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NPR legal affairs correspondent Nina Totenberg has the story.
NINA TOTENBERG: Undisputed facts demonstrate a horrific scene in California's prisons. A system designed to house 80,000 prisoners now houses more than twice that many. Prisoners are not only doubled and tripled up in six-by-nine cells built for one; they are stacked in bunks in areas meant to be used for recreation, for vocational training, even for clinic space.
WAYNE SCOTT: The California state prison system is the worst overcrowded system that I have seen in my experience.
TOTENBERG: Wayne Scott served for nearly 30 years in the Texas prison system, rising to be the state's director of corrections under then-Governor George W. Bush.
SCOTT: I guess what shocked me - if that's the right word - the most was taking over recreation space, classroom space, day room space, and converting all of that space into living areas for offenders.
TOTENBERG: Governor Arnold Schwarzenegger's repeated requests that the legislature enact prison population reduction measures have fallen on deaf ears. And when the federal courts stepped in to order such reductions, he was not surprised.
ARNOLD SCHWARZENEGGER: I don't blame the courts for stepping in to try to solve the overcrowding crisis that we have, because the fact of the matter is, for decades the state of California hasn't really taken it seriously. It hasn't really done something about it.
TOTENBERG: California, however, contends that the lower court exceeded its authority and did not give sufficient weight to public safety concerns. Lawyer Carter Phillips, representing the state, will tell the Supreme Court today that the lower court's assertion of flexibility for the state is illusory.
CARTER PHILLIPS: Well, that's willful blindness. The only way to bring yourself into compliance is by releasing tens of thousands of prisoners.
TOTENBERG: The state, he says, has not been afforded a reasonable enough time to comply with the court's orders.
PHILLIPS: I think the fundamental question is, do you essentially just throw your hands up or do you allow an orderly process? And if they can't succeed, then you say, OK, fine, the final remedy is available.
TOTENBERG: Paul Clement, who served as solicitor general in the George W. Bush administration, represents some of the prisoners.
PAUL CLEMENT: How much more time do they really need? They've had 15 years since the finding of a constitutional violation. You know, we're not talking about abstract constitutional issues here. As the courts have found, people are dying unnecessarily in the California prison system as we speak.
TOTENBERG: Neither the courts nor Congress have been friendly to prison reform litigation. Indeed, Congress enacted a federal law in 1996 to limit such litigation to extreme cases. Clement contends that California's prison overcrowding presents just the kind of case Congress had in mind for court intervention.
CLEMENT: California - you can't emphasize this enough - is a complete outlier. This is not a case where California has the same problem that everybody else does and it's just a little bit worse. California really has a problem that's different in both kind and degree. Why is that? Because they are incarcerating people who are not incarcerated in other states.
TOTENBERG: Clement says these exceptional circumstances justify federal court intervention in what would otherwise be state business.
CLEMENT: This is like the proverbial ax behind the glass - you know, break glass only in case of emergency. But it's one thing to say don't use this unless it's an emergency. It's another thing to take the ax away entirely. And that's really what the state's asking to be done here.
TOTENBERG: But Carter Phillips, representing the state, contends that the lower court order poses a grave threat to public safety.
PHILLIPS: I guarantee you to a moral certainty as we sit here today that if you release 30,000 inmates, I don't care how carefully you do it, more than a few of them will commit a violent act, and that will be on somebody's head.
TOTENBERG: Nina Totenberg, NPR News, Washington.
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