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California Prisoner Release to SCOTUS: Third Time the Charm?

"Once more unto the breach, dear friends, once more."  The California prisoner release litigation is headed back to the US Supreme Court for the third time.

The first time, a three-judge court composed of three of the most pro-criminal, anti-victim judges in the entire federal bench ordered massive reductions in California's prisoner-to-capacity ratio.  The Governator appealed, but the decision came down after Jerry Brown had retaken the office.  The Supreme Court affirmed in Brown v. Plata.  At the end of the opinion, though, the high court noted that the formula in the order was not carved in stone and should be reconsidered as needed.

The three-judge court ignored the latter admonition, ignored the progress California has made, and refused to modify its formula.  The state appealed again to the Supreme Court but got tripped up in the technical distinction between an appeal from an injunction and an appeal from a refusal to modify an injunction.  Jurisdiction for the latter lies in the Court of Appeals, not the Supreme Court, and the appeal was dismissed for lack of jurisdiction two weeks ago. See this post.

Depending on your point of view, California has already released either the most it can without endangering the public (Brown's view) or more than we safely can, having already endangered the public (my view).  See also this article in the WSJ by Heather MacDonald.  Pushing more prisoners on county jails will not work, as the realignment program has already filled the jails in many counties beyond capacity.  So the options to comply with order are to either expand capacity by using out-of-state placements or unleash dangerous criminals on the public.

In a breathtakingly astonishing act of judicial arrogance, the three-judge panel actually ordered the Governor of California not to enter into any contracts for out-of-state capacity, without citing any legal basis whatsoever for such a prohibition.  This is a new injunction, and should be within the Supreme Court's direct appeal jurisdiction.  The Governor has filed a notice of appeal. Just in case, he has also filed a protective appeal to the Ninth Circuit. I suggest the Governor also make a renewed motion to modify the underlying order and appeal the inevitable denial to the Ninth Circuit.

The case has not appeared on the SCOTUS online docket yet.  I will post a link when it does.


I have been reading through some of the recent court filings on PACER regarding this case, and I believe you do a disservice by posting only the notice of appeal, and then making a blanket claim of arrogance. Although, based on your choice of inflammatory wording, it would appear that you are in fact intending to do a disservice to the actual facts.

I did not find anything to indicate in the documents I was reading that the three-judge District Court panel consisted of "the most pro-criminal, anti-victim judges in the entire federal bench." Now, I am not familiar with every judge on the federal bench, but it seems statistically unlikely that the three most pro-criminal and anti-victim of all federal judges would just happen to end up on the same bench. That doesn't even take into account the more normative idea that, according to J. Kennedy's opinion in Brown v. Plata, it is the California prison population that is the victim in this case. One could likely make a strong argument that the state of California, in violating the rights of the U.S. Constitution, is actually the criminal in this matter. From this view the three-judge panel would actually be very pro-victim and anti-criminal. But I suppose for the bias of your blog, your narrative fits better.

According to the defendant's "request for an extension..." filed 9/16/13, the state specifically asks that the 12/31/2013 deadline be extended to 12/31/2016 so that it can utilize the $315 million dollars set aside in SB 105 for in-state long term reforms. SB 105 was signed into law on 9/12/2013 as part of the budget, but the manner in which the money is used was made dependent upon whether the December 31st population-cap deadline remains in place. If the court extends the deadline, then the money will be used in-state to enact long-term reforms. If the deadline is not extended then "Defendant's will be forced to use the money appropriated under SB 105 to reach the 137.5% cap by sending thousands of additional inmates out of state." So, the request asks the panel to either extend the deadline another 2 years, or else money that could be used to benefit California will be spent out of state to comply with the original order. I would think that one should typically be skeptical of any request that asks for x, and says that unless you grant x I will do y. I do not claim to be privy to the entire details of this case, but the signing of the bill three months prior to deadline appears to be more of a political move then a genuine attempt at meeting the population cap.

The Court's response to the request "Order to Meet and Confer," filed on 9/24/2013, ordered that the parties meet and confer regarding the defendant's pending request for extension. To allow for this meeting between the parties to take place the court extended the deadline from 12/31/2013 to 1/27/2014. Since SB 105 was designed to meet the original deadline by automatically authorizing spending for out-of-state prison, the court, in extending the deadline only briefly, ordered that the state not enter into contracts to lease these facilities. This potentially allows for the parties to discuss between each other a deadline extension given the newly enacted SB 105 funding, while preventing those discussions from being undercut by the built-in time mechanism of SB 105. This very well may have been a political counter response to the state's filing.

On a side note, I find it interesting that you did not chastise Gov. Jerry Brown for his comments that "his administration will not comply with a federal court order rejecting his effort to avoid reducing California's prison population, pledging to litigate "until the Supreme Court tells us that we're not on the right track." I would imagine that a federal court order carries with it the authority of law, and thus refusing to abide by one would be an act in violation with the law. One might almost argue that the violator of said order might be a criminal, with California being the victim of Gov. Brown's actions. Take into account the 10/7/2013 court filing in which the state of California agreed to pay plaintiff's counsel $520,477.00 for plaintiff's billing statement for 4/01/2013-6/30/2013, and the monetary cost of Gov. Brown's defiance can be more easily seen. Unfortunately it is not so easy to calculate the cost of a Governor defying a federal court order issued on the grounds of constitutional rights. In hindsight, the defiance did not work out well for Gov. Orval Faubas, but I suppose even he had those in the legal field that supported his cause.

On a final note, if you are not already familiar with Roberts and Doob (1990) "News Media Influences on Public views of Sentencing," Law and Human Behavior 14(5): 451-68, I would highly recommend giving it a read. Their research in the area of media impacts on public perception of sentencing decisions says a lot about the effect that a blog like this one likely has on the public. However, based on the stated purpose of this blog, their findings of media bias favoring harsher sentences among readers would likely reinforce your style of low information posts.

The position of the three judges on the very end of the prisoner-favoring spectrum is not even debatable among people who are familiar with their records, built up among many cases over the years, not just this one. Heather MacDonald notes in the City Journal, "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.'" That is essentially the same thing I said. Your assertion that I am doing a disservice to the facts is nonsense.

The cap is entirely arbitrary, as explained in detail in MacDonald's article. There is nothing wrong with the legislature saying that if the deadline to meet this arbitrary lid is not extended, then California will be forced to resort to use of out-of-state facilities. Indeed, the only other way to meet the cap, unleashing dangerous criminals on the public, would be the height of irresponsibility.

The ban on entering into contracts has no legal basis. Among other issues, the Ex parte Young exception to the Eleventh Amendment prohibition of suing states in federal court is limited, and this injunction exceeds the limit by a country mile.

The foremost and simplest reason I did not "chastise" Brown for his comments is that I was not aware of them. Certainly, noncompliance is not an option. His prior request for a stay and appeal was denied on jurisdictional grounds, not on the merits, and the proper path is to seek a stay and reversal through the jurisdictionally correct mechanism.

I am flattered and amused that you think this blog is so influential as to have an effect on the public views of sentencing. Putting ego aside, however, I am skeptical of the assertion.

BTW, since you are signing in through Yahoo, which does not provide a recognizable user name, please "sign" your comments with an identifiable handle in the text. To follow the discussions, readers need to know which comments come from the same source.

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