Federal Three-Judge Panel Issues Tentative Ruling To Reduce California’s Prison Population By Up To 57,000 In Three Years

by John E. Dannenberg

In a tentative ruling issued February 9, 2009, a three-judge federal panel ruled that uncontroverted evidence showed that unconstitutional health and safety conditions exist in California’s prisons that are due solely to overcrowding, and that the only visible means to correct the constitutional violations was to order a reduction in the existing prisons’ population. The court relied strongly on admissions of the underlying deficiencies made by Governor Arnold Schwarzenegger in CCPOA v. Schwarzenegger, 163 Cal.App.4th 802 (2008) [CCPOA].

The court’s five-part ruling was both terse and unswerving. Reviewing the facts in Part 1, it observed that in CCPOA, Governor Schwarzenegger had in 2006 already proclaimed a “state of emergency” in California’s prisons due to “severe overcrowding” that had caused “substantial risk to the health and safety of the men and women who work inside these prisons and the inmates housed in them.” In CCPOA, the state appellate court had held that the evidence demonstrated the existence of conditions of “extreme peril to the safety of persons and property.” The federal panel further noted that in its 20 year protracted history in the underlying prison healthcare litigation cases, it had consistently found that California had failed to provide constitutionally adequate mental or physical healthcare.

The disagreement in court focused on whether overcrowding per se was the “primary cause” of the violations. The court found the evidence “overwhelming.” It observed that due to overcrowding, there were insufficient clinical facilities and resources to provide needed medical care. Specifically panned by the panel was the use of triple bunks in gymnasiums (and other areas not intended for housing) throughout the state prisons, because, per CCPOA, it had “substantially increased the risk of the transmission of infectious illnesses among inmates and prison staff.” California prison wardens and medical experts from other states agreed.

The defendants countered that the existence of the panel’s appointed Receiver for medical care had alleviated the problem. But the panel’s Special Master wryly observed that “many of these achievements ha[d] succumbed to the inexorably rising tides of population.” The Receiver bluntly reported to the Governor that it would be impossible to achieve constitutional medical care with the current overpopulation.

In Part 2, the panel concluded that the only apparent remedy available was prisoner releases. While the court acknowledged the obvious -- that California could simply build its way out of the overcrowding -- it also observed that California was in dire financial straits (even before the recent recession) and could not afford this. Indeed, to resolve the budget crisis, California was considering cutting off the Receiver’s court-ordered funding and terminate the ongoing receivership. This angered the panel, which noted that California had not been cooperative on its own in prison healthcare needs. To be sure, the federal courts in the past 20 years of healthcare litigation had had to issue over 77 substantive orders -- and still, constitutionally adequate prison healthcare was circumvented. In short, even the severe sanction of appointing a Receiver turned out not to be “adequate relief.” Accordingly, only population reduction to match available healthcare would alleviate unconstitutional suffering of prisoners.

Third, the Panel interpreted what powers it had under the authorizing federal legislation, the Prison Litigation Reform Act (PLRA). Congress did not prohibit prisoner release orders, the panel held. Rather, Congress recognized that such a drastic remedy may be the only available remedy for “unconscionable and unconstitutional conditions in the nation’s prisons.” Tougher to decide was just how much reduction would return constitutional adequacy.

Again relying upon prior published admissions, the panel found that an earlier Blue Ribbon Commission chaired by former Governor Deukmejian had recommended limiting the population to 145% of capacity. A later Legislative committee, when considering bills authorizing new prison construction, proposed a statutory 130% limit. A mental health expert opined that his programs would not survive anything over 100% of capacity. Yet, the 2008 California prison population was steady at 200% of design capacity. From the evidence, the panel tentatively concluded that between 120% and 145% would be the limit it expected to finally arrive at.

In Part 4, the panel considered whether its proposed release would also be consistent with PLRA imperatives to strongly consider any “adverse impact on public safety or the operation of a criminal justice system.” The panel relied upon the Expert Panel on recidivism reduction programming whose report indicated that approximately 40,000 existing prisoners could be safely released by increasing good conduct credits and slashing technical parole violations. The California Legislature is presently considering such changes, which the panel will take into consideration when issuing its final order.
Given the current $42 billion state budget deficit, the panel believed that any impact would not be “adverse,” because about one-half billion dollars in annual savings would inure from such population reduction, net of proposed rehabilitative programs designed to reduce recidivism.

The fifth part of the order dealt with the PLRA directive that any order be “narrowly drawn ... no further than necessary to correct the violation of constitutional rights, and be the least intrusive means necessary to correct” them. The panel found that the state’s own proposed 40,000 prisoner reduction plan would be not “intrusive” under the PLRA if imposed as a court ruling. In any event, such an order would not prohibit the state from building more prisons instead. The panel invited further input from the parties prior to its final ruling, and invited a settlement referee for that purpose.

As a practical matter, the panel’s ruling is particularly timely. California’s lawmakers consider it political suicide to release prisoners. Having a federal court “force” them to do the dirty deed insulates them from later scorn. Still, criticism came from Corrections Secretary Matthew Cate, who replied that the equivalent of “emptying 10 full prisons into our neighborhoods” isn’t needed because he believes that his programs on prison reform are already working.

However, the only true reduction in California prison population has come from sending up to 8,000 of its prisoners out of state to private prisons, where their healthcare is at the peril of contractors whose profit depends upon the types of cost controls that gave rise to 20 years of litigation in California’s federal courts. In fact, the Receiver recently concluded that his authority extends beyond California’s borders to include those displaced prisoners. Between the state’s budget crisis, constitutional medical care demands made by the federal courts, and the old saw that releasing a prisoner necessarily means increasing crime, politicians will eventually have to make practical population reductions in California’s prisons. Nonetheless, a recalcitrant California Attorney General Jerry Brown, running for Governor in 2010, announced he is appealing this ruling to the U.S. Supreme Court. See: Coleman v. Schwarzenegger, Plata v. Schwarzenegger, No. CIV S-90-0520 LKK JFM P, Three Judge Court Tentative Ruling, February 9, 2009. The ruling is posted on PLN’s website.

Other sources: San Jose Mercury News, New York Times, Associated Press.

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