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February 10, 2009

Cal. District Court Issues "Tentative Order" Requiring the Release of Thousands of Prisoners

In the opinion of the three judge court, this is the only remedy which will address "the constitutionally inadequate medical and mental health care in California’s prisons." The ruling is here (PDF).

Now, this litigation has a lengthier and more complicated procedural history than most of what I mess with outside of work. And it's not my area of expertise. Still, several issues immediately cross my mind.

First, this is a "tentative ruling", not a final order. Thus, the parties cannot appeal it. It is merely to put them on notice of the judges' likely conclusion until the final order is completed. There are many reasons the judges would do this, including to get California moving developing a plan to comply. Such an order also encourages the parties to come to some kind of settlement before the Court imposes a resolution. Finally, it tells the parties what more will be required of them; here, the Court wants proposed numbers for the percentages of inmate reductions and the dates for compliance.

On that point, the Court is suggesting an inmate population cap of 120% or 145% of design capacity for each prison, with some specific institutions reduced to less than 100%. This would require the release of roughly 60,000 prisoners over the next two to three years. In August (the dates cited by the order), the prison population was at roughly 200% of design capacity. Judge Reinhardt believes that reducing the population "could be achieved through reform measures that would not adversely affect public safety, and might well have a positive effect."

That brings me to the second issue: Judge Reinhardt. That would be Judge Steven Reinhardt of the Ninth Circuit, one of the most liberal and most reversed appellate judges in the nation. As I said before, I don't know much about this litigation and it's not my area of expertise, but having Reinhardt's name attached automatically makes me wonder about the soundness of the legal reasoning. Judge Reinhardt frequently writes opinions knowing full well they will be overturned by his colleagues or the Supreme Court. He is married to the executive director of the Southern California branch of the ACLU. In an odd coincidence, his first law clerk was Deval Patrick (yes, that Deval Patrick). And he was appointed to the Ninth Circuit by President Carter.

That brings me to my third issue. This tentative ruling and the forthcoming final order are being issued by a "Three Judge Court." This is not a panel of the Ninth Circuit. Rather, it is a a special three-judge court convened for the Eastern and Northern (Federal) Districts of California pursuant to this federal law (more on it later). A three judge court is supposed to have at least one circuit judge as part of the court and it does. The funny part is that the two judges other than Reinhardt are "Senior Judges", that is, semi-retired district court judges. In other words, old guys. In this case, they both were appointed by President Carter and it would not be unfair to characterize them as pro-defendant, anti-prosecution.

District Court Judge Thelton Henderson is famous for being a civil rights attorney in the 1960s (he knew King) and infamous for striking down Prop 209, the anti-affirmative action voter initiative approved in 1996. His decision was later overturned by the Ninth Circuit.

Fourth (now that I've impugned their order while barely mentioning it), it's difficult to tell whether this decision is necessary or legal. Certainly the tentative ruling paints a dire picture. The litigation has been going on since the mid-1990s. Governor Schwarzenegger declared a state of emergency for the prisons in 2006, an action which was upheld by the court because of "extreme peril to the safety of persons and property." Medical and mental health issues caused by overcrowding are mentioned.

However, the ruling is almost entirely silent on the law. There are no citations, so no way to tell if the judges are complying with the law. Presumably, that will have to wait for the final order. The law at issue, as far as I can tell, is 18 U.S.C. § 3626, which provides for "prisoner release orders" as a last resort. There are several requirements, all of which Judge Reinhardt and company believe have been met.

It can only be issued if: (1) a court has previously entered an order for less intrusive relief that has failed to remedy the violation of a federal right; (2) the state has had a reasonable amount of time to comply with the previous court order; (3) the court determines that crowding is the primary cause of the violation of a federal right; and (4) no other relief will remedy the violation.

I suspect that last requirement will be the key issue on appeal, should Schwarzenegger seek appeal. Judge Reinhardt cites the "unprecedented economic crisis" and California's current budget problem as the reason why the state can provide no relief other than to release prisoners. Such an appeal could bypass the Ninth Circuit and go directly to the Supreme Court.

Finally, hanging over this whole case is the issue of parole reform. The criminal defense bar and criminal-rights advocates have been trying for years to roll back laws which provide for (and in many cases require) incarceration for parole violations. They are also interested in abolishing "truth in sentencing" laws which require that convicts serve their entire sentences (or a substantial portion thereof). They haven't had much luck with state legislators, who would be crucified in the polls if they were seen as soft on crime. California makes such reforms even more difficult with its voter initiative system, which fairly frequently (including in this past election) approves props which tighten parole conditions and disapproves props which would allow more convicts to take advantage of parole. I believe it is not a coincidence that Judge Reinhardt's order will force California to adopt parole reforms. What could not be done through the legislature is being done through the courts.

Thanks to DrewM. for the pointer.


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posted by Gabriel Malor at 08:44 AM

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