California has the opportunity to do the right thing. A three-judge panel has heard a case concerning the possible release of 52,000 state prisoners. Plaintiffs argue that the system provides inadequate medical and psychiatric care for its inmates. This is cruel and unusual, a violation of the Eighth Amendment, they say.

Taxpayers rightly resent the price tag of prison programs. But if the prisons cannot afford to care for their prisoners, we obviously have far too many.

Governor Schwarzenegger once vowed to reduce the prison population, and he ought to. Now is a good time to seriously reassess the whole system.

There were virtually no prisons in this country when it was founded. The modern criminal justice system grew out of the institution of slavery. Prisons exploded in their growth in the 20th century. The Progressive Era, whose leaders dreamed of re-creating society and redeeming mankind through an active and expansionist state, accelerated the development of today’s system. It grew steadily.

Before Ronald Reagan’s presidency, half a million Americans were in prison and jail, and fewer than 1.5 million on parole or probation. Now there are more than 2 million behind bars and 7 million total in the correctional system. In California, the prison population grew by 500 percent from 1982 to 2000.

This is madness. And it’s expensive.

Some worry about the strain on social infrastructure if prisoners were mass-released, but they could not possibly cost the state more than they do now. They would also at least have the chance to create wealth as workers and consumers in the market, rather than just being a drain in the public sector.

Each prisoner costs taxpayers $35,000 per year. Victims are not made whole but instead are forced to foot the bill to house their perpetrators.

The state used to have some restitution centers through which white-collar convicts could work and pay back their victims as well as some of their detention costs, but these centers were closed down earlier this year. State officials said the program was too expensive. Only government could lose money making people work.

Most offenders never get the opportunity to pay restitution but are simply jammed into obscenely overcrowded cages. California’s system is designed to hold about 100,000 prisoners but instead houses 171,000.

Judges used to have wide discretion in sentencing, which minimized overcrowding. In 1977, Gov. Jerry Brown stripped judges of this authority. “Over the next decade, California’s legislature, dominated by Democrats, passed more than 1,000 laws increasing mandatory prison sentences,” according to the Washington Post.

Brutal violence is all too common in prisons. Human Rights Watch estimates that nationwide, one out of 15 male inmates is raped. Many prisoners are effectively the slaves of their cellmates. Gang violence is endemic. The institution has become a totalitarian hell for those inside.

What’s worse, most people incarcerated should not be. A quarter of the inmates are locked up for nonviolent drug offenses. They committed no act of violence against anyone’s person or property, and their imprisonment is part of a destructive drug policy that has increased crime, trashed civil liberties, uprooted the social order, and corrupted the whole legal system. Many others are in prison for other nonviolent offenses against the state — unapproved gun ownership, tax evasion, and so forth.

Many petty criminals do not deserve anything like today’s prisons, and their incarceration helps no one. Most prisoners can and should be released. The number of those who actually must be isolated from society would not lead to overcrowding or be an ungainly financial burden.

California’s recidivism rate is the highest in America. The system does not work. Indeed, offenders go in as small-time thieves and come out far worse. They go in as drug users and come out desensitized to savage violence. They go in as burglars and come out as rapists. In short, prisons increase crime.

Conservatives talk about the good old days when there was more civility, more freedom, lower taxes, and less crime. There were also far fewer prisons. Until the modern system is rethought through a libertarian perspective, we can never restore the liberty and social peace we once had.

Anthony Gregory is a contributing author to the Libertarian Perspective, a research analyst at the Independent Institute in Oakland, Calif., and the author of a forthcoming book on habeas corpus, detention policy, and individual liberty. His Web site is AnthonyGregory.com.