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Barring Out-of-State Prisoner Placements

When the lawyers for the California prisoners in the Plata case were arguing against a stay of the three-judge court's order in the U.S. Supreme Court, they said, "More fundamentally, Appellants do not have to release any prisoners; they have wide latitude to substitute other methods for reducing overcrowding....  For example, Appellants could 'reassign prisoners to leased jail space,' without any impact on public safety whatsoever."

With the stay denied, Gov. Brown proposed to do exactly that, which necessarily includes out-of-state facilities, as there is only so much capacity within the state.

Today, as noted in the News Scan, the three-judge court extended the deadline by a measly four weeks and ordered the parties to "meet and confer."  Okay, but then there is this provision in the order:  "During the meet-and-confer process and until further order of the Court, defendants shall not enter into any contracts or other arrangements to lease additional capacity in out-of-state facilities or otherwise increase the number of inmates who are housed in out-of-state facilities."

Excuse me, your honors, but exactly by what authority do you order California's executive officials, and thereby effectively order the State of California, not to employ additional out-of-state capacity to house its prisoners?
In 1793, the U.S. Supreme Court allowed an individual to sue a state in federal court.  In less than two years -- lightning speed as these things go -- the Constitution was amended to abrogate that decision.  By its terms, the Eleventh Amendment only precludes suits by citizens of other states or foreigners, but it has long been understood to reestablish the principle of sovereign immunity and bar suits by the state's own citizens as well, with only very narrow exceptions.

In the 1908 case of Ex parte Young, the Court created a work-around allowing citizens to sue state officials to enjoin enforcement of unconstitutional statutes.  The Court itself has more than once referred to Young as a "fiction."  But the mere fact that a state official has been named rather than the state does not give a federal court a blank check to issue any order that it could issue if only private parties were involved.  If a court goes beyond enjoining unconstitutional acts and prevents a state from carrying out legal policies, it crosses the line and violates the Constitution.  The Supreme Court explained the limitations of the Ex parte Young doctrine two years ago in Virginia Office for Protection and Advocacy v. Stewart (slip op. at 6, emphasis added, citations omitted):

This doctrine has existed alongside our sovereign-immunity jurisprudence for more than a century, accepted as necessary to "permit the federal courts to vindicate federal rights." ...  It rests on the premise--less delicately called a "fiction," ... --that when a federal court commands a state official to do nothing more than refrain from violating federal law, he is not the State for sovereign-immunity purposes. The doctrine is limited to that precise situation, and does not apply "when 'the state is the real, substantial party in interest,'" ... as when the "'judgment sought would expend itself on the public treasury or domain, or interfere with public administration,'" ....
There is absolutely nothing unconstitutional about the State of California entering into contracts to place prisoners in out-of-state facilities.  The lawsuit is about health care, not crowding or placement as such, and no one could seriously contend that all out-of-state facilities will necessarily provide constitutionally inadequate health care.

The only way this order could be legal is if the state officials defaulted on their objection to it.  I certainly hope they did not do that.

Update (9/26):  I have added the VOPA quote above to further explain the Eleventh Amendment point.  Meanwhile, back at SCOTUS, attorneys for Gov. Brown et al. swiftly filed a Supplemental Brief citing this order as all the more reason the high court should either summarily reverse or take up the case and expedite it.


Ideally, the governor would simply defy the order. The order cannot apply to those who are not currently incarcerated--so when it's time for new prisoners to go to the state Pen, ship 'em out of state.

The other thing that should be done--simply put state police on the tail of these "judges" and arrest them for going 1 mph over the speed limit.

We should not forget that Justices Kagan and Sotomayor voted to affirm this lawless court. The circus that has resulted and the harm to public safety is on Obama.

Among other problems with your proposal, California police are not authorized to arrest people for infractions.

This order will have to be fought the old-fashioned way.

Unfortunately, yes it will. It is an amazing thing about the judicial system in America--judges can be as lawless as they damned well please, and the expectation is that their orders will be followed. That may not always be the case, and it will be the result of nonsense on stilts like this imposed one too many times. As much as I'd like to see the imperial judiciary get its comeuppance, it would be very problematic.

That the judiciary is willing to trade its legitimacy for this is mind-boggling.

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