Coleman/Plata v. Schwarzenegger: Initial Insights

The full text of the District Court’s tentative opinion is here.

A few points of interest:

The court was basically faced with an issue of causality, namely, whether the health system’s conditions are due to overcrowding. It agrees with the Govt. that “the delivery of constitutional medical and mental health care in prisons is a complicated and ‘polycentric’ problem”. In doing so, the court is invoking a concept from Lon Fuller’s 1971 classic “The Limits and Forms of Adjudication“. But, interestingly, by invoking that concept it may be saying some difficult thing about its own ability to properly adjudicate this conflict. Fuller says:

Now, if it is important to see clearly what a polycentric problem is, it is equally important to realize that the distinction involved is often a matter of degree. There are polycentric elements in almost all problems submitted to adjudication. A decision may act as a precedent, often an awkward one, in some situation not foreseen by the arbiter. Again, suppose a court in a suit between one litigant and a railway holds that it is an act of negligence for the railway not to construct an underpass at a particular crossing. There may be nothing to distinguish this crossing from other crossings on the line. As a matter of statistical probability it may be clear that constructing underpasses along the whole line would cost more lives (through accidents in blasting, for example) than would be lost if the only safety measure were the familiar “Stop, Look & Listen” sign. If so, then what seems to be a decision simply declaring the rights and duties of two parties is in fact an inept solution for a polycentric problem, some elements of which cannot be brought before the court in a simple suit by one injured party against a defendant railway. In lesser measure, concealed polycentric elements are probably present in almost all problems resolved by adjudication. It is not, then, a question of distinguishing black from white. It is a question of knowing when the polycentric elements have become so significant and predominant that the proper limits of adjudication have been reached.

Has the District Court reached the “limit of adjudication”, beyond which it is engaging in managerial, rather than judicial, tasks? The panel judges do not think so. They go on to say:

[W]e believe that a polycentric problem can have a primary cause – a cause that underlies and affects nearly every dimension of the problem and that in this case must be substantially mitigated before the constitutional failure can be resolved. Evidence offered at trial was overwhelmingly to the effect that overcrowding is the primary cause of the unconstitutional conditions that have been found to exist in the California prisons. There is, for example, uncontroverted evidence that, because of overcrowding, there are not enough clinical facilities or resources to accommodate inmates with medical or mental health needs at the level of care they require. There is also uncontroverted evidence that, because of overcrowding, there are not enough clinical or custodial personnel to ensure that inmates with medical or mental health needs are receiving appropriate treatment, are taking the medications that they need to take, are being escorted to their medical appointments in a timely manner, and are having their medical information recorded and filed properly. Additionally, as the Governor has stated, and as the California appellate court has found, overcrowded conditions – the use of triple bunks in gymnasiums and other areas not intended to be used for housing, for example – have “substantially increased the risk of the transmission of infectious illnesses among inmates and prison staff.”

Another interesting bit is the role played by the medical system’s Receiver’s work in all this. As the court notes, the argument against releasing prisoners relies, in part, on attributing the conditions to other factors. As proof of this,

[t]he defendants argue that the work of the Receiver and the Special Master has significantly improved the conditions in the prisons, and that with more time the Receiver and California Department of Corrections and Rehabilitation (sometimes referred to as CDCR), as monitored by the Special Master, can remedy the constitutional violations without decreasing the prison population.

This is somewhat ironic, because the government seems to be relying on the quality of the Receiver’s work while, at the same time, trying to remove him from his position. The irony does not escape the court:

The defendants argue that the Receivership and the Special Master’s monitoring efforts constitute other “relief” short of a prisoner release order that could remedy the constitutional violations. But the defendants have opposed the Receiver’s work in Plata and are seeking the dissolution of the Receivership.

And it becomes even more interesting when the court goes on to protect the receivership by presenting the Receiver’s position regarding what is and is not possible to achieve in CA prisons:

The Special Master stated that although much has been achieved in the past eleven years, “many of these achievements have succumbed to the inexorably rising tide of population.” Pls.’ Exh. P-35. The Receiver stated in a letter to the Governor and legislators dated July 24, 2006, that “[i]t will not be possible to raise access to, and quality of, medical care to constitutional levels with overpopulation at its current levels.” Pls.’ Exh. P-55. In addition, of course, the Receiver’s ability to help ameliorate the overcrowding is currently seriously threatened by the defendants’ actions to cut off his funding and terminate the receivership.

Another interesting aspect of the decision is the court’s assessment of what level of capacity would constitute compliance with constitutional standards. The evidence cited in the decision points out to levels far above 100% capacity as “acceptable”.

One important argument made by the Govt., which does not seem to be adequately answered in the decision, is the economic impact of releasing tens of thousands of inmates into the job market without proper skills or a decent re-entry program. The court responds to the counties’ concerns by saying,

This, however, appears to be an existing problem regardless of whether the prisoners are released under the current regime or pursuant to the reform measures. More important, the Expert Panel found that, if CDCR were to adopt the recommended combination of earned credits and parole reform, it could save $803 to $906 million annually. These savings could be diverted from the current prison budget to fund community based programming, which would allow the communities to continue and expand the programs that they have described to the Court.

But, for the saved money to optimally provide systematic reentry programs, these need to be carefully thought out and created in an atmosphere of cooperation rather than contention. And what good might it do to release folks without a properly designed and funded guiding hand without reforming parole regulation to provide a sensible, consistent regime of assessing parole violations?

It is important to note that the order is a tentative ruling, meant to prepare the parties to the implications of the final order, which brings us back to Fuller and his polycentric problems. Part of the reason why adjudication is unsuitable, by design, to address such problems, is that adjudication is a zero-sum game; there are winners and losers. This might not be the best approach to solve the problem CA prisons face. Is the tentative order conducive to bringing all concerned parties together and seeking a sensible release and reentry regime?

Breaking News: Federal Judges Order Inmate Release

Today, the District Court has issued its decision in the prison overcrowding case we have been following for quite a while. As reported by Reuters, the gist of the decision is that —

As many as 57,000 could be let go if the current population were cut by the maximum percentage considered by a three-judge panel. Judges said the move could be done without threatening public safety — and might improve a public safety hazard.

The state immediately said it would appeal the final ruling to the U.S. Supreme Court.

The three judges specifically said they planned to order the system, swollen to about double its capacity last year, to cut down to 120 percent to 145 percent of capacity within two to three years. They did not give a target headcount.

More on this to follow.

Will prisoners be released in response to prison overcrowding?

(image courtesy

As reported on the Chron, on Monday the Federal judicial panel at the District Court heard closing arguments regarding prison overcrowding. A few snippets:

Inmates’ attorneys argued Tuesday that releasing tens of thousands of prisoners is the answer.

“The entire system is collapsing because of the overcrowding,” Don Specter, director of the nonprofit Prison Law Office, told the three-judge panel in U.S. District Court.

If the panel agrees, it could order the population cut by one-third in California’s 33 adult prisons. That would lead to the early release of some 52,000 inmates.


Attorneys representing Gov. Arnold Schwarzenegger, about 80 local law enforcement officials and 44 Republican lawmakers agreed that California’s prisons are dangerously overcrowded, despite steps taken in recent years to relieve the problem.

But they also argued that freeing tens of thousands of inmates or diverting them to county programs would overwhelm local police, jails and rehabilitation programs. Crime would go up, and many parolees would go without supervision, they said.


The judges have indicated they support the premise that the prisons’ problems stem from overcrowding. U.S. District Judge Lawrence Karlton acknowledged the “very profound effect” on counties if an early release was ordered, but also said 52,000 inmates might not be enough. He suggested that nearly half of the current 158,000 inmates may need to be freed.

“The state of the evidence is you can’t solve the problem without solving the overcrowding,” Karlton said Tuesday.

The governor’s position is rather interesting. As we know, the most recent version of the budget included releases of non-violent prisoners, as well as cutting parole for the same population. The governor actually supported the release of 15,000 prisoners. It would therefore appear to be the case that the argument is no longer about whether to release prisoners, but how many, and how the choice is to be made.

Don Specter, and Judge Karlton, will be among our speakers at the upcoming California Correctional Crisis Conference.

Prisons Under Pressure documentary series

screenshot courtesy

In the course of responding to an email avalanche from you, our gentle readers, expressing interest in our conference (thank you!) and in the blog (thank you!), I came across the four-part documentary series Prisons Under Pressure, an interesting attempt to present the various perspectives on the overcrowding and medical crises in California prisons. It seems to be available as a pay-per-view, but I have just watched the first episode for free on their website. It’s a good introduction to the crisis for those of you joining us for the first time, and it provides a lot of insight into the financial part of the mess, which at this point may seem incomprehensible to many of us.

Prison and Parole Cuts: Lean Years, Lean Budget

Yesterday’s Sacramento Bee reported Governor Schwarzenegger’s new budget plan, which has direct implications for corrections policy. The gist of it is as follows:

Parole would be eliminated for all nonserious, nonviolent and non-sex offenders. The proposal would cut the parole population by about 65,000 by June 30, 2010, or more than half of the Christmas Eve count of 123,144.

At the same time, the corrections plan calls for increasing good-time credits for inmates who obey the rules and complete rehabilitation programs. Combined with the new parole policies that would result in fewer violators forced back into custody, the proposal would reduce the prison population by 15,000 by June 30, 2010. It stood at 171,542 on Dec. 24.

The California Correctional Peace Officers’ Association, who has previously opposed the Governor’s plan for state employees to go on one-day furloughs, opposes this plan as well. This letter from their Executive Vice President, Chuck Alexander, has bits and pieces of the proposed budget in it.

A careful read of the budget will reveal cuts not only in the prison and parole systems, but also in the medical system’s Receiver’s budget. Some rehabilitative re-entry programs might actually see an increase in funding.

Desperate times, apparently, call for desperate measures. These steps echo what I commented on here and here: we no longer care about the merits of a correctional institution or project. We only care about how much it costs.

But wait: isn’t de-crowding our prisons, and cutting our parole system, a good thing on the merits as well? This is a bit more complex than it might seem. A credit accumulation system is certainly a good thing, and it helps focus the release decision on factors having to do with actual behavior and change, rather than on a regurgitation of issues concerning the offense itself (a bit more on that, from a broader doctrinal perspective, in this piece by W. David Ball). But rather than eliminating mandatory parole, if we had the leisure of giving this reform careful thought, we would perhaps be better off retooling parole to act as an institution encouraging and supporting ex-felons in re-entry, rather than supervising them and returning them to jails for technicalities? A reformed parole system could be an invaluable resource for people seeking housing and work upon their return from prison. As is becoming plainly obvious, this is not about common sense, even if, in some cases, it seems to make sense as a policy. This is strictly about the money.

It remains to be seen whether the legislator will approve these changes. To Be Continued.

There is Nothing New Under the Sun

There are prisons, into which whoever looks will, at first sight of the people confined there, be convinced, that there is some great error in the management of them; the sallow meagre countenances declare, without words, that they are very miserable; many who went in healthy, are in a few months changed into emaciated dejected objects. Some are seen pining under diseases, “sick and in prison;” expiring on the floors, in loathsome cells, of pestilential fevers, and the confluent small-pox; victims, I must say not to the cruelty, but I will say to the inattention, of sheriffs, and gentlemen in the commission of the peace.

The cause of this distress is, that many prisons are scantily supplied, and some almost totally unprovided with the necessaries of life.

–John Howard (1777), The State of the Prisons in England and Wales, with an Account of Some Foreign Prisons

May the return of the light this season, and this year, bring some light to our correctional policy.

Happy Holidays, and a Happy New Year,


Is overcrowding the reason for the declined standard of care in prisons? More Prison Litigation

DING! Round… I can’t keep track anymore. The Federal District court is, again, discussing the prison lawsuits.

Judges Karlton, Henderson, and Reinhardt are trying to assess whether prison overcrowding (see left) is the reason for the faulty level of services. And, as the L.A. Times reports, they are not sympathetic to the State.

Although the trial is only halfway over, the judges are speaking and acting as if they have already decided to take action against the state. Now they seem only to be searching for answers on precisely what action to take and have openly contemplated an order to release prisoners and impose a cap on the state prison population.

“The question from our point of view is developing an effective set of orders that will protect society . . . and ensure there is a constitutionally sufficient level of care,” explained U.S. District Judge Lawrence Karlton, who said later that the trial wouldn’t be needed “if the state were to wake up and start behaving in a rational way.”

If the court’s decision is to release prisoners, state officials guarantee an appeal directly to the U.S. Supreme Court, where matters, and sympathies, may go differently.

There are many interesting things here, and several merit special attention:

  • In the article, several people, and among them Jeanne Woodford, are on record stating reincarceration for parole violations as a contributing factor to overcrowding.
  • One of the witnesses, a former Florida prison medical official who has studied California’s medical system, reports the situation has improved since Clark Kelso took charge of matters as a receiver.
  • James Austin, formerly of George Washington University, has questioned the link between release rates and a decline in public safety, and reports findings from various states where release has not impacted the trend of declining crime rates.

A decision is expected early next year: stay tuned.

More Budgetary Kills: A Bipartisan Initiative to Oppose Death Row Expansion

… and now, to something completely different.

Two legislators from opposing parties and with opposite views on the death penalty joined Tuesday to propose cutting off funding for a new $395 million Death Row at San Quentin, calling it a boondoggle that a financially strapped state can’t afford.

“The Death Row expansion is a bottomless money pit,” said state Sen. Jeff Denham, R-Atwater (Merced County).

“We should use this opportunity, with the state running out of cash, to step back and rethink this project,” said Assemblyman Jared Huffman, D-San Rafael, who joined Denham at a news conference in front of the aging Marin County prison. He referred to the project as a “Cadillac Death Row” and said many condemned inmates could be safely housed at other prisons during their decades of appeals.

A few thoughts:

1) We may have finally arrived to a place where supporters and opponents of the Death Penalty are faced with the realities of a prison system that, regardless of its moral merits, cannot be financially tolerated.

2) At a time when emergency discourse is the required preface to every public discussion, we no longer, perhaps, have the leisure to contemplate what sort of legal system produces such a huge number of people on Death Row in the first place, and the prevalence of this emergency discourse might, yet again, postpone that important discussion.

3) Compare and contrast this to the previous post about the axing of the CJC budget. Perhaps we have finally come to a point in which we can no longer have discussions about the merits of correctional initiatives, only about their costs.

The Fiscal Meaning of Prison Explosion

Sunday’s editorial in the Sacramento Bee provided a critical take on the impact of prison overcrowding on state expenditures. The emphasis is particular on the aging prison population and the costs associated with medical care.

Those in prison aren’t eligible for Medicare, the federal health program for the nation’s elderly. Nor are they eligible for Medi-Cal, the health program for the poor in which costs are shared between the state and the federal government. So the entire cost of health care for older, sick prisoners falls on the state.

All of this is now in the federal courts because the state has refused to create alternatives for dealing with feeble, chronically ill prisoners to reduce prison population – or to pay for building facilities to house these prisoners.

One court is examining whether to cap prison population. Another is looking at whether to force the state to pay for seven 1,500-bed facilities. Both courts could make decisions as early as January.

However, a recent empirical study by John Pfaff from Fordham University suggests that prison overcrowding seems to stem more from masses of parole violators being returned to prison for short periods of time, than from people “housed” in correctional institutions for a lengthy period of time. How much of those sentences translate to more prison expenses remains unclear. I strongly recommend reading the full article; beyond the important implications, the study is beautifully done and is a great example of good quality empirical scholarship.

(The Sac Bee piece brought to my attention via the fabulous Sentencing Law and Policy blog. Thanks!)

Focus on Proposition 6: How To Deal With Gangs and Other Matters

Proposition 6, or the Safe Neighborhood Act, proposes a variety of changes to the CA criminal justice policy. The main idea behind it is addressing street crime from a “war on crime” perspective.

One of the most important things to keep in mind when considering Prop 6 is its financial implications. Currently, CA is allocating $600,000 to law enforcement, and this proposition will raise this amount by $350,000 (a 50% increase). One source provides the breakdown of these additional funds by topic. The question, therefore, is twofold: whether, as voters, you agree with the philosophy that has driven the proposition, and, if so, whether you are comfortable with its costs.

Some of the major and substantive proposed changes include changing evidence rules to allow hearsay, i.e. a victim’s testimony at the police station, in cases in which the victim is later unavailable to testify. “Unavailability” is broadly defined to include situations in which the victim refuses to testify due to trauma. This idea is not as innovative as it might seem in the American context; other countries have broad exceptions to the hearsay rule, brought about in the conservative 1980s as a response to concerns about organized crime and victim intimidation. It seems that this rationale is also behind the proposed new offense, penalizing any activity of preventing or dissuading victims from testifying and complaining to the police, as well as acts of retaliation against victims.

Prop 6 includes several other new offenses; all of these acts seem to be punishable under current criminal laws, and I expect their proposed criminalization is more of a proclamation than a practical change. These include tampering with one’s electronic monitor; driving or taking away other person’s vehicle (year in jail or fine); and graffiti (year in jail or fine). A point of interest about this last one: if juveniles are unable to pay fines for graffiti, their parents may be responsible.

Which is where we come to one of the main focal points of Prop 6: the issue of gangs. the US in general, and CA in particular, has struggled with gang-related polices for many years now. The philosophy behind much of what we have done so far regarding gangs assumes that gang membership is conducive to crime, and that one way to fight gang-related crime is to fight the gangs themselves, before any crime has been committed.

One such early attempt to control gang-related behaviors involved using criminal law to prohibit gang members from congregating. In Chicago v. Morales, the criminal prohibition for gang members to “loiter in public places” was held to violate the Due Process clause due to its vagueness and the broad discretion it leaves to law enforcement officers. But the newer generation of gang-related policies seems to be much more targeted. My student Adam Maldonado, who has done some research on civil gang injunctions in Los Angeles and in San Francisco, found that they prohibit specific gangs from congregating in specific, carefully-defined areas. These areas include, in San Francisco, the Mission, Hunter’s Point, and Western Addition, including a 3-by-4 block not far from Hastings. He has also found that, before an injunction is applied, the gang needs to be thoroughly researched by law enforcement agencies, so there is “clear and convincing evidence” that it constitutes a “public nuisance” (People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1256).

How does Prop 6 impact gang-related policy? To start, it adds provisions that make a gang into a legal entity. A gang can be sued, and Prop 6 adds mechanisms by which its members can be served with papers on behalf of the gang, which simplify the process of injunction and potentially other processes of legal dealings with gangs as such. It also includes a list of 33 offenses, ranging from serious violence offenses to much less serious property offenses, which, when committed by a minor in a gang context, would enable CA to try the minor as an adult. Also, the punishment for a long list of felonies is doubled if these are committed in the context of a gang.

Prop 6 also requires more research into gangs, including a registry; failure by a previously convicted gang member to register might be a felony or a misdemeanor, depending on the content of the original conviction.

Other miscellaneous changes included in Prop 6:
o allocating $10,000,000 for conducting background checks on public housing recipients
o excluding the possibility of bail for illegal aliens charged with violence or gang-related crimes (of particular interest in light of San Francisco’s recent “sanctuary city” expose);
o banning O.R. release for violent offenders without a hearing, and placing limitations on OR for violent offenses in the context of guns, parole violations, and others;
o tightening notification to parole authorities of any parolee behavior, ranging from offenses to technicalities (contrast with Prop 5, which advocates a softening of parole revocation based on technical violations);
o allocating funds for reentry programs; however, by contrast to Prop 5, the emphasis is on monitoring and supervision (through GPS devices, etc).

Stay tuned for the last post in the series, discussing some aspects of Prop 9.