Judges Reinhardt, Henderson and Karlton Indicate Plan to Order California to Release About 25% of Its Inmates:
Howard has the links to this very interesting news development here. The tentative order of the three judge panel (all Carter appointees, as it happens) is here.
This litigation is new to me, but it appears to have been going for a long time. The gist of the order is that California state prisons are terribly overcrowded, and the three judges have concluded that the only realistic way to avoid unconstitutional prison conditions is to force the state to agree to an order substantially decreasing the number of people in the California state prison system: "[G]iven the evidence presented to this Court, . . an order imposing a cap on the prison population and requiring the State to adopt a course of action to reduce overcrowding is warranted."
Sounds fishy to me, but then I suppose I often have that reaction when the name "REINHARDT" appears on a judicial opinion. I hope someone who has been following this litigation and understands the Prison Litigation Reform Act can weigh in and provide some context and more informed opinion.
This litigation is new to me, but it appears to have been going for a long time. The gist of the order is that California state prisons are terribly overcrowded, and the three judges have concluded that the only realistic way to avoid unconstitutional prison conditions is to force the state to agree to an order substantially decreasing the number of people in the California state prison system: "[G]iven the evidence presented to this Court, . . an order imposing a cap on the prison population and requiring the State to adopt a course of action to reduce overcrowding is warranted."
Sounds fishy to me, but then I suppose I often have that reaction when the name "REINHARDT" appears on a judicial opinion. I hope someone who has been following this litigation and understands the Prison Litigation Reform Act can weigh in and provide some context and more informed opinion.
This obviously has nothing to do with the litigation as such--just an interesting potential consequence that occurred to me.
“They don’t have any faith that Reinhardt calls it straight. I don’t want to call him a bad judge, but a lot of these decisions are hard to understand,” added Amar, who was a clerk for the 9th Circuit and the Supreme Court.
If you were a judge, and a state has been for a long time on judicial notice for a long time that its prisons have conditions that meet the standard for cruel and unusual prunishment, what would you do? Give the state an infinite amount of time to rectify the problem? If judges cannot issue drastic orders to force a state into compliance, I can't see what else would finally jerk California into doing soemthing when the essentially bankrupt state has up untilnow shown no interest in infusing the large amount of cash needed to et the system back into compliance or been willing to reform its laws so less people sit in prison for less time than before. This article is four years old, but nothing's changed. SO what would you do?
Jacob Berlove,
I think these California institutional reform cases are tricky. If you're the state, and you've drawn a very liberal judge, you know that there is one world before the trial judge and then another pretty different world on appeal. Your question seems to assume that the state should accept the world of the trial judge, and that it should accept that the trial judge is correct on the law and on the remedies and should not behave in a way that recognizes the appellate picture. Off the top of my head, I'm not so sure that's correct. Of course, this isn't a problem if the judge and the judges upstairs are all on the same page, but I'm doubtful that's the case here.
(Also, as an aside, Judge Henderson is one of the most liberal district court judges in the Ninth Circuit. For an interesting story about his past, see here.)
Yes, I did read the ruling. To my mind, the lack of citations made it quite hard to tell whether it was sensible (in the sense of grounded in law) or not.
And I hope it will be Rudolph Giuliani.
What part of the opinion would you like to see more citations? It’s pretty clear that California prisons are drastically overcrowded. The Governor has conceded that to be true. And the evidence as described seems to indicate that the overcrowding is causing constitutional violations. Lots of experts, some of whom had high ranking titles in the corrections industry, confirmed this. Even the state’s expert apparently conceded this to be true. The only real question seems to be what remedy is appropriate. Since the prisons are currently 200% overcrowded, there was evidence that anything over 145% would be unacceptable, and that you would need to reduce the prison population by 40k to reach 145%, I think the remedy the court selected makes sense. Perhaps people can quibble about the exact number. But the number they picked -- and the way they got there -- seems sensible.
I feel like that would be appropriate punishment for both Rudy and California. Excellent.
i think jacob berlove was asking what the judge should do not what the state should do
Ah, got it. I was struck by two related things. First, the court's decision that the PLRA allows the remedy to order the state to release prisoners. Second, the court's view that the only realistic solution was such a judicial order. As for the first, I believe the PLRA has a fairly complicated remedies section that has a lot of guidance as to what judges can and cannot do: It's somewhat vague guidance, but it's guidance nonetheless, and specifically restrictions on what remedies judges can impose. Maybe I just missed it, or it was in an earlier decision, but here the court just seemed to wave its hand and say "we think we can do this." As for the second part, the court's sense of the right remedy didn't refer to the statutory limitations on the remedies, which I thought was sort of odd. It seemed like a pretty free form analysis, reasoning from first principles, but I'm not sure the law gives that much power to courts.
I should add a big caveat: I don't know much at all about the law and only read the opinion once, so I may be way off. All corrections most welcome!
If I were a judge, I would try my damndest to follow the law faithfully wherever it took me, without personal bias or ego. But I don't know the law here, so it is impossible to answer the question more specifically.
That is correct. This case has received significant, and IMO surprisingly accurate, coverage in the San Francisco Chronicle. AFAIK, briefing on the subject was requested.
So prisoners don't have the right to petition for a writ of habeas corpus? What about the prohibition against cruel and unusual punishment? I'm pretty certain that is in the Constitution and not a "Warren Court work of fiction"
I don't understand how a nonfrivolous claim of unusualness could stand given the sheer volume of precedent that exists in support of ubiquity.
When the judges rule that prison conditions are terrible, they order the state to send prisoners home.
They should at least try to be consistent. Or maybe they should've reversed the rulings. Close the schools, spend money on prisons.
Judges make terrible lawmakers. All 3 of these softies should be impeached. Hey, here's an idea: if the feds were able to execute some of the jerkoffs on death row without waiting 40 years for appeals to end, they might have some free space.
Stacking the panels like that seems like an unusual course of action for what you would call "pro-rule-of-law" judges.
http://www.youtube.com/watch?v=9HSKvaFC39Q
http://www.youtube.com/watch?v=yFx7lSI8srg
http://www.youtube.com/watch?v=us2CCARwn9I
listen in here
http://www.infowars.com/infowars.asx
I couldn't find a case where a court does an in depth analysis of what is required under 18 USC 3626(a)(3) for a panel to grant relief. Some general stuff, but no real specifics.
Having read both the tentative order and the relevant statute, the order seems to track a lot of the statutory language.
A tentative guess is that at least five Justices will vote to reverse.
Any of them arguing they are being unlawfully detained?
ThreeOneFive said: "What about the prohibition against cruel and unusual punishment? I'm pretty certain that is in the Constitution and not a "Warren Court work of fiction""
None of these prisoners are being punished under England's laws of treason. The Eighth Amendment has nothing to do with state prison conditions nor does it provide federal jurisdiction. Some state prison conditions were considered horrendous in 1870 but radicals found no jurisdiction over the matter under their newly adopted 14th amendment. To be fair, federal prison conditions were probably worst.
- The court seems to conflate health care and mental health care throughout the opinion. I am not sure where the constitutional basis exists for the requirement that a state provide an inmate adequate mental health care. I'm not sure there is even a working definition for what "adequate" mental health care is in or out of prison. I can understand medication/counseling for seriously mentally ill inmates, but beyond that I'm not sure what further the state is compelled to, or should, provide. I would also assume that a majority of prison inmates have some mental health issue which makes application of any order impractical.
- The amount of money we pay per inmate on healthcare has increased dramatically over the past decade+. The quality of healthcare seems to have declined precipitously (although the opinion and articles pointed out by commenters provide no real examples besides vague statistics). I don't trust Sacramento much but they're not throwing the money out the window. It is more likely that the only thing that has increased is Reinhardt's ideal of what the standard of care for an inmate should be.
-The prison-building surge during the 90s focused on putting these prisons in rural areas that desperately needed the well-paying, low-skilled jobs that the prisons would provide. Many of these small communities don't have the medical personnel to sufficiently staff a community clinic let alone 5000 additional dangerous patients. How many psychiatrists live in Crescent City, CA (home of Pelican Bay Prison)? How many dentists? Surgeons? Nurses? Enough extra to provide care to 5,000 homicidal gangbangers? Unlikely. Even if Governor Reinhardt had his 8 billion in funding, that isn't going to get medical professionals to flock to rural areas.
-If these prisoners are released the quality and amount of healthcare they receive will decline. Indigent MediCAL recipients don't get the level of care required for prison inmates (unless you have 14 kids).
I'd love to listen to the conversations between Jerry Brown and Arnold Schwarzenegger about this.
Unless, of course, your heavily invested in those things we used to lock on our steering wheals in the pre-Bush years.
A notable example: in Mahoning Co, Ohio, the local govt. dodged a similar, albeit smaller, result, via settlement.
http://tinyurl.com/c8t2gh
A notable example: in Mahoning Co, Ohio, the local govt. dodged a similar, albeit smaller, result, via settlement.
http://tinyurl.com/c8t2gh
Perhaps der Governator could arrange to outsource the work to Mexico.
I served on the USS Kamehameha SSBN642. Crews berthing was in bunks three high. On one side of your bunk was an aisle about 30 inches wide with another set of bunks on the other side. Everyone cannot get out and stand up at the same time. On the other side of your bunk was a 3 inch space and another bunk. At the head or foot of your bunk was a three inch space and another bunk, or if you were lucky a wall.
I would content that overcrowding in prison can never rise to being unconstitutionally cruel if it is less crowded than conditions college students or military members routinely accept for themselves.
OTOH, that is perhaps too much to expect from Jimmy Carter judges.
Elected state officials often do a horrible job in running prisons and schools. The only people who are worse are federal judges.
California's death row has less than 1000 prisoners.
As I've said countless times, State legislatures should be forced to fund prisons at the time they legislate the penalties. If Joe Taxpayer knew that 3-strikes, or some other patent nonsense, was going to cost him a cool million per petty criminal (25 years @ $40k/year), he might think better of it. Same goes for all the other ridiculous penalties that are written into most State penal codes (interestingly, the real monsters like rapists get much more lenient treatment).
Forcing major releases from prisons will be far worse.
While it is true that forcible rape is a less serious crime than violations of some of California's gun control laws (again, the result of liberals), some of the people getting locked for life for three strikes have rape as one of those strikes.
Why do you think the *text* of the Eighth Amendment is not applicable to prisons, which are by definition "punishment."
As for the 14th amendment making the 8th Amendment (and also Art. I sec. 9 constitutional habeas corpus, in some plausible views) apply to restrain the states, incorporation is both settled law *and* has a respectable textualist-originalist pedigree. I would suggest you engage with Akhil Amar's work, wrestle with his criticism of Berger and Fairman, and come up with a more compelling answer before you continue to pursue the quaint view that the 8th Amendment only restricts federal punishment of the English crime of treason--incidentally, we have our own law of treason, defined in Article III.
Fourteen years after it was first determined that prisoner rights are being constitutionally violated due to the effect that overcrowding has had on prisoner healthcare, there has been no solution, and there is no solution in sight. I guess my question is, if the panel is wrong about the remedy, what other remedy is left?
Like I said, the objective is to goldplate and Constitutionalize resort like conditions as a way to get all the violent felons released. That's the liberal goal, and has been for decades. That way they will have room for gun owners and cigarette smokers.
Also, California really backed itself into a corner several years ago. At the time, the strategy they employed was admitting a Constitutional violation and then saying "give us time to fix it." The problem was that they could never fix it to the satisfaction of Henderson (who as noted above is incredibly liberal, his first major case was ruling that Prop 209 which ended affirmative action in public schools was unconstitutional; no matter your feeling on affirmative action that was an incredible stretch) and Karlton (who is also fairly liberal but nowhere near Henderson and Reinhardt). Also, California is no stuck with the concession that there was a constitutional violation. That is why there is little if any discussion of that in the opinion.
For an interesting time, you may want to check out more articles on what Clark Kelso is doing as Henderson's receiver in the medical care case. He is going nuts and demanding money for "spiritual care" such as yoga, aroma therapy and massages. It was that money that the state refused to release that led to the threatened contempt in the article that Clayton Cramer linked to above.
Wow, that was a ridiculously long post, sorry.
It appears California has been acting unlawfully for more than a decade. Those responsible for correcting the problem have failed to act, likely because they are insulated against personal accountability for their unlawful conduct (which afflicts the innocent and the guilty, despite the willingness of many to avert their eyes from that point, and plenty of people whose offenses did not warrant imprisonment).
The real dope in the War On Drugs is the proponent. If this decision undermines the War On Drugs to any degree, I welcome it.
It appears that it is Governor Schwarzenegger's administration that installed the first yoga rooms and instituted horticulture therapy for inmates. From the LA Times of February 4, 2009:
I don't think either the administration or the court receiver are trying to construct a 'utopian environment." It is the policy of the state, enacted mostly through initiatives supported by the people, to have extremely long prison sentences for most crimes, and not to construct adequate facilities to house prisoners. Yet, shock of all schocks, the people don't want to pay the bill.
Think of all the California (and federal!) regulations that must be met to do many things in California. Think of the environmental impact studies that must be evaluated before you can build a new golf course, paint your house bright green, raise foreign fish in your stock pond, or build a nucular plant in Los Angeles county.
If the public employee unions won't bend, they can deal with a bankruptcy trustee.
And I hope it will be Rudolph Giuliani."
We can at least be sure the Trustee's fees will be stratospheric, and that Bernie Kerik will be part of the deal.
The Prop 209 case was hardly Henderson's "first major case"--he'd been a judge for 17 years already and had decided a number of significant cases.
Also his ruling there was hardly a "stretch." Instead it was a pretty straightforward application of the Supreme Court's decisions in Hunter v. Erickson and Washington v. Seattle School District. One can argue that those decisions are bad law and wouldn't be followed by the Supreme Court now, but if you read the Ninth Circuit's decision overturning Henderson's ruling, you can see what a difficult time it had dancing around them. In fact, the issue is alive again in a case currently before the California Supreme Court.
The proportion of criminals that would be eligible for the death penalty (even assuming Kennedy v. LA is reversed and rape of a child is included) is not sufficient to solve this problem. I support the jury's option of DP, but not for this reason.
Which seems funny, in retrospect. Commit a rape, get out in 18 months on parole but then shoplift twice and it's 25 to life. Just bizarre.
The proposition is that the War on Drugs creates a massive amount of "spillover" crime that would otherwise not exist. If true, that would mean that ending it would remove quite a bit more prisoners than those directly charged with drug violations.
One of the reasons for escalating prison medical expenses in California is that the Three Strikes law has resulted in a sharply increased number of older inmates with geriatric medical problems. With some exceptions, notably for mentally disordered sex offenders, these guys no longer pose threats to the public and it is just nuts to keep them locked up.
The theory is that a person who keeps committing felonies is either a slow learner, or has some serious antisocial tendencies, and the society is better off with such a person behind bars.
I've seen the claim that most three strikers become less dangerous in their 40s, and keeping them beind bars is a mistake. Very possibly true. But some of those three strikers continue to be extremely dangerous far beyond that point--for example, the guy who hacked off the 14 year old's arms, and then was convicted of murdering a prostitute in Florida in his 70s. Distinguishing the two categories of repeat felons isn't easy.
If you want bizarre: sale of an assault weapon under California law is more severe in punishment than sale of a live, functioning hand grenade.
JSP, you might want to read up on C&U.
There are people that need to be locked up and kept there. There are a lot that should be subject to house arrest, and subject to prison only if they refuse to abide by those rules.
Long-term, the real solution is to work harder on preventing the sexual and physical abuse and dysfunctional family structures that underlies a fair percentage of career criminals. But again, that's a long-term strategy, one that does not bear fruit for decades, and therefore of no interest to politicians, who have to get re-elected every 2 or 4 years.
Why yes I did what I had to do to serve under those conditions, as did many others. There only two kinds of ships, submarines and targets. : )
BTW, the criminals in our slammers voluntarily did what they had to do to get where they are as well. They are also free to leave at the end of their term.
For example, the cells in the Tower of London that are too short to stand up, and too narrow to lie down. I recall reading about the Venetian Republic's solitary cells that were underground, no windows, and only a few inches taller than the prisoner, with no ventilation except through the grate of the cell door.
A clever response, and you have convinced me of the superiority of submariners to lesser sailors. I suppose that I would rebut that you signed up for both the job and the accompanying conditions as a matter of employment or contract, and the criminals (assuming actual guilt, which is largely, but no doubt not quite 100% accurate) voluntarily committed their offenses and gambled that they would not be caught or punished, but did not in any sense consent to punishment as you consented to work. If you doubt that, open the cells and gates and see if they remain for the duration of the sentence.
I am left of the contemporary American center on civil liberties but not "soft" on crime--I think violent criminals should be deterred and punished with long sentences and don't believe much in the concept of rehabilitation. However, in a brief stint as a legal intern for the ACLU, I have visited county jails and state prisons that would truly make you gag. I've seen very conservative federal judges impose decrees on the prisons to provide humane and sanitary space that flippant legislatures simply ignore. Overcrowding past a certain point isn't just inhumane and unconstitutional, it's downright dangerous for the guards and other prison officials and winds up costing the state more money in tort liability and employee turnover than it's worth.
Still, yoga rooms? Prisons don't have to be cruel. But they also don't need to be too nice.
Military personnel are not free to leave at the end of their enlistment contract. They can be involuntarily extended or called back to active duty after they leave.
Does Judge Schroeder lean left? Perhaps she does, and perhaps that influenced her choice of Judge Reinhardt. On the other hand, Judges Henderson and Karlton are at the coalface, as it were, and possibly got as far as they could with the tools at hand. One bit of good news for California is that this helps ensure a quick resolution of the matter, with direct review by the Supreme Court (assuming they note probable jurisdiction).
My question is whether the three-judge court can only speak to the release of prisoners, or may it assume jurisdiction over the entire class-action litigation?
At least I'm in the judicial system, which can order that its staff be paid first.
Someday the people of California may wise up. That day has not come.
It's not like the CDC hadn't been warned...
AAA: no doubt, conditions on a sub were more crowded, in per capita square feet, than at Folsom, though I suspect they were cleaner. Conditions in monasteries are often more stark, and I know ultra-marathon runners who not only make themselves more uncomfortable, but pay for the privilege, again and again.
On the other hand, you, and the guy next to you in the boat were both there voluntarily, had some uniformity of purpose and discipline, and had been (at least ostensibly) regularly screened as to your mental and physical health, and general lack of major criminality and sociopathy. Imagine throwing into your bunk space a couple of schizophrenic diabetics who'd shot up a bunch of folks in meth lab deals gone bad, and an HIV-HepA-B-and C positive crackhead gangbanger, and imagine how smoothly things would have gone. For good measure, make one of 'em a member of the Aryan Brotherhood, the Mexican Mafia, or some other group of ORGANIZED psychos.
Well, you are being glib. and since these non-violent offenders must mostly have gotten in by stealing, count on them stealing when they're out.
So your glib question rephrased is, let's hope they steal less from the private sector than the public sector saves in upkeep.
Not a bet I'd take.
Actually, the prisoners themselves organize a very rigid system of racial segregation that ensures that you will only be bunked with crazy ****ers with the same skin color as yourself.
You left out that the prisoners control a lot more than the bunking system.
R Gould-Saltman,
Avian flu would certainly resolve the prison over-crowding problem.
A lot of the obligations were created by the people of California through the initiative process by requiring certain percentages of the budget go to certain obligations.
Didn't Cooley say a statute that provides the same punishment for an offense that was provided at common law would hardly be regarded as cruel or unusual?
Thales said: As for the 14th amendment making the 8th Amendment (and also Art. I sec. 9 constitutional habeas corpus, in some plausible views) apply to restrain the states, incorporation is both settled law *and* has a respectable textualist-originalist pedigree.
Geez, the court in Gitlow which started the entire nonsense didn't seem settled at all, but just "assumed" without making any factual inquiry! There is nothing "respectable" about incorporation. If there was anything respectable about it then the majority of the members responsible for adopting the Fourteenth Amendment would not had attempted to amend the Constitution in order to restrain the states from violating the Religious Clause (Blaine Amendment).
Thales said: "I would suggest you engage with Akhil Amar's work, wrestle with his criticism of Berger and Fairman, and come up with a more compelling answer before you continue to pursue the quaint view that the 8th Amendment only restricts federal punishment of the English crime of treason--incidentally, we have our own law of treason, defined in Article III."
Akhil Amar's Fourteenth Amendment conclusions have been so thoroughly debunked by the recorded history of the 39th Congress that only a yoo-yoo would bother. Plus, Bingham's January 1870 Judiciary House Report, in his own words, completely demolishes Amar's contention that Bingham believed the "Privileges or Immunities Clause of the Fourteenth Amendment applied the Bill of Rights to the states."
But more importantly from a prison-management perspective, yoga would give prisoners the opportunity to stay healthy (less expensive medical care). Many find yoga calming (better prison discipline). Yoga teaches discipline (less recidivism and better prison discipline). Yoga doesn't build bulked up muscle (again, better prison discipline). And if prisoners like yoga, the yoga room gives prison officials a cheap carrot and stick (once again, better prison discipline).
Even with a yoga room, prison will still be prison. Prison will still be very unpleasant. Not everything that makes a prisoner's life less bad is inherently a bad idea.
As to the overcrowding, we can argue about whether California should incarcerate more or fewer prisoners (I think California will find that even for many property and violent offenders, community based options can be cheaper and more effective), but California chooses to incarcerate as many as it does now, it has to commit the money to do so with a minimum level of humanity. Given the budget shortfall and the miserable conditions in California prisons, California has three choices--more taxes, cutting other programs, or releasing prisoners and incarcerating fewer.
We had a bit of a local flap hear a year or so ago - it turned out that you would typically accumulate several (memory is fading - 7? 11?) auto theft convictions before serving any time in jail (other than time served if you couldn't make bail).
Just manufacturing some SWAG numbers, if a thief steals 25 cars a year, and the average loss is $5000, that's 125K per year. That makes prison for car thieves a bargain.
See correction. BTW, "submariners" is not how we refer to each other. Better is the coveted appellation of Bubblehead.
Marines, a few good men.
Submarines, all good men.
Sorry for the blatant OT.
"Akhil Amar's Fourteenth Amendment conclusions have been so thoroughly debunked by the recorded history of the 39th Congress that only a yoo-yoo would bother. Plus, Bingham's January 1870 Judiciary House Report, in his own words, completely demolishes Amar's contention that Bingham believed the "Privileges or Immunities Clause of the Fourteenth Amendment applied the Bill of Rights to the states.""
Half of Amar's book on the subject is a pretty exhaustive examination of the 39th Congress and Bingham's remarks--I don't have it in front of me, but I'm pretty sure he looked at the house report you mention--do you have any evidence that Amar was quoting Bingham or others out of context? He and I would agree with you that Gitlow and many other incorporation cases were not exactly intellectually coherent. That doesn't make the results or the idea of incorporation wrong. Basically I think the onus has been shifted by Amar's book to those opposing incorporation as a historical matter (Prof. Kerr mentioned some post-Amar scholarship some time ago that I'm curious to read). As a legal matter, of course, virtually all of the Bill of Rights has been applied to restrain the states--and it's a good thing too.
Mr. Amir:
I will remember the term "bubblehead" the next time I'm in the company of a submarine crewman. I suppose I was thinking of Prince Namor of Atlantis.
I have no problem with the CA legislature mandating more serious penalties for car theft (or whatever) provided they concurrently set aside money to carry out those penalties. If it's really a bargain, the taxpayers should not balk at paying the bill.
Instead, they vote for longer prison sentences and expect the Dept of Corrections to just magically accomplish this.
As a result, one of the continual struggles in our legislature, every year, is, "What programs do we need? What programs do we have to cut to meet the budget?" And a lot of average voters seem to understand that. (Democrats here, much like their California counterparts, just bemoan how "unprogressive" the legislature is for not passing every social program that gets offered.)
Back here on planet Earth, however, debate continues to rage. Although prisoner space and health care vary widely between, say, minimum, medium and max-security slammers (which I don't see addressed by commenters here) I agree with his comment that throwing schizophrenic diabetics, HIV-infected gangbangers and members of the Aryan Brotherhood together might well result in -- how does one put it? -- complex social interactions. Point taken.
Yet I wrestle with the notion that freeing these worthies will neither A) increase their access or desire for mental health care, nor B) have positive results for the rest of us. Hey, call me crazy.
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