Imposing the death penalty?

High court orders release of California prisoners, knowing what it could mean

When you're a judge in a criminal case, you sometimes make decisions that could come back to haunt you.

But it's not often a judge makes a ruling, outside of a death penalty case, in which he or she has to know that someone may die as a result.

This may be one of those cases.

With the U.S. Supreme Court's 5-4 decision ordering California to release up to 46,000 prisoners to relieve overcrowding, even some of the dissenting justices are warning that "terrible things are sure to happen as a consequence of this outrageous order." So says Justice Antonin Scalia, with Justice Clarence Thomas in agreement.

Note that he doesn't say "likely" or even "probably," but "sure" to happen.

In other words, the high court made a ruling in which they should know people will suffer, perhaps even die, as a result.

Scalia called the majority's ruling "staggering" and "absurd." He's being kind.

You wouldn't expect the U.S. Supreme Court to write fiction, either, but Justice Anthony M. Kennedy, writing for the majority, produced a novel twist on his ruling in urging lower-court judges overseeing the prisoner release to do so "consistent with the public safety." That's like telling someone to jump in a pool in a way "consistent with not getting wet." Neither can be done.

California will get more dangerous as a result of this ruling. People will suffer. There can be little doubt.

Ultimately, the American people and their craven politicians are to blame for not having the basic fortitude to build enough prison space for the amount of prisoners we have. And while it's a dubious proposition that prison overcrowding is both "cruel and unusual," as the Eight Amendment proscribes -- how can rampant, nationwide overcrowding possibly be said to be "unusual"? -- even criminals in a civil society deserve better.

Yet, the public safety must come first. In our view, judges have no place telling states to release criminals who have yet to pay their debt to society. We've got enough of them on the street already!

Thankfully, the state hopes to avoid setting any free -- by such maneuvers as sending prisoners to county facilities. Let's hope that works.

The five justices who ordered the release should hope so too.

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