Erwin Chemerinsky

The Essential but Inherently Limited Role of the Courts in Prison Reform

To state the obvious, there is a crisis in Californias prisons. There are far too many prisoners in much too little space with too few services. There seems no doubt that the budget crisis in California will continue to make this situation worse. Rather than more funding for desperately underfinanced prisons, there will be less. No effective solution is remotely in sight. My thesis is that judicial action is essential and unquestionably will improve the situation in prisons. Courts, however, are inherently limited in how much they can accomplish in effective prison reform. The central problem facing the California prisons too little money to pay for the needs of too many inmates is one that courts are ill-equipped to solve. To be sure, they can and must order improvements, but courts are poorly suited to solving problems that require tremendous increases in spending and significant improvements in administration. My analysis is developed in three points. First, there is a crisis in prisons in California and nationally. Second, the central cause of the crisis is a political process that is unlikely ever to provide an adequate solution. Third, courts can make a difference, but their role and effectiveness is inherently limited. The conclusion is bleak, but not without hope. It is possible that the serious budget crisis confronting California could encourage political solutions. For example, to reduce the overwhelming prison costs, Californias legislature could choose to reduce dramatically the prison population, releasing those who are serving long sentences for non-violent offenses and changing the law to lessen the numbers being incarcerated for such crimes in the future. Currently, however, there is no indication that such a reform is even being considered.

Judicial Opinions as Public Rhetoric

By any measure, the California Supreme Courts decision in In re Marriage Cases is the most significant in the last year and in recent memory. Chief Justice Georges opinion thoroughly and forcefully explains why gay and lesbian individuals have the right to marry under the California Constitution. This conclusion is founded on basic principles of California constitutional law: the right to marry is a fundamental right, and discrimination on the basis of sexual orientation is inherently suspect. Yet the events that followed the decision quickly overshadowed Chief Justice Georges opinion. Opponents of the decision immediately drafted and placed on the ballot an initiative, Proposition 8, that overturned the decision. In an acrimonious campaign, supporters of the initiative argued that the California Supreme Court decision meant that schools would have to teach the virtues of same-sex marriage and that churches would lose their tax exempt status if clergy did not perform such unions. None of these claims were true, but they likely affected some voters. 2