Does Prison Decision Violate States' Rights?

MAY 25, 2011


Tuesday’s decision by the U.S. Supreme Court, effectively putting the federal courts in charge of California prisons, directly involved the question of states’ rights. The decision, Brown vs. Plata, mandated that from 38,000 to 46,000 must be released because overcrowding violated the Eight Amendment’s ban on “cruel and unusual punishments.” The 5-4 decision’s majority opinion was written by Justice Anthony Kennedy, a Californian.

It was the kind of federal meddling in state and local affairs that has become increasingly common since the Warren Court of the 1950s and 1960s. Federal courts now regularly oversee school busing plans, school finances, health issues, police actions — almost anything.

However, as the plural nature of our country’s name indicates, these are United States. Each state is supposed to be a “state,” that is, a sovereign political power. The Declaration of Independence declares, “That these united Colonies are, and of Right ought to be Free and Independent States….”

In a stinging dissent to Tuesday’s ruling, Justice Antonin Scalia protested against the court’s arrogance in taking over California’s prison system. He wrote:

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.

Scalia’s words are an excellent explanation of states’ rights and the limitation of the role of federal judges.

Scalia Also a Centralizer

However, earlier this month Scalia himself backed a ruling that violated the rights of states to manage their own affairs. It was a case that actually was a much more “radical injunction” than the California prison case.

The case was Kentucky vs. King, decided on May 16. It eviscerated the Fourth Amendment to the U.S. Constitution, which reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The court’s summary of the Kentucky case is succinct:

Police officers in Lexington, Kentucky, followed a suspected drug dealerto an apartment complex.  They smelled marijuana outside anapartment  door, knocked loudly, and announced their  presence.   As soon as  the officers began knocking, they  heard noises coming from the apartment; the officers believed that these noises were consistent with the destruction of evidence.  The officers announced their intent to enter the apartment, kicked in the door, and found respondent andothers.   They  saw drugs in plain view during a protective sweep of the apartment and found additional evidence during a subsequent search.   The  Circuit Court denied respondent’s motion to suppress the evidence,  holding that exigent circumstances — the need to prevent destruction of evidence — justified  the warrantless entry.   Respondent entered a conditional guilty plea, reserving his right to appeal the  suppression ruling, and  the Kentucky Court of Appeals affirmed.

So, the federal courts were involved. But here’s the key section:

The Supreme Court of Kentucky reversed.  The court assumed that exigent circumstances existed, but it nonetheless invalidated the search.  The exigent circumstances rule did not apply, the court held, because the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evidence.

Thus, the state of Kentucky took charge of its own law enforcement, and its state Supreme Court interpreted the Fourth Amendment in a strong fashion.

But then the U.S. Supreme Court intervened and reversed the state ruling, imposing its will on Kentucky.  It said that the search was permissable, effectively eviscerating the Fourth Amendment. From now on, if police suspect you of drug use or dealing, they don’t need a warrant, as mandated by the Fourth Amendment. They can just wait outside your home until you flush the toilet, then say you are “destroying evidence” and barge inside.

The majority opinion was written by Justice Samuel Alito, and was joined in the opinion by Scalia.

So, Scalia defended states’ rights in the California prison case, but overturned states’ rights in the Kentucky case. There is a pattern here: support for law-enforcement authorities over the rights of the people. Scalia’s protestations concerning the California case, quoted above, ring hollow in light of his actions in the Kentucky case.

The Kentucky case was decided 8-1, with only Justice Ruth Bader Ginsburg dissenting. She wrote:

The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases.  In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, nevermind that they had ample time to obtain a warrant.

Oregon Case

In addition to his position backing federal meddling in the Kentucky search case (cited above), in 1990 in Employment Division vs. Smith, Scalia wrote the opinion in another case that violated states’ rights.

The case involved American Indians who used peyote in their Native American religious rites. When this was found out, they were fired in their jobs as drug counselors at a private drug rehabilitation clinic.

I would say that a private clinic had a right to regulate its own affairs. But the Oregon Supreme Court ruled that the firing violated the Indians’ First Amendment right to freedom of religion.

But the U.S. Supreme Court, led by Scalia, then overturned the Oregon court’s ruling, allowing the firing of the Indians. Again, Scalia took the side of law enforcement, in this case the federal “war” on drugs. He wrote:

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Actually, “to permit this” would have meant allowing the state of Oregon to interpret its own laws.

Scalia and California’s Constitution

Going back again to Tuesday’s decision on California prisons. In his dissent, Scalia also did not note that California’s Constitution also contains, in its Declaration of Rights, a section that echoes the U.S. Constitution’s Fourth Amendment. Article I of the state document includes this:

SEC. 13. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.

The California Constitution also includes the crucial Section 24, which paraphrases the federal Bill of Rights. It reads:

In criminal cases the rights of a defendant … to not suffer the imposition of cruel or unusual punishment, shall be construed by the courts of this State in a manner consistent with the Constitution of the United States.

That section effectively cedes the final interpretation of the California Constitution, and all law in California, to the federal government — that is, to the U.S. Supreme Court.

Perhaps that section is unwise. Federal meddling in many cases has done more harm than good. And other state constitutions have no such clause. California also could remove that clause from its Constitution.

But that clause actually is in the California Constitution, something Scalia seems to have neglected.

The Way Things Are

Although states’ rights is an essential part of the original compact of the American states, it has been almost completely eviscerated. Today, people on all sides of an issue commonly file lawsuits in federal court. As we have seen, even Justice Scalia, a conservative who claims to defend states’ rights, violates those rights when he deems it necessary.

Conservatives have been trying for decades to try to reverse this federal usurpation of state powers. But when even a conservative “states rights” justice like Scalia frequently increases federal powers over the states, the effort must be judged mostly futile.

In the case of California’s prisons, which really are torture chambers, at least the overcrowding now must be dealt with. Having ceded so much control to the federal government, California and other state governments now are going have to live with it.


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