TOP COURT SETS STAGE FOR FELONS TO GO FREE

WASHINGTON - California could be forced to release tens of thousands
of felons early after the Supreme Court ordered it Monday to reduce
overcrowding, in a warning to states that efforts to get tough on
crime must be accompanied by adequate prison funding.

In a 52-page opinion illustrated with photos of teeming prison
facilities and cages where mentally ill inmates are held, Justice
Anthony Kennedy cited lower-court findings that preventable suicide
and medical neglect "needlessly" cause the death of at least one
inmate a week in California's prisons. The state system was designed
for 80,000 inmates but holds nearly twice that many.

The decision comes 21 years after a suit was filed on behalf of an
inmate alleging that treatment provided to mentally ill inmates was so
poor as to violate the Eighth Amendment prohibition of cruel and
unusual punishments, a claim consolidated with a later case alleging
similarly deficient care of inmates with physical ailments. California
has conceded the constitutional violations but wanted more time to fix
them.

Two years ago, a special three-judge federal court in California found
that overcrowding and staffing shortages have overwhelmed prison
medical facilities. Monday's decision upholds the lower-court order
giving California two years to cut its prison population to 137.5% of
capacity.

The district court order applies to 33 state prisons, which as of
Monday held 143,435 inmates-or 180% of their intended capacity, said
Terry Thornton, a spokeswoman for the California Department of
Corrections and Rehabilitation. The state has until 2013 to cut that
population to 109,805, or by 33,630 inmates, Ms. Thornton said.

The ruling doesn't instruct officials how to reach that maximum
population over the next two years.

Prison overcrowding is widespread across the country. Alabama,
California, Delaware, Illinois and North Carolina were among states
reporting inmate populations significantly above their intended
capacity, according to a Bureau of Justice Statistics report based on
2009 data. The federal prison system was at 136% of capacity, the
report said.

Alabama's prisons have nearly twice as many inmates as they were built
to handle, according to a March report by a state-level bipartisan
panel convened to find solutions for overcrowding. The state faces
extra costs of up to $151 million over five years to house new inmates
and "risks federal court intervention if crowding is not reduced,"
according to the report.

The decision applies only to California, but its broader implications
were clear: When a state sends a criminal to prison, it takes on the
responsibility to feed and care for him, Justice Kennedy wrote.

If taxpayers were unwilling to pay the cost of incarceration that
meets constitutional standards, "courts have a responsibility to
remedy the resulting Eighth Amendment violation," Justice Kennedy
wrote, even if that means freeing convicted criminals.

California's top prisons official, Matthew Cate, said the state could
satisfy the court's requirements without releasing inmates early if
the Legislature passes the governor's budget proposal, which includes
funding for transferring some prisoners to county jails. In addition,
the state is building new prisons and health-care facilities. But
funding uncertainty and political gridlock could delay those efforts
and force the state to release inmates.

Without Gov. Jerry Brown's plan to shift inmates to local jails and
pay for new facilities, Mr. Cate says he has "serious concerns" about
public safety.

Prison release orders are a "last resort remedy," Justice Kennedy
wrote. But California has been under court order to improve prison
conditions since 1995, and none of its efforts have succeeded, he wrote.

"At one time, it may have been possible to hope these violations would
be cured without a reduction in overcrowding," Justice Kennedy wrote,
joined by liberal Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia
Sotomayor and Elena Kagan. "A long history of failed remedial
orders compels a different conclusion today."

The majority acknowledged a risk of "some adverse impact on public
safety in some sectors." But it said the state need not
indiscriminately let loose thousands of felons. Officials could
mitigate the risk by "diverting low-risk offenders to community
programs such as drug treatment," easing up on "technical parole
violations" that return parolees to prison, or leasing space in
out-of-state prisons, Justice Kennedy wrote.

In a furious dissent, Justice Antonin Scalia accused the majority of
upholding "perhaps the most radical injunction issued by a court in
our nation's history."

He disputed the premise of the prisoners' case-that all severely
mentally or physically ill inmates be treated as a class-contending
instead that only prisoners who had experienced "atrocious treatment"
were entitled to a remedy.

Justice Samuel Alito, joined by Chief Justice John Roberts, filed a
separate dissent arguing that violations stemming from overcrowding
could be fixed through less radical means, such as repairing
dilapidated facilities and improving record-keeping.

"I fear that today's decision will lead to a grim roster of victims.
I hope that I am wrong," Justice Alito wrote, adding: "In a few years,
we will see."

The majority opinion cited the state's continuing budget problems as
reason for doubt that a remedy would arrive short of court order.

California prisons held more than 20,000 inmates in the 1970s, during
Mr. Brown's first stint as governor. Today, as a result of "three
strikes" and other tough sentencing laws, the prison population has
skyrocketed, at times topping 160,000. Prison construction has failed
to keep pace.

Some observers suggested the ruling could help crack political
gridlock in California.

Mr. Brown signed into law last month a bill that would shift inmates
convicted of offenses deemed nonserious, nonviolent and nonsexual to
county jails. Mr. Brown estimated the shift would save California's
general fund about $485 million and would reduce overcrowding. The
governor proposed to pay some of the county jail costs with money from
tax and fee increases, but those haven't been approved by the
Legislature.

An attempt to relieve prison overcrowding was begun by former
California Gov. Arnold Schwarzenegger, who authorized in 2007 nearly
$7 billion for prison construction. Work on some of the nearly two
dozen proposed facilities has begun.

The court-appointed receiver overseeing the state prisons' health-care
system, J. Clark Kelso, said transfers to county jails won't solve the
whole problem. "We continue to need capacity to meet the rest of the
mandates of the court," said Mr. Kelso's spokeswoman, Nancy Kincaid.