by John E. Dannenberg

On June 20, 2013, a plainly frustrated three-judge federal court not only told California officials that they shall comply with the court's prior order to reduce the state's prison population to 137.5% of design capacity by December 31, 2013, but also suggested how the state should comply based on reports by experts who had previously examined available strategies.

Ominously, in its 51-page scathing opinion, the court merely "deferred" its previous threat to hold state officials – including Governor Jerry Brown – in contempt; the court did not put down the contempt hammer it was holding over their heads.

For the past three decades California has embarked on a continuous imprisonment binge. "Tough on crime" advocates of all stripes fanned the flames of prison construction, longer sentences (including the state's infamous "three strikes" law), fewer sentence reduction credits, low parole rates, gubernatorial veto power over lifer paroles and the widespread use of technical parole violations, all designed to keep every available prison bed filled.

Future growth projections for the California Department of Corrections and Rehabilitation (CDCR) looked like charts from a red hot Silicon Valley startup company – increasing exponentially. Something had to give, and it did.

Over two decades ago, prisoners' rights advocates began demanding that the CDCR's inadequate medical and mental health care systems be improved. They filed class-action lawsuits which resulted in findings that the CDCR was constitutionally deficient in those areas. Because the courts found state prison officials were unable to manage medical and mental health care, federal overseers were appointed to take the reins. Those court-appointed agents reported that the common fundamental problem they faced was a simple numbers issue: too many prisoners for the space and staff available.

Ultimately, the lawsuits progressed to the point where a three-judge panel, uniquely available in limited circumstances under the Prison Litigation Reform Act (PLRA), was established to remediate the CDCR's dysfunctional medical care system. While hiring more doctors and psychiatrists might be an improvement, no amount of extra medical personnel could ameliorate triple-bunking prisoners in converted gyms, or keeping the equivalent of an entire prison's worth of convicts in transit on the CDCR's massive bus fleet where no medical services of any kind were even possible.

Despite court demands to address these obvious problems, little happened. So the court asked the parties to provide expert advice on how many prisoners could be constitutionally housed within CDCR facilities. The answer? Not in excess of 137.5% of design capacity. The state objected and appealed to the U.S. Supreme Court, in a first-ever test of the three-judge panel provision of the PLRA. In Brown v. Plata, 131 S.Ct. 1910 (2011) [PLN, July 2011, p.1], the Supreme Court upheld the three-judge panel's order requiring a significant reduction in the CDCR's prison population.

California then made some major changes. The legislature passed AB109, inaugurating "realignment" into the state's prison lexicon. First, the flow of new prisoners into state prisons was slowed by a statute that sent most low-level offenders, with five or fewer years to serve, to county jails. Complementing this action was the transfer of such offenders already housed in state prisons to county facilities. Most importantly, all such prisoners under post-release supervision were shifted from the CDCR's parole division to county probation departments.

The net effect of realignment was two-fold. The huge reduction in the number of parolees resulted in an approximately 80% decrease in the number of state parole agents, while a corollary result was that parole agents were no longer able to violate parolees and return them to custody, further reducing the state's prison population.

New prison commitments decreased as well, for "non-violent, non-serious, non-sex" offenders. The CDCR proudly announced when the last of the triple bunk beds in prison gyms were removed – although, sadly, many of those bunk beds were given to county jails to handle the new surge in their populations. The number of state prisoners dropped from around 144,000 before realignment to a current level of approximately 119,500.

As a result of realignment there has been a shift in the type of prisoners housed in state facilities. At the end of 2012, 88% of CDCR prisoners had "a current or prior violent or serious felony conviction, and 16% were registered sex offenders. A large percentage of inmates have long-term sentences: 25% are serving a 'second strike' sentence, and 19% are lifers with the possibility of parole. Smaller proportions are serving a 'third strike' sentence (7%) or are serving life sentences without the possibility of parole (4%)," according to the Public Policy Institute of California.

"Realignment reduced the prison population by about 25,000 over a period of 18 months," said CDCR spokesman Jeffrey Callison. "But realignment is maxed out."

Yet the three-judge court had ordered the CDCR to lower its population to 110,000 – and the fight over the remaining approximately 9,600 prisoners to be released heated up as the end-of-the-year compliance deadline approached. That deadline already had been extended from the original date of June 27, 2013. [See: PLN, March 2013, p.24].

The state informed the court that together with its other remedial actions, including the opening of a 1,700-bed medical facility in Stockton [see: PLN, March 2013, p.56] and opening three medical units in other prisons, coupled with the hiring of new medical and psychiatric staff, the CDCR was now in compliance with the provision of constitutional medical care and thus should be relieved of any further population reductions.

However, new evidence produced by attorneys representing the prisoner class members indicated otherwise. Suicide rates – a canary in the coal mine of inadequate psychiatric care – remained stubbornly high. [See: PLN, April 2013, p.22]. "Unnecessary" prisoner deaths were still being reported. And an epidemic at the CDCR's Central Valley prisons – Valley Fever – continued to result in infections that have sickened hundreds and killed dozens of prisoners.

The federal Receiver over CDCR health care recently directed prison officials to move thousands of vulnerable prisoners out of the two facilities most impacted by Valley Fever: Avenal and Pleasant Valley. Blacks, Filipinos and prisoners with certain medical conditions were ordered transferred due to their high susceptibility to the Valley Fever fungus that is native to the soil in that region. [See: PLN, July 2013, p.28]. The obvious question is where can the CDCR move those prisoners if other facilities are already full?

The three-judge court, determined to ensure the state meets the December 31, 2013 deadline to reduce its prison population to 137.5% of design capacity, was presented with expert opinions as to how to approach the problem of removing another 9,600 prisoners from CDCR facilities.

The suggested approaches were several-fold. One was to slow the planned return of thousands of CDCR prisoners farmed out to facilities in other states, who are not counted in the population cap order.

California currently houses about 7,450 prisoners in out-of-state privately-operated prisons, and in July 2013 extended its contract with Corrections Corporation of America to continue housing prisoners in CCA facilities in Arizona, Oklahoma and Mississippi through 2016.

Another approach is to amend state law to increase good conduct credits for non-violent state prisoners to 2 days credit for every day served. According to the experts, this would result in about 5,500 CDCR prisoners being released by December 31, 2013, particularly if the good conduct credits were applied retroactively. In fact, as the court illustrated with two simple tables in its June 20 order, the reduction of 9,600 prisoners could be accomplished by implementing this one change in addition to other actions already suggested by state officials.

The court's frustration with the CDCR did not rest simply with the state reaching the required prison population cap, but also maintaining that cap as a ratio of population to design capacity. The court was mindful of existing state laws and regulations that serve to hamstring the CDCR's compliance with the population cap, and perhaps the most stunning part of the court's order was its precedent-setting use of a PLRA provision to waive all such state statutory constraints in order to comply with the prison population cap.

The court wrote, "Because defendants' Plan does not comply with our Order, this Court hereby orders defendants to implement an additional measure along with its Plan that will bring defendants into compliance: the expansion of good time credits.... This measure, expanded good time credits, in conjunction with the measures included in the Plan submitted by defendants, will constitute an amended Plan ('Amended Plan') – a plan that will, unlike defendants' Plan, reduce the overall prison population to 137.5% design capacity by December 31, 2013. Defendants are ordered to take all steps necessary to implement all measures in the Amended Plan, commencing forthwith, notwithstanding any state or local laws or regulations to the contrary. 18 U.S.C. § 3626(a)(1)(B). All such state and local laws and regulations are hereby waived, effective immediately."

In sum, California is facing a trio of federal judges who are fiercely determined to resolve decades of hotly-contested litigation brought by dedicated attorneys seeking to protect prisoners' constitutional rights. As the court put it, "We are willing to defer to [the state's] choice for how to comply with our order, not whether to comply with it. Defendants have consistently sought to frustrate every attempt by this court to achieve a resolution to the overcrowding problem."

Predictably, the response of state officials to the court's order to reduce the CDCR's population by another 9,600 prisoners was defiant.

"The arrogance of these judges is outrageous," said state Senator Jim Nielsen. "The safety of every Californian is put at risk by this irresponsible decision, and it must be challenged. There are other solutions." He did not, however, state what those other solutions were, or explain why the state had not implemented them over more than two decades of litigation.

Calling the three-judge court's order "unprecedented," Governor Jerry Brown quickly challenged the order, filing an appeal to the U.S. Supreme Court on June 24, 2013. Perhaps realizing the futility of another appeal, though, he concurrently requested $450 million from the legislature to lease up to 4,100 jail and private prison beds and to maintain the CDCR's out-of-state prisoner transfers.

On July 15, 2013, four former California governors – Pete Wilson, George Deukmejian, Arnold Schwarzenegger and Gray Davis – requested permission to file an amicus brief with the Supreme Court in support of the state, arguing that "The failure of the three-judge court to adequately reconsider the population cap threatens the people of California with grave and irreparable harm from increased crime."

Meanwhile, the three-judge court has declined to stay its order pending the state's appeal. See: Plata v. Brown, U.S.D.C. (N.D. Cal.), Case No. C01-1351 TEH and Coleman v. Brown, U.S.D.C. (E.D. Cal.), Case No. 2:90-cv-0520 (three-judge court).

Additional sources: Sacramento Bee, Los Angeles Times, Mercury News, www.ppic.org

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