Briefing Report: California Prisons - Contemplating Early Release

Wednesday, January 26, 2011


In 2004, Governor Schwarzenegger came into office proclaiming he would "blow up" the boxes and put an end to "multiple departments with overlapping responsibilities." His biggest challenge was, of course, the California correctional system which the Little Hoover Commission described in 2005 as a system with "persistent and serious problems, including egregious cost overruns, inmate abuse and parole failure." Despite a complex reorganization, new bond authority, numerous reform proposals and a multi-year fight with organized labor over management concessions, the state correctional system saw little improvement. By 2007, the Little Hoover Commission decried that "California's prisons are out of space and running out of time," and that "a default strategy of waiting until federal judges order needed changes is not governing."

Four years later, little has changed and the prison system is arguably in a worse position now. The state has ceded control of prison mental health, juvenile justice and prison health care to the federal courts and only a small amount of AB 900 bond money has been spent to construct new facilities (please see the previous report on AB 900). However, the most concerning development is the possibility of an unprecedented and massive court ordered release of inmates under the federal Prison Litigation Reform Act, 18 U.S.C. § 3626 (PLRA).

What is the Prison Litigation Reform Act?

The PLRA is a federal statute that was enacted in 1996 and can easily be separated into two main provisions: the first limits the ability of inmates to bring suit in federal court and appear in forma pauperis and the second limits the federal court's ability to impose consent decrees and other orders on state prison officials.

The first provision was included as a response to the increasing frequency of inmate civil right lawsuits deemed by members of Congress to be "frivolous" in nature. These suits tie up the federal court system and can be very costly for government entities to defend. At the time of its passage, the Senate sponsor of the measure famously pointed out one of the more egregious cases where an inmate had filed a federal civil rights suit after being served creamy peanut butter instead of the chunky peanut butter he had ordered.

The second and more important section for the purposes of California's current predicament, places limitations on court injunctions and inmate release. It specifically provides that a federal court shall not grant or approve any prospective relief in a prison conditions lawsuit unless the court makes written findings that such relief is narrowly drawn, extends no further than is necessary to correct the violation of the federal right and is the least intrusive measure necessary to correct the violation. In the case of prisoner release orders, it provides that only a three-judge court may issue a prisoner release order. Prior to imposing such an order the court must first attempt a less intrusive relief and allow the defendant time to comply with any orders. In addition, the court must also find that crowding is the primary cause of the federal right violation and that no other relief will remedy the violation.

History of the Prisoner Release Order

In 2007, the plaintiffs in Schwarzenegger v. Plata, involving claims of inadequate medical care in prisons, and Schwarzenegger v. Coleman, involving claims of inadequate mental health care in prisons, moved to convene a three-judge court to consider the issuance of a prisoner release order under the federal PLRA. The court granted the motion and the trial commenced in November 2008. Subsequently, the three-judge court determined in August 2009 that overcrowding was the primary cause of the inadequate provision of medical and mental health care and that no relief, other than prisoner release, would remedy these violations.

The resulting federal court order required that the state prepare and submit a plan to reduce the California prison population to 137.5% of the adult institutions combined design capacity within two years (a reduction of roughly 39,000 inmates). In response, the state submitted a five-year plan claiming that public safety could not be maintained within the scope of the court-ordered two-year period. However, the state's five-year plan was not well received by the court and, under threat of contempt; the state eventually capitulated and submitted a two-year release plan. This second plan was used as the basis for the January 12, 2010 decision "Order to Reduce Prisoner Population." Governor Schwarzenegger appealed the federal court decision and in June, the U.S. Supreme Court agreed to hear the case, setting the stage for a historic ruling that could determine the federal government's power to force states to reform overcrowded conditions in corrections systems across the country.

US Supreme Court Hearing

Though the U.S. Supreme Court has not issued an opinion in Schwarzenegger v. Plata (and probably will not until May or June of this year), they did hear oral arguments in November. Oral arguments are useful not only for the presentation of the defendant and appellant but also to gauge the mood and views of the justices as well as the questions on which they are focusing.

In this instance, Justice Kennedy's comments were clearly the center of attention for most observers, as the other eight justices were expected to clearly divide on the question: the four conservative justices opposing the lower court decision and the four liberal justices supporting it. By the end of the hearing the order had received conspicuous support from Justices Breyer, Bader-Ginsburg, Kagan and Sotomayor; however, only Justice Alito had clearly made it obvious that he believed that no prisoner release order should have been issued while Scalia and Roberts had only expressed doubts about specific details. Justice Thomas did not make any comments during the oral arguments.

Justice Kennedy's comments unfortunately did not appear to favor the state and seemed to lean towards affirming the lower court's decision to impose a release order. If they reflect how he votes on the final outcome, it does not appear that he would be willing to overturn the lower court's prisoner release order in its entirety. Instead his questions appear to indicate he may be looking for ways to limit the scope or elements. Throughout the hearing Justice Kennedy repeatedly expressed doubt about the plan such as the courts rationale for a population cap at 137.5% of design capacity and the two-year timeframe.

Future of Schwarzenegger v. Plata and California Corrections

Despite the direction and tone of the oral arguments in Schwarzenegger v. Plata and the subsequent news reports predicting that a release order was imminent, the time, manner and content of such an order is still very uncertain. What was clear is that the justices seemed split on how appropriately to handle the situation, even when they agreed that the California prisons were overcrowded and the court needed to take action. As a result it appears likely that the order will be modified and probably in favor of the state. It is even possible that the court could remand the case back to the lower court for additional findings which carries the chance of additional appeals.

When considering the possibility of a prisoner release order and its impact, it is also important to note that California's prison population is already declining. While it has not come close to reaching the 116,000 required by the three-judge court, it has dropped to 145,000 (174% of design capacity) from a high of 172,000. The crime rate is also declining and Governor Brown has proposed a very ambitious proposal to realign many short term inmates and parolees to local facilities. In fact, his budget proposes $1.5 billion in savings during the budget year, which could translate to as many as 30,000 inmates, based on the average cost of incarceration. Depending on the details of the plan it could be far more, especially considering that in 2009 the Department of Corrections and Rehabilitation reported that 34% of male admissions to prison (nearly 50,000 inmates) were parole violators which would be held at the local level under Governor Brown's plan.

Of course, the greater question for California policy makers is what impact a court reduction or the proposed realignment will have on California's citizens. Currently 32 of the California counties have self-imposed or court ordered jail population caps and are already releasing inmates. Many other counties are close to capacity and it is unlikely they could handle any significant increase in inmate population without overburdening the system or facing increased crime in their communities.

Statistically California does not incarcerate a disparately high proportion of its population compared to other U.S. states nor does it have extremely severe sentences. As state lawmakers consider how to avoid additional crime and victimization of the people of this state, it is clear that they may need to reevaluate how and when California can make it easier to build state and local correctional facilities -- not just how they can shorten sentences.


For more information on this report or other Public Safety issues , contact Eric Csizmar, Senate Republican Office of Policy at 916/651-1501.