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February 10, 2009

Next stop SCOTUS (or settlement) for California prison litigation?

This morning's New York Times article about yesterday's tentative ruling by a three-judge panel in California's long-running prison litigation confirm my sense that this story has so many interesting dimensions.  Here are snippets from the very effective article in today's NYTimes

The California prison system must reduce overcrowding by as many as 55,000 inmates within three years to provide a constitutional level of medical and mental health care, a federal three-judge panel tentatively ruled Monday....  “The evidence is compelling that there is no relief other than a prisoner-release order that will remedy the unconstitutional prison conditions,” the panel said in its tentative ruling.

The California attorney general, Jerry Brown, vowed to appeal the ruling.  “This order, the latest intrusion by the federal judiciary into California’s prison system, is a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed,” Mr. Brown said in a statement.  “The court’s tentative ruling is not constitutionally justified,” he said. “Therefore, the state will appeal directly to the U.S. Supreme Court when the final order is issued.”...

The ruling left the door open for still more negotiations between the thousands of imprisoned plaintiffs and the state in the court proceedings, part of a series of class-action lawsuits accusing the state of failing to provide adequate health care to prisoners.  Federal judges have already ruled that the state’s failure to provide medical and mental health care is killing at least one inmate every month and has subjected inmates to cruel and unusual punishment, which is prohibited by the Constitution....

The judges have been reluctant to order specific reforms, however, and several times during final arguments they asked lawyers for the state what their plans were to reduce the prison population and whether the court had the authority to impose specific remedies....

The California prison system has doubled its design capacity, and some facilities are even more packed than that. Prison gymnasiums and classrooms are packed with three-tier prisoners’ bunks, and lines for prison health clinics often snake 50 men deep. Rehabilitation programs, recreational facilities and health care facilities are all compromised by the crowds of felons.

Lawyers for the prisoners said that despite California’s exceptionally poor conditions, the ruling could have a national impact on prison reform if other inmate lawsuits seek population caps on other overcrowded facilities.  The ruling is also an important success for inmates since the passage of the Prison Litigation Reform Act of 1995, which made it harder for prisoners to bring lawsuits and limited court remedies for allegations of prison abuse.

As regularly readers know, yesterday's tentative ruling hardly comes out of the blue.  California has been beset by extreme sentencing and prison crowding problems for many years, and the federal judges involved in this litigation have given the state lots and lots of opportunities to get its prisons in better order.  But a lack of political will and economic problems have prevented even minor reforms from moving forward, and I have reason to believe that truly reform-minded politicians in California may be glad that the federal courts are finally ordering that something drastic be done.

And yet, nothing has been ordered yet.  Notably, yesterday's action by the special federal judicial panel was only styled a "tentative ruling."  That fact alone is remarkable, since I do not recall reading the section of the Constitution that authorizes federal courts to issue "tentative rulings."  (Maybe the Supreme Court should try this its most controversial cases: just imagine how useful it might be to have tentative rulings on abortion rights or affirmative action; maybe Heller should have just been a tentative ruling about the Second Amendment.)

Tentative or not, the decision to suggest a cap on prison population is a very important development and one that should garner lots and lots of attention from all quarters.  Indeed, this facet of the ruling likely ensures that the Supreme Court will take up this case if (when?) a final ruling is entered and the state appeals.  But I predict (and partially fear) that some sort of highly imperfect settlement will be put together in order to prevent this tentative ruling from ever becoming a final order.

But if the tentative ruling does become an order, the litigation going forward could get real interesting because of the potential national impact of what the panel has ordered.  I think other states would likely chime in as amici if this case gets brought to the Justices, and the Justices likely would ask the Solicitor General to weigh in as well.  And, of course, every criminal-justice and prisoner-rights group could and should have something significant to say about what's going on in California if SCOTUS is to take up this issue.  In short, stay tuned.

Some prior posts providing some background on the litigation timelines:

February 10, 2009 at 10:05 AM | Permalink

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Comments

I just want to reaffirm my earlier promise to buy you lunch if this ever happens!

Posted by: Jay Macke | Feb 10, 2009 11:03:04 AM

Doug, contain your excitement. Remember, if 58,000 criminals are going to be released, there will be a lot of extra rapes, murders, burglaries etc. etc. etc. I know that's not really all that important to you--you make it clear in your posts that the most horrible thing in the world is some criminal spending more time in prison than is absolutely necessary because, surprise, surprise, legislatures provide cushions which make it less likely that a particular criminal will get less time than he should.

You know, one thing that would be funny if it weren't so awful, California is forced to incarcerate thousands of illegal alien criminals. So you have the federal government ordering California to fix a problem exacerbated by the feds not doing their jobs.

Posted by: federalist | Feb 10, 2009 11:25:48 AM

As long as the feds are giving out money like candy, perhaps California should ask for some money to build more prisons... or would that not be an acceptable solution a la 9th Cir.?

Posted by: | Feb 10, 2009 11:56:14 AM

"Remember, if 58,000 criminals are going to be released, there will be a lot of extra rapes, murders, burglaries etc. etc. etc."

Your assumption is that "a lot" of the 58,000 to be released are rapists, murderers, burglars, etc. etc. etc. Provide evidence of this. You cannot, so next time, please think a little before typing off personal attacks.

"So you have the federal government ordering California to fix a problem exacerbated by the feds not doing their jobs."

The federal judiciary is separate from the federal executive. Just thought I'd let you know about that.

Posted by: John | Feb 10, 2009 12:15:45 PM

The article soft-peddles the issue somewhat. First. an inmate dies every WEEK, 4 times as bad. People like federalist who rightfully oppose unjustifiable homicide should oppose this. Also, a direct quote from the tentative would make for a stronger case:

Many of these reform measures are also supported by the State and by state officials with a commitment to ensuring public safety. The report of CDCR’s Expert Panel on Adult Offender Recidivism Reduction Programming recommended a combination of earned credits and parole reform that would reduce the prison population by about 40,000 prisoners. The Governor supported a similar set of reform measures in his 2008-2009 and 2009-2010 proposed budgets, and the legislature passed a bill containing similar measures in December of 2008. We cannot believe that such support would exist if the adoption of such measures would adversely affect public safety. We thus infer from the universal official support for these measures that they are not likely to result in adverse public safety consequences. (p 7-8)

In other words, the Ninth is only thinking of ordering the state to do what it already wanted to do based on its own expert studies, including one from the CDCR itself, that found there would not be a substantial risk to public safety. Just reforming parole and not violating for minor and petty technical violations (NY Times) might be enough to fix the overpopulation problem, but parole officers are part of the prison guard union, and for the union the "R" in CDCR doesn't stand for Rehabilitation. It stands for Ridicule.

Posted by: George | Feb 10, 2009 1:09:38 PM

Correction: not the "Ninth" but the panel. The case will bypass the Ninth.

Posted by: George | Feb 10, 2009 1:11:29 PM

John, you must be an intellectual because only an intellectual could write something that stupid.

First, I find it stunning that someone would actually call a prediction that when you let 58,000 criminals go you will get more rapes, murders etc. "a personal attack". John, it may surprise you, but we actually know what happens when federal courts mandate prisoner releases--crime spikes.

Second, perhaps if you would read more carefully you wouldn't be wrong about the assumptions I'm making. I am sure that, to the extent possible, California will try to limit the release of murderers, rapists etc. However, some of those screened for release will graduate to bigger and better things. That's as sure as night follows day, SFB.

On top of that, SFB, increased crime makes solving new crime less likely, which alters the deterrence balance, thereby increasing crime.

And thanks for the tip re: federal government and federal courts. I get it. It's just a little bit rich that California is getting screwed by the federal government in both ways--surely even a criminal lover like you can see the irony here. Of course, California isn't helping matters, given the idiotic sanctuary policies many of its localities have adopted.

Posted by: federalist | Feb 10, 2009 1:22:52 PM

Where's your source stating that crime "spikes" whenever federal courts mandate release? Relatedly, doesn't crime somewhat go down when the Constitution is no longer violated by the government overcrowding its prisons? Unless of course, you don't have a problem with the government violating the Constitution--as long as it's for "those people."

Posted by: Mark | Feb 10, 2009 2:05:43 PM

Mark, all you have to do is look at the experiences of Florida, Texas and Philadelphia. And does the name Kenneth Macduff ring any bells?

As for prisoners' constitutional rights, first of all, the remedy is a separate question. Second of all, mark, I don't think that the views of Karlton, Henderson and Reinhardt are authoritative on whether the Constitution was violated.

Posted by: federalist | Feb 10, 2009 2:16:00 PM

Mark, I wasn't aware of the "prinson cap" clause of the Constitution. Could you please tell me where that is?

Posted by: Large County Prosecutor | Feb 10, 2009 2:16:48 PM

Mark, that should be "priSON cap" clause.

Posted by: Large County Prosecutor | Feb 10, 2009 2:18:09 PM

"there will be a lot of extra rapes, murders, burglaries etc. etc. etc. I know that's not really all that important to you--"

That's a personal attack, federalist.

Posted by: John | Feb 10, 2009 2:24:05 PM

"some of those screened for release will graduate to bigger and better things. That's as sure as night follows day, SFB."

No it's not. With no evidence to back up your claims, you mix all sorts of unfounded assumptions. You are not a lawyer, clearly.

Posted by: John | Feb 10, 2009 2:26:43 PM

LCP, it's in the same clause that constitutionalizes an IQ test.

Posted by: federalist | Feb 10, 2009 2:28:15 PM

Large County Prosecutor,

What if a guy lands on your desk with a 14-year-old DUI warrant? He didn't pay his fine and he says he's in a budget crisis. You going to let him off the hook?

And what if this guy killed a person a week in traffic accidents, nothing intentional, just accidents, you going to let him off the hook? What if he had a letter from the AG and governor saying he's "working on it." Good enough to let him off the hook?

Maybe that would be good enough if those he killed every week were merely parolees.

The state conceded there is a state of emergency due to overcrowding and conceded something must be done. The state's own studies suggested solutions no different that what the panel hopes is implemented.

Everyone is Sacramento knew it was coming to this and knew something had to be done, but cowered before the prison guard union. Enough. It is contemptible for anyone to justify it now. The state should be held to a higher standard and should have to respect the law if it expects anyone else to do the same.

Posted by: George | Feb 10, 2009 2:40:31 PM

John, the "I know that's not really all that important to you" is a personal attack, but that's not what you quoted before. I don't think it's unjustified though. Doug makes all sorts of posts in here talking about how we're too mean to criminals. Public safety is not all that high on his priority list, at least as evidenced from his posts here (what clinches it is his odd, well-we're-not-tough-enough-on-drunk-drivers-so-we-shouldn't-be-mean-to-criminals comments).

With respect to your other post, you really are a hardhead, aren't you? When you release criminals, guess what, they commit crime (we have recidivism stats for parolees). Wow. Tough concept.

Posted by: federalist | Feb 10, 2009 2:47:34 PM

"When you release criminals, guess what, they commit crime (we have recidivism stats for parolees)."

That's not what you wrote, federalist. You wrote that they "will graduate to bigger and better things." That's just not supported by the evidence. But regardless, it's better to figure a way to reduce recidivism than to lock people up. Reducing recidivism, instead of building prisons, saves money in the long term. Maybe the release of 58,000 would be more palatable to you and others if California were to pour more resources into a prisoner re-entry program.

Posted by: John | Feb 10, 2009 3:02:10 PM

John, many criminals graduate to bigger and better things. Burglars often become rapists; rapists often become murderers etc. etc. etc. etc. This is common sense. Let 58,000 go, and see what you'll get. They can live in your neighborhood.

Reducing recidivism, aaaaaaah the siren song of the liberal criminal lover.

Posted by: federalist | Feb 10, 2009 3:46:06 PM

John:

We can not "reduce recidivism" without the consent of the criminal--i.e they must want to drop out of the fast life and become a working-class chump. Yes, that is what many criminals call us. I thought we learned long ago that we can not force rehabilitation upon someone. We can open "all the doors" we want but the individual has to have a sincere desire to change his life which often means starting at the bottom of the employment ladder.

Posted by: mjs | Feb 10, 2009 5:35:26 PM

Federalist, you are a piece of work. It amazes me how narrow sighted you are being, the state is being accused of not adequately caring for the people that it legally required to care for. All you seem to be focused on is the 'rape and murders' that may or may not happen if these prisoners are released. You seem to not realize that almost every person in the United States has at one point in their life done something that could have easily landed them in jail/prison. Most people are just fortunate enough not to get caught. Especially now, in this age of zero tolerance. Though i got a chuckle out of the illegal alien remark.

Posted by: MarkM | Feb 10, 2009 9:52:28 PM

MarkM, the state is being screwed by liberal judges who don't care in the slightest about public safety. Innocent people will pay the price for this.

In any event, I think that, in most cases, you have to do something pretty bad to wind up in a California state prison. There may be some exceptions, and maybe we look at those (and I am on record in here saying many many times that a prison bed is a scarce resource that needs to be used wisely), but prisons in America ain't full of poor slobs who copped a dime bag.

Posted by: federalist | Feb 10, 2009 10:02:14 PM

Federalist, what do you think of this?

California needs to release prisoners; here's a good place to start

Posted by: George | Feb 10, 2009 10:51:30 PM

I would have to 'somewhat' agree with you federalist that the judges threw the state a wild curve ball with the numbers they came up with. Though i think a compromise could be reached and if the state actually decided to do something inventive, they could find a way to decrease the number of inmates that would have to be released. Throw up some tent prisons in the middle of the desert, something like that to relieve the overcrowding etc etc.

But wait a sec.
"Innocent people will pay the price for this" "Its for the children" etc etc. These terms have been thrown around a lot lately to enact even worse draconian laws. I remember back in school something one of my teachers stressed to us kids (ironically, in a California elementary school). The price of our rights and freedoms is the fact that innocent people will pay the price for them. Bad people will walk the streets, cops will be forced to let guilty men stay free because no matter how bad a person can be, the state must be held to a higher standard and follow the rules set forth in our constitution. The government is no exempt from following its own laws just because the outcome would be better for public safety. If the judges say California is infringing on these prisoner's constitutional rights then something has to be done about it (unless a higher court disagrees, which probably will happen). People seem to forget that rights are a double edge sword.

I hope you get what I'm trying to say, sometimes my limited vocabulary doesn't allow me to say exactly the point I'm trying to get across.

Nice link George, I'd like to see what federalist has to say about that :P

Posted by: MarkM | Feb 11, 2009 12:12:03 AM

Kenneth McDuff? Really, Kenneth McDuff? You're going to hang your hat on one guy? You might as well have cited Willie Horton. At most websites, you'd have been identified as a troll long ago. You get the benefit of the doubt here presumably because of the entertainment value of your ridiculous, Mussolini-wannabe posts.

Posted by: Mark | Feb 11, 2009 3:28:51 AM

When I get a chance to read it, I will respond.

And MarkM, I am not hanging my hat on one guy. Why don't you look up what happened in Philly as a result of a judge's order. It was mayhem.

Posted by: federalist | Feb 11, 2009 9:58:53 AM

I don't think it's fair to call federalist a troll. He represents a large percentage of citizens. Though his sound bite arguments can be frustrating, those same sound bites, never 100% without merit, are fed to the People daily through the media. Reporters are embedded with the police and prosecution and it is cheap and quick news. No need for the other side of the story. While no one wants another Kenneth McDuff, including the inmates themselves, there isn't any chance a McDuff would be released under the California plan because there are enough inmates without current or prior violent crimes to release, and there does seem to be a shift lately in that not all news portrays the government as a carefully edited "Cops" show.

Posted by: George | Feb 11, 2009 11:22:03 AM

I don't think it's fair to call federalist a troll. He represents a large percentage of citizens. Though his sound bite arguments can be frustrating, those same sound bites, never 100% without merit, are fed to the People daily through the media. Reporters are embedded with the police and prosecution and it is cheap and quick news. No need for the other side of the story. Many online "newspapers" are posting daily police blotters. While no one wants another Kenneth McDuff, including the inmates themselves, there isn't any chance a McDuff would be released under the California plan because there are enough inmates without current or prior violent crimes to release, and there does seem to be a shift lately in that not all news portrays the government as a carefully edited "Cops" show. On the other hand, some seem to be saying "Stop me before I kill again!"

Posted by: George | Feb 11, 2009 2:31:52 PM

I don't think it's fair to call federalist a troll. He represents a large percentage of citizens. Though his sound bite arguments can be frustrating, those same sound bites, never 100% without merit, are fed to the People daily through the media. Reporters are embedded with the police and prosecution and it is cheap and quick news. No need for the other side of the story. Many online "newspapers" are posting daily police blotters. While no one wants another Kenneth McDuff, including the inmates themselves, there isn't any chance a McDuff would be released under the California plan because there are enough inmates without current or prior violent crimes to release, and there does seem to be a shift lately in that not all news portrays the government as a carefully edited "Cops" show. On the other hand, some seem to be saying "Stop me before I kill again!"

Posted by: George | Feb 11, 2009 2:33:50 PM

I don't think it's fair to call federalist a troll. He represents a large percentage of citizens. Though his sound bite arguments can be frustrating, those same sound bites, never 100% without merit, are fed to the People daily through the media. Reporters are embedded with the police and prosecution and it is cheap and quick news. No need for the other side of the story. Many online "newspapers" are posting daily police blotters. While no one wants another Kenneth McDuff, including the inmates themselves, there isn't any chance a McDuff would be released under the California plan because there are enough inmates without current or prior violent crimes to release, and there does seem to be a shift lately in that not all news portrays the government as a carefully edited "Cops" show. On the other hand, some seem to be saying "Stop me before I kill again!"

Posted by: George | Feb 11, 2009 2:46:00 PM

I don't think it's fair to call federalist a troll. He represents a large percentage of citizens. Though his sound bite arguments can be frustrating, those same sound bites, never 100% without merit, are fed to the People daily through the media. Reporters are embedded with the police and prosecution and it is cheap and quick news. No need for the other side of the story. Many online "newspapers" are posting daily police blotters. While no one wants another Kenneth McDuff, including the inmates themselves, there isn't any chance a McDuff would be released under the California plan because there are enough inmates without current or prior violent crimes to release, and there does seem to be a shift lately in that not all news portrays the government as a carefully edited "Cops" show. On the other hand, some seem to be saying "Stop me before I kill again!"

Posted by: George | Feb 11, 2009 2:47:44 PM

federalist has been challenged a few times, and he never has any data. His policy prescriptions are pretty much based on anecdotes and "common sense." And that's too bad, because there's a really interesting discussion to be had on these issues. While I disagree with Kent Scheidegger on virtually everything, he's always got interesting data points to digest. federalist has mostly hyperbole.

Posted by: Jay Macke | Feb 11, 2009 4:35:02 PM

I don't think it's fair to call federalist a troll. He represents a large percentage of citizens. Though his sound bite arguments can be frustrating, those same sound bites, never 100% without merit, are fed to the People daily through the media. Reporters are embedded with the police and prosecution and it is cheap and quick news. No need for the other side of the story. Many online "newspapers" are posting daily police blotters. While no one wants another Kenneth McDuff, including the inmates themselves, there isn't any chance a McDuff would be released under the California plan because there are enough inmates without current or prior violent crimes to release, and there does seem to be a shift lately in that not all news portrays the government as a carefully edited "Cops" show. On the other hand, some seem to be saying "Stop me before I kill again!"

Posted by: George | Feb 11, 2009 8:04:01 PM

I read it. While there may be some "fat" in the prison population, I'm guessing that some of the "possession" incarcerees pled guilty to avoid more serious charges. States don't typically lock up casual illegal drug users, and I am guessing California doesn't either to any appreciable degree.

Posted by: federalist | Feb 14, 2009 4:55:27 PM

Tentative ruling.What is a tentative ruling? Doesn't it mean that the judges have given the state another chance? I thought they were done giving chances. This ruling was and is a waste of taxpayers money. It has no teeth.It does shed light on the problem. but that had already happened which is why the three judge panel was formed.Am I missing something here!!!
Gov. Arnold Schwarzenegger must be laughing right now.There is no reason for the state to do anything different than it has in the past.Ive read other editorials that have citizens scared and angry and very vocal about the the early release of prisoners (55,000) when thats not even close to happening!!! In fact if there was ever a chance of that happenig It would have happend with this ruling.And if the three judge panel did their job and made it's ruling final, than Gov. Arnold Schwarzenegger would appeal directly to the U.S. Supreme Court which would most certainly take years to be heard!!! Stop worrying citizens the inmates are just going to keep dying due to overcrowding
and the citizens are going to pay all the bills for more new prisons and increasing healthcare costs within the prisons.Instead of releasing some nonviolent prisoners early they'll just take state jobs, increase taxes ect...
And the prisoners you were so scared of being released early will still be released in a few months anyways.But don't you feel so much safer!!

Larry Lynch Current parolee in California

Posted by: Larry Lynch | Mar 22, 2009 2:30:19 PM

OK IM READING THIS ARGUEMENT BETWEEN THESE PEOPLE AND I JUST HAVE TO SAY TO ALL YOU THAT THINK LOCK'EM UP N LET THEM PAY IS THE ANSWER, THINK ABOUT THIS...IF YOU WOULD ACTUALLY TEACH THEM SOME THING THAT WOULD HELP THEM IN THE REAL WORLD ALOT OF THEM WOULDNT RETURN BACK TO DOING CRIME SO EASILY...BUT THEN YOU ALL COMPLAIN WEN THEY DO GET OUT AND FIND IT DIFFICULT TO FIND A JOB AND TURN TO SELLING DRUGS OR STEALING OR FRAUD OR ANYTHING THAT MAKES FAST CASH...YOU DONT WANT TO HELP THEM CAUSE YOU DONT WANT TO LOOK SOFT ON CRIME, BUT THE TRUTH FOR ALOT IS THAT MAY BE ALL THEY KNOW, SO WHY NOT TEACH THEM ANOTHER WAY AND BY THIS YOU WILL HAVE REDUCED CRIME BY TEACHING THEM TO BE PRODUCTIVE CITIZENS... TOUGH ON CRIME, YES, BY RETRAINING THE PERSONS MIND WHO'S DOING THE CRIME...MAKE SENSE ...

Posted by: | May 6, 2009 4:14:14 AM

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