Larry Elder

"Today the court affirms what is perhaps the most radical injunction issued by a court in our nation's history." So began Supreme Court Justice Antonin Scalia's enraged dissent.

Release up to 46,000 convicted felons, the court recently ordered the state of California. In a 5-4 decision, the court gave California two years to reduce its prison "overcrowding" -- or set tens of thousands free. The ACLU, which brought the suit, successfully argued that poor prison conditions violated the prisoners' rights as a class, not individually, thus the threat of mass premature release.

Justice Anthony Kennedy, in his majority opinion, agreed with the lower court, which said that overcrowding and an undermanned medical staff mean "an inmate in one of California's prisons needlessly dies every six to seven days." California houses 143,000 inmates in 33 adult prisons designed for 80,000. The prison conditions, including under-treatment for the mentally ill, wrote Kennedy, "(fall) short of minimum constitutional requirements."

Where to start with this outrageous decision?

First, elections matter. A Republican president would have seated neither Sonia Sotomayor nor Elena Kagan, who together comprised two-fifths of the majority. President Barack I-look-for-justices-with-empathy Obama filled two liberal vacancies with two liberal justices. Given that the major Republican presidential candidates promised to seat justices in the mold of Chief Justice John Roberts or Justice Sam Alito, this decision would have gone 6-3 the other way.

Second, criminals commit crimes when not locked up. Alito, in a separate dissent, wrote: "In the early 1990s, federal courts enforced a cap on the number of inmates in the Philadelphia prison system, and thousand of inmates were set free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes (emphasis added), that attempt was spectacularly unsuccessful. During an 18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries and 2,748 thefts, not to mention thousands of drug offenses." These, of course, are only the ones who got caught and were charged.

Larry Elder

Larry Elder is a best-selling author and radio talk-show host. To find out more about Larry Elder, or become an "Elderado," visit