Plata/Coleman Decision Analysis: Part I

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.

Live Web Streaming of Cate’s Response: “We Do Have an Overcrowding Problem”

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.

Read the gist of the ruling here.

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?

BREAKING NEWS: the Federal Panel’s Decrowding Order Becomes Final

The bottom line, fresh out of the court:

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ORDER

Within 45 days, defendants shall provide the court with a population reduction plan that will in no more than two years reduce the population of the CDCR’s adult institutions to 137.5% of their combined design capacity. Should any of defendants’ proposed population reduction measures require the waiver of any provisions of state law, the state shall so advise the court, and shall explain why the requested waiver is permissible under 18 U.S.C. § 3626(a)(1)(B). In preparing their plan, defendants shall consult with plaintiffs, intervenors, and other relevant stakeholders, including the Coleman Special Master and the Plata Receiver. Should such consultation fail to resolve any objections to the proposed population reduction plan, plaintiffs and intervenors shall file their objections no more than 20 days after defendants file their proposed plan, and defendants shall file responses to such objections no more than 10 days thereafter. Defendants shall set forth in their proposal the effective dates of the various actions they propose to undertake and their estimate of the reduction in population they expect to achieve after six, twelve, eighteen, and twenty-four months. The court will consider all of the written submissions and make any necessary modifications or changes to defendants’ proposed plan before issuing a population reduction plan as an order of the court. The court may before doing so request clarification on any matters and conduct any further hearings it deems necessary. However, given that this court issued a preliminary ruling on this matter almost six months ago so as to “give the parties notice of the likely nature of [this] opinion, and [] allow them to plan accordingly,” Feb. 9, 2009 Tentative Ruling at 1, the court will look with disfavor upon any effort to postpone or delay an expeditious resolution of the terms of the population reduction plan, including the submission of a proposed plan by the state and the issuance of the order adopting the final plan. The court will not grant any stay of the proceedings prior to the issuance of the final population reduction plan, but will entertain motions to stay implementation of that plan pending the resolution of any appeal to the Supreme Court. We will retain jurisdiction over this matter to ensure compliance with the population reduction plan and to consider any subsequent modifications made necessary by changed circumstances.

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You can download the full opinion and order here, and we’ll provide an analysis in the next few days.

The big questions – how does this work with the Governor’s plan from the previous post without anyone being in contempt – remain open and will be discussed here in the days to come.

Inmate Release Plans: How the Governor Proposes to Reduce Prison Population by 27,300


On Aug. 17, our legislators will consider Governor Schwarzenegger’s plan for alleviating the prison overcrowding situation. The Sac Bee provides some details on the Governor’s plan, which you can see in the image to the left. As can be seen, the majority of releases are the product of reshuffling categories (undocumented immigrants, wobbler offenses) and a very small part of it consists of good-behavior credits. Also, note the ratio between use of low-cost alternatives to incarceration (such as GPS monitoring) and rehabilitation programs, considered high-cost alternatives.

Taking Prison Capacity Into Account in Sentencing

I have recently come across an interesting resource which, while dated (published in 1997) offers some clues about how other states, and countries, cope with overcrowding through sentencing strategies.

Sentencing Reform in Overcrowded Times, edited by Michael Tonry, offers a wealth of information on various countries and their sentencing laws. The international comparison shows the trend we already know well: the US has the largest number of prisoners per capita (see the numbers in the World Prison Population List, compiled by Ron Walmsley from King’s College London), and has not emphasized, as other countries have, proportionality in sentencing and seeking non-custodial alternatives. The book has short chapters on every country, summarizing its sentencing rules, and pays particular attention to strategies for battling rising imprisonment rates. A non-obvious example is South Africa, who started worrying about overcrowding back in 1976, and made some subtle changes to its sentencing structure, leading to a decrease in overcrowding in general, and to the overrepresentation of Africans in particular (the book estimates that the abolition of Apartheid crimes was only partly responsible for this change).

The U.S. chapters of the book do not include California, which does not have, as we know, sentencing guidelines and commissions. They also tell us something else that we already know – invariably, the introduction of determinate sentencing led to an increase in prison population across the board, particularly when accompanied by Three Strikes laws. But they also tell us that in Minnesota, Oregon, Pennsylvania, and various other states, prison capacity is factored into the sentencing guidelines as a criterion to be weighed in by the judges. There are various forms in which prison capacity is taken into account: several sentencing reforms, taking place in the mid-1990s, added some non-custodial sentences, and in some cases curtailed prisoners of the non-violent kind when scarce prison room was needed to house violent offenders. These strategies are not consensual; as Jeffrey Ulmer shows in his book Social Worlds of Sentencing, DA’s officers are usually opposed to taking jail capacity into account, while judges embrace this consideration as a practical one.

Inversely, it is interesting to find out that changes in the opposite direction are also true; that is, enhancing prison capacity leads to an increase in imprisonment rates, as Stewart D’Alessio and Lisa Stolzenberg show in a paper published in Journal of Criminal Justice.

It is interesting to think whether the number of people sentenced to death in CA will increase with the construction of the New Death Row, and with the possible introduction of double-celling; also, when we consider alleviating overcrowding with new prison construction, we should take into account the increase in people sentenced to prison that, according to D’Alessio and Stolzenberg’s findings, may follow such a move. It is also worth thinking of the sentencing commission bill, which we haven’t heard about in quite a while, and on how a sentencing commission in CA might take prison capacity into account when fixing our broken sentencing policies.

Skimping on Corrections? How They Do It in Texas


Prompted by our posts about the current dilemmas we face regarding the $1.2 billion cuts, and particularly Matthew Cate‘s recommendations, there’s a thoughtful and interesting post this morning from our pals at Grits for Breakfast. Here’s what Texas has tried to do to reduce its inmate population, and how well it has worked:

Texas pursued some of these same strategies in recent years to reduce its prison growth rate, a result achieved primarily by reducing the number of probation revocations. That was done through greater use of “progressive sanctions” and intermediate penalties for those who violate terms of supervision instead of sending them straight to prison. Secretary Cate’s proposal would apply that tactic to both probation parole. Key to making it work, though, to judge by Texas’ experience, will be boosting supervision resources, either by spending more money to supervise offenders in the community or reducing the length of supervision so officers are watching fewer people. That tactic will surely save money compared to sending the same folks to prison, but as a practical matter it will require additional investments to strengthen community supervision.

Adjusting the property crime thresholds is a strategy Texas has not yet pursued but which is probably justified here as much as in the Golden State. In Texas, theft reaches felony thresholds when “the value of the property stolen is $1,500 or more but less than $20,000,” so the same tactic could be applied here and would also reduce the number of new prison entrants. The $1,500 level was set in 1993 when the “state jail felony” category was created (essentially a fourth degree felony), and it’s never been adjusted for inflation.

Are you With Arnold or Against Arnold? GOP and Police Reactions to Budget Plan

(image courtesy the Sacramento Bee)

There has been some back-and-forth with police chiefs and GOP members over the last few days regarding their support of Governor Schwarzenegger’s plan for the correctional system. Trying to make some sense of it all, it appears that the idea is to vote on unallocated savings, then figure out the details. The Governor has been quoted as saying that the prison issue had caused “some misunderstandings, and we are ironing them out.” Basically, as the L.A. Times puts it, “[d]espite the delay, the budget deal will still include $1.2 billion in cuts to the Department of Corrections and Rehabilitation, though it will not specify how they are to be made”.

The main point of contention, as we discussed here and here, is inmate release. The solution? Decide on the cuts, postpone discussion on what is to be cut. The inner dealings between Republicans and Democrats regarding this compromise, complete with political back-and-forth and emails titled “Budget Double Cross” (sic), are in the Sac Bee, for your reading pleasure (or agony).

Secretary Cate Proposes Alternatives to Inmate Release

(image courtesy CDCR)

Secretary Matthew Cate’s column on Flash Report makes a few suggestions for shrinking the correctional budget without releasing inmates.

While no one is happy to be in the position of discussing a $1.2 billion reduction in the corrections budget, the Administration has developed a proposal in coordination with local law enforcement that is smart on crime, cuts prison populations, and saves taxpayer dollars. It is our hope that this reasonable and measured package can allow us to achieve our budget cut targets, without the early release that the public has feared.

Cate’s proposal includes a reduction in the reincarceration of parole violations (a 5,300 reduction in prison population); using GPS monitoring as a prison alternative for low-risk offenders; adjusting property crime thresholds; moving undocumented immigrants to the hands of the Feds; providing good behavior credits for early release; and taking several administrative measures to save money. All in all, the proposal does not differ much from the Governor’s proposal; the magical words “inmate release” aren’t there, but there are a variety of release equivalents, packaged in a way that makes them easier to digest.


BREAKING NEWS – New Budget Plan: Less Felonies, Less Inmates, Less Parole

The Chron reports on the Governor’s plan for corrections cuts, which includes changing the definition of some offenses, charging wobblers as misdemeanors, moving undocumented immigrants to the hands of the Feds, and narrowing the scope of parole. This plan will reduce the CA prison population by 27,000 inmates, and is already generating much opposition from Republican politicians.

Stay tuned for more.

More News Regarding the Michigan Deal

The negotiation regarding the transfer of CA prisoners to Michigan facilities seems to be well under way. Bay City News reports:

Representatives from the California Department of Corrections and Rehabilitation made visits to the Standish Maximum Correctional Facility and the Muskegon Correctional Facility last week and negotiations between the two states are ongoing.

Seth Unger, spokesman for the California prison system, said the meetings were “very productive.”

He said Michigan needs to assure officials that their prisoners will be living under standards set by the state of California.

John Cordell, spokesman for the Michigan Department of Corrections, said his agency is working on a formal proposal to put forth to California.

The proposal will include the cost of housing California prisoners in Michigan, among other things.

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Props to Jerry Jarvis for the update.