Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 5

11-18-2010

The Quixotic Dilemma, California’s Immutable
Culture of Incarceration
Geri Lynn Green
Green & Green LLP

Recommended Citation
Geri Lynn Green, The Quixotic Dilemma, California’s Immutable Culture of Incarceration, 30 Pace L.
Rev. 1453 (2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/5
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
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The Quixotic Dilemma,
California’s Immutable Culture of
Incarceration
Geri Lynn Green*
Abuse of power has always fed on the sophisticated
ignorance and postural unconcern of the people.
The
continuing problem with the California Department of
Corrections is no exception.
As Thomas Jefferson said,
―information is the currency of democracy.‖1
California
desperately needs transparency and accountability to
reinvigorate the active participation of its citizenry to demand
responsible solutions to the problems in the California penal
system.
California leads in many categories, some admirable,
others dubious. Its gross state product (―GSP‖) is the largest in
the country and in 2008 represented 13% of the gross domestic
product (―GDP‖) of the United States.2 Texas, with the second
largest GSP, has approximately two-thirds the population of

*

Geri Lynn Green is a partner at the San Francisco-based law firm
Green & Green, LLP. She specializes in trial and appellate litigation in
federal and state courts. She has extensive experience with complex
litigation in areas including civil rights, criminal, quasi-criminal actions
including antitrust, RICO, tax fraud/money laundering and white collar
crime, prisoner‘s rights, ADA, employment discrimination, unfair trade
practices, contract, family law, attorney‘s fees litigation, and business torts.
She has been an active Board Member of Legal Services for Prisoners with
Children, and a member of the Bringing Human Rights Home Lawyer‘s
Network. She has written reports and presented before United Nations
bodies concerning human rights violations in U.S. prisons and has coauthored a manual on drafting shadow reports, entitled Demanding Our
Rights.
1. ICON GROUP INT‘L, INC., JEFFERSON: WEBSTER‘S QUOTATIONS, FACTS
AND PHRASES 391 (2008).
2. Bureau of Economic Analysis, Gross Domestic Product by State (GDP
by State) Interactive Map, http://www.bea.gov/regional/gdpmap/GDP
Map.aspx (last visited Mar. 21, 2010).

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California3 and its contribution to the U.S. GDP is
approximately two-thirds that of California.4 California alone
is the eighth largest economy in the world,5 and regrettably has
the distinction of being the third largest penal system in the
world, behind only China and the United States Bureau of
Prisons.6
Recent disclosures have revealed another distinction for
California: its prisons. Despite an annual budget of nearly ten
billion for the California Department of Corrections and
Rehabilitation (a sum greater than the total revenue of thirtyof the States),7 California‘s prisons are run like those that
might be found in the Third World.
In the federal district court case that put the California
prison system into receivership, Judge Thelton Henderson
found that the root cause of the problem was a ―historical lack
of leadership, planning, and vision by the State‘s highest
officials during a period of exponential growth of the prison
population.‖8 California‘s prison system, he found, was ―a
textbook example of how . . . political institutions sometimes
fail to muster the will to protect a disenfranchised, stigmatized,
and unpopular subgroup of the population.‖9 In California, the
―failure of political will, combined with a massive escalation in
the rate of incarceration over the past few decades, has led to a
3. The U.S. Census Bureau estimates that Texas had a population of
24,782,302 in 2009.
U.S. Census Bureau, Texas—Population Finder,
http://www.census.gov (select ―Texas‖ under ―Population Finder‖) (last visited
Mar. 21, 2010). By contrast, California had an estimated population of
36,961,664 in 2009. Id. (select ―California‖ under ―Population Finder‖).
4. Bureau of Economic Analysis, supra note 2.
5. CTR. FOR CONTINUING STUDY OF THE CAL. ECON., 2008 CALIFORNIA
ECONOMY
RANKINGS
1
(2009),
available
at
http://www.ccsce.com/PDF/Numbers-Aug09_2008-California-EconomyRankings.pdf.
6. Amy E. Lerman, The People Prisons Make: Effects of Incarceration on
Criminal Psychology, in Do PRISONS MAKE US SAFER?: THE BENEFITS AND
COSTS OF THE PRISON BOOM 151 (Steven Raphael & Michael A. Stoll eds.,
2009).
7. California Department of Corrections and Rehabilitation—Budget
Management, http://www.cdcr.ca.gov/Budget/index.html (last visited Mar. 21,
2010). See also U.S. Census Bureau, States Ranked by Total State Taxes:
2009, http://www.census.gov/govs/statetax/09staxrank.html (last visited May
21, 2010).
8. Plata v. Schwarzenegger, 2005 WL 2932253, at *29 (N.D. Cal. Oct. 3,
2005).
9. Id. at *32.

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serious and chronic abdication of State responsibility . . . .‖10
Any analysis of California‘s prison dilemma requires an
understanding of the economic and political forces that brought
us to this point. Fueled by U.S. expansion of its militaryindustrial complex with enormous development projects and
construction,11 California enjoyed its place in the sun, the
Golden State where dreams really could come true.
Indeed, by 1945, the Federal Government was investing
more than 10% of its spending in California, which at that time
comprised 7% of the nation‘s population.12 After World War II,
while most of the nation‘s war industries reconverted to the
production of consumer goods, California was the beneficiary of
increased federal investment in the form of prime Department
of Defense (DOD) contracts for its aerospace industry and
electronics research and development. As a result, California
received the highest dollar volume of prime DOD contracts of
any state between 1958 and 1991.13 The growth of these DODspawned industries required the state to make immense
investments in its own infrastructure to accommodate the
resulting population expansion.
New science/engineeringbased jobs required a highly educated and specialized labor
force, causing the state to craft and fund a ―master plan‖ for
higher education, which pledged an appropriate postsecondary
education at public expense to every high school graduate.14
As a result, Californians enjoyed what appeared to be
limitless employment opportunities, the nation‘s best grade
schools, affordable and accessible higher education, affordable
housing, newly built infrastructure to provide the new
population with hospitals and medical care, government
agencies of every ilk, and hundreds of miles of roads and
10. Id.
11. BRUCE J. SCHULMAN, FROM COTTON BELT TO SUNBELT: FEDERAL
POLICY, ECONOMIC DEVELOPMENT AND TRANSFORMATION OF THE SOUTH, 19381980, at 150 (1994).
12. See WALTON E. BEAN, CALIFORNIA: AN INTERPRETIVE HISTORY 425
(1973).
13. ANN R. MARKUSEN ET AL., THE RISE OF THE GUNBELT: THE MILITARY
REMAPPING OF INDUSTRIAL AMERICA 13, 231 (1991).
14. Ruth Wilson Gilmore, Decorative Beasts: Dogging the Academy in the
Late 20th Century, CAL. SOCIOLOGIST 14, 113-35 (1991); Richard Walker,
California Rages Against the Dying of the Light, 209 NEW LEFT REV. 42-74
(1995).

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freeways. In short, California offered an unparalleled lifestyle
during the 1940s, ‗50s, and ‗60s, and it paid off, making
California a significant global presence in its own right.
The hope for a better life drove an unprecedented wave of
migration to California during and in the aftermath of WWII.
Indeed, the population doubled in size to some 20 million in
1970, accounting for 1/10th of the nation, and grew to almost 25
million by 1980.15 As the century began to wane, however, the
state‘s population swell began to take its toll.
Military spending cuts and reorganization in the late ‗60s
resulted in significant, albeit temporary, middle-class job loss,
causing the 1969-70 recession to hit California harder than the
rest of the country and causing the unemployment rates to
double.16 A confluence of a number of market forces over the
ensuing decade stressed California‘s resources even further.
OPEC price manipulation in the 1970s caused the price of oil to
rise over twenty times what it was in the beginning of the
decade. These fluctuations had wide-ranging and substantial
inflationary effects on the United States and California
economies.17 Legislation in August of 1971 caused the yen to
rise 50% against the dollar from 1971 to 1985; this in turn
caused the dollar to go into a free fall and spurred Japanese
investment in California real estate. The 1974 Equal Credit
Opportunity Act (ECOA)18 made it unlawful for any creditor to
discriminate against any applicant, which allowed mortgage
lenders to take into account all income-earning members of the
household. Prior to this enactment, lenders had been confined
to consideration of only the man‘s income. With the increased
buying power of two household income earners, a new wave of
buyers was suddenly unleashed to compete for available
housing inventory. The global recession of 1973-1975, as well
as high interest rates and the swelling labor pool, compounded
the problem. The fall of Saigon on April 30, 1975—which
15. See CAL. DEP‘T OF FIN., POPULATION OF CALIFORNIA AND THE UNITED
STATES,
1940
TO
2007,
at
2
(2008)
available
at
http://www.dof.ca.gov/HTML/FS_DATA/STAT-ABS/documents/B1.pdf.
16. Michael B. Teitz, The California Economy: Changing Structure and
Policy Responses, in CALIFORNIA POLICY CHOICES (John J. Kirlin & Donald R.
Winkler eds., 1984).
17. OPEC BEHAVIOUR AND WORLD OIL PRICES 19 (James M. Griffin,
David J. Teece eds., 1982).
18. Equal Credit Opportunity Act, 15 U.S.C. § 1691 (2006).

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ended the Vietnam War—prompted the first large-scale wave
of immigration from Vietnam, which continued for the next
decade. When the shah of Iran fell in January of 1979,
California absorbed many of those Iranians who fled the
Ayatollah Khomeini regime.
With all these forces at work, California experienced an
unprecedented rise in the price of real estate and a
corresponding reassessment of real estate taxes based on
market value. California‘s municipal and state treasuries,
which rely on property taxes, enjoyed substantial surpluses,
with annual revenues exceeding expenditures.
Alarmed
taxpayers waged a revolt that resulted in the passage of
Proposition 13 in 1978. Proposition 13 was a voter initiative
that rolled the state residential and non-residential property
taxes back to 1975 rates and shielded property from
reassessment until it was sold.
California‘s municipal governments, heavily dependent on
property tax revenues to fund services, were severely impacted.
School districts that had previously received more than 50% of
their budget from property taxes in 1978 saw those
contributions reduced to only 18% by 1988.19 Similarly, local
governments were forced to reduce services to their neediest
residents: the poor, homeless, mentally ill, substance abusers,
developmentally disabled, and children.20
Conservative California politicians responded to these
crises with political platforms to lower taxes, cut spending, and
ensure law and order. With municipal budgets decimated, the
state streamlined the process by warehousing offenders at
state prisons instead of local facilities. Ideals of rehabilitating
criminal offenders were replaced with models of incapacitation.
Lawmakers hastily passed laws, dramatically increasing
prisoner populations without providing funding for education,
vocational training, and rehabilitative programming. At the
same time, the state continued its deinstitutionalization of the
mentally ill and the funds for their care dried up, forcing the
shutdown of community facilities for the seriously mentally ill.
Today, almost half of all prisoners are incarcerated for non19. Jeffrey Chapman I, The Fiscal Context, in 7 CALIFORNIA POLICY
CHOICES (John J. Kirlin & Donald R. Winkler eds., 1984).
20. Poverty among California‘s children rose twenty-five percent. See
Teitz, supra note 16.

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violent, property, or drug crimes.21
Such a shift allowed the Department of Corrections to
steadily grow and amass enormous political power. Today, it
employs more than 66,000 staff members,22 more state
employees than any other department; as such, it has a
stranglehold on California politics.
I. The Present State of the California Prison System
The increased imprisonment of drug offenders and other
low-level non-violent offenders, the dismantling of California‘s
mental health system, and the trend toward imposing long
prison sentences has caused California‘s inmate population to
swell over 500% since 1980, when the average adult population
hovered around 24,000,23 to a whopping 170,000 in 2007.24 At
the same time, the general population of the state has only
seen a 64% increase.25

21. See CAL. DEP‘T OF CORR. & REHAB., CHARACTERISTICS OF FELON NEW
ADMISSIONS AND PAROLE VIOLATORS RETURNED WITH A NEW TERM (2008),
available
at
http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Br
anch/Annual/ACHAR1/ACHAR1d2008.pdf.
22. See CAL. DEP‘T OF CORR. & REHAB., CORRECTIONS: MOVING FORWARD 3
(2009),
available
at
http://www.cdcr.ca.gov/News/2009_Press_Releases/docs/CDCR_Annual_Repor
t.pdf.
23. See CAL. DEP‘T OF CORR., HISTORICAL TRENDS INSTITUTION PAROLE
POPULATION
1976-1996,
at
3a
(1997)
available
at
http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Br
anch/Annual/HIST2/HIST2d1996.pdf. The Institution population is 170,186,
as derived from the Offender Base Information Systems (OBIS) dataset
created on January 28, 2010. The data has been collected and reported for
only the main institutions. See CAL. REHAB. OVERSIGHT BD., BIANNUAL
REPORT
app.
B
(2010),
available
at
http://www.cdcr.ca.gov/Divisions_Boards/Adult_Programs/docs/CROB_Biannual_Report_March_15_2010.pdf.
24. See generally CAL. DEP‘T OF CORR., supra note 23; CAL. DEP‘T OF
CORR. & REHAB., HISTORICAL TRENDS 1987-2007 (2007), available at
http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Br
anch/Annual/HIST2/HIST2d2007.pdf.
25. See U.S. Department of Agriculture, California Fact Sheet,
http://www.ers.usda.gov/StateFacts/CA.htm (last visited Apr. 16, 2010).

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California Population Trends According to the U.S.
Department of Agriculture:
Population
Year
1980
1990
2000
2009 (latest estimates)

Rural *

Urban *

Total

569,423
713,834
796,198
833,075

23,098,342
29,046,187
33,075,450
36,128,589

23,667,765
29,760,021
33,871,648
36,961,664

http://www.ers.usda.gov/StateFacts/CA.htm (last visited 4/18/2010.)

The Department of Corrections currently oversees thirtythree state adult prisons, eight juvenile facilities, more than
forty minimum custody camps, twelve community correctional
facilities, and several out-of-state private facilities.26
The present number of inmates, 166,569,27 is twice that
which the prisons were built to hold28 and more than double
the number of inmates in 1989.29 In some cases, prisons are
26. See CAL. DEP‘T OF CORR. & REHAB., SUCCESSES AND CHALLENGES: THE
CDCR STORY 3 (2009), available at
http://www.cdcr.ca.gov/Reports_Research/docs/CDCR_Story_051807.pdf.
Throughout the state, there are more than 200 parole units and offices at
nearly 100 locations serving adult and juvenile parolees. See id. This is in
addition to nineteen re-entry centers and two restitution facilities that are
operated by public or private agencies under CDCR contract. See id.
27. See CAL. DEP‘T OF CORR. & REHAB., supra note 22, at 5.
28. Coleman v. Schwarzenegger, 2009 WL 2430820, at *1 (E.D. Cal. Aug.
4, 2009). Plata v. Schwarzenegger, 2005 WL 2932253 (N.D. Cal. Oct. 3, 2005)
and Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995), were joined for
hearings in the three-judge panel described herein.
29. See CAL. DEP‘T OF CORR. & REHAB., MONTHLY REPORT OF POPULATION
AS
OF
MIDNIGHT
JULY
31
1990
(1990),
available
at
http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Br
anch/Monthly/TPOP1A/TPOP1Ad9007.pdf. The 2009 figures do not take into
account CDCR‘s forty camps, minimum custody facilities located in
wilderness areas where inmates are trained as wild land firefighters; twelve
community correctional facilities (―CCFs‖); five prisoner mother facilities or
the juvenile facilities which account for an additional seven to ten thousand
prisoners. Furthermore, it does not take into account the parole and
outpatient population which, as of December 31, 2008, was 123,597. See CAL.
DEP‘T OF CORR. & REHAB., MONTHLY REPORT OF POPULATION AS OF MIDNIGHT
DECEMBER
31
2008
(2009),
available
at

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crowded to 300% of capacity.30
The accelerated growth in the prison population and
bureaucracy was not accompanied by the organizational
restructuring necessary to meet increasing system demands
and to provide appropriate accountability and oversight. The
system today operates without necessary management
structures, policy standardization, training information
technology, or the ability to provide essential health care
services and rehabilitative programming. Individual wardens
wield extensive independent authority to determine standards
and operating procedures and often act with impunity. A lack
of accountability and transparency has created a ―massive
waste of taxpayer money.‖31
A. The State of Adult Corrections
Plata v. Schwarzenegger and Coleman v. Schwarzenegger
are two separate court actions that have resulted in federal
court oversight of California prisons.32 The Plata plaintiffs,
prisoners with serious medical needs, filed suit in 2001
claiming that the State failed to provide constitutionallyadequate medical care.33 The State settled the matter in 2002
and entered a stipulation for injunctive relief to improve
medical care. However, the defendants proved ―incapable of or
unwilling to provide the stipulated relief.‖34
Over the
intervening years, the district court entered numerous orders
to remedy the violations, each one proving ineffective.
The Coleman plaintiffs, prisoners with serious mental
disorders, filed suit in 1990 alleging constitutionally
inadequate mental health care.35 After a trial, the district
court found the California prison mental health care system so
http://www.cdcr.ca.gov/Reports_Research/Offender_Information_Services_Br
anch/Monthly/TPOP1A/TPOP1Ad0812.pdf.
30. Coleman, 2009 WL 2430820, at *1.
31. There is widespread medical malpractice and neglect resulting in, on
average, at least one needless inmate death every six to seven days. See
Plata, 2005 WL 2932253, at *8.
32. Coleman v. Schwarzenegger, 2009 WL 2430820, at *1 (E.D. Cal. Aug.
4, 2009).
33. Plata, 2005 WL 2932253, at *1 (N.D. Cal. Oct. 3, 2005).
34. Coleman, 2009 WL 2430820, at *3.
35. Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal.1995).

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deficient as to violate the Eighth Amendment.36 The district
court subsequently entered more than seventy orders over the
course of fourteen years in a futile attempt to remedy the
violations.37 As in Plata, crowding prevented meaningful
reform. The State has never sought to terminate the injunctive
relief granted in either Plata or Coleman on the grounds that it
has achieved constitutional compliance.
According to California Governor Arnold Schwarzenegger,
the prisons are places ―of extreme peril to the safety of
persons.‖38
In 2006, the Governor declared a State of
Emergency because the severe prison crowding ―has caused
substantial risk to the health and safety of the men and women
who work inside [these] prisons and the inmates housed in
them.‖39
He further declared that ―immediate action is
necessary to prevent death and harm caused by California‘s
severe prison overcrowding.‖40
Nonetheless, after almost twenty years of judicial
oversight failing to improve the situation, the medical system
was put into receivership by a federal court, and ultimately, on
July 26, 2007, in the face of mounting deaths and inertia on the
part of the defendants, the Chief Judge of the Ninth Circuit
Court of Appeals ordered that a single three-judge court be
convened to consider population reduction.41
The court found that one of the most visible consequences
of the gap between the size of the prison population and the
capacity of the prisons was the thousands of so-called ―ugly‖
beds—thousands of double and triple bunks ―crammed into
gyms and dayrooms that were never meant to be used for
housing.‖42 The former head of the Texas Department of

36. Id.
37. Coleman, 2009 WL 2430820, at *13.
38. Id. at *1.
39. Id.
40. Id. at *23 (quoting Arnold Schwarzenegger, Cal. Governor, Prison
Overcrowding State of Emergency Proclamation (Oct. 4, 2006)) (internal
quotation marks omitted).
41. The three judge district court was convened and granted motions to
intervene on behalf of defendants by certain California district attorneys,
sheriffs, police chiefs, probation officers, counties, and Republican state
legislators. Id. at 27. The court also granted the motion by the California
Correctional Peace Officers‘ Association, to intervene on behalf of plaintiffs.
42. Id. at *42.

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Criminal Justice testified that ―[i]n more than 35 years of
prison work experience, I have never seen anything like it.‖43
Overcrowding, including ―ugly‖ beds, is extraordinarily
dangerous,
according
to
the
Governor‘s
emergency
44
proclamation. As described by a former high-ranking official
in the California Department of Corrections and
Rehabilitation, ―the risk of catastrophic failure in a system
strained from severe overcrowding is a constant threat. As the
Director of the Division of Adult Institutions . . . , it is my
professional opinion this level of overcrowding is unsafe and we
are operating on borrowed time.‖45
On August 4, 2009, the three-judge district court panel
issued its Opinion and Order, concluding after careful review
and analysis of the evidence that plaintiffs had demonstrated
that ―clear and convincing evidence establishes that crowding
is the primary cause of the unconstitutional denial of medical
and mental health care to California‘s prisoners.‖46 Thus, the
court required the State to draft a plan to reduce the prison
population.47
In coming to this conclusion, the three-judge panel found
that all of the steps defendants had taken under the Plata
43. Id. (internal quotation marks and citation omitted).
44. Id. at *42-43.
45. Id. at *34 (internal quotation marks and citation omitted).
46. Id. at 31. These barriers to medical and mental health care include
lack of physical space and shortages of staff. The Court found that the
crowded conditions themselves exacerbate prisoners‘ mental illness. The
mental health bed shortages:
have created a destructive feedback loop that is now
endemic to the CDCR's mental health care delivery system.
Inmates denied necessary mental health placements are
decompensating and are ending up in mental health
conditions far more acute than necessary . . . creat[ing] a
cycle of sicker people being admitted, with greater resources
necessary to treat them, which then creates even further
backlog in an already overwhelmed system.
Id. at *41 (internal quotations and citations omitted). The overcrowding also
has the potential to cause physical illness, by increasing risk of transmission
of infectious disease.
Another result of crowding is that prison
administrators rely heavily on lockdowns to exert control over the prisons
resulting in further stress on the medical providers who must go cell to cell to
deliver care. As a direct result of all of these problems caused by crowding,
the Court found that there are unacceptably high numbers of both
preventable and possibly preventable deaths. Id. at *32-56.
47. Id. at *115-116.

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court‘s supervision, as well as the steps taken under the
Coleman court‘s supervision, had failed to remedy the
constitutional deficiencies.48 That, the court determined, was
due to ―[t]he crushing inmate population [which] has strained
already severely limited space resources to the breaking point,
and crowding is causing an increasing demand for medical and
mental health care services, a demand with which defendants
are simply unable to keep pace.‖49
The State answered with a proposal to build more prisons
but that answer was rejected by the court as the evidence
demonstrated that any construction could not be completed for
many years, during which time plaintiff class members would
continue to suffer and die.50
The court considered other options, such as simply hiring
more staff, but found that crowding impedes recruitment and
retention of health care staff, and, even if more staff were
hired, there would be nowhere for them to work.51
In conclusion, the court found that ―[t]he evidence
establishes that ‗[r]educing the population in the system to a
manageable level is the only way to create an environment in
which other reform efforts, including strengthening medical
management, hiring additional medical and custody staffing,
and improving medical records and tracking systems, can take
root in the foreseeable future.‘‖52
Before arriving at this conclusion, the three-judge panel
carefully considered whether an order to reduce the prison
population by up to 40,000, to 137.5% of design capacity, would
have an adverse impact on public safety.53 The court found
that the crowded conditions in California prisons are actually
increasing the crime rate because prisoners leave prison more
dangerous than before.54 This is because the crowded prisons
48. Id. at *115.
49. Id. at *61.
50. Id. at *102.
51. Id. at *45-46.
52. The Court, mindful of the problems inherent in such an order, did
not order that CDCR ―throw open the doors of its prisons.‖ Id. at *78. On the
contrary, it advised that the State come up with a plan where they ―choose
among many different options or combinations of options for reducing the
prison population.‖ Id.
53. Id. at *113-14.
54. Id. at *85-87.

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force prisoners into violent, crowded conditions with higherlevel offenders, and leave them unable to obtain rehabilitative
programming because the physical space used for programming
is now filled with beds.55
The overwhelming evidence from local law enforcement
officials was that ―the current combination of overcrowding and
inadequate rehabilitation or re-entry programming in
California‘s prison system itself has a substantial adverse
impact on public safety and the operation of the criminal
justice system.‖56 The State itself concurs.57 All agree that
reducing crowding will ameliorate these problems, thus
improving public safety.
The court further noted that any reduction in the prison
population would result in substantial savings to the State,
possibly over one billion dollars, and the State‘s population
reduction plan could require some portion of those funds be
directed toward community programs to ameliorate any impact
of a prison population reduction.58
At the time of this drafting, the State has failed to comply
with the court‘s order to produce a plan to reduce the prison
population. Accordingly, lawyers for the prisoners are seeking
prosecution of Governor Schwarzenegger for his failure to
comply with the court‘s order. The Governor has asked the
court for more time to coax concessions from the Legislature,
which failed to approve a package of Schwarzenegger-backed
reforms in the summer of 2009 that could have slashed about
37,000 inmates from the state‘s prisons.
The defendants continue to resist developing a plan and
have appealed the order. On September 18, 2009, the State
filed a population reduction plan. It was rejected by the court
as the plan would not accomplish the population reduction
ordered by the court. However, if implemented, the plan would
reduce the prison population somewhat by giving more goodtime credits and diverting certain parole violators and
probation violators away from prison. A revised plan was filed
by defendants on November 12, 2009. There continues to be

55.
56.
57.
58.

Id.
Id. at *85.
Id. at *85-86.
Id.

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new developments in the efforts to reduce the severe
overcrowding in California‘s state prisons. However, as of this
writing, none have been implemented and none will
dramatically change the overall prison population without
serious revisions of California‘s sentencing scheme.
B. The Juvenile Problem
The juvenile justice system finds itself similarly situated,
plagued by excessive violence, overcrowding, and a 91%
recidivism rate.59 In March 2006, a panel of state-approved
correctional experts conducted a comprehensive assessment,
which found a ―system that is broken almost everywhere you
look.‖60
Youths are subject to being warehoused in huge living
units with low staffing levels and are largely denied the
educational and rehabilitative programming necessary for
successful re-entry. Instead, the Department has capitulated
to the gang culture with youths housed by gang affiliation, and
the excessive use of lockdowns and isolation to manage
violence.
Because of the program reductions and the
imposition of increased sentences for infractions, California
minors‘ time in custody is almost triple the national average.61
Like its adult counterpart, the juvenile system provides
inadequate medical and mental health care.
In January of 2007, CDCR reported that it housed 2,647
juveniles with 3,776 staff members, of which 1,970 were
custody staff, at a rate of $175,000 per year per juvenile.62 As
of March 31, 2009, Department of Juvenile Justice (DJJ)
59. See CHRISTOPHER MURRAY ET AL., SAFETY AND WELFARE PLAN:
IMPLEMENTING REFORM IN CALIFORNIA
6
(2006),
available
at
http://www.cdcr.ca.gov/News/docs/DJJ_Safety_and_Welfare%20Plan.pdf.
60. Id. at 1.
61. With an average stay of 35.3 months, total per capita ward costs are
nearly $800,000, not including parole supervision costs. See CAL. DEP‘T OF
CORR. & REHAB., POPULATION OVERVIEW 2008 (2008), available at
http://www.cdcr.ca.gov/Reports_Research/docs/research/POPOVER2008.pdf.
See also CAL. DEP‘T OF CORR. & REHAB., SAFETY AND WELFARE PLAN:
IMPLEMENTING REFORM IN CALIFORNIA
1
(2006),
available
at
http://www.cdcr.ca.gov/News/docs/DJJ_Safety_and_Welfare%20Plan.pdf.
62. California Department of Corrections and Rehabilitation, Summary
Fact Sheet, www.cdcr.ca.gov/Reports_Research/summarys.html (last visited
Mar. 25, 2010).

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housed 1,637 wards in six institutions at an estimated cost of
approximately $234,029 per ward.63 ―With an average stay of
35.3 months, total per capita ward costs are nearly $800,000,
not including parole supervision costs.‖64
Despite the
unprecedented expenditures by the CDCR/DJJ, there has been
little progress in achieving reform and improving conditions.
While there are almost two highly-paid union staff
members for every juvenile incarcerated at DJJ, California has
one of the highest student–teacher ratios at 20.9 students per
teacher compared to the national average of 15.5.65 California
has consistently fallen below the national average in per-pupil
expenditures, ranking 24th in 2006–2007.66 The state also
ranked almost last in terms of the ratio of total school staff to
students in 2006–2007, according to the National Center for
Education Statistics (―NCES‖): 72% of school staff members as
the average State; 39% of district officials/administrators as
the national average; and only 71% of school principals and
assistant principals as the national average.67
63. For the 2010 budget, see generally CAL. DEP‘T OF CORR. & REHAB.,
GOVERNOR‘S
BUDGET
(2010),
available
at
http://www.ebudget.ca.gov/pdf/GovernorsBudget/5210/5225.pdf.
64. DANIEL MACALLAIR, MIKE MALES, & CATHERINE MCCRACKEN, CTR. ON
JUVENILE CRIMINAL JUSTICE, CLOSING CALIFORNIA‘S DIVISION OF JUVENILE
FACILITIES: AN ANALYSIS OF COUNTY INSTITUTIONAL CAPACITY 2 (2009),
available at www.cjcj.org/files/closing_californias_DJF.pdf.
65. National Center for Education Statistics, Student/Teacher Ratios in
Public
Schools,
http://nces.ed.gov/programs/coe/2009/section4/indicator31.asp#info
(last
visited Apr. 11, 2010). With almost 6.5 million kids in public school,
California only has 307,000 teachers.
See also Ed-Data Website,
http://www.eddata.k12.ca.us/Navigation/fsTwoPanel.asp?bottom=/Articles/Article.asp%3Fti
tle%3DHow%2520California%2520Compares (providing student-to-teacher
ratios in California public schools) (last visited Mar. 25, 2010). California
had nearly 307,000 teachers in its schools in 2008-09. See Ed-Data Website,
Teachers
in
California,
http://www.eddata.k12.ca.us/articles/Article.asp?title=Teachers%20IN%20CALIFORNIA
(last visited Apr. 11, 2010).
66. NAT‘L EDUC. ASS‘N, RANKING AND ESTIMATES 2008-2009, at 67, 95-96
(2008),
available
at
http://www.nea.org/assets/docs/09rankings.pdf.
According to the National Education Association's (―NEA‖) Rankings and
Estimates 2008–09 and unadjusted for regional cost differences, at $9,124 per
pupil, California was at 95% of the national average of $9,565. Id.
67. EdSource,
Staff-per-Pupil
Ratios
in
California
2006-07,
http://www.edsource.org/data_StaffPupilRatios0607.html (last visited Mar.
25, 2010).

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With respect to teachers, California ranked 49th, with 74%
as many as the national average.68 It ranked 51st—last—on
guidance counselors and librarians.69 California had only 1.0
guidance counselor per 1,000 students, compared with an
average of 2.1 nationally, and only 0.2 librarians per 1,000
students, compared with 1.1 nationally.70
Like the adult facilities, the deplorable conditions in the
juvenile facilities have been litigated for a number of years.
Most recently, taxpayers filed suit in state court in the case of
Farrell v. Cate.71 In an October 2008 hearing, Judge Jon Tigar,
while presiding over the Farrell consent decree, grimly
observed that after nearly four years of judicial intervention,
the conditions that gave rise to the consent decree remained
the same and ―DJJ [was] in gross violation of the Court‘s
order.‖72
―In rebuking the state for its failure‖ to remediate the
problems and comply with the consent decree, Judge Tigar
pointed to the State‘s failure:
to take even the most basic, foundational steps to
implement reform. For example, the parties
agree[d] that the DJJ is a policy-driven agency,
68. Id.
69. Id.
70. Id. The average teacher salary in California was $63,640 in 2006–
07, according to the NEA, higher than any other state. EdSource, California
Rankings 2006-07, http://www.edsource.org/data_carankings06-07.html (last
visited Mar. 25, 2010). The U.S. average was $50,758. Id. However, the
relatively higher cost of living in California is a significant factor. When
comparing teacher salaries among states, both the cost of living in each state
and the seniority of the workforce play a role. The American Federation of
Teachers looked at average teacher salaries in 2000–01 and determined that
when cost-of-living factors were taken into account, California ranked 16th in
the nation. AM. FED‘N OF TEACHERS, SURVEY & ANALYSIS OF TEACHER SALARY
TRENDS
2001,
at
19
(2002),
available
at
http://archive.aft.org/salary/2001/download/salarysurvey01.pdf.
71. The case was originally filed under a different party name. See
Consent Decree, Farrell v. Hickman, No. RG03079344, (Cal. Super. Ct. Jan.
31, 2005). See also GERI LYNN GREEN ET AL., CONDITIONS AND CONDUCT IN THE
CALIFORNIA CRIMINAL JUSTICE SYSTEM: A REPORT ON U.S. GOVERNMENT
COMPLIANCE WITH THE UNITED NATIONS INTERNATIONAL COVENANT ON CIVIL
AND
POLITICAL RIGHTS (ICCPR) at n. xi (2006), available at
http://www.ushrnetwork.org/files/ushrn/images/linkfiles/CERD/10c_Californi
a%20Prisons.pdf.
72. MACALLAIR, MALES & MCCRACKEN, supra note 61, at 2 (internal
citation omitted).

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and the development of new policies is a
prerequisite to implementation of reform. By its
own witness‘ admission, however, DJJ ha[d]
written only 12 policies in the last year out of the
800 necessary for implementation of the
remedial plans—and not all of those 12 even
relate to the remedial plans. DJJ has neither a
date to develop the remaining policies nor a date
to set a date to develop them.73
The demonstrated inability of DJJ to institute mandated
reforms despite unprecedented expenditures calls into question
the wisdom of continuing the current course. Recent reports by
California‘s nonpartisan Little Hoover Commission (LHC) and
Legislative Analyst‘s Office (LAO) have called for the closing of
the six remaining DJF institutions and transferring full
responsibility for the delivery of juvenile justice services to
county probation departments.
II. There Is No Magic Bullet
Because many factors have played a role in bringing
California‘s penal system to this deplorable state, no onedimensional answer, such as increased oversight, will
remediate the tremendous problems facing the State. It must
be noted that California, prior to this period, had evidenced an
interest in promoting transparency and accountability in its
penal system, being one of the only states to adopt a state
regulatory scheme setting forth minimum standards of
treatment of prisoners. Included therein was a state oversight
body and comprehensive training systems.74 However, the
failure on the part of the state legislature to make these
standards mandatory instead of merely permissive has
severely reduced their effectiveness.
Moreover, California‘s sheer enormity is a natural
obstruction to any meaningful oversight. The great distances
of travel required to visit many of California‘s prisons keeps
family and friends away. Lawyers rarely visit. Even with all
73. Id. at 2-3.
74. CAL. CODE REGS. tit. 15 (2010). See also CAL. PENAL CODE § 6030
(Deering 2009).

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the monitors, experts, overseers, and ombudsman in place
today as a result of the litigation, the necessity of traveling
hundreds of miles to visit one institution is a significant barrier
to regular and effective oversight. The great distance and
costly telephone calls make it difficult for families to stay
connected with loved ones; thus they continue to be
uninformed. The remote placement of its prisons also makes it
nearly impossible for charitable organizations, medical and
mental health staff, or any non-department interns to work in
the facility. Hence, California‘s Central Valley is dotted up and
down with prison towns, virtually company towns in which
there is little social or political will to buck the system. Hence,
the institutions operate virtually behind a concrete veil of
secrecy. This designed obscurity has been further exacerbated
with an unprecedented expansion of the prison system.
Historically, judicial oversight through large class-action
lawsuits served as one means for generating widespread
systemic change, providing leverage over reluctant state
legislators concerned about political capital, to provide needed
resources.75 However, with the passage of the Prison Litigation
Reform Act (PLRA) in 1996, that sort of oversight became
almost nonexistent. Specifically, federal lawsuits are now
virtually impossible to file as a result of restrictive provisions
and the substantial disincentives to qualified, experienced,
competent lawyers to do this highly complex work, such as fee
caps, the elimination of the catalyst theory which allowed for
the recovery of attorneys‘ fees when the litigation resulted in
significant change, and the requirement that the attorney fund
the cost of experts even in the remedial phase of successful
litigation.
The Department of Corrections employs one-fifth of
California‘s state employees.76
Those sixty-six thousand
employees belong to a labor union, the California Correctional
Peace Officers Association (CCPOA). In the mid-1980s, the
CCPOA began an aggressive agenda to further promote prison
75. Written Testimony Submitted to the Comm’n on Safety & Abuse in
America’s Prisons—4th Hearing (June 2, 2006), available at
http://prisoncommission.org/transcripts/public_hearing_4_day_2_f_litigation.
pdf.
76. See U.S. Census Bureau, State Government Employment Data,
http://www2.census.gov/govs/apes/08stca.txt (last visited Apr. 11, 2010).

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expansion and ensure a growing inmate population, lavishing
campaign contributions on friendly legislators and governors,
with the inevitable resultant expansion of its membership and
power.
In 1994, the union made history when it donated $425,000
to Pete Wilson‘s gubernatorial campaign—the largest single
donation in California history up to that time. After his
election, Wilson rewarded the prison guards with hefty salary
increases and harsher sentencing policies. In that same year,
the ―Three Strikes‖ sentencing enhancement initiative,
strongly supported by CCPOA, was placed on the ballot.
In 1995, Governor Wilson rewarded the union when he
pushed through trend-setting legislation to ban all journalists
from interviewing any prisoners. California‘s relatively weak
public-records law already prohibited the public and the media
from inspecting a peace officer‘s personnel file without a court
order or the permission of the police agency, which posed a
significant obstacle to journalists trying to accurately
determine and report on the facts concerning police or
correctional officer misconduct. With the media banned from
individual interviews of inmates, any meaningful transparency
or accountability over the California Department of Corrections
became nearly impossible.
In 1998, the union contributed a total of $2 million to Gray
Davis‘s campaign. As governor, Davis virtually surrendered
control of all corrections matters to the CCPOA and its
leadership. The union‘s remarkable influence over Davis and
his administration became glaringly apparent in 2002 when he
signed a new contract guaranteeing a 37.7 percent increase in
guards‘ pay77 at the same time that California was confronting
the most serious fiscal crisis in recent history.78

77. ―Under this contract, a guard with seven years of service who earned
$53,000 per year would receive a yearly salary of $73,000.‖ POLITICAL
RESEARCH ASSOCS., PROFITS FROM INCARCERATION 219 (2005), available at
http://www.defendingjustice.org/pdfs/chapters/incarceration.pdf. Today, with
overtime and further raises guaranteed under the contract, guards can earn
more than $110,000 annually and all with only a high school GED. Id.
78. By 2002, approximately thirty-five percent of the CCPOA‘s yearly
budget of $22 million was dedicated to political activities, ―including
donations to elected officials. (The remaining $14 million cover[ed] general
operations such as the salaries of 71 full-time employees, including 20
attorneys).‖ Daniel Macallair, Prisons: Power Nobody Dares Mess With,

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With the advent of term limits, the CCPOA has expanded
its reach to local elections. By contributing to the campaigns of
local candidates, the union is quietly building alliances with
elected county officials on the assumption that many will
ultimately serve in the Legislature.
This has had a profound effect on the prison system, as the
California Legislature controls the allocation of funding for
state prisons and the criminal justice system as a whole. Even
funding decisions for local programs are often in the hands of
the state legislators. Pleas to fund local programs that would
divert low-level non-violent offenders or those suffering from
mentally illness and substance abusers out of the state prison
system have fallen on deaf ears. The budget today is so
complex and convoluted that few people, if any, are qualified or
able to engage in any sort of meaningful review of the
allocation of state resources. Moreover, federal funding to local
programs has been severely cut back over the years, leaving
counties and municipalities without the means by which to
treat, care for, and rehabilitate their own low–level offenders,
mentally ill, and substance abusers.
It is not merely the prison system that finds itself in ruins
today. California‘s entire political system has been rendered
dysfunctional by what many are beginning to realize may be a
misguided electoral process. The political will to engage in
responsible governance has been so compromised by special
interests that the Legislature has effectively been
incapacitated; the leaders of the executive branch find
themselves at odds with their own agencies and the state
judiciary is now conflicted with the politicization of the bench.
While the availability of judicial intervention has been
proven to be a necessity, it alone is not sufficient to ensure
transparency and accountability. In 1995, a year before the
PLRA passed, female prisoners filed a lawsuit challenging the
grossly inadequate medical care at two California state
prisons.79 In 1997, a settlement was reached.80 The California

SACRAMENTO
BEE,
Feb.
29,
2004,
http://www.three-strikeslegal.com/prison_guard_union.html.
79. Shumate v. Wilson, No. 2:95-cv-00619-WBS-JFM (E.D. Cal. Apr. 4,
1995).

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Department of Corrections (CDC) agreed to make
improvements in the quality of health care at one of the
women‘s prisons.81 However, the judicial monitors soon left
and those changes were never made. In fact, the situation
continues to worsen.
On a recent visit to San Quentin, Judge Henderson was
taken aback at the depths to which San Quentin‘s medical
facility was allowed to sink, even in the aftermath of his careful
and productive judicial intervention in Marin v. Rushen.82
What has become clear is that the bureaucracy‘s
―entrenched paralysis‖83 is not a one-dimensional problem that
a judge alone can solve by wielding the power of his pen. As
the spate of litigation has proven over the past two decades, the
courts are limited as to what they can do to ameliorate the
problem. Beyond recognizing and identifying that the situation
is dire and unconstitutional, and calling for change, the courts
are without the necessary tools to solve the problem.
The problem, instead, is systemic and must be addressed
in a holistic manner. Over the past three decades, we have
passed laws criminalizing behaviors not previously resulting in
prison commitments, while mandating and lengthening
sentences as opposed to alternative methods, thereby ensuring
a never-ending and increasing supply of prisoners.
The
politicization of the state courts over the last twenty-five years,
together with the appointment of younger judges, many of
whom come out of the prosecutorial ranks, who look upon the
position as a career, as opposed to public service, has led to
judges becoming wary of being demonized as ―soft on
criminals,‖ which could make it more difficult to win reelection.
Such a concern causes judges to be reluctant to exercise
discretion in imposing alternative, or lighter, sentences even
when they are afforded the opportunity.
Even if we reduced the prison population as the threejudge panel in Plata/Coleman has ordered,84 with a politically
80. Amy Petré Hill, Death Through Administrative Indifference: The
Prison Reform Act Allows Women to Die in California’s Substandard Prison
Health Care System, 13 HASTINGS WOMEN‘S L.J. 223, 226 (2002).
81. See id.
82. Marin v. Rushen, No. 80-0012 (N.D. Cal. Mar. 10, 1982).
83. Plata v. Schwarzenegger, 2005 WL 2932253, *1 (N.D. Cal. 2005).
84. See id.; Coleman v. Schwarzenegger, 2009 WL 2430820 (E.D. Cal.
Aug. 4, 2009).

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compromised bench, harsh sentencing laws in place, and the
lack of local solutions, the prisons will once again be busting at
the seams in short order. As the laws are presently written,
there will be a never-ending, exponentially growing supply of
prisoners for a finite number of beds, staff and resources.
Perhaps with the budget in crisis, the prisons running at 200300% occupancy, schools closing, class sizes increasing,
community colleges reducing classes, state college costs
skyrocketing, local community hospitals being forced to close,
cities and counties finding themselves forced into bankruptcy,
and the infrastructure of California in severe disrepair after
decades of deferred maintenance, we are at a tipping point.
Possibly, California will start to embrace the fact that the
answer is not one-dimensional, but one requiring a
comprehensive non-political or politicized approach.
The
enormity of the problems, admittedly, seems overwhelming and
unmanageable. For instance, one of the realities is that
decarceration will have a tremendous effect on unemployment.
If we were to reduce the prison population by 50%, so that the
prisons were running at 100% occupancy, we would release
some 70,000-80,000 people into an already-strapped work force.
This does not take into account the more than 30,000 CDCR
employees who will no longer be necessary, not to mention the
vast numbers of parole agents, administrators, and other
positions in the criminal justice system who may be affected.
Clearly, any meaningful reduction in prison population will
severely affect the unemployment rate unless, of course, we
redirect that labor pool somewhere else. However, both
prisoners and CDCR staff are largely workers with low
education levels, which exacerbates the problem. Up until
now, inertia seemed the only answer, but with low-educated
custody staff making over $100,000 per year, and inmates
costing $50,000-$230,000 per year, it might be time to look at
alternatives.
There are generally two means by which
government can remove workers from the labor pool:
incarceration and education. Californians are faced with a
choice. Just as for every action there is a consequence, failure
to act carries with it its own consequences.
Beds cannot be built, or facilities staffed, fast enough to
accommodate the expanding numbers of prisoners. With the
failure of the medical and mental health systems throughout

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the state, as well as the lengthy prison commitments
incarcerating people well into old age, the prison population is
needier and far more expensive to care for than ever before.
We must first ask ourselves: do we want to continue to be
the nation with the highest incarceration rate that the world
has ever seen? Do we wish as a society to join the ranks of
those we previously condemned, such as Russia‘s Gulag? Can
we afford it? Do we want to continue to have well-kept prison
facilities while we allow our children to attend schools
crumbling from the decades of deferred maintenance? What
other social goods will be defeated by continuing down this
road? Are we willing to give up our world-class education
system, our parks, our infrastructure, our basic quality of life
here in California in order to imprison hundreds of thousands
of people? If so, Californians may be in for much worse times.
The budget crises we now are facing may be just the beginning.
California‘s tremendous success has been due in large part
to the tremendous investment in education, which gave us a
competitive edge on the world stage. Are we really willing to
give up such a tremendous economic advantage in order to
continue to incarcerate hundreds of thousands of our citizens
when education, care and rehabilitation are far more costeffective?
With the state Legislature held hostage by special
interests, the court‘s hands tied with the passage of the Prison
Litigation Reform Act, the media ban, and by the enormity of
the California Department of Corrections, Californians,
themselves, must stand up and demand accountability.
These are tough times, with a very rocky uncharted road
ahead. But it is time we, as Californians, accepted our reality,
took charge, and demanded that our government officials act
responsibly in the State‘s best interest, instead of their own.
Current awareness tells us we do not have a choice. Instead of
searching for someone to blame and hoping for a quick fix, we
must all ask ourselves what we might contribute to starting to
reverse this process.
III. Conclusion
California has a difficult road ahead in the restructuring,
rebuilding, and rethinking of its attitudes towards

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incarceration and responsible governance. It will require vast
reform, including not only in the prison-condition context, but
also in the implementation of decarceration strategies. To do
so, the political landscape must be reformed as well. This will
only happen with an informed electorate. Transparency and
accountability are the first steps that must be taken to garner
the political will to make the necessary changes towards
responsible democratic governance.

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