledged that the consequences of this massive prisoner release cannot be ascertained in advance with any degree of certainty and that it is entirely possible that this release will produce results similar to those under prior court-ordered population caps. After all, the sharp increase in the California prison population that the threejudge court lamented, see id., at 254a, has been accompanied by an equally sharp decrease in violent crime.11 These California trends mirror similar developments at the national level,12 and “[t]here is a general consensus that the decline in crime is, at least in part, due to more and longer prison sentences.”13 If increased incarceration in California has led to decreased crime, it is entirely possible that a decrease in imprisonment will have the opposite effect.

Commenting on the testimony of an expert who stated that he could not be certain about the effect of the massive prisoner discharge on public safety, the three-judge court complained that “[s]uch equivocal testimony is not helpful.” Id., at 247a. But testimony pointing out the difficulty of assessing the consequences of this drastic remedy would have been valued by a careful court duly mindful of the overriding need to guard public safety.

The three-judge court acknowledged that it “ha[d] not evaluated the public safety impact of each individual element” of the population reduction plan it ordered the State to implement. App. to Juris. Statement 3a. The majority argues that the three-judge court nevertheless gave substantial weight to public safety because its order left “details of implementation to the State’s discretion.” Ante, at 41. Yet the State had told the three-judge court that, after studying possible population reduction measures, it concluded that “reducing the prison population to 137.5% within a two-year period cannot be accomplished without unacceptably compromising public safety.” Juris. App. 317a. The State found that public safety required a 5-year period in which to achieve the ordered reduction. Ibid.

Thus, the three-judge court approved a population reduction plan that neither it nor the State found could be implemented without unacceptable harm to public safety. And this Court now holds that the three-judge court discharged its obligation to “give substantial weight to any adverse impact on public safety,” §3626(a)(1)(A), by deferring to officials who did not believe the reduction could be accomplished in a safe manner. I do not believe the PLRA’s public-safety requirement is so trivial.

The members of the three-judge court and the experts on whom they relied may disagree with key elements of the crime-reduction program that the State of California has pursued for the past few decades, including “the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws.” Id., at 254a. And experts such as the Receiver are entitled to take the view that the State should “re-thin[k] the place of incarceration in its criminal justice system,” App. 489. But those controversial opinions on matters of criminal justice policy should not be permitted to override the reasonable policy view that is implicit in the PLRA—that prisoner release orders present an inherent risk to the safety of the public.

* * *

The prisoner release ordered in this case is unprecedented, improvident, and contrary to the PLRA. In largely sustaining the decision below, the majority is gambling with the safety of the people of California. Before putting public safety at risk, every reasonable precaution should be taken. The decision below should be reversed, and the case should be remanded for this to be done.

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.

1 Before requesting the appointment of a three-judge court, the District Court in Coleman recognized “commendable progress” in the State’s effort to provide adequate mental health care, Juris. App. 294a, and the District Court in Plata acknowledged that “the Receiver has made much progress since his appointment,” id., at 280a. The report of the Special Master to which the Court refers, ante, at 18–19, identifies a “generally positive trend.” App. 803.

2 For this reason, it is simply not the case that “evidence of current conditions . . . informed every aspect of the judgment of the three-judge court,” as the majority insists, ante, at 25.

3 Because the Ninth Circuit places the burden on the State to prove the absence of an ongoing violation when it moves to terminate prospective relief, see Gilmore v. California, 220 F. 3d 987, 1007 (CA9 2000), even if the State had unsuccessfully moved to terminate prospective relief under 18 U. S. C. §3626(b), there would still have been no determination that plaintiffs had carried their burden under the PLRA to establish by clear and convincing evidence that a prisoner release order is necessary to correct an ongoing rights violation.

4 It is also no answer to say, as the Court now does, ante, at 26, that the State had the opportunity to resist the convening of the three-judge court on the ground that there were no unremedied constitutional violations as of that date. See §3626(a)(3)(A)(i). The District Courts granted plaintiffs’ motions to convene a three-judge court in 2007, three years before the remedial decree here was issued. Thus, the conditions in the prison system as of the date when the decree was issued were not necessarily the same as those that existed before the three-judge court proceedings began. Moreover, as noted above, even if all of the violations in the system had not been cured at the time of the remedial decree, an accurate assessment of conditions as of that date was essential in order to ensure that the relief did not sweep more broadly than necessary.

5 2008 Death Reviews 22. The majority elides the improvement by combining likely preventable deaths with those that were “possibly preventable,” ante, at 7, n. 4, that is, cases in which “[i]n the judgment of the reviewer,” 2008 Death Reviews 3, “it’s fifty-fifty that better care would have possibly prevented the death,” App. 2277; id., at 2256. As the majority acknowledges, even this class of cases is now dramatically diminished, and the three-judge court must take the current conditions into account when revising its remedy going forward. Ante, at 7, n. 4.

6 Bureau of Justice Statistics, State Prison Deaths, 2001–2007, available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2093 (Table 13) (all Internet materials as visited May 20, 2011, and available in Clerk of Court’s case file); see also App. 2257–2258. California had the 14th lowest “ ‘average annual illness mortality [rate] per 100,000 state prisoners from 2001 to 2004.’ ” Juris. App. 125a. According to a 2007 report, state prisoners had a 19 percent lower death rate than the general U. S. adult population as of 2004. Bureau of Justice Statistics, Medical Causes of Death in State Prisons, 2001–2004, p. 1, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mcdsp04.pdf.

7 For example, the population of the California prison system exceeds that of Syracuse, New York; Bridgeport, Connecticut; Springfield, Massachusetts; Eugene, Oregon; and Savannah, Georgia.

8 The Court rejects the State’s argument that out-of-state transfers offer a less restrictive alternative to a prisoner release order because “requiring out-of-state transfers itself qualifies as a population limit under the PLRA.” Ante, at 29–30. But the PLRA does not apply when the State voluntarily conducts such transfers, as it has sought to do.

9 Hearing on Prison Reform before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 49 (1995) (statement of Lynne Abraham, District Attorney of Philadelphia); Hearings before the Subcommittee on Crime of the House Committee on the Judiciary, 104th Cong., 1st Sess., 259 (1995) (same); see also Hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, 110th Cong., 2d Sess., 31 (2008) (statement of Sarah V. Hart, Assistant District Attorney, Philadelphia District Attorney’s Office).

10 Condemning the inappropriate imposition of prison population caps, Senator Sarbanes cited “the case of Philadelphia, where a courtordered prison cap has put thousands of violent criminals back on the city’s streets, often with disastrous consequences.” 141 Cong. Rec. 26549 (1995). Senator Abraham complained that “American citizens are put at risk every day by court decrees . . . that cure prison crowding by declaring that we must free dangerous criminals before they have served their time.” Id., at 26448. “The most egregious example,” he added, “is the city of Philadelphia.” Ibid.

11 From 1992 to 2009, the violent crime rate in California per 100,000 residents fell from 1,119.7 to 472.0—a decrease of 57.8 percent. Similarly, in the United States from 1992 to 2009, the violent crime rate per 100,000 residents fell from 757.7 to 429.4—a decrease of 43.3 percent. Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reporting Statistics, http://www.ucrdatatool.gov.

12 According to the three-judge court, California’s prison population has increased by 750 percent since the mid-1970’s. Juris. App. 254a. From 1970 to 2005, the Nation’s prison population increased by 700 percent. Public Safety, Public Spending: Forecasting America’s Prison Population 2007–2011, 19 Fed. Sent. Rep. 234, 234 (2007).

13 Paternoster, How Much Do We Really Know About Criminal Deterrence? 100 J. Crim. L. & Criminology 765, 801 (2010) (citing research on this issue).

Print this transcript Transcript: 

Argument of Carter G. Phillips

Chief Justice John G. Roberts: 09-1233, Schwarzenegger versus Plata, and the related cases, Mr. Phillips.

Mr. Phillips: Thank you, Mr. Chief Justice, and may it please the Court.

What this Court has under review today is an extraordinary and unprecedented order issued by a three-judge District Court, requiring the release of between 36,000 and 45,000 inmates, currently incarcerated in the California penal system within a two-year period.

The order in this particular case is made particularly remarkable because it strikes me that at a minimum it is extraordinarily premature.

That it may come at some point in this process that an order, probably substantially smaller in scope than this one, may become appropriate, but if this is supposed to be an order or remedy of last resort, and what the district court has done here is leapfrogged a series of steps that should have been taken ahead of going this particular route.

Justice Ruth Bader Ginsburg: One case, Mr. Phillips, is pending for 20 years, is that not so?

Mr. Phillips: Yes that is correct, Justice Ginsburg.

Justice Ruth Bader Ginsburg: So it seems to me -- and there were something like 70 orders from the district court, the single-judge district court in that case?

Mr. Phillips: That is absolutely true, Justice Ginsburg.

Justice Ruth Bader Ginsburg: And no change, so how much longer do we have to wait, another 20 years?

Mr. Phillips: No, Justice Ginsburg.

I think, obviously, the length of time you have to wait in some ways depends on what the state of the remedial phase is in the particular case.

And in this case and in recognition, frankly, of the substantial problems that were inherent in the penal system as it existed during the 1990s and up until the early 2000s, a receiver was appointed, specifically in the Plata class, but there was also a connection between the receiver and the special master even in the Coleman class before the three-judge panel was convened.

And under those circumstances and given the extraordinary powers that the receiver had been accorded, what should have -- the most logical course if this is supposed to be a remedy of last resort was to allow the receiver an opportunity to implement the extraordinary powers that were conferred upon him, and then see, because if it turns out that we are making progress –

Justice Sonia Sotomayor: Excuse me, could you tell me from your briefs, I just haven't understood what the alternative steps are?

The court below talked about some proposals like construction and said the legislature has struck them down.

There's -- the fiscal crisis has gotten worse, so construction is really not an option.

I don't see how you wait for an option that doesn't exist.

They talked about hiring more staff, but the conclusion was that even if you maximize the staff, you don't have the facilities to add more staff, which is what you need to cure the constitutional violation.

So tell me what specific steps outside of this order should have been given time to be implemented because the receiver has basically said, “I've tried, and the small progress we made has been reversed because the population just keeps growing.

So we can never get ahead of the problem.”

So slow down from the rhetoric and give me concrete –

Mr. Phillips: Sure.

Justice Sonia Sotomayor: -- details about what the least restrictive means would have been other than to say, throw it back to a receiver and special master who are saying, we don't have a solution outside of reducing overcrowding.

Mr. Phillips: -- I don't think that's a fair characterization of what the receiver said.

The receiver said that at any population he would in fact get you --

Justice Sonia Sotomayor: Oh, Counsel that was one statement years ago.

Is that is all you are relying on?

Mr. Phillips: --No, no.

That's not all I'm relying on.

All I'm suggesting --

Justice Sonia Sotomayor: That may be your weakest argument.

Tell me -- give me concrete steps that are least -- less restrictive.

Mr. Phillips: Well if you -- all you have to do is look at what the receiver has done over the course of the period of time since his appointment, and particularly when the second receiver was put in place.

First of all, A.B. 900 has been enacted.

There is significant construction.

There has been ground broken.

There are substantial facilities in place.

Second, the receiver has had extraordinary success in the hiring process.

We are at close to 90 percent --

Justice Ruth Bader Ginsburg: Is there in fact less overcrowding because I thought what this case was all about was that the receiver has said, the special master has said, “we can't make any progress at all until there are fewer people; we have no place to put clinics.

The first step, not the last step, but given what we are dealing with here, the potential first step, is that we have fewer people so there is more room for these health facilities, more room for staff to operate.”

Mr. Phillips: Justice Ginsburg, the fundamental issue in this case seems to me as -- what is the real cause of the constitutional violation here?

And the real cause of the constitutional violation here has always been the culture of disregard for the inmates.

What the receiver was put in place for, the reason he was appointed, and properly so, this was with the State's consent, this is not over our objection, was to change that fundamental culture and to provide, one; construction, to provide increased numbers, to provide --

Justice Ruth Bader Ginsburg: But he can't provide construction when the State doesn't supply the money for it?

Mr. Phillips: Except that since the August 8, 2008, period of time, you know, literally hundreds of millions of dollars have gone to construction specifically and more than $4 billion have been spent on the provision of healthcare in this particular system and a great deal of that is because of the receiver.

Justice Ruth Bader Ginsburg: Then if there are -- if there are these great changes in circumstances so that now they -- medical care can be administered in something approaching a decent way, you could go back to the single-judge district court and say I'm moving under 60(b); circumstances have changed, it is no longer the case that it's impossible to render decent health care.

Mr. Phillips: Justice Ginsburg, I don't think we could get that relief from the single-judge district court, unless you are asking me to actually seek to remove the entirety of the claim.

I mean, the order that says that we have to get to 137.5 percent of the design, the designed capacity within two years is a three-judge district court decision.

Justice Sonia Sotomayor: So you go back to that panel because it invited you to. It said if circumstances change, come back.

Mr. Phillips: Right, but that will always be the case, Justice Sotomayor.

The fundamental question here is, Congress shifted dramatically, the approach that you are supposed to take as a court of equity in this context, this is supposed to be a matter of last resort, which would mean that you would give the receiver a full opportunity to do what the receiver--

Justice Stephen G. Breyer: What the receiver said the best statement that seemed to me to summarize it.

It's in his brief on page 9.

He has about two paragraphs and as you read that two paragraphs, it sounds as if overcrowding is a big, big cause of this problem, which is horrendous, which if you think it's accurately described in the mental case in the first page, two paragraphs, if that's a fair description from the record, it's a horrendous problem.

Mr. Phillips: Well --

Justice Stephen G. Breyer: What the receiver says is overcrowding is a big cause of it and then he says, “I think we have discovered you actually can provide care, and certainly our plan and turnaround plan believes we can provide constitutional levels of care, no matter what the population is.”

So then you look to the care and turnaround plan and it says, “spend $8 billion building more buildings and then the legislature rejected it.”

Okay?

Now, there we are.

More time, what's supposed to happen?

Mr. Phillips: No, but, Justice Breyer, the legislature also approved a smaller, but nevertheless multibillion-dollar construction program.

Justice Stephen G. Breyer: That was 2.31 or something like that.

Mr. Phillips: Well, I –

Justice Stephen G. Breyer: And did they approve the 2.3?

Is that in place, 2.35?

Did they approve that?

Mr. Phillips: Yes, they did approve that --

Justice Stephen G. Breyer: Okay.

Mr. Phillips: -- and that money is being spent.

Justice Stephen G. Breyer: So he said, “we need eight, we need eight and they approved 2.35.”

Mr. Phillips: Right, and the receiver --

Justice Stephen G. Breyer: Is there any evidence here that suggests that 2.35 is sufficient to cure the constitutional violation?

Mr. Phillips: Well, I don't know whether it will get you there or not --

Justice Stephen G. Breyer: So I take it from your answer the answer is no, there is no evidence?

Mr. Phillips: Well, there is the evidence that the receiver asked for contempt for not getting the 8 billion and withdrew that motion, so obviously there is some sense in which the receiver is reasonably satisfied with 2.35 billion as an opening gambit.

But again, all of this goes to what is, at least from my perspective, the fundamental question the court should have evaluated in the first instance, which is, are we ready yet to give up hope at this point?

Justice Stephen G. Breyer: Well, what he says -- what the receiver says about the 2.35, is that it is a significant step farther. It is certainly better than no construction at all.

However, that is not equivalent to a conclusion that that current compromise will result in sustainable constitutional healthcare at current population density levels.

That's what he said about it.

So we have his views and I'm back to my question, what else is supposed to happen, which was your question initially?

Mr. Phillips: Justice Breyer, when the receiver says that, now remember he says at current population levels, he doesn't suggest, and his brief is very clear that it doesn't urge this Court to affirm the particular order in this case.

Justice Samuel Alito: Mr.--

Mr. Phillips: Can I just finish this?

Justice Samuel Alito: Yes.

Mr. Phillips: And the reality is that the population levels have dropped pretty significantly since August, since the trial in this particular case and given the actions by the legislature in AB 18 and the actions of the legislature in AB 900, there are both a lot of expenditures on the table and substantial reductions in the population size, and so therefore, even under the receiver's --

Justice Ruth Bader Ginsburg: Do we have information about that substantial reduction?

I mean, in this record, it just seems to be that it's -- no matter how many efforts have been made, the population goes up and now you say that the population has gone down; from what point in time and how much has it gone down?

Mr. Phillips: Well, it's down to around, as I understand it, about 147,000 from a high of around 165 to 170,000, and it has dropped, as we know, because there has been a change in the good time credits.

There has been a significant number of transfers.

I mean, that was the purpose of the governor's proclamation (Voice Overlap).

Justice Sonia Sotomayor: So it's possible that within the two-year period, you are going to hit the mark, if you -- that's what --

Mr. Phillips: I think it unlikely.

Justice Sonia Sotomayor: -- that's what the three-judge panel said, which is if you implement most of the proposals being made, you are likely to hit the mark.

So what you are saying is you are going to do it and if you don't, they invited you to come back and -- you really don't think that if you hit 140 percentage, that the court is going to order an immediate release of the 2.5 percent over the limit it set?

It's going to ask you, “What have you put into place to reach that level over what additional period of time?”

Mr. Phillips: There is a core sort of federalism answer and then a basic sort of factual point to be made here.

Let me make the second one first, and then I want to come back to the, what you may regard as rhetorical, but nevertheless I think important, which is that when we made our initial proposal to the three-judge court, suggesting what we thought would be a reasonable reduction within a reasonable period of time, it was met with both a motion for contempt and summary rejection out of hand, notwithstanding that there was improvement in both --

Justice Sonia Sotomayor: So what are we fighting about?

Mr. Phillips: So --

Justice Sonia Sotomayor: Are we fighting about that the plan was wrong or are we fighting about that you are angry that you were told to do it in two years -- in 22 years, as opposed to do it in 25 years?

Is that -- is that what you're objecting to?

Mr. Phillips: No.

I think this -- this goes to the federalism point.

Justice Sonia Sotomayor: Can you do it in 5 years?

Mr. Phillips: I don't know.

I -- you know, if -- balancing all of the policies that the State has to take into account, can it get there and is that in the best interest of the State of California, if it is, yes, then we can get there.

Justice Sonia Sotomayor: Well, the best interest of the State of California, isn't it to deliver adequate constitutional care to the people that it incarcerates?

That's a constitutional obligation.

Mr. Phillips: Absolutely!

And California recognizes that.

Justice Sonia Sotomayor: So when are you going to get to that?

What are you going to avoid the needless deaths that were reported in this record?

When are you going to avoid or get around people sitting in their feces for days in a dazed state?

When are you going to get to a point where you are going to deliver care that is going to be adequate?

Justice Antonin Scalia: But don't be rhetorical.

Mr. Phillips: I'll do my best.

Thank you, Your Honor. [Laughter]

I mean, first of all, if you look at the receiver's 2009 death review which came out in September 2010, it specifically says that there has been a significant downward trend over the past 4 years.

The suicides -- the 25 suicides in 2009 were 66 percent of the average for the preceding 3 years, and the 9 homicides were 60 percent of the average.

There have been significant improvements.

And the more important point in response to your specific question, Justice Sotomayor, is that the record in this case was cut off in August of 2008, and so what we have are --

Justice Anthony Kennedy: Of course, but the problem I have with that, Mr. Phillips, is that at some point the Court has to say, “You have been given enough time, the constitutional violation still persists as the State itself acknowledges” –

Mr. Phillips: --Well, I'm not sure we've--

Justice Anthony Kennedy: -- “overcrowding is the principal -- overcrowding is the principal cause, as experts have testified, and it's now time for a remedy.

The Court can't -- has to at some point focus on the remedy, and that's what it did, and that it seems to me was a perfectly reasonable decision.

Mr. Phillips: Justice Kennedy, I agree with everything you say except -- and I even agree with the last statement because, you know, you needed a significant remedy, there's no question about it, but you got a significant remedy when the receiver was appointed in 2005 and implemented a program in 2006.

Justice Elena Kagan: How much time do you think the receiver needed?

I mean, how much time did -- should the court have given the receiver to develop his plan and to try to implement his plan?

Mr. Phillips: Well, there's no -- Justice Kagan, there is no specific time frame.

I mean, obviously we believe that we are entitled to a reasonable opportunity to comply with the receiver's orders and to bring ourselves ultimately into compliance with the Constitution, and --

Justice Anthony Kennedy: Well, at some point the State itself said that if it had I think seven years, it could get down to 137.5, and didn't seem to object to that?

Mr. Phillips: No, that's -- Justice Kennedy, you know, given all of the other constraints, et cetera -- again, there is a fundamental difference between what you do under the hammer of a district court order, which is what we have under these circumstances, and what the State will do.

That said, the State is absolutely committed.

I mean the -- again, to go back to what is the root cause of the constitutional violation, it's not overcrowding.

I mean, when California violated the constitutional rights of the mentally ill in the 1990s, the prisons weren't crowded.

It was because there was a fundamental lack of attentiveness to medical care under those circumstances and that is unfortunate, to be sure more than that.

But that was the reason, to go back to your point, Justice Kennedy, that's why the, receiver, which is an extraordinary remedy, to confer upon a private individual the entire authority to run the California Department of Corrections, not just simply a facility or anything like that, but the entire Department of Corrections' medical health provision, is incredible.

Justice Ruth Bader Ginsburg: But I thought that officer himself said, “I can't do this without as a first step reducing the population.

Nothing else is going to work until we reduce the population to the point where there is room for clinics, room for medical personnel to operate.”

I mean, that was the view of the district judge, the special master in one case, the receiver in the other case, everybody, they all agreed reducing the population is not going to cure it, not going to make everything perfect, but without doing that as a first step, nothing -- there will be no cure.

Mr. Phillips: Well, Justice Ginsburg, even if you accept that, and I don't think that's precisely how I would interpret what the receiver said under these circumstances anyway, but even if you accept that, the idea of a 137.5 percent designed cap that has to be implemented within fewer than two years is a remedy that is neither necessary nor sufficient and is not aimed at the specific class.

It doesn't remedy the specific Federal rights as required by the Prisoners Litigation Reform Act.

Justice Ruth Bader Ginsburg: I don't get the class thing, because what -- you can't have a remedy just limited to the class.

The class wants to have clinics.

They want to have personnel who function someplace outside of a broom closet.

So you can't deal with this problem by just dealing with the mentally ill and the people with medical problems.

You have to provide space for facilities.

Mr. Phillips: I think, Justice Ginsburg, the -- the fundamental point here is that it may eventually be that you have to get to that stage, but if you look at the receiver's reports since August 2008, which consistently analyzed this issue, and they say, “we have been able successfully to bring in very qualified personnel, and we have significantly larger numbers.

We know there is construction in place.

It may not be as substantial as what I originally proposed, it is nevertheless very significant” and Congress was very explicit that the remedy of a prisoner release order should be the remedy of --

Justice Stephen G. Breyer: Where do I look at to find this?

It's a big record.

What I did was I -- it refers to on-line evidence and I went and looked at the pictures, and the pictures are pretty horrendous to me and I would say page 10 of the religious group's brief, for example, shows you one of them and what they are saying is, it's -- it's obvious, just look at it.

You cannot have mental health facilities that will stop people from killing themselves and you cannot have medical facilities that will stop staph and tubercular infection in conditions like this and then you look at them and you've looked at them.

I have looked at them and what is the answer to that?

There is nothing in here that -- the special master said $8 billion is the answer, and they haven't come close.

So how can I or you if you were in my position, what would you say in an opinion that says that these three judges who have 200 pages of findings, what would you say to, to -- as an answer to what I just said?

Mr. Phillips: I would say that the Prisoners Litigation Reform Act has a series of very specific requirements that the Federal court has to comply with and that in deciding to go to the three-judge district court in the first instance, you have to examine the orders that are in place and whether those orders have had a reasonable time within which to operate.

Justice Anthony Kennedy: Yes, but the State -- the State did not claim that either order in either case has succeeded in achieving the remedy.

You have never claimed that.

Mr. Phillips: Well, it depends on what you mean by --

Justice Anthony Kennedy: And -- and -- and just if I can have your attention for a moment, I have this problem with the case.

Overcrowding is of course always the cause.

If I am running a hotel -- if I am looking at a highway system, I need a highway, what's the number of cars?

If the problem is bad service in a hotel, well, it's the number of employees per -- per guest.

I mean, that's fairly simple.

Now, I recognize of course that Congress has -- had imposed a special duty on us, but I think it means that overcrowding must not be ordered unless that is the only efficacious remedy in -- in a permissible period of time and it seems to me there is massive expert testimony to support that proposition on the part of the prisoners.

Mr. Phillips: I mean, it seems to me that, first of all, I'm not sure that is consistent with the language, that’s primary cause of the constitutional violation, not the primary impediment to the implementation of a specific remedy.

So I think that is still a difficult and open question as to how to proceed, but it still strikes me that the sequence that Congress envisions and the one that would make the most sense and ultimately the one that hopefully would accommodate both the plaintiffs' interests and the State's interests, and the Department of Corrections' interests, is to allow the receiver to stay on a course that candidly I think will in fact get you there.

I mean, again, one of the real flaws in this case, Justice Kennedy, is nobody doubts for a moment that there have been very significant violations of constitutional rights years gone by, and indeed a failure on the mental health side ultimately to get you -- get to the point where we are in fact providing a significant remedy.

The reality is that in the course of the last three to four years under the guidance of the -- of the receiver, who coordinates with the special master on the mental health side, and does it with the cooperation of the State of California, there have been significant -- there has been significant movement in the right direction and if the court had not jumped the gun and said, look, we're not going to -- we're not going to let that part play itself out, we are going to leap ahead and go to a three-judge court and go to the prisons with the prisoner release order, this process would have played itself out and we wouldn't be here --

Justice Samuel Alito: All this talk about what the receiver may think can be done seems a little bit perplexing to me because the receiver did not testify before the three-judge court, isn't that correct?

Mr. Phillips: That -- that is true, Justice Alito.

Justice Samuel Alito: You were not allowed to question him?

Mr. Phillips: We were not allowed to --

Justice Samuel Alito: And now he has submitted what is styled in amicus brief where he doesn't address issues of law.

He explains his views about -- he tries to explain prior statements and supplement those prior statements.

Is that proper?

Mr. Phillips: Well, you know, I'm a long-time believer that amicus briefs is pretty much open season in terms of anything you want to present on them, but I mean, obviously I think it’s --

Justice Samuel Alito: Is that true?

Mr. Phillips: -- clearly a better system –

Justice Samuel Alito: Can a witness testify -- can a witness submit an amicus brief that consists of an affidavit?

Mr. Phillips: No, Your Honor, that's obviously not appropriate and it's one of the things that we've complained about.

Justice Ruth Bader Ginsburg: I thought the -- the -- that brief was filed because the -- there were, in your presentations there were representations about the special master, and he filed that brief to say, “You must understand this in context, I was making a speech at the club,” but he wanted to put in context what you had used.

You had quoted his statements.

Mr. Phillips: Well, to be sure, although, candidly, we had -- we had referred to some of those same statements even in the jurisdictional statement in this litigation.

Those have been part of the case for quite some time.

So I -- I don't know what motivated the special master to file an out-of-time brief -- or I mean, the receiver to file an out-of-time brief, but I understand -- but you know, we didn't object to it so long as the court was of a mind to hear from the receiver.

But I do think the most important part of that though to keep in mind in this context is the receiver didn't ask for this Court to affirm.

The receiver simply clarified certain statements that had been made and tried to say, as Justice Alito described, put them into some kind of context and that's -- and that's fine, and we obviously don't have any quarrel with -- with that particular presentation.

But I do think to say that the receiver has insisted that he cannot get to a constitutionally permissible result without the order that has been imposed in this particular case is -- is simply not consistent with either the record and it's certainly not consistent with that amicus brief.

Justice Anthony Kennedy: Well, but the experts testified to that effect?

Mr. Phillips: I mean, experts may -- certainly reached that specific conclusion, but this Court has recognized --

Justice Anthony Kennedy: And the strike force and the governor's -- governor's commission reached the same conclusion?

Mr. Phillips: Well --

Justice Anthony Kennedy: The strike team, I think they called them.

Mr. Phillips: Right, but again, it seems to me that there is a very, very, very big difference between what do you need to accomplish in order to remedy whatever -- whatever the constitutional violation is, recognizing in the first instance that the biggest element of an Eighth Amendment violation is the deliberate indifference prong, which absolutely seems to me to have been completely eliminated by the conduct of the State over the course of the last three to four years.

There is no evidence –

Justice Stephen G. Breyer: What specifically will happen?

I mean, at the moment, you know, we could go through, we have all these briefs, I mean there are all these experts, all the reports.

Everybody is saying you need to spend the money and we have -- if you really want to cure the constitutional violation, we have the legislature rejecting 8 billion but 2, which doesn't -- 2.35, and so -- nothing, and a void and give us more time.

I mean, I read the newspaper.

It doesn't seem to me California has been voting a lot of money for new programs.

The -- the -- what is it -- what is it specifically that would happen that would cure this problem were we to say -- I mean, a big human rights problem -- what would we say -- what would happen if we were to say, no, this panel's wrong?

What would happen that would cure the problem?

Mr. Phillips: Well, it depends I suppose on some ways on how you --

Justice Stephen G. Breyer: A constitutional problem which the State itself admits is constitutional, a State with a governor who has said publicly that there is this tremendous safety and health problem in the prisons.

What -- what would happen?

Mr. Phillips: Well, if the Court were to conclude that the three-judge panel shouldn't have been convened, that would be one outcome.

If the Court concludes that it was appropriate to convene it, but 137.5 percent is not narrowly tailored, it would be a different one.

Either way, it will go back obviously to a court of equity.

The receiver is in place.

The receiver has a comprehensive plan in place which he is implementing as we speak.

One of the things that --

Justice Ruth Bader Ginsburg: One piece of it -- you said something about the 2.35 million, they didn't come up with the 8 million, but they did come up with the 2.35 billion and then I'm just looking at this brief for the receiver and there is a footnote, page 11, footnote 3, that says, “No, that money isn't there.

It is dependent upon several approvals that have not yet been secured and such approvals ultimately may not be forthcoming.”

Mr. Phillips: Well, 400 million of it has already been spent.

The rest of it has already been earmarked for this particular purpose, and there is -- and the expectation from the State of California is that money is going forward.

Construction is, as we speak, under way and the one thing we do know is that every time the receiver asks for a check he gets one.

Justice Ruth Bader Ginsburg: But not the 2.35?

I mean, I think you did say earlier that this was a done deal, 2.35 billion, but this is a note telling us it's not so.

Mr. Phillips: Well, the receiver is saying it's not etched in stone.

I understand that, but our assumption and our expectation and our belief is that that money is going to be used for construction.

There are projects that are finished.

There are projects that are underway, and there are projects that are scheduled to begin within the next six weeks, all of which will be funded out of that $2.35 billion.

Justice Ruth Bader Ginsburg: And one project that the joint legislative budget committee said, no, we are not going to give you money for that.

Mr. Phillips: They asked for additional information, to be sure, but the expectation, again, from the governor, both from this governor and the governor-elect, is that that money will ultimately be approved and that that facility would be built and we are moving along very rapidly to get that construction under way, because we are talking about enormous facilities under these particular circumstances, Justice Ginsburg.

Justice Elena Kagan: Mr. Phillips, my trouble listening to you is that it seems as though you are asking us to re-find facts.

You know, you have these judges who have been involved in these cases since the beginning, for 20 years in the Plata case, who thought, we've done everything we can.

The receiver has done everything he can.

This just isn't going anywhere and it won't go anywhere until we can address this root cause of the problem and that was the view of the judges who had been closest to the cases from the beginning and the view of the three-judge court generally.

So how can we reach a result essentially without, you know, re-finding the facts that they have been dealing with for 20 years?

Mr. Phillips: The fundamental problem with the fact-finding in this -- well, there are actually two fundamental problems.

First of all, remember that the receiver gets appointed and then three months later you get a motion for a three-judge court.

The three-judge court convenes itself before the receiver has even finalized the comprehensive plan to bring everybody into compliance in the first instance.

So the reality is that is the fundamental legal error I'm asking this Court to correct.

But even if you get beyond that and you are looking at the primary cause analysis, it seems to me that's -- that's at most, at best, a mixed question of law and fact, and it's the kind of standard that this Court ought to analyze to determine in the first instance and on an independent review whether or not the overcrowding is "the primary cause of the violation."

And what makes that inquiry particularly appropriate for this Court, as opposed to simply slavishly adhering and deferring to the district court in this circumstance, is that the district court arbitrarily cut off the record in August of 2008 and there have been enormous developments since then and there were enormous developments --

Justice Ruth Bader Ginsburg: Can you explain me something about that, it was confusing in the brief, Mr. Phillips?

I thought that the State had said, “We don't want the plaintiffs to tour these facilities any more.

We don't want to have discovery go beyond, what it was, some date in 2008.”

I thought that it was the State that was urging, “We don't need any more discovery, we don't want any more inspection tours.”

So how could -- how could the plaintiffs submit more than they did when the State said it's enough, 2008 should be the cutoff?

Mr. Phillips: Well, there is a huge difference between not allowing formal tours and all of the rigamarole that goes with that, which is what the State specifically objected to, but what the State wanted to do and what the Intervenors on our side in even greater vehemence wanted to do was to bring forward evidence that proved that in the interim period of time there have been, in fact, significant improvements.

As I sit here today, Justice Kennedy, you said it is conceded that we are in constitutional violation.

It is conceded that we have been in constitutional violation.

I don't know whether today we are in violation.

Justice Ruth Bader Ginsburg: But then don't you have the burden?

If you concede that you have been in constitutional violation, then it seems to me that you have the burden of showing that is no longer the case.

That's generally so in the --

Justice Sonia Sotomayor: Counsel, did you--

Chief Justice John G. Roberts: I'm sorry.

Could you answer Justice Ginsburg's question first?

Mr. Phillips: Yes.

Justice Ginsburg, I understand what the ordinary rule would be of a court of equity dealing with a constitutional violation, but we are talking about an order entered under the Prisoners Litigation Reform Act, and it's quite clear, the statute couldn't be any plainer, that it shifts the burden significantly onto the plaintiff when you are going to go for a remedy as extreme as insisting that somewhere between potentially 36,000 and 45,000 inmates be released within a two-year period of time.

Again, if you go back, the receiver has not -- at the time that all of this took place, the receiver had been appointed.

The receiver had devised a plan.

The receiver is currently spending an enormous amount of money, $4 billion on healthcare, to get -- to get the system moving in the right direction, with the right attitude, in order to bring ourselves without question into constitutional compliance.

The truth is we haven't really had an assessment of where we are in the constitutional compliance spectrum.

Justice Ruth Bader Ginsburg: Well, maybe we are talking about one of the cases, but the other one, and it's the newer one in 2000 -- instituted in 2001, but what about the one that started out in 1990?

Mr. Phillips: Coleman is obviously a much -- a much more serious problem, I don't doubt that, but it seems -- and if the Court were to conclude ultimately that Coleman ought to go back for another analysis based on the problems there, I could understand that and it would be a very different prisoner release order under those circumstances because then you would have to take out all of the evidence with respect to Plata and let that play out.

But even that it seems to me would be a mistake under these circumstances where the special master and receiver have been in a sense joined at the hip in a variety of ways, it only makes sense, because the receiver is controlling the provision of medical care in the CDCR and the special master is taking care of or trying to promote a very small slice of that.

So in the scheme of things, as you might expect, the receiver consistently gets the ultimate authority to make the decisions to help provide the kind of resources, both in quality and quantity and staff and construction and access to healthcare.

Justice Sonia Sotomayor: Counsel, this issue about evidence, did you proffer to the judge anywhere in this record what the additional evidence it was that you wanted to show?

I know that the decrease in suicides happened post-trial, so you couldn't have proffered that pretrial.

Mr. Phillips: Right.

Justice Sonia Sotomayor: But you are from the prisons.

I presume that you could have yourself without discovery set forth or proffer for the court that says, “We had a wait time between diagnosis and treatment that was 60 days, 90 days, 120 days in the past and we have reduced that down now to two weeks or whatever the reality is.

Mr. Phillips: Right.

Justice Sonia Sotomayor: Why didn't you -- you keep saying we were blocked.

Mr. Phillips: Because the district court -- because the district court could not have been plainer and when the Intervenor's counsel stood up in the opening statement and said, I want to start talking about the beneficial changes and where the status is today as opposed to where it was way back when, the three-judge court, at least one of the member of the three-judge court said, “We have been as clear as we can be that we are not entertaining any evidence on that point.”

So the notion of coming forward with a proffer, while technically it might have been, was clearly a futile act and we had already annoyed the judges on our side by even making reference to it.

So I don't think it's an appropriate response to say that we should have put forward more, because the (Voice Pverlap) --

Justice Sonia Sotomayor: Except that the district court invited you to proffer that evidence that went to the appropriateness of the remedy, so you didn't have to proffer it.

It viewed you as saying, we are no longer violating, constitutionally violating the Eighth Amendment.

Instead it said, “We will take whatever you have to proffer to show that the remedy is inappropriate.”

Mr. Phillips: But Justice Sotomayor, there is, to my mind at least, a complete disconnect by saying, I'm not going to tell you exactly where the constitutional violation is today.

We are not going to get into that.

We are just going to assume there is a constitutional violation.

Now prove to me that the remedy, you know, what remedy will or will not work under those circumstances.

It seems to me the exact opposite is the way to do it.

You determine where the constitutional violation is – (Voice Overlap)

Chief Justice John G. Roberts: Counsel, I see your time is about to expire.

Mr. Phillips: Thank you, Mr. Chief Justice.

Chief Justice John G. Roberts: Mr. Specter.

Argument of Donald Specter

Mr. Specter: Thank you, Mr. Chief Justice, and may it please the Court.

For 20 years, the overcrowding crisis has caused prisoners suffering from psychosis and life-threatening illnesses to languish in their cells because treatment facilities have no room for them.

Prisoners are committing suicide at a rate twice the national average and more than two-thirds of those suicides are preventable.

The absence of--

Justice Sonia Sotomayor: Are you talking about current figures or past?

Tell us the date of the figures?

Mr. Specter: Sure.

That's from the trial court's opinion, Your Honor.

That's from the record.

Justice Sonia Sotomayor: That's what I thought.

How do you address your adversary's point that the adequacy of a remedy can't be measured unless you measure the state of the situation at the time the remedy is imposed?

Mr. Specter: Well, I think, Your Honor, there was massive amounts of evidence about the constitutional violations that existed at the time that the remedy was imposed.

And if we -- I can point to the jurisdictional statement 1 appendix, page 30a, the court said, "Nonetheless, as we described below, fundamental unconstitutional deficiency is caused primarily by overcrowding continue to exist."

Justice Antonin Scalia: They didn't take any evidence on the point, I thought.

Mr. Specter: No, Your Honor I'm sorry, that's not correct, with all respect.

They took massive amounts of evidence up to the day of trial about all the conditions as they relate to the remedy and those conditions were--

Justice Sonia Sotomayor: Could you give us the record?

Justice Antonin Scalia: Current conditions?

Mr. Specter: Current as of the time of the trial.

Justice Antonin Scalia: What was -- what was your friend talking about when he said that they rejected any effort to show the current situation?

Mr. Specter: Well, my friend and I have a disagreement, but I think Justice Sotomayor accurately captured it.

What the three-judge panel said is, look, we're not going to -- you can't -- this isn't the place for you to come in and say everything's fine, everything's constitutional.

What the three-judge court did say is, “We will consider” and they did in fact consider all of the evidence from the State, they had experts from the State, two of the prisons, in August 2008, those experts wrote reports, they testified, and they testified about the conditions current and one of them from the mental health --

Justice Antonin Scalia: That was in 2008.

Mr. Specter: That was the time of the trial, Your Honor.

The discovery--

Justice Anthony Kennedy: They had a cutoff date of some two months before the trial.

Mr. Specter: In August, and the trial started in November.

Justice Anthony Kennedy: And that -- but before that point, the experts that were -- had testified were aware of the conditions that existed?

Mr. Specter: Exactly, Your Honor.

Justice Antonin Scalia: And when was the remedy imposed?

Mr. Specter: The remedy -- well, the final order came -- well, the close of evidence was in December of 2008.

Justice Antonin Scalia: That was in the -- in the one-judge court, in the district court, wasn't it?

Mr. Specter: No, no in the three-judge court.

The three-judge court closed evidence in December of 2008.

We then argued the case after the post-trial briefing in February of 2009.

Then the court came out with the tentative decision about 20 days later, and then in August of 2009, it issued the 183-page opinion and the order.

Justice Antonin Scalia: Didn't you –

Chief Justice John G. Roberts: I'm sorry, let me just keep track here.

The evidence was cut off when, in 2008?

Mr. Specter: The trial closed in December of 2008, after all the parties had submitted all their evidence.

Then there was post-trial briefing for a month.

Then we had argument in February of that year and then a few weeks later, they issued a brief summary of their conclusions in an attempt to get the State and the parties to settle the case.

Chief Justice John G. Roberts: You don't dispute the statement I have, it's in the response to the Intervenors that between October 2006 and October 2010 the population of the adult facilities declined by 14,832 inmates?

Mr. Specter: I agree with my friend Mr. Phillips that the population has declined by about 10,000 prisoners.

Most of that decline has been due to transfer to out-of-State prisons, and true, there is some amount of it has been as a result of the marginal increase in good time credits, which the State elected to pursue on its own.

Justice Anthony Kennedy: What about the argument that there was evidence that should have been admitted, but that was not with reference to new construction?

Mr. Specter: Well, I don't -- there was no evidence that wasn't -- that was offered that wasn't considered by the three-judge panel, Your Honor.

They considered all the evidence.

Their 183-page opinion is scrupulous in considering all the evidence, both that supported the order and they distinguished the evidence and, in fact, made credibility determinations based on the evidence that was contrary.

But I –

Justice Sonia Sotomayor: Could --

Justice Samuel Alito: Can you explain what the connection is between the 137.5 percent figure and the constitutional violations relating to the provision of medical care in general and treatment for -- for mental illness?

My understanding of the 137.5 percent figure is that that has to do with the total number of prisoners in the -- in the system in relation to designed capacity, isn't that right?

Mr. Specter: That's correct, Your Honor.

Justice Samuel Alito: Now, what does the ruling -- that doesn't speak to the number of personnel who are available in the system to attend to medical needs or mental illness?

It doesn't speak to the extent of the facilities that are available for those purposes.

It seems to be -- there seems to be a disconnect between those two.

Could you explain why that is narrowly tailored?

Mr. Specter: Yes, Your Honor.

There was -- the court made findings that 137.5 percent was the maximum number of prisoners that -- of the capacity, of the designed capacity of the prison, that the prison could have that would enable the State to -- to have all those things you just mentioned, staffing, facilities, medication management, be effective and reach the actual prisoners who are ill, seriously ill.

Justice Samuel Alito: See, that's what I don't understand.

You can have a -- could you not have a prison where the cells are somewhat crowded and 137.5 percent of designed capacity is not -- is not unconstitutional in itself, is it?

Mr. Specter: No, it -- you could have -- it's a remedy, Your Honor.

Justice Samuel Alito: You could have a prison where the -- the cells themselves are crowded, and yet there are other facilities available for medical care and plenty of staff to attend to those things.

So what's the connection?

Mr. Specter: Well, that's -- that's -- and you're right.

If there were -- if the cells were crowded, but the prison had all the other facilities available, then there might not be a problem.

You have to -- well, I hope you can understand that in this case, the prisons were built to double-cell the prisoners, but they weren't built to provide 200 percent of healthcare needs.

So as soon as they started to double-cell these prisoners, they could meet their literal housing needs in the space of the cell, but they couldn't meet the needs of their healthcare and that's why, Your Honor, the 137.5 percent figure is reasonable because the Court went almost a third overcrowding above what all the experts recommended.

Justice Samuel Alito: But why order the release of around 40,000 prisoners, many of whom, perhaps the great majority of whom, are not going to be within the class in either of these lawsuits?

Why order the release of all those people, rather than ordering the provision of the construction of facilities for medical care, facilities to treat mental illness, hiring of staff to treat mental illness?

Why not go directly to the problem rather than address what seems to be a different issue altogether?

Mr. Specter: Well, I have two responses to that, and they are both a little separate.

The first point, it's important to understand that this is not a release order.

It's a population crowding reduction order.

The court is not ordering the State to throw open the gates of its doors and release people.

They can reduce crowding through more transfers to out of State.

To your construction point, if the State still chooses, it can construct new facilities to increase the capacity, and the three-judge panel said if you increase the capacity, you can increase the population.

The point about--

Justice Samuel Alito: If all they do is to build more cells, they are not going to address the problem.

Mr. Specter: Exactly.

So that goes to the second part of your question, which is why don't they try other things, like ordering the prisons to hire more doctors, ordering better medication management, all of those kinds of things?

And the answer to that is in the appendix to the Appellee's Coleman brief, which lists 70 discrete orders which the Coleman court, single-judge Coleman court, tried over a period of 15 years, which have proven singularly to be ineffective and that is why the court analyzed all those things.

The trial court analyzed all those things, and it made a finding of fact that based on the statements by the special master, by the receiver's reports, and by the general horrendous conditions which we have in these prisons, that those discrete orders would not solve the problem and given the level of harm --

Justice Samuel Alito: I still don't get it.

You're saying that they were ordered to do a variety of things that directly addressed the problem and they didn't comply.

So as a --

Mr. Specter: No.

Justice Samuel Alito: In order to -- in order to provide some kind of remedy we are going to order something else that doesn't address the problems that these lawsuits aim at addressing.

Mr. Specter: No, that -- no, Your Honor, to the contrary, Justice Alito, we -- I think the court believes based on the facts that it found that this would be an effective remedy.

All of the testimony that they heard from experts from Texas, from Pennsylvania, from Washington State, all of whom had suffered, had dealt with crowding in their prison systems, has said that when you reduce the crowding, that's the critical thing that you have to do now because unless you reduce the crowding, nothing else is going to work, and the court found that that was exactly true.

Nothing else over 20 years in one case, and over 8 years in another case has worked and all -- as Justice Kennedy said, massive amounts of evidence show that the primary reason it hasn't worked is one singular word, overcrowding and when you reduce overcrowding the prison will be able to operate and will be able to provide those services that it can't provide now, so the doctors will have room to be able to work, which they don't have now.

There will be less prisoners, so officers will be able to take them from one place to another to get treatment.

There won't be so many lockdowns which inhibit care.

Justice Sonia Sotomayor: Counsel --

Justice Samuel Alito: That is a very indirect way of addressing the problem and it has collateral consequences.

If -- if I were a citizen of California, I would be concerned about the release of 40,000 prisoners and I don't care what you term it, a prison release order or whatever the --

Mr. Specter: Crowding –

Justice Samuel Alito: -- terminology you used was.

If 40,000 prisoners are going to be released, you really believe that if you were to come back here two years after that, you would be able to say, they haven't -- they haven't contributed to an increase in crime --

Mr. Specter: Well --

Justice Samuel Alito: -- in the State of California?

In the -- in the amicus brief that was submitted by a number of states, there is an extended discussion of the effect of one prisoner release order with which I am familiar, and that was in Philadelphia and after a period of time they tallied up what the cost of that was, the number of murders, the number of rapes, the number of armed robberies, the number of assaults -- you don't -- that's not going to happen in California?

Mr. Specter: Your Honor, this trial court found based on, 50 pages of its opinion, based on expert testimony, not only from our experts, but from the State's experts, from the Intervenors' experts.

They all came to the unanimous conclusion that there are methods that -- by which you can reduce crowding which will not increase crime and they are safe.

The Secretary of the Department of Corrections who was the secretary at the time of trial testified that he was in favor, for example, of increasing prisoner's good time credits.

That's one way to reduce crowding and moreover, there was statistical evidence saying, looking at all the other States that had reduced their prison population over a period of about 15 years, and they all came to the same conclusion, all of those studies came to the same conclusion, which is there is no -- there is no increase in the crime rate.

Chief Justice John G. Roberts: But that is not what -- that is not what the three-judge district court determined.

The Prisoner Litigation Reform Act requires that court to give substantial weight to adverse impact on public safety.

Mr. Specter: Yes, Your Honor.

Chief Justice John G. Roberts: And when -- and then it said to the State, look, you come up with a plan that gets you to 137.5 in two years.

Mr. Specter: Yes, Your Honor.

Chief Justice John G. Roberts: The State did, and the State did not say, emphatically did not say this is not going to have an adverse impact on public safety.

Mr. Specter: Right, but the--

Chief Justice John G. Roberts: There is a problem with negative there, but -- and what the district court said, it didn't examine that.

It said, well, we're sure the state's not going to do anything that has an adverse impact on public safety.

I am looking at page 4a of the jurisdictional statement.

Mr. Specter: Right.

I know --

Chief Justice John G. Roberts: And said -- and so it did not make those determinations, but the PLRA requires it to determine that what it's ordering or at least gives substantial weight to the public safety issue.

So isn't that a basis for overturning the remedy that's imposed here?

Mr. Specter: I would respectfully disagree with that and I'll tell you why--

Chief Justice John G. Roberts: I thought you would.[Laughter]

Mr. Specter: At least it's respectful. [Laughter]

I will tell you why I think that.

The court examined all of the methods that are commonly used and that the governor himself has proposed to reduce crowding.

The governor himself wanted to reduce the prison population by 37,000.

That was in one of his legislative enactments, and the Secretary of Corrections testified that those proposals were safe.

Chief Justice John G. Roberts: Did he want to do it within the two-year period the district court ordered?

Mr. Specter: Yes, Your Honor, he did.

He submitted legislation to the legislature for that, and the legislature wouldn't -- wouldn't take it and the governor actually said, reacting to that, after a riot at Chino which was partly -- at one of the -- Chino is a prison in California, a riot, he said, "And the politicians in Sacramento have swept the problem under the rug."

Chief Justice John G. Roberts: Right, right.

Now my -- my question is specifically with respect to the --

Mr. Specter: I'll get to that.

Chief Justice John G. Roberts: -- with respect to the two-year plan --

Mr. Specter: Right.

Chief Justice John G. Roberts: -- and I would like an answer to that.

Mr. Specter: Yes.

Chief Justice John G. Roberts: As I look at this record, I see that the district court did what was required by the Act with respect to the plan that it's ordering.

It just simply said, oh, we're sure -- I'm the State wouldn't do anything to hurt public safety, after telling the State you have got to give me a plan in two years that gets to 137.5.

Mr. Specter: Right.

Well, I think all of the -- it didn't -- it didn't analyze the plan, because the court was trying -- well, there was no plan.

The court, what they -- what the court did was it said, we want to give the State the maximum flexibility for comity reasons to determine how best to remedy the constitutional violations.

Now I am certain then they said -- they also said that we're sure the State can do it in a safe way, but it's not our job to -- the method.

Chief Justice John G. Roberts: Well, they said we're sure, because we trust, I'm just quoting from 4a, "We trust that the State will comply with its duty to ensure public safety as it implements the constitutionally required reduction."

The State is saying it cannot meet the 137.5 in two years without an adverse impact on public safety.

Mr. Specter: Right and the -- that's the State's position and had been the State's position all along.

The court's findings that a population reduction of this magnitude were clear and they are not shown to be clearly erroneous here.

They -- the court said point blank that we -- we're -- it's our finding that the State can reduce the population to its current levels -- from its current levels to 137.5 safely.

They made that finding--

Justice Sonia Sotomayor: Counsel, didn't the court --

Mr. Specter: -- and they haven't been shown to be clearly erroneous.

So they didn't have to look at particulars.

In an effort to give the State the maximum flexibility, they wanted to allow the State to choose the methods that it wanted.

If the State -- if the court had ordered--

Justice Sonia Sotomayor: Counsel --

Justice Antonin Scalia: Well, what do you mean they can do it?

Of course they could do it safely if they built, you know, umpteen new prisons, but that's --

Mr. Specter: But they can also do it safely --

Justice Antonin Scalia: You know, that's pie in the sky, that's not going to happen.

Mr. Specter: No, it isn't, Your Honor, because they can also do it safely by good time credits.

They can do it safely --

Justice Antonin Scalia: Doesn't good time credits let -- let people out who would not otherwise be out?

Mr. Specter: Just a -- you know, the evidence was at trial, and the court's finding about that evidence was, and the State officials so testified, that giving prisoners good time credits is not a threat to public safety.

Justice Sonia Sotomayor: Counsel.

Didn't –

Justice Elena Kagan: Why wouldn't it have been the better course, for the State -- for the court to say, you know, the State said it can do this in five years without any public safety problem?

Mr. Specter: Right.

Justice Elena Kagan: So why don't we let them take those five years?

Mr. Specter: Because Your Honor as Justice Ginsburg and others have been saying before the constitutional violations have been ongoing for 20 years.

We are dealing here with cases of life and death and serious injury.

And after all these years, when they -- when they heard the evidence that said that population could be -- and they made the findings which the State doesn't argue were clearly erroneous, and they made those findings that it could be reduced safely, they had an obligation to provide a remedy that would provide constitutionally adequate care in the safest manner possible -- in the quickest manner possible.

Chief Justice John G. Roberts: I think --

Justice Sonia Sotomayor: Counsel--

Chief Justice John G. Roberts: I think Justice Sotomayor has been patient.

Justice Sonia Sotomayor: I have several questions but I'm not sure why -- you have not been responding to Justice -- to the Chief Justice.

Didn't the district court discuss different safe ways of reducing the population?

Mr. Specter: Yes.

Justice Sonia Sotomayor: And said, we are not imposing them because we want the State to do -- to choose among them?

Mr. Specter: Yes, Your Honor.

Justice Sonia Sotomayor: As I've looked at the State's final plan, I thought that they had in fact not only accepted all of the recommendations, but they added a couple of additional remedies that the court had not suggested?

Mr. Specter: Yes, Your Honor.

Justice Sonia Sotomayor: Is it a fair statement that the district, that the three judge panel was saying, if you do these things that's their finding, you can do it without affecting public safety, wasn't that what they were saying?

Mr. Specter: Yes, Your Honor, if I didn't make that clear, I meant to.

Justice Sonia Sotomayor: The second more important question was going back to something that Justice Scalia asked you, which was, you made the statement that no one was stopped from proffering evidence about prison conditions up till two months before the trial.

So what evidence was excluded?

Mr. Specter: Nothing.

Justice Sonia Sotomayor: What point is the other side making that they were excluded from making?

Mr. Specter: Well, as we said in our briefs, Your Honor, there was no evidence that was excluded, and in fact, the State's witnesses testified about conditions, some of the conditions current as of the day of the testimony.

So it was very current.

Nothing was excluded.

Even if the Court made a ruling which was error, which we don't believe it was, there was absolutely no prejudice.

Justice Stephen G. Breyer: What is the number?

I was puzzled about the same thing that Justice Sotomayor was.

I read on page 253 of the appendix a conclusion where the district court said it is our conclusion that they can reduce this by how many people, what is it, 30,000 -- it's a lot?

Mr. Specter: 35,000.

Justice Stephen G. Breyer: 35,000, and this could be done safely.

Mr. Specter: Yes.

Justice Stephen G. Breyer: Preceding page, whatever that was, 253.

Mr. Specter: Right.

Justice Stephen G. Breyer: There are about six pages where they summarize evidence from all kinds of criminologists that say, for example, there are 17,000 technical parole violators that are being sent to prison who haven't committed additional crimes and they could perhaps be released from some of the time that they're spending in prison.

Then they go on to this good time, which would, I guess, lead to people who are 50 years old or 60 years old who have been in prison for 40 years would be released at age 55 instead of age 75, I guess there is some category there.

Mr. Specter: Yes, Your Honor.

Justice Stephen G. Breyer: Then they had several other things.

Okay, now what are some facts about that?

Mr. Specter: And there was also testimony that the Department Of Corrections was using a risk assessment instrument to identify the low risk prisoners.

Justice Samuel Alito: Isn't it true that in one of the main programs that was cited as providing a safeguard is evidence-based rehabilitation programs?

Mr. Specter: Yes, Your Honor.

All the witnesses from the State, the Interveners, the local witnesses, our experts, they all found that those would help reduce crime and that they would be most effective if they were continued, but they would be effective also if they were --

Justice Samuel Alito: What is the general record on the success of rehabilitation efforts?

Mr. Specter: Well, you can't say generally because different programs have different records.

Justice Samuel Alito: What did Congress think when it enacted the sentencing format?

Mr. Specter: I don't know.

Justice Anthony Kennedy: I have this question and this goes just to remedy.

I recognize that district court has to be given considerable discretion.

It shows the 137.5 figure because it is halfway between 145 and 130.

Mr. Specter: Yes, Your Honor.

Justice Anthony Kennedy: I think that certainly the Prison Litigation Reform Act means that you have to, if there is going to be a release order, it must be releasing the minimum amount.

Mr. Specter: Yes.

Justice Anthony Kennedy: That will affect the purposes of the remedy order.

There was substantial expert opinion that 145 -- 145 percent would be sufficient.

Doesn't the evidence indicate to you that at least 145 ought to be the beginning point, not 137.5?

Mr. Specter: Well --

Justice Anthony Kennedy: And I understand -- may I make -- there were more, correct me if I am wrong, there were more experts that testified that 145 would work then there were that 130 was necessary?

Mr. Specter: No.

I respectfully disagree with the record, Your Honor.

The 145 figure came from a report by the former governor, Duke Majin, and a group that he organized and they said that they could operate a crowded system at 145 percent of capacity and that figure was high, the district court found, because it didn't take into account healthcare needs.

It didn't take into account healthcare needs, which is the issue here and our experts testified that because it didn't take into account healthcare needs, 130 percent was the better number.

It's the number that the strike team had thought of, the administration's own strike team.

It's the number that these professional experts believed would be sufficient to remedy the population and back to my answer to Justice Alito's question is, the healthcare facilities themselves were built to provide services to only 100 percent -- healthcare services to only 100 percent of prisoners.

Justice Anthony Kennedy: But the experts -- the experts who were testifying were quite aware of the fact that overcrowding related to the constitutional violations, that was their whole theory.

Mr. Specter: Yes.

Justice Anthony Kennedy: And any number of them suggested that 145.

Mr. Specter: I think there might have been only one, one expert suggested 145.

I think most, the majority of the experts suggested 130.

The court found and it has not been challenged here as clearly erroneous, that the weight of the evidence went to 130.

They wanted to do what you're saying, which was to minimize the intrusion and maximize the population.

So even though they found, the Court had ample basis to issue an order saying it should be 130, they said in an abundance of caution and to give the State the benefit of the doubt and to make sure, we are going to bump it up an extra 7.5 percent.

Justice Anthony Kennedy: I see no evidence in the record that the State -- pardon me, that your clients said that 145 wouldn't work.

Mr. Specter: I think --

Chief Justice John G. Roberts: Maybe you can answer.

Justice Sonia Sotomayor: Just the experts.

Chief Justice John G. Roberts: Maybe you can answer, counsel, please.

Mr. Specter: Thank you.

My recollection of the testimony was that our experts said it had to get down to 130 in order for the other remedies to be effective, Your Honor.

Justice Sonia Sotomayor: The expert who gave the 145?

Mr. Specter: Pardon me?

Justice Sonia Sotomayor: The expert who gave the 145?

Mr. Specter: There was no expert -- well, there was one expert who said maybe in the best of circumstances it could get to 145.

All the others talked about 130 percent.

Justice Sonia Sotomayor: Let's go to the one who's used the 145 figure.

Mr. Specter: He was a psychologist, Your Honor.

Justice Sonia Sotomayor: He was a what?

Mr. Specter: He was a psychologist who has expertise in prison healthcare.

Justice Sonia Sotomayor: And did he say that 145 you could deliver healthcare?

Mr. Specter: He was equivocal on that point.

He thought -- he said that at the outer reaches it might be true, but I want to emphasize that the district court has allowed the State to come back in at any time to modify its order and to modify this percentage point if the circumstances changed.

So –

Justice Ruth Bader Ginsburg: Mr. Specter, there has been at least two significant changes; one is the good time credit.

The California legislature did pass the law that upped the good time credit, and also addressing the probationers and the parolees, the technical violators from the system.

Do you have any information about what effect that legislation was passed January?

Mr. Specter: It was passed, I think, last year and I think it went into effect in July of last year, I believe, if that's what you are referring to.

Justice Ruth Bader Ginsburg: So do we know at all what effect this has had?

Mr. Specter: It has had a marginal effect on reducing the population.

There have been no reports that it has led to an increase in crime, but to get back to my earlier point, and your point, Justice Kennedy, about the remedy and that it should be the least intrusive possible, this order is set to take effect over a two-year period and during that two-year period, if Mr. Phillips is correct that the conditions are constitutional and that they can deliver services at 145 percent, then the State is free to come in and make a motion to bring those changed circumstances to the court and, if anything, this Court has been incredibly sensitive to the needs and desires of the State.

And it was extremely reluctant to enter this order in the first place and it would bend over backwards to give the State discretion.

Justice Anthony Kennedy: I don't see a finding by the three-judge court that 145, is it, would not be an efficacious remedy.

I know that it would for 137.

Mr. Specter: Yes, Your Honor.

I don't think -- I don't think it's explicitly said 145, but I think it discussed the 145 figure in the context of the fact that it didn't provide for healthcare services.

So it discounted that a little bit and went down about 7 percent, but it came close to that figure, I believe.

Chief Justice John G. Roberts: Can I ask you a hypothetical question that I know is not your case, but let's say you had the district court entering an order saying you have to bring it down to 137.5 in 2 years.

That will as a practical matter result in the release of 40,000 prisoners.

The State comes back and makes a showing supported by experts saying, look, if you give us 4 years, we can reach the figure without releasing any prisoners.

Do you think it would violate the Prison Litigation Reform Act for the district court to say, no, I want this done in 2 years, not 4 years, and we just have to deal with the fact that there are going to be 40,000 prisoners out on the streets?

Mr. Specter: Well, the Prison Litigation Reform Act requires the court to give substantial weight to the public safety implications of its decision.

So under those circumstances, it's -- under those hypothetical circumstances, there is always the possibility that in those cases, the degree of public safety problems might outweigh the harm.

That -- as you said, that's not this case.

They found that we could do it and they -- the three-judge panel found that the State could reduce the population safely.

And there was no suggestion then in the record that this 2 or 4-year period would make that much of a difference.

You have to put the 40,000 or 35,000 figure in context.

California releases 120,000 prisoners every year on parole.

That's a lot of prisoners and the findings of the district courts are, even when the California increases the number of parolees in the communities, that doesn't increase the crime rate.

Justice Samuel Alito: What is the recidivism rate for those parolees?

Mr. Specter: Well, it depends on the risk of the parolee.

The high-risk ones --

Justice Samuel Alito: In general, what is the recidivism rate?

Mr. Specter: --Well, overall, the risk is around 70 percent, but for low-risk prisoners the risk is 17 percent who reviolate.

Chief Justice John G. Roberts: I'm sorry.

I couldn't -- what was the first--

Mr. Specter: The first number when you take all parolees, all together, it's 70 percent.

Chief Justice John G. Roberts: 70?

Mr. Specter: 70, because -- within three years.

That's what -- the situation we have now, and that's the situation that the governor, the secretary, and the court described as a failure.

With parole reform, you could reduce that number in many ways, and the court described how you could do that, but the lowest --

Justice Samuel Alito: What is the lowest?

It's 17 percent.

Mr. Specter: 17 percent and California has a risk assessment instrument which the court found could be used to make sure that what happened in Philadelphia doesn't happen again. (Voice Overlap)

Justice Samuel Alito: Well, I understood that of the low-risk, if only the low-risk people are released, around 3,000 of them are going to commit another crime.

Mr. Specter: They -- but they don't have to be released, first off I want to make sure I emphasize the point that this is a crowding reduction measure.

You don't have to release 35,000 prisoners.

Justice Samuel Alito: They don't have to be released if you can build enough cells --

Mr. Specter: Or you can divert, or you can improve the parole system so that parole violators don't commit so many crimes, if you offer rehabilitation alternatives, if you provide a number of diversion into the community.

There are a number of options short of releasing prisoners and the 70 percent figure concludes --

Justice Samuel Alito: The 17 percent figure goes exactly to my concern.

This is going to have -- it seems likely this is going to have an effect on public safety and the experts can testify to whatever they want, but you know what, if this order goes into effect, we will see.

We will see, and the people of California will see.

Are there more crimes or are there not?

Mr. Specter: Well based on the experience in other jurisdictions, the court found we wouldn't and I wanted to say -- to clarify one point, Your Honor, the 70 percent figure includes -- doesn't always include crimes.

It includes lots of technical parole violators, people who have missed their appointments, for example.

So it's not as grave as some of the figures that are informed by the other side.

Justice Stephen G. Breyer: Is there any –

Justice Ruth Bader Ginsburg: Is -- is there any other case where the prison reduction has been done under the PLRA, or is this the first -- the first one?

Mr. Specter: It's the first one to reach this Court, obviously.

There have been a few others that have been resolved by consent, as I understand it, or not appealed, but just a few.

Justice Stephen G. Breyer: Is there any evidence on -- I see their suggestions -- the technical parole violators go elsewhere.

The elderly and infirmed prisoners, some of them be released.

The good time credits for older people were -- would have effect, be increased, and also, halfway houses and other kinds of prison facilities which used to be called less -- less physically restrictive punishments, or taking the money you save and building new prisons. Okay, that seems to be the gamut.

Is there any evidence, statistically or otherwise because it used to be that States did rely on halfway houses, it relied upon, they relied upon -- they relied upon certain camps -- prison camps, for example -- and some of them were pretty tough and there were a whole range of what used to be called intermediate punishments.

Mr. Specter: Yes, Your Honor.

Justice Stephen G. Breyer: All right is there any statistical evidence on the part -- on the point that Justice Alito raised --

Mr. Specter: Yes, Your Honor.

Justice Stephen G. Breyer: -- as to whether these did or did not result in higher crime rates?

Mr. Specter: Well, the evidence was, and the Court found -- and again, it's not clear error that these programs were more effective than prison in reducing recidivism and they were less expensive and -- and that's part of the reason why the three-judge panel concluded that a reduction in the prison population wouldn't increase crime.

Chief Justice John G. Roberts: Counsel, one of the things that concern me about this type of institutional reform litigation is that the State is responsible for a lot of different things.

What happens when you have this case, another district court ordering the State to take action with respect to environmental damage, another court saying you have got to spend this much more on education for disabled, another court saying you have got to spend this much more on something else?

How does the State sort out its obligations?

Does it say, well I'll spend more money to build prisons, but I will violate this other district court order saying I have to spend money to build water treatment plants?

Mr. Specter: Well Your Honor, in this particular case --

Chief Justice John G. Roberts: I know you like your particular case.

You want the State to say, this is where I'm going to put my money, but the point is that it's a bunch prioritization that the State has to go through every day, and now it's being transferred from the State legislature to Federal district courts throughout the State.

Mr. Specter: Well, I believe the Federal courts have an obligation to enforce the Constitution and the laws.

Chief Justice John G. Roberts: No, no, I believe that as well, Counsel.

What I'm saying is that you have conflicting orders from different district courts telling them, you have got to comply with the Constitution by spending 8 billion here and another court saying, I have got another constitutional problem of my own, and you have got to spend 8 billion over there.

What is the State supposed to do in that situation?

Mr. Specter: Well, my simple answer to your question, Your Honor, and I don't mean to be flippant, but they're -- they have an obligation to follow the Federal law, the constitutional law, and other laws and if they are not, then the Federal court has an obligation to impose a remedy.

In this particular case, the State has a choice.

It can either incarcerate 140,000 prisoners in a system built for 80,000, or it can incarcerate a lesser number.

If it chooses to incarcerate 148,000 prisoners in a space built for 80, it's going to incur certain obligations and we believe, as I said in the answer to Justice Breyer's question, the State could choose to use less restrictive punishments, alternative punishments, get a better bang for their buck, have more public safety, but that's -- if we -- if the court imposed that kind of a rule, then the State would be here saying it's -- it's violating comity provisions and making policy choices for the State which it shouldn't.

I believe in this case, the court gave the State the maximum degree of flexibility to make all the policy choices surrounding -- surrounding the incarceration of these prisoners.

You just -- the Constitution prevents the State from incarcerating somebody and then not providing them the basic medical care they need to escape from the prison and not die before their sentence is out and that's what we have here.

Thank you.

Justice Anthony Kennedy: If you take the State's concession that it can meet a goal in 5 years and the Federal court order is 2 years, we are talking about 3 years.

Is there any indication of how fast the State's remedy would click in?

Are we talking maybe about a 5 percent differential for the last 3 years, or --

Mr. Specter: Well, there are a lot of things the State can do quickly.

For instance, it can reform its parole system.

It cannot re-incarcerate technical parole violators.

It can--

Justice Anthony Kennedy: No, no.

I'm saying, assuming -- compare what the State concedes that it will do with what the court has ordered it to do.

Mr. Specter: --The State -- well, I just want to remind you that the governor proposed to the legislature that he reduced the prison population.

He said it could be done safely by the same amount, roughly 37,000 prisoners in 2 years.

So what the court found was basically what the governor had believed was safe.

The 5-year -- the 5-year period is longer and the 5-year period is longer because it takes time to construct the facilities that the -- that State wants to construct.

I believe that's the major difference between the two remedies.

But the other methods, the good time credits, parole reform, diversion, those can be implemented very quickly, and those substantial reductions can be accomplished safely in that amount of time.

Justice Sonia Sotomayor: So should the court have said 2 years for everything but construction? Wouldn't that have been a more narrowly tailored remedy?

Mr. Specter: Well, the State --

Justice Sonia Sotomayor: Except that they --

Mr. Specter: I was --

Justice Sonia Sotomayor: -- that there was going to be no construction adequate, because there was no money.

Mr. Specter: Right and the State has -- has really not put up the money to construct those new prisons.

This case has been on going since 2006 and they have hardly constructed anything.

Even if it was a more narrow remedy, the court found that construction wouldn't be a viable alternative.

My time is up.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Phillips, you have three minutes left.

Rebuttal of Carter G. Phillips

Mr. Phillips: Thank you Mr. Chief Justice, just a few points.

First of all, with respect to the state of the record and what was proffered and what was not proffered, if you look at the joint appendix at 2085, there is a specific proffer that is made by the Interveners in that context -- I mean, I'm sorry, there is a specific proffer made by the State of the --

Justice Sonia Sotomayor: I'm sorry, what page was that?

Mr. Phillips: 2085, that is volume 6 of it and it's at that point where the plaintiffs, the intervening plaintiffs say we would like to put on evidence of institutional violations, and Judge Karlton says twice this court has said, we will not receive that evidence.

You have made a clear -- as clear a record as you can; please don't waste our time and then later at 2338, which is again in volume 6, where we enter -- Mr. Desseimer, who is the assistant secretary of CDCR in charge of healthcare, he specifically said -- I've read this December declaration and it will not be received, to the extent that it says the State is in compliance.

So we have made our efforts and we were rebuffed.

Justice Sonia Sotomayor: I'm sorry; I don't know what the declaration said. Is the actual declaration in the record somewhere?

Mr. Phillips: Yes, I believe the actual declaration is in the record.

Justice Sonia Sotomayor: All right.

Justice Elena Kagan: Mr. Phillips, sorry, but I'm on a different subject.

Does the State stand by its representation that it can do this without any public safety impact in 5 years?

Mr. Phillips: Yes.

I mean, we made that submission to the court and we -- we believe that we could comply with it.

That said --

Justice Elena Kagan: That means it's true.

Mr. Phillips: We --

Justice Elena Kagan: Not -- notwithstanding budget -- economic differences, budget differences?

Mr. Phillips: Well -- well, I mean the plaintiff's counsel talks about all of the things that you had can do, and if you -- if you look at 70a of the -- the jurisdictional statement appendix, it specifically says, there is a line, above the line we can implement, and that will get you about 16,000 inmates and below the line you need legislation in order to implement these things.

But the reality is that anytime you say you are going to release 30,000 inmates in a very compressed period of time, I guarantee you that there is going to be more crime and people are going to die on the streets of California.

I mean that -- there is not way out of that particular box.

Justice Elena Kagan: But if they were 5 years you think you could do it without any public safety impact in the way that you told the court you could?

Mr. Phillips: I think so, but I'm still concerned because the district court in this specific says, we have not evaluated the -- the safety impact of each of the State's -- of the elements the elements of the State's proposed plan, and it seems to me they had an obligation to do that.

The other point I want to make with respect to Justice Kennedy's question is that there is not a shred of evidence that 137.5 makes any sense whatsoever.

That is a pulled out of the air number.

Theirs was aspirational.

None of that is based on what is the constitutional violation that exists at the time you adopt that particular percentage.

And it seems to me this is the entire problem with this -- this exercise, which is to say we are going to fix this across the board, rather than what would make much more sense, which is to evaluate these matters facility by facility, to evaluate these matters on the basis of various discrete elements of how you can reduce the prison population, and to do it in -- in conjunction with a receiver who is in place who can help to implement this in a very systematic way and that will get us to where we want to get to.

Justice Sonia Sotomayor: So why didn't you give the court that as your plan?

The court gave you absolute discretion to implement the plan that you wanted.

It said we don't want to do facility by facility, because we want you to figure out where you need to implement.

So, your client didn't do that, why, either in your 5-year plan or in your 2-year plan?

Mr. Phillips: Because the district court's order said you are going to have to reach 137.5 percent in two years.

That's the categorical rule, and the first time we went in to suggest something above 137 and a half, Judge Henderson said, "I'm not hearing that".

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Phillips, Mr. Specter.

The case is submitted.

Print this transcript Transcript: 

Justice Scalia: I will summarize my dissent which as you've heard is joined by Justice Thomas.

Today, the Court affirms what is perhaps the most radical injunction issued by a court in our nation's history, an order requiring California to release the staggering number of 46,000 convicted felons.

The Court disregards stringently drawn provisions of the governing statute and traditional constitutional limitations upon the power of a federal judge in order to uphold -- uphold the absurd.

I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.

First, the plaintiff classes here should never have been certified.

The classes as you have heard consist of all prisoners who are seriously mentally ill or who have serious mental -- medical conditions.

These classes do not base their claims on individual instances of mistreatment.

It is not claimed that all or even most of them have been denied needed care.

They instead based their claims on system wide deficiencies in medical care.

But the sole purpose of class wide adjudication is to aggregate claims that are individually valid.

And it is impossible to say that each and every prisoner who happens to be physically or mentally ill in a prison that has systemic weaknesses has thus suffered cruel and unusual punishment.

The only viable claims are those by prisoners who have themselves been denied needed medical treatment.

Since the class is certified here are improper, it follows that the remedy decreed is also illegal.

The remedy of reforming the system as a whole is not narrowly drawn.

That's a quote from the statute as required by the Prison Litigation Reform Act.

Even accepting the premise that class certification was proper, we have no business affirming the District Court's structural injunction.

This case illustrates one of the most pernicious aspects of structural injunctions.

They force judges to engage in a form of fact-finding as policy making that is outside the traditional judicial role.

The fact-finding that judges traditionally engage in involves the determination of past or present facts based exclusively upon a closed trial record.

In contrast, when a judge manages a structural injunction he will inevitably be required to make broad empirical predictions necessarily based in large part upon policy views.

The sort of predictions regularly made by legislators and executive officials but inappropriate for the third branch.

This feature of structural injunctions is superbly illustrated by the District Court's opinion.

The District Court found as a fact among other things that the evidence was "clear" that prison over crowding would "perpetuate a criminogenic prison system that itself threatens public safety" and that "additional rehabilitated programming would result in a significant population reduction while improving public safety".

The idea that the three district judges in this case relied solely on the credibility of the testifying expert witnesses enriching these conclusions is fanciful.

Of course they were relying largely on their own beliefs about penology and recidivism.

What it could here is no more judicial fact-finding in the ordinary sense then would be the factual findings that deficit spending will not lower the unemployment rate or that the continued occupation of Iraq will decrease the risk of terrorism.

Yet, because they have been granted "factual findings" entitled to differential review, the policy preferences of three district judges now govern the operation of California's penal system.

But structural injunctions do not simply invite judges to indulge policy preferences.

They invite judges to indulge incompetent policy preferences.

Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions.

The District Court's finding that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity was a finding the District Court was utterly unqualified to make.

My general concerns about judges running social institutions are magnified in connection with prison release orders recognizing that habeas corpus relief must be granted sparingly.

This Court has reversed the Ninth Circuit's erroneous grant of habeas relief to individual California prisoners four times this term alone.

Well here, the Court affirms an order granting the functional equivalent of 46,000 writs of habeas corpus.

It seems that the Court's respect for state sovereignty has vanished in the case where it most matters.

The Court attempts to defend its opinion by means of a bizarre coda noting that "the state may wish to move for modification of the three-judge courts order to extend the deadline for the required reduction to five years".

And that the District Court "may grant such a request provided that the state satisfies necessary and appropriate preconditions designed to ensure the measures are taken to implement the plan without undue delay".

What a strange thing to do to approve the injunction in its present form.

But intimate that the District Court had better approve certain changes if the state asks for them as it is invited to ask.

The Court must be aware that the judges of the District Court are likely to call its bluff since they know full well they cannot possibly be an abusive discretion to refuse to accept the state's proposed modifications of an injunction that has just been approved by this Court in its present form.

So perhaps the coda is really nothing more than a ceremonial washing of the hands making it clear for all to see that if the terrible thing 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?

In my view, the Prison Litigation Reform Act prohibits a court from ordering a prisoner's release unless it determines that the prisoner, the prisoner is suffering from a violation of his constitutional rights and that his release and no other relief will remedy that violation.

Thus, if the Court determines that a particular prisoner is being denied constitutionally required medical treatment and the release of that prisoner and no other remedy would enable him to obtain medical treatment, then the Court can order his release.

But a Court may not order the release of prisoners who have suffered no violation of their constitutional rights merely to make it less likely that such violations will happen to other prisoners in the future.

Bear in mind that the 46,000 prisoners ordered to be released are not those who have been denied needed medical treatment.

They are not even those who suffer mental or physical illnesses that supposedly place them in danger of being denied needed medical treatment.

They are just 46,000 happy-go-lucky felons fortunate enough to be selected for release in order to make more space that the District Court has "found is needed to solve the systemic deficiency."

The injunction in this case was in my view clearly contrary to law.

Print this transcript Transcript: 

Justice Kennedy: This case arises from serious constitutional violations in California's prison system.

The violations have persisted for years.

They remain uncorrected.

Now, this is a direct appeal to this Court from a three-judge District Court.

And the District Court's order directs California to remedy two ongoing violations of the Cruel and Unusual Punishments Clause.

And those violations are the subject of two federal class actions.

The first case is Coleman versus Brown, and that involves prisoners with serious mental disorders.

Plata versus Brown involves prisoners with serious medical conditions.

And the order of the three-judge court that we're reviewing here applies to both.

The appeal turns largely on whether the order complies with the statutory provisions of the Prison Litigation Reform Act, a congressional act, enacted in 1995.

The specific provision to be consulted for the case, which contains many of the phrases that the Court examines, is 18 U.S.C. 3626.

And that section contains limitations on the issuance of orders that require release of prisoners to remedy constitutional violations.

One of these requirements is that the order be issued by a three-judge court.

The Court today issues a lengthy opinion.

It determines that the order of the three-judge court does meet all the statutory requirements.

The order leaves the choice of means to reduce overcrowding to the discretion of state officials.

But absent compliance through new construction, out-of-state transfers, or other means, the State will be required to release prisoners before their full sentences have been served.

The required reduction could be as high as 46,000 prisoners.

The State has already reduced the population by 9000 persons during this appeal.

Further reductions need not be accomplished in an indiscriminate manner.

The State may employ measures that will mitigate the impact, including good-time credits and diversion of low-risk offenders to community-based programs.

The population reduction potentially required is nevertheless of unprecedented sweep and extent.

A mistake and a premature release of even one prisoner can cause injury and harm.

And the release of prisoners in large numbers is a matter of undoubted, grave -- grave concern.

Yet so too is the continuing injury and harm resulting from these serious constitutional violations.

For years, the medical and mental health care provided by California's prisons has fallen short of minimum constitutional requirements.

In 2006, the suicide rate in California's prison was nearly 80% higher than the national average for prison populations.

Wait times for mental health care range as high as 12 months.

Prisoners suffering from physical illness also receive severely deficient care.

And the record documents numerous instances of delay and neglect leading to suffering and -- and even death.

As a consequence of their own actions, prisoners maybe deprived the fundamental rights of liberty yet the law and the Constitution demand recognition of certain other rights.

Prisoners retain the essence of human dignity inherent in all persons.

Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.

If Government fails to provide for the prisoners' basic needs, the courts have the responsibility to remedy a resulting Eighth Amendment violation.

Years of efforts to remedy the violations in this case have been frustrated by severe overcrowding.

California's prisons are designed to house a population just under 80,000, and at the time of the three-judge court's decision, the population was almost double that.

Prisoners are crammed into spaces neither designed nor intended to house inmates.

As many as 200 may live in a gymnasium, monitored by as few as two or three correctional officers, as many as 54 prisoners may share a single toilet.

Short term gains in the provision of care have been eroded by the long-term effects of severe and pervasive overcrowding.

When the three-judge court was convened, 12 years had passed since the appointment of the Special Master in the Coleman case.

Five years had passed since the approval of a consent decree, it was a consent decree approved by the State.

Five years had passed since the approval of that decree in the Plata case.

The State does not claim that either measure achieved a remedy.

Both the Coleman and Plata District Courts had recently undertaken additional remedial efforts, including the appointment of a Receiver in the Plata case.

The basic plan to solve the crisis through construction, hiring and procedural reforms nevertheless remained unchanged.

The Special Master and the --- and the Receiver were unable to provide assurance that such efforts would yield success absent a population reduction.

The Special Master explained that many of the clinical advances painfully accomplished over the past decade are slip-sliding away as a result of overcrowding.

And the Receiver indicated that, absent a reduction in overcrowding, a successful remedial effort could all but bankrupt California.

Having engaged in remedial efforts for five years in Plata and 12 years in Coleman, the District Courts were not required to wait to see whether more recent efforts would yield equal disappointment.

The Coleman and Plata Courts had a solid basis to doubt that additional efforts to build facilities and hire staff would achieve a remedy.

Indeed, although four years have passed since the three-judge court was convened, there is still no indication that the constitutional violations have been cured.

Once the three-judge court was convened, it was required to find that overcrowding is the primary cause of the violation.

The record documents the severe impact of burgeoning demand on the provision of care.

Crowding creates unsafe and unsanitary conditions that hamper effective delivery of care.

A medical expert described living quarters in converted gymnasiums or dayrooms as breeding grounds for disease.

Cramped conditions promote unrest and violence, making it difficult for prison officials to monitor and control the prison population.

On any given day, prisoners in the general prison population may become ill, thus entering the plaintiff class.

And overcrowding may prevent immediate medical attention necessary to avoid suffering, death and spread of disease.

These effects are particularly acute in the prisons' reception centers.

These intake areas process 140,000 new or returning persons every year.

Crowding in these areas runs as high as 300% of design capacity.

Some inmates are held in a reception centers for their entire period of incarceration.

Numerous experts testified that crowding is the primary cause of the constitutional violations.

And these experts had long experience in correctional systems both in California and in other States.

The former warden of San Quentin and the former acting secretary of the California prison system concluded that crowding makes it virtually impossible for the organization to develop much less implement a plan to provide prisoners with adequate quick care.

The State points to no significant contrary evidence that it was unable to present and that it would've changed the outcome here.

Now, construction of new facilities -- excuse me.

Construction of new facilities, in theory, could alleviate overcrowding, but the three-judge court found no realistic possibility that California would be able to build itself out of this crisis.

Particularly in light of California's fiscal condition, the -- the three-judge court deemed chimerical any remedy that would require significant additional spending by the State.

The State claims that a combination of construction, transfers of prisoners to other States and other reforms could remedy the violation.

This is a long opinion.

Aside from asserting this proposition, the State offers no reason to believe that that is so.

There's noted attempts to remedy the violations in Plata have been ongoing for nine years.

And in Coleman, remedial expert -- remedial efforts have been going on for 16 years.

At one time, it may have been possible to hope that these violations would be cured without a reduction in overcrowding.

A long history of failed remedial orders compels a different conclusion today.

The three-judge court credited substantial evidence that prison populations can be reduced in a manner that does not increase crime to a significant degree.

Some evidence indicated that reduced overcrowding can even improve public safety.

The current head of Pennsylvania's correctional system testified that measures to reduce the prison population may actually improve on public safety because they address the problems that brought people to jail.

Expert witnesses produced statistical evidence that prison populations had been lowered without adversely affecting public safety in a number of jurisdictions.

During the pendency of this appeal, the State in fact began to implement measures to reduce the prison population.

These measures will shift thousands of prisoners from the state prisons to county jails by making certain felonies punishable by imprisonment in county jail and requiring that individuals return to custody for violating their conditions of parole serve any custody term in the county jail.

This supports the three-judge court's conclusions that the prison population can be reduced in a manner calculated to avoid an undue negative effect on public safety.

This Court therefore affirms the order of the three-judge court.

Yet, it notes that the three-judge court retains the authority, and that the responsibility to make further amendments to the existing order as warranted by the exercise of its sound discretion.

Proper respect for the State requires that the three-judge court exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans to correct the violations in a prompt and -- and effective way consistent with public safety.

The State, for instance, may wish to move to extend the deadline for the required reduction to five years from the entry of the judgment of this Court.

The State previously proposed the five-year deadline as consistent with the public safety.

The three-judge court may grant such a request provided that the State satisfies necessary and appropriate preconditions designed to ensure that a remedy is implemented without undue delay.

The three-judge court may also condition an extension of time on the State's ability to meet interim benchmarks for improvement in provision of medical and mental health care.

If significant progress is made toward remedying the underlying constitutional violations, that progress may demonstrate that further population reductions are not necessarily or are less urgent than previously believed.

Were the State to make this showing, the three-judge court could consider whether it is appropriate to extend or modify the timeline.

These observations reflect the fact that the three-judge court's order, like all continuing equitable decrees, must remain open to appropriate modification.

They are not intended to cast doubt on the validity of the basic premise of the existing order.

The medical and mental health care provided by California's prisons falls below the standard of decency that inheres in the Eighth Amendment.

This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding.

The relief ordered by the three-judge court is required by the Constitution and was authorized by Congress in the Prison Litigation Reform Act.

The State shall implement the order without further delay.

The judgment of the three-judge court is affirmed.

Justice Scalia has filed a dissenting opinion in which Justice Thomas joins.

Justice Alito has filed a dissenting opinion in which the Chief Justice joins.