The state's push to block an order to release about 40,000 inmates was met with very tough questioning Tuesday. Building more prisons and transferring inmates out of state doesn't seem to be enough to bring medical care to constitutional standards.
During the hearing, a majority of justices said the state of California has failed to fix the overcrowding problems inside its prisons, despite decades of lawsuits and promises from leaders.
A visibly furious Justice Sonia Sotomayor asked, "When are you going to avoid needless deaths?", referring to inmates who can't get humane care when they're sick or mentally ill, and consequently die or commit suicide.
Conservative Justice Samuel Alito, on the other hand, is worried about public safety, saying, "I would be concerned about the release of 40,000 prisoners."
That's Governor Schwarzenegger's concern too.
After a menorah lighting Tuesday, Schwarzenegger was adamant about keeping prisoners in for their entire sentence.
"We should not let inmates out because public safety is our number one priority. We must keep the people safe no matter what the judges say," said Schwarzenegger.
But the Drug Policy Alliance says California can easily release 40,000 non-violent offenders. The group claims many don't belong in prison because their crime was simple possession.
"It doesn't make sense from a human point of view, fiscal point of view, to waste money locking them up," said Glenn Backes, healthy policy director, Drug Policy Alliance.
Attorney General-elect Kamala Harris said she would look at alternative ways to deal with sentencing, considering it costs the state $45,000 a year per inmate, even in tough budgetary times.
"It is foolish of us to think that we can continue doing business as we have been doing. It is not working for us," said Harris.
The Criminal Justice Legal Foundation, which fights for victims' rights, reviewed the hearing's transcripts and believes the Supreme Court could go either way, but they're bracing for the worst.
"When there was a prisoner-release order in Philadelphia many years ago, a lot of people were raped and robbed and murdered who wouldn't have been if those prisoners had stayed in jail," said Kent Scheidegger, legal director, Criminal Justice Legal Foundation.
A ruling is expected before the current session ends in June. As in many cases, Justice Anthony Kennedy, a Sacramento native, could be the swing vote. He said California has been given enough time, and it's time for a remedy.