Over the last two weeks, the state has been locked in a fight to keep the bad guys in prison, over the insistence of several liberal federal judges to let them go. Two months ago, the Legislature approved a prison reform package in an attempt to alleviate the so-called overcrowding problem, but to no avail. Judges Henderson and Karlton decided to take over the prison system, and run it their way.
Here’s a suggestion for the Governor, his staff and the Department of Corrections. Tell the federal judges to go pound sand in a particularly uncomfortable place.
Prisons are a unique state function. There are some federal prisons, but, by and large, the corrections system is a state function. More importantly, the federal government’s intervention, through the courts, is constitutionally dubious. While federal judges have tried to interfere in the state operation of prison’s by way of the eighth amendment, the argument that our current prison system constitutes cruel and unusual punishment is absurd on its face. So, why not tell the federal courts to get out of our prison administration forever.
First, policy wise, it is a great position in which to be. This would restore a constitutional relationship between the federal courts and the states. Judges who think that they are better at running state prison systems than the state, and who want to take over state policy to do so are intruding on state sovereignty in a fashion never contemplated by those who wrote the Constitution or even the Fourteenth amendment.
Second, politically, there is no losing. If a federal judge tries to let prisoners go, standing on the side of public safety over the edicts of some unelected hack is a solid political win for the Governor.
More important, what is the judge going to do if the Governor says no, he won’t abide by the federal judge’s ruling. If the judge tries to hold him in contempt, how is the judge going to enforce the order. Sending federal marshals to the Capitol to arrest him leads those marshals straight to the Highway Patrol. We would have a true constitutional stand-off.
if, as Thomas Jefferson once wrote,that the liberty needs to be refreshed from time to time with a little rebellion, this is it. This Governor could truly create a new day in states rights and federalism, protect public safety, and make himself a Republican once again. That is a win/win/win situation. It would also require a little courage. I wonder if this Governor has it in him.