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California’s Prison-Litigation Nightmare
Activist judges are forcing the state to release prisoners—and crime is spiking.
Autumn 2013
California has spent more than $1 billion to improve conditions in its prisons, but the courts aren't satisfied.
Monica Almeida/The New York Times/Redux
California has spent more than $1 billion to improve conditions in its prisons, but the courts aren’t satisfied.

In 2009, three federal judges in California issued what Supreme Court Justice Antonin Scalia has dubbed “perhaps the most radical injunction issued by a court in our nation’s history.” The state, announced the judges, must release upward of 46,000 prisoners within two years. The injunction was the culmination of two decades of nonstop litigation by prisoner advocates, who argued that the poor health care in California prisons violated the constitutional ban on cruel and unusual punishment.

Since that 2009 release order, California has added well over $1 billion in new prison health-care facilities; correctional experts have declared the state’s inmate care among the nation’s best; and the prison population has dropped by more inmates than are housed in all but a few states. The state has radically reconfigured its criminal-justice system to comply with the court order. Yet the judicial triumvirate shows no signs of relinquishing its hold on the prisons, despite repeated requests from Governor Jerry Brown to do so. The struggle between Brown and the federal judiciary is the most dramatic constitutional battle in years. Time will tell if California’s recent sharp increase in crime is one consequence of the judicial intervention.

California has long been the epicenter of prison litigation. But for cataclysmic force and sheer staying power, nothing beats two massive and now inextricably intertwined class-action lawsuits. The Prison Law Office, California’s leading prisoner-rights organization, filed a suit in 1990 arguing that the mental health care provided to the state’s mentally ill inmates violated the U.S. Constitution. A second Prison Law Office suit in 2001 extended the argument to the entire prison health-care system. Hundreds of judicial orders have flown forth from these two cases, specifying such management arcana as bed planning. Each order was preceded by a furious exchange of motions between the plaintiffs’ attorneys and the state, and was followed by more dueling motions over compliance. Taxpayers pick up both sides’ legal bills, which, from 1997 to 2009 alone, excluding payments to experts, cost $38 million.

The federal judge presiding over the mental health-care case, Coleman v. Brown, installed a special master to oversee mental health treatment. The master’s fees now total $48 million. The judge overseeing the general health-care case, Plata v. Brown, put all prison health care under the control of a federal receiver, with the power to set budgets and make policy. (Though filed long before Brown returned to the governor’s office, the cases now bear his name.) The receiver has forbidden the prison system’s central management from speaking with prison doctors and medical staff without his permission and outside the presence of his own attorneys—a wildly dysfunctional arrangement. California now spends $17,924 per prisoner on medical treatment—six times what Texas spends, four times what the federal government spends in its prisons, and three times New York’s rate. Health care makes up one-third of California’s prison budget.

Notwithstanding undisputed improvements in care, the Prison Law Office expanded its litigation strategy in 2006. Overcrowding, it now argued, was the primary source of the remaining deficiencies in medical treatment. California’s prisons had, in fact, been overbooked for years. Starting in the early 1980s, a series of voter initiatives increased sentences for habitual offenders, a reaction to the quadrupling of the murder rate over the previous decade and a half. (That crime increase coincided with an early effort to divert lower-level criminals from state lockup.) Those lengthened sentences nearly doubled the prison census from 1988 to 2006, but the legislature failed to authorize a construction budget to keep up. “I’ve seen some bizarre overcrowding,” an inmate in an Orange County jail recently recalled. “At one point in Chino, we were given blankets and told to pitch a tent in the rec yard.” Gyms and hallways in lockups across the state were converted into dormitories; the staff struggled to keep order. In 2006, then-governor Arnold Schwarzenegger declared that the prisons were in a state of emergency, the prerequisite to transferring inmates out of state. Stress on infrastructure from the 162,000 inmates increased the risk of power outages and sewage spills, the proclamation stated, which, in turn, threatened to spread infectious diseases to the public.

The Prison Law Office leveraged Schwarzenegger’s order to seek a mass release of state inmates, as provided for by the federal Prison Litigation Reform Act. That act, passed in 1996, sought to rein in the judicial micromanagement of prisons by requiring, among other measures, that prisoner-release motions be heard by a specially convened three-judge panel composed of the federal judge already overseeing a prison-reform case and two outside jurists. The two additional judges would counterbalance any bias that the presiding judge might bring. The attorneys asked the judge overseeing Coleman—Senior U.S. District Judge Lawrence Karlton—and the judge overseeing Plata—Senior U.S. District Judge Thelton Henderson—to convene a prisoner-release panel. Both agreed that a panel was needed; each put himself on it. This would be the first three-judge court constituted over the objections of a government defendant since passage of the Prison Litigation Reform Act.

With a majority already constituted by the two judges who deemed the panel necessary and who happened to be among the most activist trial judges on the West Coast, the only question was who would be the third jurist. U.S. Circuit Judge Stephen Reinhardt got the nod, presumably by random assignment. Reinhardt is not just one of the most liberal judges on the West Coast; he is arguably one of the most liberal judges in the country. Given the entire federal judiciary from which to pick, writes University of Michigan law professor Margo Schlanger, “it would have been hard to populate a court more likely to be favorable to the prisoner plaintiffs than the . . . three judge court.” (For the record: I had the enormous privilege of clerking for Judge Reinhardt and stand in awe to this day of his supreme intelligence and almost musical ear for language.)

A yoga class at San Quentin
Jim Wilson/The New York Times/Redux
A yoga class at San Quentin

After a one-month trial in which the state and the plaintiffs presented dramatically conflicting testimony about the need for a large-scale prisoner release and its likely effect on public safety, the panel found in August 2009 that prison overcrowding was the “primary cause,” in the language of the Prison Litigation Reform Act, of the alleged constitutional violations in health care. The panel ordered the state to reduce the prison population—which, during the trial, stood at 156,000—to 137.5 percent of the system’s design capacity within two years, a benchmark that the panel estimated could require releasing up to 46,000 prisoners. (The issue of “design” versus “operational” capacity has bedeviled California throughout the prisoner-release litigation. The state perversely continues to define its own “design capacity” according to the notion that every cell should house only one inmate, even if it was designed for two, and even though the federal government and every other prison system routinely use double celling. In 2010, the system’s design capacity was for 84,181 inmates; its “operational capacity,” based on the intended use of cells, was 149,624 inmates. By the time the panel issued its order, the prison population had fallen to 150,118 inmates—or within spitting distance of operational capacity.)

Then–attorney general Jerry Brown denounced the court ruling: “This order, the latest judicial intrusion by the federal judiciary into California’s prison system, is a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.” California appealed to the U.S. Supreme Court. In May 2011, a five-to-four majority, led by Anthony Kennedy, affirmed the panel’s population cap in a decision titled Brown v. Plata. Justice Kennedy, already on record as a critic of contemporary incarceration policies, found that the health care provided by the state’s prisons fell “below the evolving standards of decency that mark the progress of a maturing society” and that only a reduction in the inmate census would cure that constitutional violation. The majority’s ruling was the first time that the Supreme Court had ordered a prisoner release, much less one of such magnitude.

Justice Scalia’s blistering dissent claimed that the panel’s “factual” finding that a prisoner release would likely improve public safety, not harm it, was grounded in the judges’ policy preferences, rather than in any true findings of fact. Justice Samuel Alito, also dissenting, charged that the panel’s decree represented precisely the judicial overreach that the Prison Litigation Reform Act “was enacted to prevent.” The judges had a duty to assess the constitutionality of prison health care at the time they issued their release order; instead, they based their remedy on outdated evidence from as long as 14 years ago, including the conditions of a facility that had been replaced. The panel cited mortality figures from 2005, but likely preventable deaths had fallen 83 percent by 2007. From 2001 to 2007, 37 state prison systems had an average mortality rate higher than California’s, without calling down the federal judiciary’s wrath. In an observation that would only grow more apt over the next two years, Alito noted that the lower court had ignored the extremely high standards for finding an Eighth Amendment violation. The panel had cited, among other pieces of evidence, the lack of “appropriate confidentiality” during medical intake exams. Since when, Alito wondered, does a prison’s failure to provide private consultation rooms constitute “cruel and unusual punishment”?

In a harbinger of battles to come, the now-affirmed three-judge panel rejected the state’s initial plan for meeting the 137.5 percent cap as too flexible and required it to start submitting monthly as well as semiannual population-reduction reports. That requirement itself spawned a subgenre of rapid-fire dueling motions, with such titles as “Defendants’ Opposition to Plaintiffs’ Renewed Motion for an Order Requiring Defendants to Demonstrate How They Will Achieve the Required Population Reduction by June 2013.”

Meanwhile, the panel’s population-reduction order had triggered profound criminal-policy changes. In May 2011, at the urging of now-governor Brown, the Democrat-controlled California legislature passed what Stanford University law professor Joan Petersilia calls the “biggest penal experiment in modern history.” Assembly Bill 109, known as “realignment,” would lower the prison count by sentencing certain felony offenders to county jail instead of state prison and by virtually eliminating parole supervision. Giving up on parole supervision is a perverse but simple solution to the alleged problem of too many parolees winding up back in prison for violating parole. In anticipation of the new realignment policies, Brown canceled $4.1 billion in previously authorized prison-construction bonds that would have added another 53,000 prison beds. That new construction was no longer needed, Brown said, since realignment would keep convicts out of prison in the first place.

AB 109 is nightmarishly complex and has produced a host of wholly foreseeable and potentially disastrous burdens on county sheriffs and city police departments. It did generate one intended effect: it greatly accelerated California’s already falling prison count. After realignment began in October 2011, the prison population dropped nearly 10 percent in the first three months alone, mostly because of the disappearance of parolees no longer getting punished for parole violations. From 2011 to the start of 2013, the prison count fell 24,000, and is now—at 120,000—at the lowest level in 17 years and well below the 150,000-person “operational” capacity of the prison system. The majority opinion in Brown v. Plata had featured—quite unusually—two outdated photos of bunk beds in prison gymnasiums. By February 2012, such nontraditional beds were gone, as was evident on a visit in August 2013 to the California Institution for Men in Chino. A dayroom outside a high-security block, once filled with beds, now contained only a TV and a single inmate watching it.

California has also invested heavily in new medical facilities and staff. A prison hospital at Stockton with 1,722 beds—1,622 of them for long-term and intensive mental health care—opened this summer, at a cost of $840 million. Hundreds of additional hospital beds have been added and treatment and office space constructed up and down the state. Most offenders get better medical care in prison, with greater access to specialists, than they would in their own neighborhoods, as reflected in part by a comparison of mortality rates in and out of prison. “How many of us ever have 18 people helping us get less depressed?” asks a correctional consultant who has sat in on lengthy discussions of an inmate’s mental health treatment plan.

In early January 2013, Jerry Brown did the unthinkable: he asserted that California was capable of operating its prisons. The “prison crisis is over,” Brown declared at a Capitol news conference. “We spent billions of dollars” complying with the court orders; highly paid attorneys are now “running around the prisons looking for problems” and trying to “gold plate” the system, he said. “At some point, the job’s done.” Brown backed up his words with actions. He asked Judge Karlton, who oversees Coleman, the mental health-care litigation, to terminate the case on the ground that the level of care provided to mentally ill inmates far exceeds the minimal constitutional standard. And he asked the three-judge panel to vacate its 137.5 percent population cap. The outraged reaction from the judicial triumvirate and its agents shows how difficult it will be for the state to extricate itself from their control.

The state’s motion to terminate Coleman presented two powerful expert reports about the current state of mental health care. “Few—if any—correctional systems have [California’s] diligent provision and self-monitoring of mental health care,” wrote one group of experts. That care places California “in the upper echelon of state prison mental health systems.”

The report’s lead author, clinical psychologist Joel Dvoskin, had testified against the state in Coleman in 1994 and is currently under contract with the Civil Rights Division of the U.S. Department of Justice to evaluate the Los Angeles County jail. The improvement in California’s mental health service-delivery system between 1994 and today “is remarkable and dramatic,” Dvoskin and his team wrote. The state provides “types of care that do not exist elsewhere.”

The Dvoskin report did note deficiencies, but they hardly rise to the level of cruel and unusual punishment: inmates at Salinas Valley State Prison sometimes had to choose between yard time and their mental health treatment groups, for example, and a recreational therapist at Pelican Bay was forced, owing to staff shortages, to stand outside the inmate exercise area, thus preventing meaningful recreation therapy. Both situations were being rectified.

The constant oversight by the court and the special master was by now vastly counterproductive, the review team noted. The California prisons are “subject to more micromanagement and detailed scrutiny than any correctional system in history,” they wrote. Staff spend inordinate amounts of time preparing for the master’s visits, instead of providing care. The master’s grip depresses initiative and innovation, since staff believe that they need his approval for any change.

Another former critic of the department authored the state’s second expert report. Steve Martin, a use-of-force consultant for the Justice Department’s Civil Rights Division, had testified against the state in three class-action lawsuits involving mentally ill inmates in the early 1990s. The difference today, Martin told the Coleman court, is “striking.” The state’s “fully transparent, constantly evolving protocols” for controlling the use of force are “among the very best of any such systems with which I am familiar,” Martin wrote.

Judge Karlton scathingly rejected the state’s motion to terminate on April 5, 2013. Karlton threw out the state’s expert reports, on the debatable ground that their authors had spoken to inmates outside the presence of plaintiffs’ counsel. The state consultants had asked randomly selected inmates such allegedly incriminating questions as whether they knew the name of their primary-care doctor and psychiatrist and how to contact them, what psychotropic medication they were taking, and how to schedule an earlier appointment for care if they needed one. The inmates’ affirmative answers were “very unusual,” the experts concluded. If these interviews contributed in any way to the experts’ conclusion that the care was now constitutional, Karlton held, they would be using the inmates’ statements against them, without the benefit of counsel. In Karlton’s universe, the prisoners’ interests lie exclusively in the indefinite prolongation of the litigation, no matter the diversion of scarce resources from care that that litigation entails.

Without the expert reports, Karlton noted triumphantly, he would have to deny California’s motion because the rest of the state’s evidence (hundreds of pages of affidavits and data) was insufficient to prove that the mental health care was now constitutional. Further, the fact that the state had not reached the 137.5 percent population cap ordered by the three-judge panel would also seem to dispose of its current motion, he said, since the panel had ruled that the state could provide constitutional care only by reaching that cap. (In one of the many Catch-22s now binding the state, the panel would announce six days later that it could not modify its population cap because, among other reasons, the Coleman court had just declared prison care still unconstitutional.)

As a consolation prize to the state, Karlton magnanimously volunteered to review its other evidence, anyway. His reasoning demonstrates the infinite regress that California now finds itself in. Bear in mind the extremely high constitutional standard for finding an Eighth Amendment violation: the plaintiffs must show that the state is “deliberately indifferent” to “severe and unlawful mistreatment” of its inmates. What, according to Karlton and the special master, Matthew Lopes, is California’s “severe and unlawful mistreatment” of its mentally ill inmates? One-third of the men’s prisons do not “adequately” track patient referrals to higher levels of care (note: those deficient prisons actually give inmates that higher level of care, and within the time frame prescribed by the special master), and over two-thirds of the men’s prisons do not “timely complete” the accompanying paperwork. Equally shocking, the state has not yet refined and implemented its Internet-based mental health tracking system “to its fullest extent and benefit.”

Karlton also found—relying, as usual, on old data—that the level of inmate suicides was too high, especially those that involved “at least some degree of inadequacy in assessment, treatment, or intervention” and that were therefore “most probably foreseeable or preventable.” According to Karlton and the special master, the state should have foreseen the suicide of Inmate H, an illegal alien facing deportation. H had told his psychiatrist that he would be going home to Mexico and that his mother was there. Since H’s mother was already dead, the psychiatrist should have divined that H was signaling his intention to return to Mexico as a corpse himself. Instead, the psychiatrist discharged him from suicide watch to a lower level of mental health care.

How could a judge equate such ministerial failings and good-faith errors of judgment with “deliberate indifference” and “cruel and unusual punishment”? The short answer: he doesn’t. The most powerful sleight of hand that the Prison Law Office, the special master, and the receiver have accomplished, with the full acquiescence of the triumvirate, is to substitute a “best practices” standard of care for the de minimis constitutional standard.

Years ago, the state signed on to a massive tome known as the “Revised Program Guide” for inmate mental health treatment. That guide, devised by the special master, sets out in excruciating detail ideal procedures for every aspect of mental health treatment and administration. And it has now become the standard that the state must meet to get out from under court oversight. If the state doesn’t comply with the guide’s every last requirement—many concerning paperwork—it is now held to be a constitutional blackguard. Thus it is that the special master can argue that the state is still violating the Constitution (and therefore still in need of his costly oversight) because only a handful of prisons perform follow-up consultations with inmates discharged from crisis care within the five-day time limit that the guide prescribes. (Lopes’s sky-high fees apparently don’t come with a guarantee of timeliness on his own part. He routinely files his 600-page reports up to a year late, thus belying the purported urgency of their content.)

But this legerdemain is not the most galling aspect of the judicial regime under which California now labors. Every voluntary effort by prison administrators to improve inmate care is now seized upon as an admission that the care is constitutionally deficient. California requested additional funding for health-care infrastructure. You see? announced the three-judge panel—that proves that treatment space is insufficient, and thus unconstitutional. The state’s 2012 “Blueprint” for improving the prison system observed that some facilities were aging—another damning admission that solidified the judges’ power. But according to that criterion, every prison system in the country should be under federal receivership. On its own initiative, California hired a nationally recognized expert in suicide prevention to advise it on how further to reduce inmate suicides. The state implemented several of his recommendations, but not all. Rather than giving it credit, Karlton blasts it for not contacting him again.

A prison system that contracts in good faith with a suicide-prevention specialist would not seem to be “deliberately indifferent” to “mistreatment” of its inmates. The evidence that the judges use to show the state’s malfeasance actually demonstrates the opposite proposition.

Less than a week after Karlton dismissed the state’s motion to terminate Coleman, the three-judge panel also denied California’s motion to modify or lift the population cap. (Karlton was now wearing his three-judge panel hat, of course, and primly citing the “Coleman court” as an independent authority on such matters as the constitutionality of care.) The state had argued that the size of the prison population no longer impeded the delivery of prison health care; indeed, it said, that care now far exceeds the minimal constitutional standard, thanks both to the huge investment in new treatment capacity and to the record-breaking drop in the prison census—nearly 42,000 fewer inmates since the plaintiffs filed their motion to convene the three-judge court. California had virtually eliminated preventable inmate deaths: in 2011, only two deaths occurred that were likely preventable, the lowest rate in the state’s recorded history, and one was caused by an outside provider. In 2006, by contrast, there were 18 likely preventable deaths. The inmate suicide rate was equal to or lower than that of 20 other state prison systems and roughly equal to that of the male population at large. Medical positions were close to fully staffed. And the state could not meet the panel’s mandate without releasing prisoners who posed an unacceptable risk of violence and other crime.

In asking the panel to reevaluate its order in light of current prison conditions, California was merely following the invitation of Justice Kennedy in Brown v. Plata. Kennedy had admonished the panel to be open to modifying its mandate if the state had made “significant progress . . . toward remedying the underlying constitutional violations.” Kennedy even noted that any drop in preventable or possibly preventable deaths should be among the pieces of evidence that the panel should consider.

The panel refused to budge, asserting in an almost impossibly complicated and logic-chopping opinion that its 137.5 percent population cap was essentially unchallengeable. The figure represented a “legal conclusion,” the court claimed, and parties to a lawsuit were not entitled to reopen judicial findings of law after a judgment has been handed down. This doctrine, known as res judicata, is designed to prevent re-litigation of already decided cases. California is telling us, the panel said, that we “erred” in concluding that the 137.5 percent population figure was an essential prerequisite to providing constitutional care. But res judicata prevents the state from launching such an accusation, according to the court.

Well, yes, the state in effect is saying that the triumvirate erred. But if such a reevaluation violates res judicata, then the Supreme Court itself is guilty of advocating the violation. (There is, to be sure, a perhaps irresolvable conundrum in the dual jurisdiction of the single judge and three-judge courts over the evaluation of care, but the panel did not rest its decision on that tension.) And California was not, pace the panel, seeking modification “based solely on a contention that some time has passed.” It was arguing that the improvements in health care since the panel issued its 2009 order justified modification. Moreover, as the panel itself acknowledges, as if this were a defense of its intransigency, the population cap was a “predictive judgment . . . fraught with uncertainty.” But it is precisely because the cap was a prediction, not a finding of law or even of fact, that the court should be willing to reconsider it in light of current conditions. In a case as complex as this one, involving such a monumental intrusion into the legitimate functions of state government, a court should be flexible in the exercise of its power.

The panel’s distortion of California’s position was of a piece with the rest of the opinion. In the early years of the litigation, the plaintiffs, the health-care receiver, and the judges had invoked the state inspector general’s low ratings of prison care to buttress their arguments that the care was unconstitutional. Now that the inspector general had declared that overcrowding was no longer impeding care and had awarded high marks to the vast majority of facilities, those same parties reject his findings, impugn his rating system (which was established by the receiver himself), and, in the case of the plaintiffs, question his independence.

After commending itself for its “exceptional restraint” in dealing with such an obstreperous defendant, the panel concluded by ordering California to submit to it every population-reduction measure that the state had ever considered, in the state’s order of preference, and to identify which measures would require a waiver of California law. On May 2, 2013, California responded under protest, with a dizzying list of complicated mechanisms for getting felons out early—increasing “milestone-completion credits” for violent and second-strike offenders who had merely participated, however briefly, in a program, say—all matters outside the judiciary’s institutional competence. The state refused to rank the measures according to preference, saying that it opposed them all, and again asserted that it was now running the best prison system in the country. In this filing, however, the state more urgently raised the complex political situation that the panel was ignoring. Realignment had radically reduced the prison population by diverting newly sentenced and paroled offenders to county supervision; critics of that policy were seizing on the crimes committed by realigned felons to argue for the repeal of AB 109. Jails were releasing criminals early because of the crush of new offenders redirected their way. The state’s Democratic Assembly and Senate leaders had announced that any new law requiring the early release of state prisoners would be dead on arrival. Asking the counties to shoulder a prisoner release on top of their existing burdens could obliterate realignment’s already tenuous political support and reverse the progress made to date.

One might think that any federal judge, conscious of the limits of his own knowledge and democratic legitimacy, would tread carefully in light of such large-scale, evolving, and poorly understood changes in the criminal-justice system. No such luck. On June 20, 2013, in a breathtaking assertion of judicial power, the panel declared that it was “compelled to enforce the Constitution,” since the state had purportedly guaranteed the perpetuation of constitutional violations into the indefinite future. It then proceeded to waive any California law that stood in the way of the release of 9,600 convicted felons. It ordered the state to expand the “good-time” credits available to violent and second-strike offenders (such credits reduce a sentence for time spent behind bars without incurring serious discipline). This retroactive award of credits to violent convicts paved the way for their immediate release without parole board approval or notification to their victims, as formerly required by now-superseded state law. Presumably to insulate itself from future recriminations, the panel added in a footnote that it would allow the state to write regulations requiring that no one deemed a particularly serious threat to public safety be prematurely released. The state was to submit a list of the offenders it intended to release and to report to the court every two weeks on its progress. The triumvirate viewed the political opposition to a prisoner release as all the more reason to enforce it. It set the end of the year as the deadline for the state to comply.

In the reams of documents that have poured forth from the triumvirate, the special master, and the receiver in 2013, it is their belief in their own crucial importance to prison operations that comes across most strongly. The panel’s June 20 prisoner release order quotes extensively from the receiver’s May 2013 Twenty-Third Tri-Annual Report. Receiver J. Clark Kelso notes lachrymosely that “the substance and tone of leadership set by State officials has changed from acquiescence bordering on support for the Receiver’s work, to opposition bordering on contempt for the Receiver’s work and for implementation of court orders, including the orders of the Three Judge Court.” If that tone has changed, it is because Kelso keeps raising the bar on what it takes to achieve compliance. State leaders have had the impertinence, Kelso complains, to observe that “reports from the Special Master are not worth reading or following”—in fact, those inevitably late reports are virtually impenetrable. But most outrageous, from Kelso’s point of view, is the state’s announcement that it “stands ready immediately to take over prison medical care from the Receiver notwithstanding the State’s shortcomings.” How dare it assert such independence?

It has been apparent for some time that the health-care issue has become a pretext for a broader policy of de-incarceration. High-stakes legislative maneuvering in late summer called the advocates’ and the judges’ bluff. Governor Brown submitted a bill in August to meet the panel’s 9,600-inmate population-reduction order by leasing additional capacity, including out of state, and reopening previously shuttered facilities, rather than releasing offenders to the streets. Democratic State Assembly Speaker John Perez, who has criticized the triumvirate for “running the prison system,” backed Brown’s proposal, as did state Republicans. If the advocates were motivated solely by concern about the burden that (alleged) overcrowding poses on prison health care, they should be indifferent to the means that the state uses to reduce it. Instead, the Prison Law Office’s lead attorney, Don Spector, groused that leasing more space would be “an incredible waste” of money “for no benefit to public safety”—unlike, apparently, early releases.

Things got more interesting a day later, when the Democratic Senate president pro tem Darrell Steinberg proposed seeking a three-year extension of the panel’s population-reduction order in exchange for an extra $200 million in rehabilitation funding and the formation of a panel to reduce the state’s sentencing laws. This proposal presented a new test: if overcrowding were, in fact, posing a dire risk of harm to the state’s sick prisoners, the three-year extension should be unacceptable to the plaintiffs’ bar. Instead, it welcomed Steinberg’s plan. “Sen. Steinberg’s substantive proposals are acceptable to us and we are open to an extension,” the Prison Law Office announced. In other words, the urgency of meeting the triumvirate’s 137.5 percent population figure was a sham.

Brown and Perez reached a compromise with the Senate president, and on September 16, pursuant to a newly enacted law, the state asked the panel to extend its December 31 deadline by three years. If the panel agreed to an extension, California would deposit up to $225 million into a Recidivism Reduction Fund for community-based social programs; if the panel refused to lift the deadline, the state would go forward with Brown’s plan to lease additional cell capacity to avoid early releases.

The panel responded on September 24 with yet another startling assertion of power. It banned California from entering into any contracts regarding out-of-state cells and ordered the state to discuss with the plaintiffs how “this Court can ensure a durable solution to the prison crowding problem.” The panel suddenly expanded its purview to juvenile offenders, adding them for the first time to its preferred candidates for early release. The panel gave the state a one-month extension of its population deadline to confer with the plaintiffs.

Brown immediately filed a brief with the Supreme Court, supplementing his existing appeal of the panel’s June 2013 release order. The panel had cited no authority in the Prison Litigation Reform Act or elsewhere that gave it the power to limit California’s sovereign authority to enter into contracts, the brief noted, especially ones related to core police functions. The panel’s orders by now are bald attempts to legislate criminal-justice policy, the state alleged, by releasing inmates whom it and the plaintiffs do not believe should be incarcerated. On October 15, the Supreme Court rejected all of the state’s outstanding appeals with a single cryptic sentence, citing a “want of jurisdiction.”

The three-judge panel has unquestionably made a fetish of its population cap—“I never would have lopped on that 0.5 percent,” says a corrections expert. “To establish such a precise figure? C’mon! All of us in the business know that that number is arbitrary. There are so many other variables than population to whether prison conditions spill over into harm.”

But the state could be accused of making a fetish of its opposition to early releases as well. Early releases are obviously a political hot button, but they don’t change the basic calculus of incarceration: most offenders come out at some point, anyway. All sentences are arbitrary—a sentence retroactively shortened from 18 months to 12 could originally have been set at 12 months, and no one would have noticed or objected. True, early releases enable criminals to start re-offending a few months earlier, but they don’t change the likelihood of their committing another offense. To avoid lessening prisons’ powerful incapacitative effect, the incarcerated should never be let out at all, or be let out long after prisoner menopause has set in.

But in California’s present criminal-justice environment, an early release of 9,600 offenders would impose a significant additional burden on local law enforcement and could well have a greater-than-expected effect on crime. Realignment has produced an upheaval in California’s criminal-justice system. “The United States has never experienced . . . what is going on in California” because of it, writes Petersilia. An unprecedented 90,000 offenders were removed from correctional control and let loose through 2012 alone. County sheriffs and police departments are already struggling to oversee the new crop of offenders that AB 109 has sent their way; giving them thousands more in one stroke would be asking for trouble. The panel’s refusal to take judicial notice of realignment’s effects to date is a grave mistake.

James Mendez, 34, is typical of the new class of criminal that realignment has dumped on the county jails. Bald and goateed, with a slender face and soft brown eyes, the tattooed gun trafficker is in a high-security wing of the Theo Lacy jail in Orange County. Mendez began his criminal career as a juvenile and proceeded to rack up a complicated incarceration history in federal and state penitentiaries for various gun and drug charges. “I’ve never completed a sentence in one prison, but get bounced from one prison to another for disciplinary issues,” he says, adding judiciously: “I’ve been a management problem, but I have my reasons.” He also has a “reason” for his “bad luck” with weapons charges.

He is in Lacy, a squat jade and taupe postmodern edifice across from a shopping plaza, on a drug conviction and for absconding from parole. Both charges would have sent him to state prison in pre-realignment days. But since the drug offense is “nonviolent” and “nonserious,” it falls into the large category of felonies (virtually all the drug and property crimes in the penal code, according to Hastings law professor Aaron Rappaport) that must now be served in county jail, not state prison. Mendez has brought his lifetime of prison habits with him. “I’ve been in trouble here since I’ve been sentenced,” he says—“fighting, contraband, disrespect to staff.”

Thanks to inmates like Mendez, the Orange County jail system has seen a 35 percent increase in inmate-on-inmate assaults and a 200 percent increase in drug incidents. “The AB 109 offender is more criminally sophisticated,” says Assistant Sheriff Lee Trujillo. “He has a longer record and is bringing prison politics into the jails.” Asked if there are prison gangs in the jail, Mendez smiles beatifically and, like every jail inmate to whom I pose that question, says that he prefers not to answer. The realigned offenders are sucking up staff resources, since 50 percent need protective custody (meaning that they are from gangs or have committed offenses against children, which puts them at risk of retaliation). Everything that the AB 109 felon does in jail, including work, requires more supervision.

Offenders waiting in the lobby of the Orange County Probation Department attest to the changed jail population as well. “There’s more violence in the jails because it takes so long for people to get picked up and sent to prison now,” reports a 21-year-old pusher.

Despite Mendez’s discipline problems, he will be released on schedule, having lost none of his automatic good-time credits for his fractious behavior. Most worrisome, he will still come out with no parole or probation supervision, as AB 109 allows. Of all the myriad changes wrought by realignment, this gutting of parole supervision will undoubtedly prove the most consequential.

California once put nearly all felons on parole when they left state prison and returned them there if they violated parole—a costly overreaction, according to conventional academic wisdom. Now, no felon sentenced to county jail under realignment comes out with any post-release supervision, unless the sentencing judge expressly orders it by splitting his sentence between jail and supervised time in the community. Mendez’s attorney made sure that he would come out without supervision. And if a realigned felon does leave county jail with supervision (now provided by county probation departments, rather than the state parole agency), that period of oversight is much briefer than parole supervision was, and punishment for violating it is briefer still. Most crucially for the effort to decrease the prison population, punishment for violating parole (now called post-release community supervision) is served back in the county jail, rather than in prison. State parole officers now supervise only convicts whose most recent offense was violent, and only parolees who had been sentenced to life (but were nevertheless released) may be returned to prison for a parole violation.

Before AB 109, the California Institution for Men in Chino had three reception centers to accommodate parole violators; parole agents used to “just roll up to the gates and drop off vanloads of them,” recalls a correctional officer there. Now two of those reception centers have been turned into housing units. But if the decimation of parole has provided a short-term benefit in eliminating prison overcrowding, that gain may prove a Pyrrhic victory if unsupervised ex-cons go on a crime spree. The academic doctrine behind realignment held that so-called technical parole violations—violating the conditions of parole by fraternizing with gang members, say, or missing an appointment or testing dirty for drugs—are largely innocuous. But a technical violation can signal a more serious problem. “Pressure to make me do something makes me not do it,” Mendez says, explaining his history of parole violations. Now that he will be getting out of Lacy with no parole or probation supervision and “I don’t have to run from nobody,” he says, “I can just live.” His neighbors, however, may not be so confident in his latent self-control and may wish that he had someone regularly checking up on him. His employment record is spotty, at best—he claims, unconvincingly, to have family connections to a cement finisher willing to hire him. Is his wife employed? (She shows up as a full-lipped seductress among a bevy of tattooed females on his left arm.) “She’s an American Indian,” he replies, as if that answer is self-explanatory.

For some criminals, especially neophytes, the reduction of the maximum punishment for a parole or probation violation from one year to six months may not diminish its deterrence value. UCLA’s Mark Kleiman persuasively argues that for some subset of criminals, it is the swiftness and certainty of punishment that matters most, not its duration. For this group, a night in jail is enough to get their attention and push them back into compliance with the law. But for a hardened offender, the shortened sentence for violating probation and parole means less deterrence. “People aren’t as scared now,” says a violent homeboy in the Orange County jail. “Hanging out with a gang member used to get you, like, one year. Now, it’s three months, so screw it.” (The maximum punishment for a parole violation is now six months, but this AB 109 expert reasonably assumes an automatic award of good-time credits, which would cut the sentence by half.)

You might think that AB 109 would be a hit with criminals. Not only does it radically reduce post-sentence supervision; it also keeps offenders in their home communities when they serve time, instead of sending them to a distant state prison. Moving incarceration to local county jails, nearer to family, was supposed to aid rehabilitation. In fact, criminals overwhelmingly prefer prison to jail. Robert, a 42-year-old member of Santa Ana’s infamous F Troop gang, has served three prison terms, including for car theft. He is now waiting to see his drug counselor in the Orange County Probation Department after the husband of the woman he was “messing with” reported the three pipe bombs he had in his car trunk. “I loved prison. They give you more freedom,” he says. “The way jails are now, they are far worse. The last time I checked, Lacy has a $200,000 budget for movies, but they don’t give it to you.”

“Being in jail sucks,” says Bryant Islas, a rapping, meth-dealing member of Santa Ana’s Alley Boys gang. Islas is currently in Lacy awaiting retrial for a 2011 attempted gang murder, committed while Islas was AWOL from an Orange County drug rehab program. His ubiquitous tattoos—SO FUCKING SICK across his forehead (“It’s a little saying amongst us guys,” he chuckles) and the usual Aztec-Mayan Brown Power iconography—attest to his deep expertise in prison culture. “The guards are more respectful to prison inmates. Here they try to challenge us and we get in fights. There’s substance abuse treatment in prison, and anger management and school. They offer a lot of stuff—parenting, you can get certified.”

Ironically, several jail inmates tout the prison medical care. “In prison, the medical care is free. Here, they charge you,” says Islas. He had been carrying around a bullet in his stomach from a gunshot to the back. The last time he was in prison, he decided, “Why not take it out?” He put in a medical slip and was seen in three days. (The surgeon gave him the bullet, which he has since lost.) “I thought the care was pretty good,” he says. “The complaining comes from the older lifers. A lot of the dudes fake psychiatric problems.”

A blond carjacker in hiking boots, shorts, and no shirt in the Chino men’s prison did accost me to grouse that “the doctors aren’t as good here compared to other institutions” that he has frequented. He only sees his cardiologist every four to five months, instead of every three months, and he is supposed to be on Coumadin but is taking aspirin instead. Neither failing would seem to rise to the level of a constitutional violation.

Some AB 109 convicts are even pushing to get back into prison. Islas recently came across one of the bizarre consequences of realignment: an AB 109 offender serving a whopping ten years in jail with half off for good time. Why didn’t you go to prison? Islas asked him. “I tried to,” he responded, “but my commitment offense was not violent.”

Early releases from jails have shot up, including of violent offenders. Jails have much greater discretion to release inmates early than do state prisons, which had been banned from doing so by statute and the California constitution until the triumvirate canceled those laws. By March 2012, just five months into realignment, county sheriffs across the state were granting early release to 11,000 offenders each month, thanks to AB 109–induced overcrowding. The Fresno and San Joaquin County jails are not taking in any more parole violators because they have no room. Sex offenders have been cutting off their electronic monitoring bracelets with impunity because they know that they won’t be sent back to prison and there is little room in the county jails to lock them up. Arrest warrants for GPS tampering by fugitive sex offenders rose 65 percent from October 2011 through all of 2012, reported the Los Angeles Times in April. A sex offender in San Joaquin County who had violated parole 16 times without punishment, including cutting off his ankle bracelet, went on to rape and kill his grandmother, reported CNN over the summer.

In response to such incidents, Democratic state senator Ted Lieu introduced a bill to make a sex offender’s tampering with his GPS device a felony punishable by up to three years in prison. The idea could not survive the triumvirate’s grip on California’s criminal-justice system. To avoid putting any pressure on the prison-population cap, Lieu’s final bill—even then opposed by the Public Defenders Association and the ACLU of California—merely reconfirmed the realignment status quo. GPS-tampering sex offenders would serve 180 days (already the maximum allowed under realignment for any kind of parole violation) in county jail, not prison, for their first removal; subsequent tampering would land the offender in jail for up to a year. Other inmates will undoubtedly be bumped to make room.

County probation departments, now responsible for the vast majority of offenders given post-release supervision, are as overwhelmed by realignment as county jails. “This population was thrust on the counties without giving them the opportunity to build an infrastructure to monitor them,” says Margarita Perez, assistant chief probation officer for Los Angeles County. “The administration has put a spin on this that these are low-level offenders. I had these guys on my caseload when I worked as a parole officer. The population that has been diverted—addicts, car thieves—is the most problematic. They violate the most often. And you’re going to get cases that fall through the cracks.”

Probation departments traditionally had supervised the most reclaimable misdemeanor offenders, and certainly not the felons now being channeled to probation. Few probation officers are trained to carry guns. To beef up their muscle, many probation departments are partnering with local police to do home compliance checks on AB 109 offenders, even though police agencies themselves have no manpower to spare. The Los Angeles Police Department will spend $18 million in 2013 sending about 160 officers to do home visits on 5,400 ex-cons. About 57 percent of those AB 109 felons have already been arrested for new crimes or a probation violation, according to the Los Angeles Times; about a fifth are absconding at any given time.

In June, an AB 109 offender hiding in his attic in South Central Los Angeles opened fire on a compliance check team, hitting an LAPD officer in the face and grazing the probation officer. At least there was no violence one day in July, when a task force of police (and no probation officer) from across the San Gabriel Valley tried to track down a set of AB 109 probationers in Baldwin Park. Their first stop: a bungalow owned by Mexican drug lords and bristling with surveillance cameras, on a barren lot on an equally barren street. The FBI had been monitoring the compound and had asked the team to parade out the probationer, in order to create the impression that he was the extent of the law enforcement interest in the property. Two pit bulls lunged at the compliance team and barely escaped getting shot. But the probationer, “Darts,” living in a trailer at the back of the lot, presumably guarding the drug stash, came out quietly.

Darts’s record includes car theft, burglary, a long list of DUI convictions, and a $30,000 bail warrant issued for him on another offense; the team was arresting him this time for absconding from probation. Slender and compact, he complied like a professional during booking at the station house, while a gang detective cataloged his Mexican Mafia tattoos. His arrival at the Baldwin Park police station, however, required moving a fantastically reeking, high Irish Pride gang member into the next pen for his own safety.

No one was at home at several other locations, but the team did find Martha, a 42-going-on-62-year-old gang member with slurred speech, a shock of white through her pepper-gray hair, and minimal teeth. Two officers searched her slovenly bedroom for contraband while the rest of the team bantered with her and her pregnant daughter. The search turned up only a few empty meth bags, a gang scrapbook with an old newspaper clipping about a fatal shooting, and the meth-head’s usual DVD porn collection. A veteran of drug-treatment programs, Martha supports her meth habit with her General Relief welfare check (“The check’s not much,” she says—$200 monthly, which, in fact, isn’t a lot, considering her gram-a-day habit) and by “clucking” (fencing stolen goods). Her daughter is also collecting welfare for her unborn child. Everyone parted amicably.

While this day went without incident, Margarita Perez’s prediction that some AB 109 offenders will fall through the cracks has been borne out. In November 2012, a Filipino gang member, Ka Pasasouk, killed four people outside a boardinghouse in Northridge, northeast of Los Angeles. Though carrying a previous robbery conviction, he was on county probation supervision because his last offense was for car theft. A judge had decided to let him go free after an arrest for meth possession two months before the quadruple murder. In March 2013, Tobias Dustin Summers kidnapped a ten-year-old girl from her bedroom in Northridge during a burglary and raped her; Summers was an AB 109 probationer, despite a record of kidnapping, robbery, explosives possession, and petty theft.

The Republican opponents of realignment are busily collecting such cases to use in the next gubernatorial election, but these incidents, however horrific, do not in themselves prove that realignment is a failure or a misguided policy. Traditional parolees have committed heinous crimes in the past, including after having served long sentences. And such miscarriages of justice could be counterbalanced over the long term by less visible positive effects from realignment, including from decreasing offenders’ exposure to criminogenic prison culture. Nevertheless, the first full year of crime data after realignment is not reassuring. California’s crime rate is up considerably over the national average. The differences are starkest regarding theft, which is precisely the category of crime most affected by AB 109. Nationally, property crime was down 0.9 percent in 2012; in California, it was up 7.6 percent. Car theft nationally was up 0.6 percent; in California, it jumped 14.6 percent. Burglary nationally was down 3.7 percent; in California, it was up 6.6 percent. Violent crime also showed a disparity: murder rose nationally 1.1 percent, compared with 4.7 percent in California; robbery was down 0.1 percent nationally, while California saw a 3.9 percent rise. The state’s tally would have been worse had Los Angeles, the California city most committed to proactive policing, not shown a crime drop. San Bernardino, for example, experienced a 64 percent increase in car thefts in 2012; and Pomona, a 16 percent increase in robberies.

The state’s recession-decimated policing budgets cannot be the explanation for the national crime disparity; police budgets are down everywhere. A San Bernardino public defender has an explanation: “We were over-incarcerating before; now we are under-incarcerating.” Still, one year of data does not make a trend, and there could be other reasons for California’s outlier status. And even if last year’s crime spike is due to the surge of early releases from jails and the decline of post-release supervision, maybe the new regime simply needs time to work out the kinks.

If California’s disproportionate crime rise persists, however, de-incarceration advocates will just say that the state is still relying too heavily on incarceration and not spending enough on rehabilitation. AB 109 encourages counties to fund “evidence-based” treatment programs in lieu of law enforcement. It would be wonderful if such successful alternatives existed. Prison is a squalid, depressing affair that too often worsens a criminal’s antisocial habits. It puts the taxpayer on the hook for a criminal’s ever more expensive upkeep. But prison does one thing very well: it prevents crime on the streets while a criminal is locked up. The proof that “evidence-based treatment” can have a similar effect on crime is not there, at least not yet. Of the 23 programs listed on the federal website for evidence-based anti-recidivism, only one—for burglars in England—has been shown to work, notes Joan Petersilia, herself an advocate of alternatives to incarceration. “We don’t have the models, we can’t replicate them, and if we can replicate them, we can’t scale them up,” she told the National Institute of Justice in 2012. And it is virtually impossible to find a previously incarcerated criminal who has not been offered programs or, almost as likely, participated in them numerous times. Here again, though, the anti-incarceration advocates can say that those weren’t the right programs, at the right treatment intensity.

Meanwhile, the litigation onslaught is accelerating. In July, the Prison Law Office reopened a branch of Coleman that had long since been disposed of. It asked Judge Karlton to order the Coleman special master to hire his own use-of-force expert to conduct a “comprehensive review” of the use of force against mentally ill inmates—somewhat akin to “ordering” an ice cream addict to buy some Häagen Dazs. “The state is never going to be free of this case,” a consultant close to the litigation says. In Plata, the plaintiffs and the receiver have seized on the incidence of Valley Fever, an airborne bacterial infection, in two Central Valley prisons, to argue that California still cannot run its prison system. (Kelso had told the state that it should transfer out black prisoners, who are more susceptible to the infection; the state delayed while seeking confirmation from the Centers for Disease Control that such a race-based policy was needed, thus proving its managerial unfitness, per Kelso.)

And in a long-anticipated, final pincer movement, the Prison Law Office has started suing jails for overcrowding-induced health-care deficiencies. Fresno, Riverside, Monterey, and Alameda Counties have all been hit; “every sheriff up and down the state is worried,” says Orange County sheriff Sandra Hutchens. The jails are easy targets: designed for short-term stays, they cannot offer anywhere near the services, amenities, and medical specialists as state prisons, as the inmates themselves attest. Yet they will now have to spend millions of dollars that they don’t have to bring their own medical care up to a state-of-the-art standard or face litigation and further population-reduction orders.

The advocates’ agenda is clear: to make incarceration so expensive that law enforcement authorities will have to abandon it for all but the most heinous crimes. Both sides of the de-incarceration debate can claim valid arguments. Ignored in the discussion so far is proactive policing, which lowers the prison population by interrupting an offender’s criminal behavior before it turns into a felony. One thing is certain, though: the debate belongs in the political arena, not in the courtroom. A federal judge has no institutional expertise to resolve it. A sense of modesty about the judiciary’s place within the federal system would counsel that the triumvirate back off and allow the shock waves that it has already unleashed to settle down. It is simply not credible to maintain any longer that California’s prison system is a constitutional outlier. Police chiefs, sheriffs, district attorneys, and county executives are begging the panel to hold its fire while they figure out how to make realignment work. Surely their views should carry as much weight as those of prisoner attorneys.

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