"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.