Crime has long plagued California, and its prisons are overcrowded and overflowing. The population of California increased by 2.4 times between 1960 and 2009, but its number of serious crimes increased more: murders increased by a factor of 3.2 and robberies by a factor of 4.2.

In the 1990s, California adopted much longer prison sentences for crimes, even non-violent ones. Its notorious “three strikes and you’re out” law has sometimes resulted in virtual life sentences for low-level crimes like shoplifting. Paying for such incarceration is expensive: it costs taxpayers about $47,000 per year for each inmate. One 25-year sentence socks the taxpayers with a bill in excess of $1 million.

California is insolvent and has not been building enough new prisons to house all the criminals. Its prison population totals 143,400 inmates. If it were a city, then it would rank 172nd in size in the nation, larger than the vast majority of American cities. California’s adult prison system was designed to hold only 80,000 inmates.

A Republican Congress had passed the Prison Litigation Reform Act of 1995 to limit federal authority to order States to release prisoners. Despite that, in January 2010 a panel of three federal district judges ordered California to release prisoners, to reduce the overcrowding. Specifically, the federal court ordered California to reduce its prison population statewide to only 137.5% of capacity in two years. Simply put, California was ordered to open its prison doors and allow tens of thousands of convicted criminals back on the streets.

This order was on hold pending appeal but then the U.S. Supreme Court affirmed the ruling in a 5-4 decision. Brown v. Plata, 2011 U.S. LEXIS 4012 (May 23, 2011). Dissenting vigorously, Justice Scalia protested that “today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history.” Justice Alito, in another dissent, declared, “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.”

Justice Anthony Kennedy, who typically votes with the conservative side on business as well as religion issues, joined the liberal wing this time to give it a 5-4 majority in this case. He was concerned about the “needless suffering and death” that has allegedly resulted from the overcrowding. Long delays to see a doctor and the caging of suicidal inmates for prolonged periods in tiny rooms the size of a phone booth factored into his decision. In one situation 54 inmates have been required to share a single toilet. On balance, the Court found these prison conditions to be a violation of the Eighth Amendment protection against cruel and unusual punishment.

In choosing which prisoners to release, California could begin by asking the federal government to deport the estimated 19,000 illegal aliens who are incarcerated in California prisons at a cost of $1 billion a year.