Historic Arguments in the California Prison Overcrowding Cases – A Guest Post by Rory Little

This morning the U.S. Supreme Court heard oral arguments in what has become known as the “California prison overcrowding cases.” The Court has not heard a case challenging prison conditions and court supervision in decades, and the 1996 Prison Litigation Act (“PLRA”), designed to restrict federal court supervision, has been unexamined until today. The Court accepted the State’s appeal (not certiorari) in two consolidated California cases. It then granted a highly unusual extra 20 minutes to the normal hour-long argument, and ran even beyond that until Chief Justice Roberts blew the final whistle. It was an historic moment in the history of these decades-long cases, and in the area of prison litigation in general.

Although an audiofile will not be available here until this Friday, observers report that the Justices were interrupting each other and even raising their voices, an unusual display of frustration in that august body. Indeed, at one point Chief Justice Roberts calmly cut off Justice Sotomayor (who had interrupted Justice Ginsburg’s question), saying “I’m sorry, could you answer Justice Ginsburg’s question first?” (The transcript is available here).

But the Justices’ reactions at this argument are not surprising – the underlying cases have generated similar frustrations and emotions for some two decades, as unconstitutional conditions in California’s state prisons have defied solution despite an unprecedented amount of executive, legislative, and judicial concentration.

At issue is the order from a special three-judge federal trial court, issued after over 70 prior orders failed to correct problems in the prisons, that directs the State to find a way to reduce its prison population to 137% — that’s right, “reduce” to 37% over design capacity. It is conceded that California’s prisons have not provided constitutionally adequate medical and mental health services to its inmates for many years. The conditions are “horrible,” as photographic evidence in the record shows. The district court found – and no one really disputes – that the problems all run back to the dramatic overcrowding of California’s prisons.

And because of the California’s seemingly intractable budget problems – as well as legislative gridlock and partisan intransigence – the huge amounts of money necessary to fix the prisons (or construct new ones) is simply not going to happen. “Pie in the sky,” said Justice Scalia today. As Justice Sonya Sotomayor remarked today, “I don’t see how you wait for an option that doesn’t exist.”

However, fifteen years ago Congress’s unhappiness with federal courts “taking over” state prison systems led to enactment of the 1996 PLRA. Now, the very existence of the PLRA, which anticipates special three-judge district courts and recognizes the possibility of court “population reduction” orders, indicates that Congress understood that, at some point a State’s unconstitutional conditions, and inability or refusal to repair them, might still lead to court supervision. The central question today was whether California’s prison system, and the three-judge court’s multi-year patience in ordering the State to fix the problems without success, warrants the reduction order ultimately entered early in 2010, after a number of prior “warning orders” went unheeded.

Also unusual is the contrast between the lawyers who presented the arguments today. The State’s agents hired Carter Phillips, a well-known Supreme Court advocate who clerked for Chief Justice Warren Burger and has argued over 60 cases before the Supreme Court. Indeed, few advocates could get away with what Phillips did this morning:
JUSTICE ALITO: Mr. –
MR. PHILLIPS: Can I just finish this?
JUSTICE ALITO: Yes.

The prisoner plaintiffs hired Paul Clement, also an established Supreme Court litigator who served as U.S. Solicitor General under President George W. Bush. However, the California prisoners have been represented throughout the litigation below by San Francisco lawyer Don Spector, longtime head of the Prison Law Office, and it was Specter who presented their case in the Supreme Court today. (Although the Court was reviewing two cases, it mysteriously denied a motion for Clement and Specter to split the argument – another unusual wrinkle). Although Specter has argued many cases in his quarter-century at Prison Law, he had argued only one Supreme Court case (Yeskey v. Penn (1998), which he won summarily). Today’s cases (Plata and Coleman) present a far more difficult challenge. But Specter, steeped deep in the details of this complicated litigation, did a masterful job. He even got a laugh from the normally reserved Chief Justice (transcript p, 48). Indeed, his intricate knowledge of the facts and record paid off in a number of exchanges with Justices Scalia, who seemed plainly allied with the other side, and Roberts. And with 11 amicus briefs filed on behalf of three times as many groups, the arguments did not suffer from a lack of effective advocacy for any party.

California and Phillips clearly wanted the Court to focus on the “federalism” aspects of allowing a federal court to direct the reduction of a State prison population. But Justice Sotomayor quickly set a detail-oriented, fact-specific tone for the argument: she directed Phillips early on to “slow down from the rhetoric and give me concrete details.” The argument then proceeded on that level for the bulk of its over 80 minutes. (Justice Scalia, however, had some fun with Justice Sotomayor’s earlier remark: when she asked Phillips “When are you going to avoid the needless deaths that were reported in this record?,” Justice Scalia interjected (ostensibly directed at Phillips and not his fellow Justice) “Don’t be rhetorical.”)

In the end, decision in the case appears to focus on Justice Kennedy (who is so often the necessary fifth vote that observers call it “the Kennedy Court”). And while he did not show his hand entirely, he did interrupt Phillips’ argument that the district court acted “prematurely,” as follows: “The problem I have with that, Mr. Phillips, is that at some point the Court has to say: You have been given enough time; the constitutional violation still persists…. Overcrowding is the principal cause, and it’s now time for a remedy.” Justice Kennedy also opined that “there is massive expert testimony to support … the prisoners,” and asked why the district court’s order was not “perfectly reasonable.”

Predicting results from oral argument is a dubious enterprise at best. And certainly some Justices, notably Justices Scalia and Alito, expressed skepticism. (Justice Thomas was characteristically silent.) But Justice Kennedy’s remarks demonstrate that the Court faces a sensitive challenge here: unless it wants to become the appellate master for prison litigation around the country as state budgets become increasingly stressed, it needs to demonstrate restrained deference to federal trial judges that provide years of hearings and opportunities for beleaguered state prison systems before they act. As the newest Justice, Kagan, remarked, “”You have these judges who have been involved in these cases … for 20 years ….[H]ow can we reach a [different] result without re-finding facts…?”

Indeed, one can speculate that if this case had not come from the Ninth Circuit, and had not had red-flag liberal Judge Stephen Reinhardt on the three-judge panel, the Court might not have even found appellate jurisdiction (or summarily affirmed). On the other hand, Congress did set strict limits in the 1996 statute, and the High Court needs to interpret just what they may mean in the reality crucible of a hard case. California has argued that the three-judge court was itself convened in violation of the statute. As Specter respectfully noted at one point regarding Phillips’ argument, “my friend and I have a disagreement.” The PLRA deserves Supreme Court resolution.

In the end, Specter’s argument presented the starkest argument: “unless you reduce the crowding, nothing else is going to work.” The district judges involved had issued over 70 previous orders, and appointed two different “receivers” for the prison system, all to no avail. If any set of unconstitutional prison conditions and unresponsive state reactions can ever satisfy the PLRA’s stringent requirements, it would be this one. Yet, as the Chief Justice inquired repeatedly, how can the state reduce prisoner population without endangering public safety, as the PLRA requires? These tensions are why the Court decided to hear the unusual argument session it hosted today.

So stay tuned. A decision is unlikely to issue until late spring. And it seems likely that the case will be remanded with directions to consider amending the Order in various ways. Prison population and conditions are always a dynamic moving target, and wholesale affirmance here seems unlilkely. But whatever the result, these arguments provided a fascinating window into the arena of prison litigation, as well as the working of the “new” Supreme Court whose near majority was appointed a decade after the PLRA was enacted.

The Post-Election Post

In the grand tradition we started in the 2008 elections, I’d like to offer some reflections about some of the results.

The first issue on the agenda is the meaning of Jerry Brown’s election for governor, especially if accompanied by Kamala Harris as Attorney General (an outcome which is still uncertain as I write this). As we said earlier in the race, while there are plenty of corrections-related reasons to be relieved that Meg Whitman will not be commanding our ship, Jerry Brown’s platform in these matters is not particularly innovative or efficient. Some have made much of his personal distaste for the death penalty and have predicted that, as part of a team with Kamala Harris, the institution may be abolished or at least halted de facto. Brown’s behavior during the countdown toward Albert Brown’s execution does not appear to predict such an outcome. It remains to be seen what sort of relationship Brown forges (or rekindles) with CCPOA, and what his position might be on Plata/Coleman, which he litigated fiercely against petitioners as Attorney General.

We then have the failure of Prop 19, which I decline to read as stemming from fear or demonization of marijuana users. Much of the feedback I received after publicly endorsing Prop 19 had to do with people who in principle supported legalization but thought the initiative was poorly designed and would lead to chaotic local regulation and, possibly, to “corporatization” of pot. I found it curious that the concerns about possible “corporatization” exceeded, for some, the concerns about racist oppressive enforcement, but to each their own. The lesson to be learned here is, perhaps, that the initiative process is not a good place for such reforms, and given the broad public support for the idea of legalization, creating an appropriate legal framework should be left to professional legislators.

Finally, a municipal disappointment was the disheartening passage of Prop L, the sit/lie ordinance. We blogged extensively here, here, here and here about the punitive and classist animus behind this initiative and are dismayed to see it come to life. Our hope is that the police will act sensibly in enforcing this measure.

Leno on Recidivism

I’m at the Students for Sensible Drug Policy West Coast Regional Conference (at SF State — see http://ssdp.org/conference/westcoast) where Senator Mark Leno is currently answering a question about Proposition 19. This initiative would reduce California’s prison population by allowing adult possession and cultivation of 25 square feet of cannabis.

Senator Leno reminds us that California has the USA’s highest recidivism rate, 70%, compared to the national average of 35%. California’s prisons confine 170,000 inmates, 180% of their capacity of 90,000. Wow!

What’s He Building In There?


CDCR has rebuilt the Chino Institute for Men, destroyed in a riot a few months ago. Some information about the rebuilding process and its outcome, from the CDCR website:

Cost to rebuild the dormitories was reduced significantly by using inmate labor from the Inmate Ward Labor program. The program teaches inmates vocational skills that can be used to gain employment once they are released from prison. Inmates learned how to operate heavy equipment and were taught trades such as masonry, concrete mixing, drywall installation, wall texturing, carpentry, welding and general construction techniques.

The rebuilding effort also incorporated improved safety features.

“The materials used during the rebuilding and some of the systems built into the facility will provide a safer and more secure environment for inmates, staff and the public,” said Deborah Hysen, CDCR’s Chief Deputy Secretary for Facilities, Planning and Construction Management. “For example, porcelain sinks and fixtures, which can be broken into sharp pieces, were replaced with durable stainless steel.”

After the repairs were completed, CDCR changed the mission of CIM West from a reception center to a Level II facility, and the inmate population was reduced from 1,298 before the riot to an estimated 960 in October 2010.

“The mutual aid and cooperation by the city of Chino, law enforcement and surrounding fire departments were invaluable during this emergency,” said Fakhoury. “We appreciate the long-standing partnership we share with our surrounding community,”

CIM is one of 33 prisons operated by CDCR. It opened in 1941. The peak population at CIM was 6,665 inmates in October 2003. It currently houses 4,751 minimum- and medium-security inmates and employs 2,327 people.

I’m trying to understand the discrepancy in inmate numbers. Does this mean that the institution as a 960-inmate capacity and it currently houses 4,751 inmates? Or that 960 people remained on the premises after the riot and now there are 4,751? If any of our readers know what the new capacity and population are like, please enlighten us in the comments. The other interesting feature here is the opportunity to make the rebuilding into a vocational program, which might be a successful idea depending on whether it is, indeed, a program shaped to help inmates develop skills such as getting to work on time and collaborating with supervisors, rather than merely cheap labor.

But more rebuilding is going on. The state is looking for a suitable site for a new reentry facility. Building in Fairfield is proving problematic, and CDCR is examining the possibility of building in Vacaville. More details on the Reporter:

As about 1,000 inmates are paroled to Solano each year, local leaders have embraced the need for a re-entry facility, which would house prisoners serving the final 12 to 18 months of their sentence. Through educational, career, life skills and other training, the inmates would be re-acclimated to the community and prepared for life on the “outside.”

Choosing a site for the facility has been a challenge. Originally, expansion near Fairfield’s Sentenced Detention Facility on Claybank Road was hotly pursued, but dropped when Fairfield officials withdrew their support.

The pitch to Vacaville, which already houses two institutions, has to do with job creation, as is often the case when introducing a correctional institution to a community. The advantage of building in a place that already has a prison is that persuasion might be easier, and the infrastructure, in terms of a cooperative community, is already in place. For more on this, I recommend the excellent documentary about Susanville, titled Prison Town, USA.

Native Hawaiians Over-Represented in Hawai’i’s Criminal Justice System

Groundbreaking research shows that Native Hawaiians are more likely to be incarcerated than other racial or ethnic groups in Hawai’i

FOR IMMEDIATE RELEASE:
September 29, 2010

NATIVE HAWAIIANS OVER-REPRESENTED IN HAWAI’I’S CRIMINAL JUSTICE SYSTEM

Groundbreaking research shows that Native Hawaiians are more likely to be incarcerated than other racial or ethnic groups in Hawai’i

HONOLULU, HAWAI’I – The Office of Hawaiian Affairs (OHA) released a new report today, The Disparate Treatment of Native Hawaiians in the Criminal Justice System , which examines the impact of the criminal justice system on Native Hawaiians. While detailing how Native Hawaiians are disproportionately impacted at various stages of Hawai’i’s criminal justice system, the report also includes first-hand accounts of Native Hawaiian concerns with the criminal justice system and how it affects their families and their culture. Native Hawaiians are the indigenous, native people of Hawai’i. Findings from the report show that the criminal justice system incarcerates Native Hawaiians at a disproportionate rate.

“This crucial research shows the need to address the unfair treatment of Native Hawaiians in our state’s criminal justice system,” said Clyde Nâmu’o, OHA’s chief executive officer. “Native Hawaiians make up almost 40 percent of the populations in Hawai’i’s prisons and jails. We are more likely to be sent to prison, and for longer periods of time, than nearly every other racial or ethnic community in Hawai’i. OHA strongly supports a fair justice system and this study sets the course for change.”

Additional key findings in the report include:

* Of the people serving a prison term in Hawai’i, approximately 50 percent are housed in facilities on the mainland. Of this population, about 41 percent are Native Hawaiian, the most highly-represented group. While incarcerated out of state, these people are further disconnected from their communities, families and culturally appropriate services for re-entry.
* Native Hawaiians do not use drugs at drastically different rates from people of other races or ethnicities, but Native Hawaiians go to prison for drug offenses more often than people of other races or ethnicities.
* Once released from prison, Native Hawaiians experience barriers that prevent them from participating in certain jobs, obtaining a drivers license, voting, continuing education, obtaining housing and keeping a family together.
* Without a sufficient number of culturally appropriate services, Native Hawaiians are not given the best chance at achieving success upon re-entry into the community.

“In 2009 the OHA Board submitted Concurrent Resolutions to the 25th Legislature noting that a study would be helpful in determining the extent, nature and impact of perceived disparities. The Senate urged with the House of Representatives concurring in HCR27, HD1, that OHA should contract a nationally respected and objective consulting firm to conduct a study of disparate treatment of Native Hawaiians in Hawai’i’s criminal justice system. That study is now complete.” said OHA Chairperson Apoliona.

The resulting report provides a number of recommendations to reduce the unfair impact of the justice system on Native Hawaiians, including:

* Reform the criminal justice system in Hawai’i to embrace the cultural values of Native Hawaiians. Changing the justice system so it is in line with culturally significant norms and values will help preserve a historic culture and strengthen the Hawaiian community and its identity.
* Develop a targeted plan to reduce racial disparities. One immediate proposal by OHA is the establishment of a task force that will review the findings and recommendations of the report, and formulate policies and procedures to eliminate the disparate treatment of Native Hawaiians in the criminal justice system. Members of the task force will include OHA, government agencies, legislators, prosecutors, public defenders, the state attorney general, the judiciary, public safety and probation officials, the police, a former prisoner and treatment providers.
* Concentrate efforts to reduce the punitive nature of the criminal justice system and fund community-based alternatives to incarceration. Investing in alternatives to incarceration and the investment of funds into re-entry and preventative programs will aid in addressing the disproportionate impact on Native Hawaiians.
* Reduce collateral consequences associated with criminal justice involvement. The current system deprives pa’ahao of full integration into the community. Barriers to education, housing, employment and parental rights only serve to increase the likelihood of future re-imprisonment which would further destabilize families and communities.

The Disparate Treatment of Native Hawaiians in the Criminal Justice System was written at the request of the Hawai’state legislature following the approval of House Concurrent Resolution 27, and was compiled through research by the Washington, D.C.-based Justice Policy Institute (JPI), and experts at the University of Hawai’i and Georgetown University.

To read the Executive Summary and the full report of The Disparate Treatment of Native Hawaiians in the Criminal Justice System visit www.oha.org/disparatetreatment. For more information on OHA, please visit www.oha.org. If you are interested in reading additional research from the Justice Policy Institute on racial disparities and efforts to reduce the number of people affected by the criminal justice system, please visit www.justicepolicy.org.

About OHA

The Office of Hawaiian Affairs (OHA) is a unique, independent state agency established through the Hawai’i State Constitution and statutes to advocate for the betterment of conditions of all Native Hawaiians, with a Board of Trustees elected by the voters of Hawai’i. OHA is guided by a vision and mission to ensure the perpetuation of the culture, to protect the entitlements of Native Hawaiians, and to build a strong and healthy Hawaiian people and nation. For more information, visit www.oha.org.

Marijuana and Federalism: California a Test Case

On Friday, August 6, 2010 I attended a forum of the Voluntary Committee of Lawyers called “Marijuana and Federalism: California a Test Case.” The event was originally conceived as a chance for experts to publicly examine the implications of the state-federal conflict of the passage of A.B. 2254, Assm. Ammiano’s tax-and-regulate marijuana bill. Then, Ammiano withdrew 2254 in light of Proposition 19, a voter initiative legalizing marijuana and allowing local governments to tax and regulate sales.

Washington State Representative Roger Goodman, E.D. of the VCL, moderated the first of two panels, “Marijuana Legalization: A Clash of Federal Power and States’ Rights.” His excellent panelists explored the contours of the state-federal conflict, and its implications for potential legal challenges to Prop 19. First, Professor Robert Hirshon, who was president of the ABA during 9/11, spoke. Bob said that his “uber-blue-blood” law firm back in Maine had recently asked the Maine State Bar Association for guidance on the professional responsibility considerations of representing medical marijuana dispensaries (Maine has recently become the first American state to issue licenses to retail marijuana stores). The Maine Board of Overseers of the Bar responded with Advisory Opinion 199, advising that because marijuana is federally illegal, representing dispensaries could be a breach of the professional responsibility rules against knowingly assisting a crime.

Next Allen Hopper of the ACLU Drug Law Reform Project affirmed that representing dispensaries could arguably conflict with federal law and thus the PR code. However, he carved out an exception for attorneys who believe they are acting legally and in good faith. His best point came from his personal experience in representing WAMM, the Wo/Men’s Alliance for Medical Marijuana, in County of Santa Cruz v. Gonzalez. In that case, earlier this year, a medical marijuana collective and the county regulating it reached a settlement in which the federal government agreed to drop its prosecution.

Finally Professor Alex Kreit of the Thomas Jefferson School of Law in San Diego composed the meat of the panel by summarizing the law review articles he has published on this topic. Alex bifurcated analysis of Prop 19’s two sections, one of which legalizes personal possession and cultivation of marijuana, and the other of which allows counties and municipalities to regulate and license marijuana sales. He referred to Section 903 of the federal Controlled Substances Act, which says that the CSA will only preempt state law in the event of a “positive conflict” between state law and the CSA (which prohibits marijuana etc.). Alex analogized that there is no “positive conflict” between prohibiting marijuana and allowing marijuana, since a non-user can comply with both laws — this is, at worst, a passive conflict — whereas a “positive conflict” would result from a state law requiring mandatory marijuana consumption (preventing anyone from being able to follow both state and federal law simultaneously). He supposed that federal prosecutors would likely go after locally-licensed marijuana retailers, but would probably lose. Alex also pointed out that the federal government simply lacks the resources to enforce this federal law, rendering the point largely moot. He mentioned his shortly forthcoming article in the Chapman Law Review on this topic, “Beyond the Prohibition Debate: Thoughts on Federal Drug Laws in an Age of State Reforms.”

VCL President Eric Sterling moderated the second panel, “Marijuana Legalization on the Ground: Practical Considerations.” First, Assm. Tom Ammiano discussed his marijuana legalization bill, which gained notoriety last year as AB 390 when it passed the Public Safety Committee. He mentioned that this legislation would pass in a “hallway vote,” highlighting his fellow legislators “cowardice” on this issue. He also explained to the audience the concept of “contingency legislation.” The legislature could pass a law or laws regulating marijuana sales this year, set to take effect only in the event that the voters approve Prop 19. Though the Supreme Court would be required to overturn legislation amending a voter-approved initiative, legislation that adds to an initiative and is within its spirit and intent is not only acceptable but good planning. In fact, Section 5 of Prop 19’s text specifically allows for new laws creating a statewide regulatory system.

Drug Policy Alliance Staff Attorney Theshia Naidoo (disclaimer: was recently my boss) addressed the main substance of the panel by raising numerous practical considerations related to the passage of Prop 19. She provided an overview of the legal issues, especially on the civil side, likely to arise. She also mentioned the social justice implications of legalization, as DPA has just released a new report, “Targeting Blacks for Marijuana: Possession Arrests of African Americans in California, 2004-08,” available here. African Americans are 7% of California’s population but 33% of all felony marijuana arrests.

Americans for Safe Access Chief Counsel Joe Elford discussed Prop 19’s effects on medical marijuana law. ASA neither supports nor opposes Prop 19, but is neutral. He used medical marijuana as a case study for potential legal challenges to Prop 19. Joe mentioned that the upcoming appellate ruling in Qualified Patients Association v. Anaheim could undermine retail sales (though the ruling, since released, did not). He focused on his “greatest loser,” Ross v. RagingWire, in which the California Supreme Court ruled medical marijuana patients can be discriminated against for purposes of employment. Joe’s main takeaway was that Prop 19 expressly does not change our medical marijuana laws, except that it would overturn RagingWire — and would likely lower the price of medicine for patients.

Finally, Sheriff Tom Allman of Mendocino County explained his opposition to Prop 19. He said he supports medical marijuana, but opposes the way it has been implemented in California: by patchwork. He explained that medical marijuana has brought money, and money has brought greed, and greed has brought violence. He sees Prop 19 bringing more marijuana money into the public eye, and thus leading to more violence. His specific stated example for opposing medical marijuana implementation in Mendocino County was “stench,” i.e., neighbors’ complaints about odor from cultivation.

Fewer inmates entering Md., Va. prisons

I’m reposting this article from The Washington Examiner because I was intrigued by the connection drawn between international interdiction efforts and local corrections statistics.

By Liz Essley

Special to The Washington Examiner

Maryland and Virginia kept fewer people behind bars last year, in step with a nationwide trend that saw the first drop in states’ prison populations since 1972.

Maryland held 4.6 percent fewer prisoners in 2009 than in 2008 — one of the biggest decreases in the United States — and Virginia held 0.5 percent fewer.

Nationwide, states housed 0.2 percent fewer inmates, though the federal prison population grew by 3.4 percent.

“It absolutely is unprecedented. And that’s what was shocking for us. Within the available data, going back 10 years, [prison population] had gone up for 10 years. The drop is absolutely unprecedented,” said Baron Blakley, an expert with Virginia‘s Department of Criminal Justice Services.

Maryland’s shift — 1,069 fewer prisoners last year, leaving the state with 22,255 inmates — probably reflects new policing policies in Baltimore, said Marty Burns, a spokeswoman for the Baltimore City State’s Attorney’s Office. About 30 percent of the state prison system’s inmates come from Baltimore, he said.

The number of arrests in Baltimore dropped after 2007, when the police commissioner eliminated the city’s “zero-tolerance” crime policy and police started concentrating on violent, repeat offenders, said Anthony Guglielmi, spokesman for the Baltimore Police Department.

In 2008 and 2009, there were 5 percent fewer arrests, Guglielmi said.

“When you’re reducing the amount at the front of the pipeline, that ultimately will have an effect on the pipeline,” Guglielmi said.

Other factors reducing the number of Baltimore arrests could be tighter budgets and fewer officers, Burns said.

In Virginia, experts say a reduction in cocaine availability is decreasing the number of state prisoners.

The state inmate population was 37,633 in May, down from 38,329 in July 2009.

A 30 percent drop in the number of felony drug arrests over the past few years drove the prison population decline, said Meredith Farrar-Owens, a member of the Virginia Criminal Sentencing Commission.

Police are arresting fewer people for felony drug offenses because cocaine has become less available, according to Blakley. The drug war in Mexico, increased coca eradication in Colombia and an expanding cocaine market in Europe mean less cocaine on the streets of Virginia, he said.

SCOTUS to hear Plata/Coleman Case on the Merits

As reported on SCOTUS Blog, the Supreme Court is ready to hear Plata/Coleman on its merits now. The issues have been framed as follows:

(1) Whether the three-judge court below properly determined that crowding was the “primary cause” of continuing violations of prisoners’ constitutional rights to adequate health care, and that no remedy existed other than issuance of a Prisoner Release Order pursuant to the Prison Litigation Reform Act, 18 U.S.C. § 3626;


(2) whether the system-wide Prisoner Release Orders issued by the three-judge court are “narrowly drawn, extend no further than necessary to correct the violation of the Federal right, and [are] the least intrusive means necessary to correct the violation of the Federal right” in compliance with the PLRA, 18 U.S.C. § 3626(a)(1)(A);

and (3) whether the same court properly gave ”substantial weight to any adverse impact on public safety or the operation of a criminal justice system” in ordering a reduction in population of approximately 46,000 inmates.
See our summary of the District Court ruling here and in the posts that follow.
—————————–
Props to Nolan Shaw for alerting me to this.

Don Specter’s Review of CA Prisons: It’s All About Overcrowding

Don Specter’s interesting and important Federal Sentencing Reporter piece is a good overview of conditions in California prisons to-date. I strongly recommend reading the piece in its entirety. I found this bit particularly interesting:

The belief that a reduction in the prison population leads to more crime is not supported by data or the experience in many jurisdictions that have used early release to reduce their correctional populations. A 2007 study by the National Council of Crime and Delinquency reviewed thirteen reports on the early release of prisoners in the United States and Canada.54 In each case, the crime rates remained the same or declined during the early-release period, and the prisoners released early did not commit more crimes than their counterparts who served the full sentence. In jurisdictions that provided community- based supportive services, recidivism rates declined.


Nor is there a change in the crime rate when correctional facilities cap their populations. From 1996 to 2006, twenty-one California counties released 1.7 million inmates early because of jail overcrowding. During that same period, the number of reported serious crimes dropped by 18 percent. A similar, although less dramatic, reduction in the crime rate occurred during the most recent three-year period.

One reason that there is no direct link between releasing prisoners and crime is that parolees are not responsible for as much crime as the public is led to believe. Although featured prominently in media stories about violent crime, parolees actually contribute very little to the crime rate. A study by the U.S. Department of Justice concluded that parolees account for less than 5 percent of serious crimes.