Tomorrow is the deadline imposed by the Plata/Coleman panel for the State to come up with a population reduction plan. As the Chron reports today, the State will NOT comply with the deadline.
[T]he plan California officials will submit by midnight Friday will fall short of meeting the 40,000-inmate reduction ordered last month by the federal panel, state prison officials said in a briefing Wednesday to various parties, including legislative staffers who work on prison issues.
. . .
The state officials did not tell by how much their plan would fall short but said they may revise it before they submit it Friday, sources said. The officials also said they expect the judges to find the state in contempt for failing to meet the demand, one source said.
If the judges decide the state deliberately violated their order, they could hold the defendants – Schwarzenegger, Corrections Secretary Matthew Cate and state Controller John Chiang – in contempt. The court would have the power to send any or all of them to jail until they complied with the order, but that’s unlikely in light of events earlier in the case.
What complicates matters, of course, is the “rival plan” approved by the Assembly, which we discussed elsewhere, and which falls short of generating any serious systematic change through sentencing reform. Given the disappointing scope of this plan, the State’s argument against Federal judicial involvement in prison management becomes significantly weaker. Stay tuned for tomorrow’s developments.
Two important events have just occurred more or less simultaneously with regard to the decrowding debate.
First, the gutted prison reform plan, that will lead to the release of 17,000 inmates and the transfer of minor parole violators to local jails, has passed and is moving forward, for the Governor’s signature.
And second, the Supreme Court has declined to grant a stay to the State with regard to the Plata/Coleman order. The State’s arguments have been rejected, albeit not on the merits (that will be decided on appeal). CDCR will therefore have to come up with a decrowding plan for 40,000 inmates by Sep. 18.
We will elaborate later on the possible connection between these two events.
Today, the State filed for a stay regarding the Plata/Coleman order to come up with a 137.5% decrowding plan. Here is the application itself, which I placed on a free media host for your convenience.
The gist of what is going on is as follows:
In order to obtain a stay, the state has to show:
a reasonable probability that four Justices will consider the issue sufficiently meritorious to . . . note probable jurisdiction;
a fair prospect that a majority of the court will conclude that the decision below was erroneous; and
a likelihood that “irreparable harm” will result from the denial of a stay.
In close cases, the Court is called upon to do a balancing act of harms and interests.
The brief argues that these four conditions apply and require a stay in the Plata/Coleman case.
The importance and drastic scope of the three-judge-panel’s relief will probably merit jurisdiction. The Federal interference in this case is unprecedented and the injunctive relief is dramatic. Questions of law concerning the PLRA will be raised (see our previous post on this) as well as issues of federalism and judicial restraint.
Overcrowding is not the “primary cause” for the constitutional violations; a myriad other factors that have to do with prison administration and personnel are also to blame. Even if overcrowding is the main factor in the violations, decrowding will not necessarily result in solving the problem (note that the State does not disagree that there are constitutional violations and the state is to blame! Also note that the gravity of the problem, and the fact that even overcrowding will not solve it, is offered as an argument on behalf of the State!). In addition (this, IMHO, is the strongest point in this brief), the court has not justified its decision to set the reduction level at 137.5%. There are also some procedural issues that might work on the State’s behalf, such as the fact that no district court has ordered reduction.
Obeying the order will create irreparable harm by diverting necessary resources to the decrowding plan (this is rather odd in light of the expected savings!) and by putting communities at risk;
Finally, the brief argues, if this is a close case – which it isn’t – then there’s good reasons to weigh factors in favor of a stay. Since decrowding will probably take two years, there is less harm in waiting than there is in going ahead with the plan.
While it’s difficult to be sympathetic to the State’s arguments, especially in light of the fact that there is no argument about the ills and their reasons, two things stand out: first, the argument about the decrowding level is not bad and has not been addressed by the court in a tight enough way in the original decision. Second, SCOTUS may buy the argument that there is no harm in waiting. As to this second point, a plausible argument is that there is MUCH harm in waiting. In the meantime, more people are languishing without appropriate care and any time wasted is time during which unnecessary ailments and deaths may occur.
We’ll be keeping a close watch on these proceedings and reporting on developments.
California’s inmates will not be shipped to Michigan, the Detroit News reports. The reason? Michigan is too expensive.
Michigan bid too high on the daily rate it would charge to care for prisoners at either the Standish or Muskegon facilities — and won’t get a contract at either facility, said Seth Unger, press secretary for the California Department of Corrections and Rehabilitation.
Michigan would have charged $89 per day, per prisoner, and that didn’t include medical care, Unger said.
“Our average is $63 at other facilities ,and includes medical care”, Unger said of other arrangements with privately run prisons in Arizona, Mississippi, Oklahoma and Tennessee that hold California inmates. “It’s also the remoteness of the facilities.”
While these days, our first, second, and third concerns pertain to our wallets, there are various other problematic issues with “exporting” inmates. One such concern is that the distance from family and friends would hinder visitation and contact with the outside world, which is already compromised by the locations of California facilities. The other concern, which the Plata/Coleman panel underscored in their decision, is the concern about the level of care, particularly health care, available to prisoners in other states.
Also, while not an immediate, practical issue, inmate transfers to other states are a stark illustration of the distance – physical and mental – of the public from the invisible realm of prisons. The economic crisis, as well as the Plata/Coleman decision, has significantly increased the visibility of prison-related issues, which is an important step on the way to remedy the crisis. Even if inmates are sent away, they do not cease to be the state’s problem; forgetting them is a trap that policymakers would be well advised to avoid.
Addendum: I wonder what it’s like for a Californian to do time at a Tennessee private facility. If you, or someone you know, is or has been in such a predicament, please comment and enlighten us.
I’d like to conclude this series of posts by pointing out a few strengths and weaknesses of the panel’s decision. These are important to keep in mind, since the decision will undoubtedly be appealed to the Supreme Court.
Strengths
All in all, my impression is that the panel not only made a brave, no-nonsense decision, but it also supported it quite firmly and thoroughly. The opinion does not beat around the bush, and it addresses each of the PLRA concerns with a well-supported array of data. Moreover, the decision benefits from using the defendants’ own experts and plans. After all, there could hardly be a disagreement about the population explosion as a key complicating factor in each and every aspect of prison life, certainly in providing essential services; the government more or less has conceded it, and its own plans to deal with overcrowding are remarkably similar to those proposed by the court. The only difference seems to be in scope.
Weaknesses
I see three main issues that may be brought up against the decision on appeal; two of them can be easily addressed, and the third one is rather open to speculation.
First, the court has rejected the government’s argument that it has already intervened quite dramatically in the matter by appointing the receiver and special masters, and yet, it has argued that these institutions will still have plenty of room for improvement and hard work after the overcrowding crisis is alleviated. This argument coudl be said to undermine the statement that overcrowding is the primary reason for the dysfunction .The proper response to this argument, I believe, is to differentiate between necessary and sufficient factors. While alleviating overcrowding is an essential factor in improving medical services, it is by no means sufficient, and much work – staffing, construction, generating best practices – will still need to be done.
Second, while the three-judge-panel’s jurisdiction emerged from a discussion limited to the medical system, the judges may be said to exceed these limits by discussing other ills of the prison system, such as the broken parole apparatus and recidivism rates. However, a close reading of the decision reveals that these additional issues are addressed as a direct response to PLRA requirements; recidivism rates and other issues are not discussed in and of themselves, but in the context of public safety and remedy feasibility.
What seems to be a problem, though, is not so much the language of the decision or its reasoning, but its timing. The order was given days after the Governor came up with a reduction plan of 27,300 inmates. Since the court itself states that no number is “magical”, a possible argument before the supreme court could be that the reduction the state is willing to embrace is “enough” of a reduction. The answer to the “how much” question is rather difficult, and I can see the Supreme Court, in the spirit of federalism and state autonomy, leaving the amount of releases to the (already exercised) discretion of the Governor and prison authorities. Those who rejoice in the panel’s courageous decision today should hope that its reasoning for the percentage of reduction will stand.
Wait! Won’t reducing the prison population compromise public safety?
The panel answers this question in the negative; while, as the decision states, it is impossible to anticipate what kind of effect the order will have on public safety, the court believes there are ways to craft a reduction plan that will not compromise the state’s responsibilities to protect the public. The panel makes the following points:
The experience of imprisonment in an overcrowded institution itself has a criminogenic effect; therefore, reducing its scope might actually benefit public safety. The current incarceration experience backfires in terms of protecting the public, by being a “petri dish” for crime. Overcrowding hinders the possibility to properly classify inmates, thus housing them according to levels of risk. It also hinders the inmates’ access to rehabilitation programs. Under such conditions, inmates learn new criminal behavior while “doing time”, which actually increases recidivism rates.
Rather than mindlessly throwing the prisons’ doors open, there are thoughtful ways to reduce population without compromising public safety. The court agrees that a wholesale release of inmates without a thoughtful plan is not a good solution. It proposes several ways to reduce prison population without compromising public safety: credits for good behavior and achievements, which act as an incentive to pursue rehabilitation options; diversion of technical parole violators, who constitute a large population of returning inmates; diversion of low-risk offenders with short sentences; sentencing reform; increasing rehabilitative programs in prison; and modifying statutes. The court points out that most of these have been endorsed by the state; faithful blog readers will probably remember them from the Governor’s reduction plan of 27,300 inmates, which we discussed here. The plan, therefore, need not be all that different from the Governor’s plan, save for the fact that the reduction is larger in scope.
The assumption that community resources will not suffice for containing the released inmates is exaggerated. The panel considers several ways in which the community might be affected by population reduction. It concludes that the releases will not have a significant impact on population in local jails. They also state that parole supervision would not be affected, since many of the problems with it stem from inadequate resource allocation, particularly from an unnecessary focus on low-risk parolees and technical violations. The court also rejects the (cynical?) assertion that rehabilitation/reentry resources will be taxed by the reduction, noting (cynically?) that the considerable financial savings from a population reduction could be put to good use creating more rehabilitation and reentry programs, thus contributing to public safety in a more effective way.
There is no evidence of a significant relationship between early releases and a rise in crime rates. Empirical evidence presented by experts supported the conclusion that “population reduction measures have been adopted in various states without an adverse impact on public safety”. This alleviates concerns over the order’s potentially adverse impact on public safety.
There is no public safety reason to exclude mentally ill inmates from the release order. Numerous experts supprted the assertion that community-based treatment is a better strategy to handle mentally ill inmates. While it is possible that some mentally-ill patients may do better being treated within people rather than outside, this is not true for many others, whose treatment will be more effective – and cheaper – outside prison walls. The release plan could take these classifications into account, by crafting, for example, good credits so that “only those mentally ill individuals with the greatest level of psychiatric stability and the greatest potential to “voluntarily” follow up on outpatient care would be eligible, at least until appropriate community programming is in place.”
The panel then moves on to figure out which remedy would be enough to solve the problem, and yet no more than enough; the statutory limitation requires them to craft the least intrusive measure possible. While they believe that the plaintiff’s request for a reduction to 130% capacity is “reasonable and finds considerable support in the record”, they opt for a lesser level of reduction. Establishing that the cut should be between the levels of 130% and 145%, they opt for a cut to 137.5%.
1. Where should population be reduced?
The panel considers, and rejects, the possibility of requiring population reductions in specific institutions: “[T]he constitutional violations identified by the Plata and Coleman courts exist throughout the California prison system and are the result of systemic failures in the California prison system”. Moreover, “defendants have never contended that the problems at issue in Plata and Coleman are institution-specific”. In addition, the panel sees specific institution capping as micromanaging, and potentially more of an intrusion into the state’s ability to manage its prison population than an overall cap.
2. How should population be reduced?
The process for planning the population reduction is a combination of collaboration and coercion: The plan will come from the state, but be modified by the court with input from the plaintiffs and other parties, and the courts will retain jurisdiction to ensure compliance or modify further. This model, which was proposed by the plaintiffs, leave the state with some flexibility about the best mode of reduction, and follows similar orders given in other cases.
3. How much population reduction is necessary?
Aaaah, this is the $64,000 question. While the panel believes that the plaintiffs’ request for a reduction to 130% capacity is “reasonable and finds considerable support in the record”, the decision opts for a lesser level of reduction. The panel cites Dr. Craig Haney, who pointed out, in his expert opinion, that “there’s nothing magical” about any specific percentage, including 100%. The court points out that even in institutions at 100% capacity there are problems stemming from crowding, and that California prisons, by design, are unable to provide an appropriate level of care to even 100% of the population. However, the panel mentions that the plaintiffs requested a reduction to 130%, relying on plans drawn by the Governor’s own personnel. Experts’ estimates, however, wavered between 130% and 145%. The latter, according to some of the testimony (including Haney’s, in response to some wardens’ suggestions), is a very conservative estimate of what would be required, taking into account physical space and staffing. The court phrases its final estimate as follows: “Rather than adopting the 130% limit requested by plaintiffs, we will out of caution require a reduction in the population of California’s adult prison institutions to only 137.5% of their combined design capacity – a population reduction halfway between the cap requested by plaintiffs and the wardens’ estimate of the California prison system’s maximum operable capacity absent consideration of the need for medical and mental health care. At the adult institutions’ present design capacity of 79,828. . . (CDCR weekly population report as of August 27, 2008), this equates to a population of just below 110,000. Should the state prove unable to provide constitutionally adequate medical and mental health care after the prison population is reduced to 137.5% design capacity, plaintiffs may ask this court to impose a lower cap. Similarly, should it appear that the provisions set forth in the plan adopted by the court will not achieve the expected population reduction, plaintiffs may seek to have the plan amended.”
1. Is overcrowding the primary cause for the medical system’s dysfunction?
The court reponds in the affirmative. It starts by noting that “[a] prison system’s capacity is not defined by square footage alone; it is also determined by the system’s resources and its ability to provide inmates with essential services such as food, air, and temperature and noise control”. It then moves on to explain the causal link between overcrowding and poor medical services, not before mentioning that four former CA prison administrators testified in support of this assertion.
The testifying administrators pointed out to several ways in which overcrowding hinders health care. First, the decision mentions that, in general, overcrowding leads to a set of priorities impacted by various emergencies, thus relegating health services to a lower place in the list of priority.
Second, the court emphasizes several problems stemming from the lack of space: the inadequate use of reception centers to house inmates rather than treat them, the severe shortage of treatment space, and the inability to place inmates according to classification because of space constraints. This is a problem particularly with respect to mentally ill inmates, who “languish in clinically inappropriate settings”.
Third, overcrowding directly impacts the quality of care: “Bad bed” areas are understaffed, unsanitary (thus exacerbating the risk of spreading infectious diseases), and toxic for the severely mentally ill.
Fourth, there are other ways in which overcrowding hinders care. Understaffing is a problem not only with respect to medical and mental health stuff, but also with respect to the custodial stuff expected to keep the peace and escort inmates to receive medical treatment; the pharmaceutical system is unable to keep up with delivery demands; there are huge backlogs in receiving specialty medical care; and the growing need to rely on lockdowns as a way to keep the order hinders the provision of medical care during such times.
Finally, the impossibility of manually filing the huge number of medical records leads to inadequate record keeping, which leads to chaotic administration.
The panel then draws a line of causality between the overcrowding and some of the horrendous examples of preventable misdiagnoses, disease exacerbation and preventable deaths. It also points out that overcrowding exacerbates the plight of mentally ill prisoners. A variety of experts – including former prison administrators, prison scholars, administrators, physicians, and psychologists – are cited as supporting the causal link. Moreover, the court points to the litigation history in the Plata and Coleman cases as proof of the worsening of the situation, due to overcrowding, despite efforts to improve medical care with other measures.
2. Is there really no other way?
The court’s response, in a word, is no. As support, the panel examines a series of alternative measures, pointing out their inadequacy as solutions to the problem.
First, the panel states the inadequacy of further construction as a remedy to the problem. Currently, there are no plans to build new prisons; re-entry facilities would take years to build and would not provide immediate relief; and building medical facilities is now compounded by the financial crisis. In general, construction is inadequate because it could not be completed in a timely manner, though if it were to be completed, it could be part of the solution.
Second, additional hiring is, according to the panel, impractical, given the difficulty of filling in current vacancies. As the decision points out, the overcrowding issue in itself discourages new hires, and a less crowded system would be more conducive to quality hiring.
Third, the court responds to the state’s argument that the appointment of the receiver and special masters has been enough. While some progress has been achieved, it hs been slow. The receiver and special masters themselves testified as to how overcrowding has hindered their ability to improve the system. In addition, since solving the crowding problem will not immediately make the medical system’s deficiencies disappear, their services will still be needed after the acute difficulties are resolved.
The panel also rejects the state’s reliance on shipping inmates out of state as a solution, not only because of the small numbers that can be accommodated, but also because of the unknowns regarding the standard of care in those states.
Here are some thoughts regarding the Plata/Coleman decision; they are by no means systematic or exhaustive.
First, I should probably mention that my “simple math” estimations from the previous post were not so simple, and as it turns out, somewhat exaggerated. Based on the most recent data on the California prison population (as of July 29, 2009)The Prison Law Office calculates the order to e calculate the reduction as 40,000 to a level of 110,000. The Order says at page 37, fn 35:
In this opinion and order, we will hereafter consider only figures and percentages relating to the CDCR’s thirty-three in-state adult prison institutions. We do not consider camps, community correction centers, or Department of Mental Health state hospitals, all of which also house CDCR inmates. It is the thirty-three in-state adult prison institutions that are the subject of the Governor’s Prison Overcrowding State of Emergency Proclamation and were the focus of the evidence at trial before this court. All references to “system” and “systemwide” encompass only those thirty-three adult institutions.
In these institutions, the data shows population of about 150,000 and a capacity of 80,000. 80,000 times 137.5%= 110,000. The reduction would thus be 40,000. Which is about 12,700 inmates less than the population under the Governor’s proposed reduction plan.
Moving on to the decision itself, it is probably useful to learn a bit about the legal framework. This is not the first population reduction order in the history of prison litigation, and the panel cites cases from the 7th and 11th circuits, in which population reduction was deemed to represent “the proper balance between the duty of the district court to remedy constitutional violations and the right of the State to administer its prison and parole systems”. However, since those decisions, Congress enacted the Prison Litigation Reform Act (PLRA), 18 U.S.C. § 3626, which raised the bar for providing relief in prison conditions cases.
The PLRA has two sets of requirements for relief: requirements regarding all prison-conditions-related litigation, and requirements that apply specifically to population reduction orders. The latter order – which can only be given by a three-judge panel – requires the court to find, by clear and convincing evidence, that — (i)crowding is the primary cause of the violation of a Federal right; and (ii)no other relief will remedy the violation of the Federal right.
In addition, as with all other prison litigation, the situation must satisfy the “needs-narrowness-intrusiveness” standard, that is, “[p]reliminary injunctive relief must be narrowly drawn, extend no further than necessary to correct the harm the court finds requires preliminary relief, and be the least intrusive means necessary to correct that harm.” The court must also take public safety into account, and “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief”.
The Plata/Coleman panel finds that all of these requirements have been satisfied; the next post will elaborate.
Watch Secretary Cate’s response to the three-judge panel ruling here. The bottom line: the administration has a plan for decrowding over time, but it is not a Federal Court’s job to impose such a plan. They are examining the appealability of the decision.
The simple math: The court order requires the release of about 45,000 inmates. Schwarzenegger’s plan is to release 27,300. How are 17,700 additional releases to be achieved?
