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PLRA and the Three-Judge Court

One of the many problems with prison litigation is that the cases tend to end up in the hands of the most pro-prisoner, anti-law-enforcement judges.  In the Brown v. Plata case decided by the Supreme Court today, that problem hit a new low.  Congress had required in the Prison Litigation Reform Act that a prisoner release order can only be issued by a special three-judge district court -- a throwback to days of yore when trial courts commonly had multiple judges for important cases.  Well in this case the three-judge court was the criminals' dream team -- Circuit Judge Reinhardt and District Judges Henderson and Karlton.  If counsel for the prisoners could have chosen the three judges in the entire federal judiciary most likely to rule in their favor, those are very likely the three they would have chosen.
Even though PLRA provides for direct appeal to the Supreme Court, appellate courts are often effectively bound by trial court findings of fact, which can only be overturned in extreme circumstances.  The Supreme Court today bound itself more than necessary by taking an overbroad view of what is a "fact."

In the gray zone between historical "what happened" facts and abstract rules of law lie the difficult mixed questions.  Assignment of these questions to the category of "facts" reviewed deferentially or "law" reviewed de novo on appeal may be more a matter of policy than logic.  For example, whether a suspect is "in custody" for the purpose of Miranda is a question of law, but whether a race-neutral reason proffered for a peremptory challenge is real or pretext is a question of fact.

In today's decision, the Supreme Court gave deferential "fact" review to the District Court's rulings on such questions as whether prisoner release will adversely impact public safety.  Justice Scalia notes in dissent how much of the decision is "the dressing-up of policy decisions as factual findings."

Justice Alito's dissent is even more critical.  He effectively accuses the three judges of having an agenda to reduce the prison population for their own reasons and using the health issue as an excuse to do so.  I believe he is correct.

This is why the selection of the three-judge court was critical, and the case was virtually lost upon that selection.  First, Judges Henderson and Karlton maneuvered to get themselves appointed as the two district judges.  They did this their unprecedented and probably unauthorized consolidation of two cases.  I argued in the CJLF amicus brief that this was improper.  The Court passed on the issue today because the State did not object when the cases were consolidated.  Generally, that is a good reason to pass on an issue, but when the integrity of the tribunal is in issue the Court should exercise its prerogative to examine the question despite the lack of an objection below.

But just in case Henderson and Karlton were not enough to guarantee success for the prisoners, then-Chief Judge Mary Schroeder appointed Judge Reinhardt the third member of the three-judge court -- the worst possible choice.

So here are some amendments to PLRA to be considered to avoid the problems in today's case.

1.  The three-judge court members should be chosen by the Chief Justice, not the Chief Judge of the circuit.  There are few enough cases that this will not be a burden.  Schroeder's astonishing abuse of discretion in making the appointment in this case demonstrates that the decision cannot be left where it is.  Congress created the three-judge court requirement to ameliorate the problem of prisoner cases gravitating to the pro-prisoner judges, and Schroeder misused her authority to aggravate the problem.

2.  Instead of the District Judge who called for the three-judge court being automatically included, he should be automatically excluded.  Let us get three fresh views on the issue every time.

3.  Joinder of two cases should be prohibited.

4.  The question of whether there is a constitutional violation, as decided by the judge who called for three-judge court, should be reconsidered by the three-judge court and not accepted as settled.

5.  Under no circumstances may a prisoner release order extend to releasing anyone who is not a plaintiff or a member of the plaintiff class.

6.  For prison litigation generally, not just prisoner release orders, there should be a five-year limit on the assignment of a district judge to a case.  After that, the case will be reassigned to a judge chosen at random from the other judges in the district.  There should be no more cases where the most pro-prisoner judge in the district ends up ruling the prisons like a czar for decades.

A definition of "primary cause" is in order.  I will address that more specifically in a future post.


People will die as a result of this decision. This would be bad enough if the game weren't rigged and if Congress, having seen this very problem already, hadn't acted, but imagine, if you will, a few years from now, we'll see stories of a guy that we had locked up for a long time, but then he got out because of this, or another guy who committed a crime, but got a slap on the wrist because of "overcrowding" concerns. Imagine being the wife, mother, father, brother, son, daughter, friend of one of the nameless people being sentenced to death because some pro-criminal judges gamed the system, and the Supreme Court decided to ignore the obvious problems with how we got to this decision. I suspect you'd hate Schroeder, Karlton, Henderson, Reinhardt, Breyer, Ginsburg, Kennedy, Sotomayor and Kagan. And you'd have every right to. This is a travesty. An utter travesty. From a purely legal standpoint, perhaps this case isn't quite as bad as some of the death penalty cases, but from the standpoint of the rule of law, it's as bad as the famous Peavyhouse decision from first-year contracts.

Additionally, Barack Obama doesn't escape blame here either. He appointed two of these "jurists". Without his lousy picks, this case doesn't come out this way. Obama picked his judges based on empathy--empathy, it seems, not for the innocent victims of these to be released criminals, but empathy for vicious criminals who have earned their place in a California prison cell. I'd be willing to bet Obama wouldn't let Sasha or Malia anywhere near these thugs, but other people's kids, not so privileged (to borrow an annoying term from the left) will face these criminals, and some will die, be raped, robbed etc. It's always interesting to see how liberals love to impose their silly ideas on other people's kids.

There is no excuse here. None. Sotomayor, a former prosecutor, knows what happens when you release tens of thousands of criminals. Yet she voted to affirm a result garnered from a gamed system. The people of California (and America) deserve better from this self-proclaimed "wise Latina." And it seems I was right about this less than talented woman after all.

I firmly believe the Supreme Court had no other recourse than to affirm the lower court's decision. Unfortunately, tough on crime bills are brought to the ballot box without justification of how a state is to pay for the increasing prison population. If citizens want these bills passed they need to be prepared to pay for them. It's called fiscal responsibility. This isn't a Federal problem but a State problem and because the State refused to act, the Federal Court System was forced to act. No one wants to see prisoners set free but the abuses that have been documented, for over 20 years, can no longer be the norm. Not only are they a violation of a prisoner's 8th Amendment Rights, these abuses put correction staff in grave danger as well. California, now is forced to find a solution, something they should have done years ago.

"Unfortunately, tough on crime bills are brought to the ballot box without justification of how a state is to pay for the increasing prison population." The sad truth is that the leadership in the California Legislature did not want to enforce the "tough on crime" three strikes sentencing law, so after the initiative was adopted, they opted to starve it to death by refusing to authorize the construction and repair of state prisons. In 2007, under pressure from both the courts and the public, the Governor pushed through a bill (AB900), which authorized $7 billion in bonds for this purpose. The release of the funds was initially delayed for three years from lawsuits by pro-criminal advocates, which the state eventually won, but the administrative process to site, and gain state approval for construction of a prison is so complicated that it is taking additional years before ground can be broken. None of this is the public's fault. The status of prison inmates 8th Amendment rights in this case were determined by the most pro-criminal federal judges in California based on evidence more than 14 years old,(the panel told us they could not look at later evidence of improvements in inmate health care). Short answer, this was a game played by politicians and some extremely liberal judges to undermine the public will. Yesterday, they won the final round, but while the game was playing out, the wisdom behind tough sentencing became evident. In spite of the baby boom echo, crack, meth, and a collapsed economy, crime rates fell to 40 year lows. Thousands of innocent lives have been spared. With regard to the Supreme Court having "no other recourse," pleeeeeese, this was the very worse kind of policy decision.

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