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Standing Guard

By Wayne LaPierre, Executive Vice President

Judicial Activism Endangers The Public

What would be the public and media reaction to a prison break in California where nearly 50,000 convicted felons escaped from the state’s 22 prisons and were allowed by authorities to endanger the public?

Unprecedented outrage, for starters, soon followed by seething anger at the lack of care for innocent citizens as crime and violence swept the state.

There would be demands for investigations. Heads would roll. It would be a huge story dominating the national media.

But when the largest prison break in American history was recently ordered by judicial activists on the U.S. Supreme Court, most media outlets ignored the story or praised it as “progressive reform.”

In a 5-4 split decision in Brown v. Plata, the high court set in motion a potential public safety hazard when it ordered as many as 46,000 convicted felons to be released—an event guaranteed to create chaos for the already stretched-to-the-limit judicial system in that near-bankrupt state.

This is out-of-control judicial activism at the lower court level compounded by the higher court majority’s blindness to its impact on the law-abiding public.

In its May 23, 2011 decision, the U.S. Supreme Court upheld an order by a radical three-judge U.S. District Court panel to free thousands of convicted criminals, declaring that overcrowding in that state’s prisons amounted to “cruel and unusual punishment” banned under the Eighth Amendment of the U.S. Constitution.

In a ruling that defies sanity, the most rational words were uttered in strikingly pointed dissents filed by Associate Justices Antonin Scalia and Samuel A. Alito Jr.

Joined by Justice Clarence Thomas, Scalia called the judicial activism of the lower court a “judicial travesty, and warned: “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. … One would think that … this Court would bend every effort to read the law in such a way as to avoid that outrageous result.”

Justice Alito’s dissent blasted the Court’s refusal to address the narrow problem at the heart of the case—abysmal healthcare for the small class of individual inmates with severe mental or physical conditions, who had claimed that medical care was substandard or denied to a degree that violated the Eighth Amendment.

The first of the two consolidated cases was initially filed in 2001. The plaintiffs alleged that for nearly 10 years the state repeatedly failed to remedy the Constitutional violations.

Using a 1995 federal law, the Prison Litigation Reform Act, the three-member U.S. District Court panel was convened to find an answer for specific healthcare deficiencies. Instead, their recommendation was a structural and institutional injunction that called for the wholesale release of felons.

Substandard medical care for a specified few inmates was all but forgotten. As Justice Alito put it, “The release order is not limited to prisoners needing substantial medical care. … It is not necessary for a single prisoner in the plaintiff classes to be released.”

From the beginning, this case involved incompetence, malfeasance and endless foot-dragging by California officials, especially the gun-obsessed legislature.

The lack of staff and substandard facilities for seriously ill inmates were real enough. Yet the lower court—through fanciful social engineering—took a purely activist tack under which overcrowding became an excuse for the courts to take control of California’s penal system.

As an example of how far afield the lower courts took this, one of the specific issues was “filthy examination tables.” Why should that be solved by the release of 46,000 felons when a sponge with disinfectant would do the job? Another was incompetent doctors and staff. What does the release of felons have to do with hiring good staff and firing losers?

On the broader question as to what effect the lower court order will have on California’s law-abiding citizens, Justice Alito warned that the lower court decree “is very likely to have a major and deleterious effect on public safety.” (emphasis added)

Justice Alito put the prisoner release in graphic perspective saying the criminals are “the equivalent of three Army divisions” and he predicted the obvious: “I fear that today’s decision, like prior prisoner release orders, will lead to a grim roster of victims.”  His dissent was joined by Chief Justice John Roberts.

Justice Alito also cited the carnage wrought by an infamous court-ordered mass prisoner release in Philadelphia, Pa. in the 1990s:  “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. …”

So, for California, what happens next? Criminal violence could increase exponentially, leading to new demands by the elitist classes for more gun control.

What can we do about this travesty? For starters, each of us must work toward the crucial elections in 2012, and that means choosing a new president of the United States who will appoint fair and impartial judges. And that means shaping a United States Senate that will confirm judges based on their caliber and character and not their activist bias. As California proves, public safety, the rule of law—and our Constitution—demand no less.